Lewis v. Niagara Region Housing, 2009 HRTO 2031

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lewis

Applicant

• and-

Niagara Region Housing, Tim Zavitz and Wally Ramey

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: November 26, 2009

Citation: 2009 HRTO 2031

Indexed as: Lewis v. Niagara Region Housing

APPEARANCES BY

David Lewis, Applicant ) On His Own Behalf

Niagara Region Housing, Tim Zavitz ) Michael Kyne, Counsel and Wally Ramey, Respondents )

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”), on May 8, 2009, alleging that he suffered discrimination and reprisal in the area of goods, services and facilities on the ground of disability.

2The applicant is a tenant of the respondent, Niagara Region Housing. The personal respondents are both employed by the respondent landlord; Tim Zavitz as a property manager and Wally Ramey as an on-site superintendent.

3The Application alleges that the respondents discriminated against the applicant on the basis of disability by telling him not to use the laundry facilities in the building in which he resides after the posted hours and that he suffered reprisal because he was told that if he did not stop using the facilities after hours, the landlord would serve him with a “written notice”.

4The respondents take the position that they were unaware that the applicant had a disability or that he needed accommodation of his disability until served with the Application documents. They allege that the applicant’s need to use the laundry facilities after the posted hours appears to be unrelated, in any event, to his disability and they deny that they have reprised against him in any way.

5A hearing was held on November 3, 2009, at which time the applicant presented his evidence in support of the Application. The applicant did not call any additional witnesses in support of his case.

6At the conclusion of the applicant’s case, the respondent requested that the Tribunal dismiss the Application on the basis that the applicant has not established a prima facie case of discrimination to which it must respond. For the reasons that follow, the Tribunal dismisses the Application.

EVIDENCE

7The applicant testified that he has a number of disabling physical and psychological conditions that sometimes result in a decrease in his ability to function. He takes the position that the respondents knew that he had a disability because he is in receipt of benefits under the Ontario Disability Support Program (“ODSP”) and he is required, as a condition of continuing occupancy, to provide annual updated income information, which includes income from ODSP as well as employment.

8He acknowledged that specific information about his disabilities would not have been provided to the respondents when he commenced his tenancy, nor would it be information that would have been shared during annual updates.

9He further acknowledged that he had indicated that he was able to live without supports and that he had not outlined any specific requests for accommodation of his disability in his annual update documents.

10The applicant has been a tenant of the respondent landlord for approximately five years. He lives in a building which is part of a complex of five buildings, each of which has a laundry room. All the laundry rooms have posted hours of operation that are 8 a.m. to 9 p.m.

11The Ontario March of Dimes (“OMOD”) also rents space in the applicant’s building and provides support services to tenants in all five buildings in the complex. Included in the support services provided to its clients is laundry service for tenants who cannot do their own laundry as a result of their disabilities. The OMOD has an arrangement with the respondent landlord to use the laundry facilities after 9 p.m. in order that their bulk laundry usage does not inconvenience the other tenants in the building.

12The applicant testified that he has done his laundry after the posted hours on many occasions over the years that he has lived at his current address. It was only recently that he has had any difficulty. He explained that he has occasionally encountered OMOD staff after hours and that the issues that gave rise to this Application occurred after that contact.

13The applicant testified that one of his medical conditions causes him to cycle between long periods where he is unable to be active and lengthy periods of heightened activity. At the time that these events took place, in his view, he was functioning best at nighttime. His two part-time jobs required him to have clean clothes and he preferred to do his laundry after hours.

14He says he was approached by the personal respondent, Wally Ramey, who told him that there had been a complaint about him using the machines in the laundry room after hours, that he should stop this practice and that if he did not, Tim Zavitz would “write him up”. The applicant told Mr. Ramey that he did not intend to comply and that he should do what he needed to do.

15Following this encounter, the applicant received a voice mail message from Tim Zavitz that was replayed at the hearing. The phone message said that the property manager felt “they needed to have a chat” and went on to make the following points:

• there were posted times of use for the laundry facilities;

• the rule applied to all tenants;

• the OMOD had permission to use the facilities after hours for their clients who were tenants with special needs;

• the applicant was not to touch the OMOD’s laundry;

• one solution that Tim Zavitz would rather not use would be to lock the laundry facilities overnight;

• Tim Zavitz would serve the applicant with a written notice if he did not comply; and

• an invitation to call him back if he felt he needed to.

16The applicant testified that he did not call Zavitz back or have any further conversations with either of the personal respondents or any other staff working for the respondent landlord.

17Since that voicemail was sent, he has primarily done his laundry off site at additional expense and some inconvenience. He says he has done so because he felt his tenancy was in jeopardy because of the phone message and not because the respondents have told him to stop using the facilities. On one or two occasions, he says that he has used the facilities in the building and, in fact, has used them after hours, but only because of emergencies.

18He feels stress and anxiety and has not been himself since receiving the voice mail from Tim Zavitz. He feels that there has been a change in his relationship with the OMOD staff as they are now less friendly and neighbourly.

19When questioned, the applicant confirmed that he had not disclosed the existence or nature of his disability to the respondents other than through submission of his annual income information. He confirmed that he did not have any medical support for his assertion that he needed to use the laundry facilities during the nighttime hours. He also confirmed that he had not discussed his disability-related need to use the laundry facilities after the posted closing time with the respondents at any time during his tenancy leading up to the filing of this Application. Finally, he testified that he has had no conversations with the respondents concerning his need for accommodation since receiving the voice mail from Tim Zavitz. He said that he did not phone the property manager back because of the tone of his message and that he did not feel that Tim Zavitz sounded reasonable or that he would welcome the contact.

DECISION

20The applicant bears the onus of establishing a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536, at para. 28 a prima facie case was 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.

21It is not difficult to establish a prima facie case of discrimination. The Tribunal does not hold applicants to an exacting standard of proof at this stage of the proceedings, given the Tribunal’s access-to-justice mandate, and the longstanding interpretive principle of giving “large and liberal” meaning to human rights legislation: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114.

22Yet, where an applicant clearly fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the Application and to require the respondent to bear the onus of making out a reasonable defence: see Jagait v. IN TECH Risk Management, 2009 HRTO 779 at para. 19.

23I am satisfied, after hearing the evidence of the applicant, that he has not established an arguable case of discrimination and reprisal on the basis of disability.

24Even if one accepts that the applicant is a person with a disability as defined in the Code and that the respondent landlord ought to have known that he is a person with a disability because he was reporting that he received ODSP benefits, the nature of his disability, his need for accommodation and the connection between the disability and the accommodation sought were not, by his own admission, topics ever raised or discussed with any of the respondents.

25The conversation with the personal respondent, Wally Ramey, as described by the applicant, and the voice mail message from Tim Zavitz, that I had the opportunity to hear in full, were attempts by employees of the respondent landlord to communicate the landlord’s expectations with respect to the use of laundry facilities. The applicant did not raise his need for accommodation when the two personal respondents made contact with him. Neither did he contact anyone else in the respondent landlord’s offices. The conduct of the respondents cannot be seen to constitute reprisal against the applicant for attempting to enforce Code protected rights.

26For all of these reasons, the Application is dismissed.