Shehbaz Saleem v. Muzammil Parkhani, 2009 HRTO 1852

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shehbaz Saleem

Applicant

• and-

Muzammil Parkhani

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: November 3, 2009

Citation: 2009 HRTO 1852

Indexed as: Saleem v. Parkhani

APPEARANCES BY

Shehbaz Saleem, Applicant ) On his own behalf

Muzammil Parkhani, Respondent ) On his own behalf

INTRODUCTION

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that he suffered discrimination and reprisal in the area of housing on the grounds of race, citizenship and disability.

2The respondent is a university student who lives with his family and rents out the basement of the family home for income. The applicant resided in the respondent’s basement apartment between August 2007 and June 2008. The applicant alleges that the respondent discriminated against him by failing to address maintenance issues in the apartment in a timely manner, making unauthorized intrusions into the unit, stealing property, using racial epithets, and deliberately causing loud noises to harm his health and drive him out of the premises. He also alleges that the respondent colluded with a former landlord and with national security officials of various countries to undermine his immigration status, sabotage his employment prospects and adversely affect his health. He denies having a disability and alleges that the respondent deliberately tried to “create” a mental disability by using instruments of mind control. The applicant believes he was treated this way because he is South Asian, a citizen of Pakistan, a former resident of the United States, and a Muslim.

3The hearing into this matter was held on September 2, 2009. I heard evidence from the applicant, the respondent and the respondent’s brother, Mubashir Parkhani.

EVIDENCE

4The parties agree that the applicant signed a one-year lease to rent the basement apartment of the respondent’s family home in Markham on or around August 24, 2007. The applicant had recently moved to Toronto and testified that he had been looking for accommodation for some time. The applicant testified that from the time he moved in, he raised maintenance issues with the landlord related to the bathroom, bedroom and the electricity in the unit. He testified that the respondent undertook to fix the problems immediately but never did.

5Between September 2007 and February 2008, the applicant testified he was frequently travelling between Toronto and the United States, and that upon completing his move to Toronto in March 2008, he decided to insist on resolving the maintenance issues. Also beginning in March 2008, the applicant testified he began noticing strange occurrences he attributes to the respondent, as well as actions he felt were taken deliberately by the respondent to harass him. He testified that in early March he noticed that a number of financial documents were missing from his apartment and his rental car was broken into while parked in front of the house. In terms of direct harassment by the landlord, the applicant testified that the respondent threw loud parties that caused a significant disturbance, played loud music and used psychotronic devices to implant noises in the applicant’s head, and forced the applicant to park on the street where parking is not allowed, resulting in parking tickets. Meanwhile, the applicant testified he continued to try to have the outstanding maintenance issues addressed, but the respondent was uncooperative, instead threatening the applicant and using the epithet, “terrorist”, referring to his Muslim-South Asian origin.

6Shortly thereafter, the applicant testified he came to believe that the respondent was co-operating with security officials both inside and outside of Canada. He accused the respondent of fabricating a complaint to the police leading to the applicant’s false arrest. He also testified that the respondent colluded with the applicant’s former landlord in the United States to harass him, and took steps to prevent the applicant from obtaining employment in Canada. Further, he alleged that the respondent was involved in an attempt to steal his identity and drive him out of the rental unit. At the end of April 2008, the applicant testified he found a new apartment, signed a lease in May, and moved at the end of June 2008.

7The respondent’s evidence was that he is a university student who lives at home with his parents and siblings. Like the applicant, the respondent testified that he and his family are newcomers to Canada, of South Asian origin (being from India), and Muslim. He expressly denied being in any way connected to security officials in Canada or anywhere else, denied having any knowledge of psychotronic devices, and denied that he intruded into the applicant’s personal files or property. He further denied colluding with the applicant’s previous landlord or contacting prospective employers.

8The respondent testified that the first time the applicant raised any maintenance issues with him was on March 30, 2008 and that he immediately sought to address the issues, but that when he attempted to arrange a time for the work to be completed the applicant refused to give his consent for the workman to enter the premises. The applicant apparently commenced proceedings before the Landlord Tenant Board and a City Inspector inspected the premises identifying a number of areas of concern. The respondent testified that after securing access to the unit, he had the repairs completed within four days of the Inspector’s report. Although no action was taken to seek compensation from the applicant, the respondent was of the opinion that the “maintenance” issues were mostly the result of vandalism by the applicant himself. Proceedings before the Landlord Tenant Board substantially addressed these matters and I ruled that the issue as to whether the respondent adequately maintained the apartment was not properly before me.

9The respondent testified that on June 8, 2008, he and his brother were sitting in their living room when they heard two loud noises. They went outside and saw the applicant banging on the door between the house and the garage causing damage. He testified that when the applicant saw him, he ran to his car. When confronted, the respondent testified the applicant became agitated and said “what are you going to do, call the police? Go ahead and call them.” The respondent testified that he did contact the police but that the family decided not to press charges.

10The next night, June 9, 2008, at around 11pm, the respondent testified that he and his family were sitting in the kitchen when they heard banging on the floor from the basement, and shortly thereafter banging on the door between the basement and the house. The respondent stated he opened the door to discover the applicant standing with a hammer in his hand, seemingly out of breath, shouting and swearing, demanding that they stop making noises. The respondent testified that he and one of his brothers led the applicant down to the basement and shut the door out of concern for the safety of their family, apologized to the applicant, and then phoned the police.

11The respondent’s testimony regarding the events of June 8 and June 9 was corroborated by the evidence of his younger brother, Mubashir Parkhani, who testified that he witnessed both “banging” incidents.

ANALYSIS AND FINDINGS

12The relevant provisions of the Code provide as follows:

2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.

2(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

13The applicant bears the onus of establishing a prima facie case of discrimination, which can be described as a factual foundation for allegations which, if believed, provide a complete and sufficient basis for finding in the applicant’s favour, before considering any responding evidence. Only after the applicant establishes a prima facie case does the onus shift to the respondent to provide a credible and rational explanation, or raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination.

14Based on the evidence, I am not persuaded that the applicant’s allegations against the respondent are credible. There is no evidence, beyond the applicant’s own testimony, that the respondent was involved in any of the activities of which he is accused. There is no credible evidence to support the claim that the respondent colluded with the applicant’s former landlord, works for Canadian and foreign security intelligence agencies, deliberately used sound and psychotronic devices to implant noises in the applicant’s brain, obstructed the applicant’s job search, tried to steal the applicant’s identity, intruded without authorization into the applicant’s apartment and removed personal documents, broke into his rental car or made false allegations against him to the police.

15Even if any of the applicant’s allegations were credible, I heard no evidence of any connection whatsoever to a Code ground beyond the applicant’s allegation that the respondent referred to him as a “terrorist”, which the respondent denied and whose evidence I prefer. While the applicant alleged disability discrimination, he refused to self-identify as a person with a disability, and rather argued that the respondent tried to make the applicant believe he is disabled by putting noises into his head.

16In the absence of any credible evidence showing a connection between actions of the respondent and a Code ground, I must conclude that the applicant has failed to make out a claim that the respondent discriminated against him.

17For these reasons, the Application is dismissed.