HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julie Wasylnka
Applicant
-and-
Neda Bilich
Respondent
case Resolution Conference DECISION
Adjudicator: Jennifer Scott
Indexed as: Wasylnka v. Bilich
AppearanceS
Julie Wasylnka, Applicant ) On Her Own Behalf
Neda Bilich, Respondent ) Robert Bilich,
) Representative )
Background and Procedure
1This is an Application filed September 4, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on August 14, 2006 and abandoned upon filing this Application with the Tribunal.
2This hearing was conducted in accordance with the expectation expressed in the Code and the Tribunal’s Rules that section 53(3) applications proceed in a highly expeditious manner given that they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal.
3The hearing took place on January 12 and 26, 2009 and the following witnesses testified: Julie Wasylnka, the applicant; C. Birmingham, former co-worker; M. Bakowski, former co-worker, D. Jose, applicant’s domestic partner; Neda Bilich, the respondent; A. Divic, respondent’s brother; and Robert Bilich, respondent’s son and representative at the hearing. The Tribunal also accepted an affidavit of H. Lynch sworn November 8, 2006 and an affidavit of the respondent sworn on October 28, 2008.
Nature of the Dispute
4The applicant, who self-identifies as a lesbian, alleges that the respondent terminated her tenancy, in part, because of her sexual orientation. The respondent asserts that the applicant’s tenancy was terminated because she contravened the terms of the tenancy by possessing a cat in the rental unit.
Decision
5The Application is upheld. My reasons follow.
Chronology of Events
6In June 2005, the applicant and the respondent entered into a written and oral tenancy agreement for a one-bedroom apartment on the second floor of the respondent’s house (the “apartment”). The tenancy agreement provided for single occupancy, no parking and no pets.
7There is no dispute between the parties that the applicant was aware that the respondent prohibited pets in the apartment. The applicant testified that the respondent told her cats were smelly and messy and that the adjacent tenant (Mr. Lynch) was allergic to cats. The respondent testified that she told the applicant that she too has a serious allergy to cats. Whatever the reason, the evidence is clear that under the tenancy agreement between the parties, pets were prohibited in the applicant’s apartment.
8The house is divided into four separate units. The respondent and her son Robert Bilich reside in a unit on the first floor of the house. The applicant resided in a unit on the second floor. During the applicant’s tenancy, Mr. Lynch resided in another unit on the second floor. A third tenant resided in a unit on the third floor.
9Mr. Lynch and Mr. Bilich had parking spots in the back of the house. There are three parking spots at the front of the house, which the applicant believed were for guest parking. The respondent testified that the front parking spaces were to be used by family, although the respondent’s brother gave evidence that he did not use those spaces. The respondent testified that none of the tenants had guest parking privileges. It is unclear from the evidence before me who was permitted to park in the spaces at the front of the house.
10The applicant took possession of her apartment on July 1, 2005. The respondent believed the applicant was heterosexual because her “ex-husband” helped her move into the apartment.
11The respondent asserted that two weeks into the tenancy, the applicant advised her that she eventually wanted to bring a cat and a dog into the premises. The applicant denied this conversation.
12In August 2005, the applicant approached Mr. Lynch to see if he had any concern about her acquiring a cat because she was aware of his allergy. Mr. Lynch told the applicant that he could not provide permission on behalf of the respondent, but agreed to a three-week trial period.
13In September 2005, the applicant took possession of her old cat because her former spouse could no longer care for him. According to Mr. Lynch’s affidavit, he did not experience any foul odour, disturbance or interference with the reasonable enjoyment of the rental unit or common area due to the presence of the cat in the applicant’s apartment. My Lynch never complained about the cat to the respondent.
14In October 2005, Robert Bilich approached Mr. Lynch to determine whether he had any concern or objection to the applicant possessing a cat. Mr. Lynch told Mr. Bilich he had no objection. There is some dispute between the parties as to whether Mr. Bilich was aware that the applicant was already in possession of the cat or whether he simply knew that she wanted to bring a cat into the apartment. In either case, Mr. Bilich did not tell the applicant that she could not have a cat in her apartment. Neither party called Mr. Lynch to give direct evidence.
15The respondent was out of the country from August 10 to the end of November 2005.
16According to the respondent’s affidavit, upon returning to Toronto in late November 2005, she began to smell a foul odour in and around the stairway connecting to the first floor and second floor on her house. In addition, she began to experience symptoms characterized by coughing, tightness in her chest and sore eyes, to the extent that she had difficulty sleeping. The respondent testified that her symptoms were so severe that she relocated her bedroom to the back of the house. She testified further that around this time, she found cat litter in the garbage.
17In February 2006, the applicant started dating Ms. Jose, her current same sex partner. Ms. Jose started visiting the apartment in March 2006 and would spend the night a couple of times per week, approximately eight to ten times per month. Ms. Jose would park her car in the front of the house in one of the three parking spots. Ms. Jose would arrive in the evening after dinner and leave by seven o’clock the next morning.
18On March 11, 2006, the applicant testified that she asked Mr. Bilich if his friend, who was parked at the front of the house, could move his car slightly to enable her girlfriend to park there. This was the only time that she referred to Ms. Jose as her “girlfriend” to Mr. Bilich. Mr. Bilich denied that this conversation took place. He testified that he was out of the country from the middle to the end of March. There is no evidence that Mr. Bilich was not in Toronto on March 11, 2006.
19During the third week of March 2006, the respondent testified that she saw a black cat in the stairway on the second floor of the house.
20In the morning of March 24, 2006, the respondent confronted the applicant about having a cat in her apartment. The applicant could not speak to the respondent as she was on her way to work, but called her from work later that morning. The applicant testified that during the telephone conversation, the respondent told the applicant that she did not want the applicant to have a cat in her apartment. The applicant said she would move the cat. The respondent then told the applicant she was not comfortable with two women living together. The applicant told the respondent that she was not living with Ms. Jose. The applicant testified that the respondent said it would be okay if the applicant had a boyfriend, but that she was uncomfortable with two women living together. The applicant testified further that the respondent said “do you know how badly it reflected on me when you mentioned having a girlfriend in front of an old friend of the family”. Finally, the applicant testified that the respondent told her it would be better if she found somewhere else to live.
21During the hearing, the respondent testified that the presence of the cat was her only concern during the telephone conversation on March 24, 2006. In her affidavit, the respondent stated that in or around the third week of March 2006, she approached the applicant about having a cat on the premises and about having unauthorized overnight visitors in her rental unit. In the affidavit filed, it is clear that the respondent was concerned about the presence of a cat and about the presence of an unauthorized visitor at the apartment.
22On March 28, 2006, the applicant wrote to the respondent to address the concerns raised by the respondent during the telephone call on March 24, 2006. The applicant testified that she put the letter in the respondent’s mailbox. In this letter, the applicant advised the respondent that a provision in a tenancy agreement prohibiting the presence of animals in a residential unit was void under the Tenant Protection Act (now the Residential Tenancies Act). The applicant also advised the respondent that her comments about her girlfriend contravened the Code. The applicant provided the respondent with the telephone numbers of the Ontario Rental Housing Tribunal and the Ontario Human Rights Commission. The applicant ended her letter with the following statement: “It is my hope that this new information will be helpful to you and that we can continue to have a professional relationship in which both individuals are treated with respect”.
23The applicant testified that on April 21, 2006, the respondent approached her and asked why she had sent such a mean letter. The respondent told the applicant that she wanted to use the apartment for her own use and was giving the applicant two months’ notice to leave. The applicant requested a formal eviction notice. The respondent, in her evidence before me, denied receiving the March 24, 2006 letter.
24On or about April 22, 2006, the respondent advised Ms. Jose that she could not park in one of the spaces at the front of the house. This was the first time that Ms. Jose had been advised that she could not park in the front parking spaces.
25On or about April 27, 2006, the respondent delivered a Notice to Terminate a Tenancy Early on the basis that the applicant’s possession of a cat caused a human health concern for the occupants of the property and disrupted the reasonable enjoyment of the residential complex. The Notice required the applicant to move out of the rental unit by May 31, 2006.
26On April 29, 2006, the applicant removed the cat from her apartment. The applicant did not inform the respondent that the cat had been removed.
27The applicant disputed the proposed termination of the tenancy on May 17, 2006 by filing a Dispute of Application (the “Dispute”) with the Ontario Rental Housing Tribunal. In the Dispute, the applicant advised that the cat was removed within seven days of receiving the Application (May 3). The applicant also asserted the real reason for the eviction notice was because she is a lesbian. The Applicant testified that she did not provide a copy of the Dispute to the respondent because she was not required to do so. There is no requirement on the form requiring a tenant to provide a copy of the Dispute to a landlord. The applicant testified that she filed the Dispute because she needed more time to find a new apartment beyond the May 31 eviction date. The applicant stated she no longer wanted to live in the apartment.
28On May 29, 2006, the parties settled the landlord and tenant matter through the Ontario Rental Housing Tribunal’s mediation services. The applicant agreed to vacate the unit by July 1, 2006 and pay the rent owing for May 2006. The Ontario Rental Housing Tribunal did not make any findings regarding the merits of the application before it, including any human rights issue that had been raised.
29The applicant filed her complaint with the Human Rights Commission on August 14, 2006.
30On June 6, 2007, the respondent rented the applicant’s former apartment to a same sex couple. The apartment was renovated during the previous year and remained vacant.
31On September 4, 2008, the applicant filed her Application with the Tribunal under section 53(3) of the Code.
32On September 18, 2008, Mr. Bilich wrote to the applicant confirming receipt of her Application to the Tribunal and advising her that the respondent had taken serious offence to her allegations. Mr. Bilich told the applicant that if she continued to make “vexatious, frivolous and bad faith attacks” against the respondent, a civil claim would be commenced against her for “defamation; and aggravated, punitive and exemplary damages”.
33On October 14, 2008, Mr. Bilich wrote to Patricia Grenier, the Registrar-Transition of the Tribunal, seeking an immediate withdrawal of the allegations against the respondent failing which she would be “seeking general, aggravated, punitive and exemplary damages in a significantly sizable amount to reflect the enormity of the conduct and its results”. Mr. Bilich did not indicate from whom these damages would be sought.
34The Application was heard on January 12 and 26, 2009. The parties provided their closing submissions in writing. The applicant filed her submissions on February 2, 2009 and Mr. Bilich provided his submissions on behalf of the respondent on February 9, 2009.
35On February 23, 2009, Mr. Bilich wrote to Patricia Grenier advising her that the applicant made a false statement in her written submissions and during her testimony on January 12, 2009. Mr. Bilich advised the Tribunal that the applicant was challenged on “her position” during the hearing. There was no information provided by Mr. Bilich as to the nature of the evidence that he believed was false. This was the first time this allegation was raised by Mr. Bilich on behalf of the respondent.
Procedural Rulings
36Mr. Bilich objected to the filing of his correspondence to the applicant on September 18, 2008 and to Patricia Grenier on October 14, 2008 on the basis that it was protected by litigation privilege. I overruled Mr. Bilich’s objection. Litigation privilege protects documents that are created for the purpose of preparing for or conducting actual or contemplated litigation. It does not attach to documents threatening civil claims.
37I do not intend to deal with Mr. Bilich’s claim that the applicant gave false evidence during the hearing. Although I have no idea what evidence Mr. Bilich is referring to, he concedes in his communication to the Tribunal that he challenged the applicant on this evidence during the hearing. Mr. Bilich should have raised this issue with the Tribunal and with the applicant during the hearing or in his written submissions. He failed to do so. As such, I do not intend to deal with this allegation after the case has been closed.
Factual Findings
[38] While a formal Notice to Terminate the applicant’s tenancy was delivered on April 27, 2006, the issue of terminating the tenancy was raised in the telephone conversation between the applicant and the respondent on March 24, 2006. What was said by the respondent to the applicant during this conversation is the principal question that I must decide.
39The applicant testified that on the morning of March 24, 2006, the respondent approached her about having a cat in the apartment and threatened to sue the applicant for $10,000.00. The applicant could not speak with the respondent at that time and called her from work later that morning. The applicant testified that the respondent told her that she did not want the applicant to have a cat in her apartment. The applicant told the respondent that she would move the cat. The respondent then said she was not comfortable with two women living together. The applicant testified that the respondent said it was okay if the applicant had a boyfriend, but was not comfortable with two women living together. The applicant stated that the respondent asked her whether she knew how badly it reflected on her when the applicant mentioned she had a girlfriend in front of an old friend of the family. The applicant testified that the respondent said it would be better if she found somewhere else to live.
40The respondent admitted that she confronted the applicant about having a cat in her apartment, but denies she made any comments about the applicant’s girlfriend. She admits making a comment about $10,000.00, but stated she told the applicant that she would not have a cat in the home for $10,000.00. The respondent conceded that she told the applicant it would be better if she found somewhere else to live, but stated it was solely in reference to the cat.
[41] The task of evaluating credibility depends upon an evaluation of all of the evidence in the context of the events that occurred and the “preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions”: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A); Boldt-MacPherson v. The Hoita Kokora Centre, 2008 HRTO 25 at paras. 22 – 23. There are several factors that cause me to conclude the applicant’s version of events is accurate and the respondent’s evidence is not.
42Two of the applicant’s co-workers, Ms. Birmingham and Ms. Bakowski, overheard the applicant’s side of the telephone conversation. Both witnesses heard the applicant offering to rectify the cat problem. They also recalled the applicant clarifying with the respondent that the real issue was the applicant’s girlfriend staying overnight at the apartment. Ms. Birmingham testified that the applicant offered to rectify the cat problem and asked the respondent whether the problem was that a woman, and not a man, stayed at her apartment overnight. Ms. Bakowski testified that the applicant offered to get rid of the cat and asked whether it would be okay for her to have a boyfriend, but not a girlfriend. While the two witnesses recall different words used by the applicant or different parts of the conversation, the substance of the conversation is the same. Ms. Birmingham testified that after the conversation, the applicant told them she was being asked to vacate the apartment.
43The applicant recorded her version of the telephone conversation in a letter to the respondent a few days later. An excerpt of her March 28, 2006 letter is set out below:
The purpose of the letter is to address some concerns that you brought to my attention on Friday, March 24 regarding activities in my apartment. The first concern you noted was the presence of a cat. In researching this issue further in the Tenant Protection Act of Ontario I have determined that a “provision in a tenancy agreement prohibiting the presence of animals in the residential unit is void”. Therefore, I am allowed by law to have pet in my unit.
Another concern you addressed was the presence of female visitors. In particular you were not comfortable with my girlfriend spending time with me in my apartment. You made several homophobic statements towards me both during our conversation in the hallway and on the phone later that morning. You stated it reflected badly on you when I made a comment about having a girlfriend in front of your family friend. Further, you stated “it was okay if I had a boyfriend move in with me but you did not agree with two women living together”. Finally you suggested that perhaps I would feel better if I lived somewhere else.
This letter is referred to in the applicant’s human rights complaint dated August 14, 2006.
44The respondent denied receiving this letter, but provided no explanation as to why she would not have received a letter dropped in her mailbox. There was no mention of this letter in the respondent’s response to the complaint dated October 11, 2006, including a denial that the letter had been received.
45The respondent asserted that she confronted the applicant about the cat in January 2006, but the applicant denied having a cat in her apartment. I do not accept the respondent’s evidence in this regard. It is my belief that had this conversation occurred, the respondent would have referred to it in her response to the complaint and in her affidavit. There is no mention of this conversation in either of these documents. In fact, the respondent’s affidavit states she made repeated attempts to communicate with the applicant about the cat, but was unsuccessful in doing so prior to March 2006.
Was Sexual Orientation a Factor in the Decision to Terminate the Tenancy?
46It is a fundamental principle of human rights law that if a prohibited ground of discrimination is but one of the reasons for a decision or action, there is prima facie discrimination. In my view, the applicant has proven on a balance of probabilities that one of the factors in the termination of her tenancy was her sexual orientation.
47Mr. Bilich, who lived with the respondent, was aware in October 2005 that the applicant was in possession of or, at the very least, wanted to bring a cat into her apartment. When the respondent returned in November 2005, she had a severe reaction to what she believed was a cat on the premises. Her reaction was so severe that it caused her to move her bedroom to the back of the house. She found cat litter in the garbage. She testified that she believed one of the tenants had a cat in the building. I find that the respondent knew the applicant had a cat based on the following:
(1) Mr. Bilich would have told her about his conversation with Mr. Lynch in October 2005;
(2) she knew from her own discussions with the applicant early on in the tenancy that that the applicant wanted to have a cat (and a dog) in the apartment; and
(3) Mr. Lynch would not have possessed the cat given his severe allergy.
I therefore find that shortly after the respondent returned home in November 2005, she knew the applicant was in possession of a cat.
48Notwithstanding the respondent’s extreme reaction to the presence of a cat in her home, she did not confront the applicant about the cat until March 24, 2006, a few weeks after the applicant’s partner began spending the night several times per week. The respondent’s affidavit clearly states that she was upset about the cat and about the unauthorized overnight visitor in the apartment, a visitor who happens to share the same gender as the applicant. As stated earlier, I do not accept the respondent’s assertion that she confronted the applicant about the cat in December or January 2006.
49I accept the applicant’s evidence that she offered to rectify the cat problem on March 24, 2006, but it became clear that the real issue for the respondent was the fact that the applicant had a girlfriend who was staying over at the apartment. As the applicant noted in her testimony, she could fix the cat problem, but she could not fix her sexual orientation.
50There is no question that the respondent was very upset that the applicant breached the terms of her tenancy agreement when she brought a cat into the apartment. It is clear that the respondent believed the applicant had breached all three terms of the tenancy – no pets, no parking and single occupancy – when Ms. Jose stayed overnight and parked in the front of the house. However, because the respondent did not approach the applicant about the cat until Ms. Jose began spending the night, three or four months after the respondent was aware the cat’s presence, I find that the applicant’s sexual orientation was the catalyst for the respondent acting on the breach. In other words, the applicant’s sexual orientation was a factor in the respondent’s decision to terminate the tenancy agreement.
51The respondent relies on the fact that she rented the apartment to a same sex couple one year later as a defence to the complaint. In support of this defence, she submitted their tenancy agreement, along with highly personal documentation from their lawyer concerning one partner’s immigration status. When the respondent was asked how she became in possession of this information, she said the documents were left when the tenants vacated the space. While this is highly unusual, I do not need to make a finding about the legitimacy of this documentation because the fact that the respondent subsequently rented the apartment to a same sex couple, after she was in receipt of the applicant’s human rights complaint, does not mean she did not discriminate against the applicant one year earlier.
Remedy
52A human rights damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. Such an award requires consideration of a number of factors, including the overall impact of the discrimination on the applicant, her particular vulnerability and the frequency and duration of the infringement.
53In this case, although the offending conduct was the catalyst for terminating the tenancy, it is clear that the applicant was in breach of her agreement with the respondent. The applicant had the opportunity to cure the breach and did so, but failed to advise the respondent. The applicant decided to leave the apartment principally because of the comments made by the respondent during the course of one telephone conversation. The applicant testified that she pursued her human rights complaint because she “wanted to stand up for the right thing”. Without demeaning the importance of asserting one’s human rights, there is no evidence before me that this incident had a significant impact on the applicant. In light of these factors, I am awarding $2,000.00 in general damages.
54The applicant requested $2,345.95 in special damages for moving expenses incurred when she left the apartment. I am not awarding these damages. The applicant made the decision to leave the apartment. The applicant has not established that her home environment became so poisoned that she was forced to move. The applicant stated very clearly that the respondent was a good landlord, but for this one incident. The applicant’s decision to move was her own and she is not entitled to be compensated for it.
Order
55The Respondent is required to pay $2,000.00 to the applicant as monetary compensation for the injury to dignity, feelings and self-respect. Pre-judgment and post-judgment interest will be payable on that amount in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
Dated at Toronto this 9th day of March, 2009.
“Signed by”
Jennifer Scott
Member