Elizabeth Carlos v. 1174364 Ontario Ltd. and Manuel Ferreira, 2009 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Carlos

Applicant

-and-

1174364 Ontario Ltd. and Manuel Ferreira

Respondents

CASE RESOLUTION CONFERENCE Decision

Adjudicator: Kaye Joachim

Date: March 18, 2009

Citation: 2009 HRTO 311

Indexed as: Carlos v. 1174364 Ontario

AppearanceS BY

Elizabeth Carlos, Applicant ) Daniel Noronha

1174364 Ontario Ltd. and Manuel Ferreira, )

Respondents ) Hugh R. Scher, Counsel )

1This is an Application filed on August 11, 2008 under section 53(3) of Part VI of the Human Rights Code. The underlying complaint was filed by the applicant with the Ontario Human Rights Commission on November 6, 2007 and abandoned upon the filing of this Application.

2This hearing was conducted on March 6, 2009 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 they are often based on complaints, like this one, which are nearly a year old by the time they reach the Tribunal.

3The applicant alleges that the personal respondent, Manual Ferreira, the building manager in the applicant’s apartment, sexually solicited her on August 5, 2007, made sexually demeaning comments during a conversation on September 17, 2007, and issued notices of eviction because she objected to his conduct. She also alleged that the notices of eviction under the Residential Tenancies Act, 2006 contained sexually demeaning comments.

4The respondents deny that any sexual solicitation or sexually demeaning conversation took place on August 5 or September 17, 2007. The respondents further assert that the Notices of Termination are subject to absolute privilege and were filed solely in response to tenant complaints.

Preliminary Matters

Request to Bar Representative

5On February 10, 2009, the respondents filed a Request seeking to prevent the applicant’s common law spouse, Daniel Noronha, from representing the applicant at the Case Resolution Conference. In a Case Assessment Direction issued February 23, 2009, I refused this Request. These are my reasons.

6The respondents’ Request was based on the following alleged misconduct on the part of Noronha:

• Noronha lied to the Landlord and Tenant Board (LTB) when he denied having previously been involved in any eviction proceedings;
• Noronha has a criminal record;
• The police had been called on numerous occasions because of the conduct of Noronha while living at the premises at issue in this proceeding;
• Noronha had intimidated witnesses to the LTB proceeding;
• Noronha had threatened the respondents’ counsel with complaints to the Law Society;
• Noronha had threatened to report the personal respondent’s wife to the Real Estate Board;
• Noronha had threatened to take proceedings against the Vice-chair of the LTB for allegedly tampering with the record of proceedings and intimidating unrepresented parties;
• Noronha may have complained to the police about the respondents’ counsel;
• Noronha may have made a fraudulent request to the Document Search House to obtain a corporate profile report with respect to the corporate respondent;
• Noronha had failed to comply with an undertaking to deliver a copy of the CD from the LTB proceeding;
• Noronha has a criminal conviction for assault against the applicant;
• Noronha may be a witness in the applicant’s proceedings.

7The respondents asserted that the above conduct demonstrates that Noronha does not understand his obligations as an advocate to represent his client’s interests honestly and with integrity and to act with courtesy and respect, free from threats and intimidation. They also asserted that it would be inconsistent with the purpose of the Code to condone representation of an applicant by an individual with a demonstrated history of undermining the applicant’s personal dignity, equality and worth.

8The Tribunal has the authority to exclude from a hearing a non-licensed representative if such a person is not competent to properly represent a party or does not understand and comply with the duties and responsibilites of an advocate or advisor. The Tribunal also has authority to take any action to prevent an abuse of its processes, which in my view authorizes the Tribunal to restrict the participation of any representative if their participation amounts to an abuse of the Tribunal’s processes.

9The evidence filed by the respondents in support of the above allegations does not support their allegations. For example, the respondents did not provide Noronha’s alleged criminal record. The allegations about his testimony at the LTB hearing are based on assertions and, although a witness claimed she was afraid, there was no evidence he had threatened the witness in the LTB proceeding. The alleged “threats” against respondents’ counsel and the personal respondent’s wife were letters stating the applicant’s intention to make complaints to those bodies. While police records confirm the police twice attended to investigate alleged yelling from the applicant’s apartment, I fail to see how that evidence reflects on Noronha’s competence or suitability to represent the applicant.

10The only issue which gives me any concern is the assertion that Noronha was likely to be a witness in the hearing and had failed to produce a document in a timely fashion. On the latter point, I note that few representatives, paralegals, or lawyers would be permitted to appear before this Tribunal if failure to adhere strictly to every deadline set by the Tribunal amounted to an abuse of process.

11With respect to the possibility that Noronha would become a witness in this matter, in my view, ensuring accessibility of our proceedings requires that the Tribunal remain flexible on these issues. Excluding all representatives on the basis that they may also give evidence in a proceeding would be unduly formalistic and serve as an unnecessary barrier to participation in our proceedings. As it turned out, Noronha did not give evidence in any event.

12Finally I note that the respondents had ample time to raise the issue of Noronha’s representation and failed to do so until 24 days before the scheduled hearing. In my view, a request to bar a representative from appearing at a hearing should be raised at the earliest opportunity, which was not done in this case.

13For the above reasons, I refused the respondents’ request to bar Noronha from representing the applicant in these proceedings.

Privilege over Statements Contained in the Notice of Termination

14The respondents asserted absolute privilege over the contents of the Notices of Termination filed with the LTB. In accordance with my power to determine the order in which issues would be determined, I asked the parties to address this issue as a preliminary matter.

15It is well established that privilege attaches to statements made in formal pleadings in civil actions. That privilege has been extended to statements made in the equivalent of pleadings in administrative proceedings, as well as to letters of complaint which lead to the initiation of legal proceedings: Sussman v. Eales [1986] O.J. No. 317 (Ont. C.A.); Hamalengwa v. Duncan 2005 CanLII 33575 (ON CA), [2005] O.J. No. 3993 (Ont. C.A.). It also covers statements made during an investigation (Byrne v. Maas 2007 CanLII 49483 (ON SC), [2007] O.J. No. 4457) as well as evidence of witnesses in a legal proceeding (Web Offset Publications Ltd. v. Vickery (1998) CanLII 14858 (Ont. SC).

16In my view, this privilege applies to the Notices of Termination filed by the respondents with the LTB, just as it applies to statements made by the applicant in the current Application filed with this Tribunal. One of the purposes of the privilege is to prevent persons from hesitating to assert allegations out of fear that their assertions, if not subsequently accepted in a legal proceeding, could be used as a basis of a defamation or other legal proceeding. The privilege protects all persons involved in legal proceedings, including proceedings before the LTB and this Tribunal.

17Accordingly, I find that the statements made in the respondents’ Notices of Termination are privileged and cannot be relied upon to found an alleged breach of the Code.

Expanding the Scope of the Application

18In her statement of additional facts, the applicant sought to expand the scope of the original complaint to encompass an inquiry into whether the respondents acted appropriately in the face of complaints by tenants alleging that the applicant was engaged in illegal behaviour, including prostitution. I ruled that as these allegations did not form part of the original complaint they would not be considered in deciding this Application.

Evidence

19In May 2007, the applicant and Noronha began a one year tenancy of an apartment owned by the corporate respondent and managed by the personal respondent.

20Soon after, other tenants began to complain about the applicant, Noronha and their visitors. The tenants were told to put their complaints in writing. Three did so between July and September 18, 2007 and several more tenants filed written affidavits for the LTB hearing. All asserted the actions of the applicant and Noronha were substantially interfering with the reasonable enjoyment of their premises and some suggested the applicant was engaging in prostitution.

21By August 2007, the applicant was in substantial arrears of rent and Ferreira issued a Notice of Termination for non-payment of rent.

22The applicant testified that on Sunday August 5, 2007 she ran into Ferreira at about 11:00 in the morning when she was taking her dogs out for a walk. Although she had never been formally introduced to Ferreira, she knew who he was because he was generally around the apartment. They began a discussion about the rent owing and she apologized and stated that they needed more time to come up with the money. Ferreira then looked her over in a sexual manner and stated that there was something she could do for him, with her hand or mouth or touching and he could possibly lend them the money to pay the rent. She was surprised and embarrassed. After that she was careful to avoid all contact with him.

23Ferreira not only denies this but denies that he was at the premises on that day, and further denies that he ever attended the premises on Sundays. Arsenio and Elizabeth Castillo testified that Ferreira never worked Sundays. Ferreira’s wife testified that Sunday mornings she attended church with her husband and they spent the day together.

24Ferreira testified that on September 1, 2007, he received a telephone call from the applicant advising that she was ready to make a payment on the rent owing. Ferreira and Arsenio Castillo testified that they went together to the applicant’s apartment and she paid them some money towards the rent and Ferreira gave her a receipt. Despite the payment, the applicant and Noronha remained in arrears. Ferreira testified that this was the first time he met the applicant. Both men testified that the applicant did not appear uncomfortable. The applicant did not disagree with this evidence.

25On September 17, 2007, the applicant alleges Ferreira called about the ongoing rent arrears. During the conversation she claims Ferreira got upset, asking if they thought they could live there free and became abusive allegedly suggesting she dressed like a prostitute and had offered him sexual favours. The applicant allegedly warned him to watch his tone because of what had happened. The applicant testified that the conversation ended when she threatened to sue Ferreira at the LTB. She clarified that when she said “sue” she simply meant that she would do something to hold him accountable for the way he treated her.

26Ferreira denies speaking to the applicant in such a manner and denied generally that he would speak to anyone in that fashion.

27The applicant testified that she told Noronha what had happened earlier that day and also of the August 5, 2007 incident. Noronha was so furious he did not take the phone when the respondent called back the next day.

28On September 18, 2007, the applicant alleges that Ferreira telephoned the applicant and offered to forego the rent owing and to pay first and last months rent if the tenants would move out. The applicant believed that Ferreira was trying to stop her from mentioning the sexual harassment allegations. When she refused to accept the offer, he got upset and hung up.

29On September 18, 2007, the applicant alleges that Ferreira delivered a Notice of Termination to terminate the tenancy on the basis that the tenants had substantially interfered with the reasonable enjoyment of the landlord and other tenants. The applicant testified that she believed that Ferreira was motivated to initiate the eviction proceedings by her threat to expose his sexual solicitation.

30On September 19, 2007, Noronha filed a counter Application with the LTB alleging harassment by the landlord.

31On November 6, 2007, the applicant filed the complaint which underlies the current Application.

32A hearing into the landlord’s request to evict and Noronha’s counter application of harassment was heard over three days in November and December 2007. The landlord’s application to terminate the tenancy early because of substantial interference with the reasonable enjoyment of the landlord or another tenant was upheld. The application by Noronha for substantial interference, harassment, obstruction, coercion, threats and interference by the landlord or landlord’s agents was dismissed. The decision of the LTB was issued on January 21, 2008. A request for reconsideration was denied on February 4, 2008.

Analysis of the Evidence

33For the following reasons I find that the evidence of the applicant is not reliable.

34I accept the evidence of the respondents’ witnesses that Ferreira never worked Sundays. I note that the superintendents no longer worked for the respondent and had no reason to tailor their evidence to support a former employer. While these witnesses could not testify with certainty about August 5, 2007, which was approximately 18 months earlier, I find that this enhanced, rather than detracted from their credibility.

35Even if the applicant is mistaken about the solicitation occurring on a Sunday, she did state the event occurred the first time she met Ferreira. I find that it is not in keeping with the preponderance of probabilities that Ferreira would have solicited the applicant out of the blue the first time they met. Ferreira had been managing properties for many years and it would have been extremely unwise to make such a comment to a person he did not know without any knowledge of how she would react.

36I also find the applicant’s alleged subsequent attempts to avoid Ferreira inconsistent with the fact that she delivered the rent arrears to Ferreira on September 1, 2007 without any hesitation or discomfort.

37Ferreira and the Castillos testified that Ferreira had never once in the course of their two year working relationship offered to forego the rent and pay a tenant’s first and last months rent in return for the tenant voluntarily vacating the premises. I find that it is not in keeping with the preponderance of probabilities that Ferreira would have made such an offer or that the applicant would have turned down such an offer when she testified that she felt extremely uncomfortable in the presence of Ferreira.

38I find the applicant’s continued assertion at the hearing that Ferreira had filed the Notice of Termination on September 18, 2007 because she had threatened to sue him unbelievable. The material before me (which the applicant conceded she had reviewed before the hearing) demonstrated conclusively that tenants had complained strongly about the applicant and Noronha. In July 2007, Elizabeth Castillo called the police due to the yelling in the applicant’s apartment and the police attended. Another tenant testified that she had also called the police before September 18, 2007.

39Finally, I note that Noronha did not testify with respect to when he learned of the alleged incident of sexual harassment and solicitation or the applicant’s response to them. I have drawn an adverse inference from his failure to testify.

40Having concluded that the applicant’s evidence is not reliable, I conclude that the applicant has not established that Ferreira made the sexual solicitation or the sexually demeaning comments as alleged.

41The evidence is persuasive that the complaints from tenants prompted the Notice of Termination filed September 18, 2007 rather than any concern by Ferreira that the applicant would expose him for alleged sexual harassment.

Order

42For the foregoing reasons, the Application is dismissed.