Ignacio Drenic v. House of Friendship of Kitchener, Andrew Suderman, Carl Sukkau and Lester Murphy, 2009 HRTO 833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ignacio Drenic

Applicant

-and-

House of Friendship of Kitchener, Andrew Suderman, Carl Sukkau and Lester Murphy

Respondents

Case resolution conference Decision

Adjudicator: David Muir

Date: June 12, 2009

Citation: 2008 HRTO 833

Indexed as: Drenic v. House of Friendship

APPEARANCES BY

Ignacio Drenic, Applicant ) On his own behalf

House of Friendship of Kitchener, ) Theodore C. Dueck, Andrew Suderman, Carl Sukkau and ) Counsel Lester Murphy, Respondents )

1This is an Application filed October 22, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A Case Resolution Conference (CRC) was held in this case on June 1, 2009 in Toronto 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. I heard from the applicant, the personal respondent Carl Sukkau as well as Mr. Flaming an employee of the corporate respondent.

3The applicant filed his human rights complaint forming the subject matter of this Application (the "complaint") on or about October 29, 2007. In the complaint the applicant alleged that he had been subject to differential treatment in goods and services, accommodation and contract on the basis of age, citizenship, ancestry, race, ethnic origin, place of origin, sexual orientation, creed, family status, disability, marital status, receipt of public assistance, sex, sexual orientation. He also alleged breach of settlement and reprisal.

4The corporate respondent operates a shelter for homeless men. The applicant was a resident of the corporate respondent in January, February and April 2006. During his residence at the shelter in January 2006, he struck up what might appear to have been a friendly relationship with the personal respondent Mr. Sakkau which lasted until early May 2006.

5The allegations as articulated in the complaint were as follows:

a. Mr. Sukkau was very negative in his view toward the applicant. He quickly became abusive, told him that he was sort of homosexual because he did not have a girlfriend, wife or woman in his life, that God rejected the applicant because he refused God's creation and that his family had rejected him because he was immoral because he was gay.

b. Mr. Sukkau read the Bible to him each day and would tell the applicant that he was not complying with the requirement of the scriptures.

c. In a series of emails between them, Mr. Sukkau told the applicant he was bad and asked if the applicant was a Jehovah's witness.

d. Mr. Sukkau took pictures of the applicant and kept them posted in the shelter to assist the police in their investigations. Mr. Sukkau refused to pass on messages from the applicant's ODSP case worker.

e. Mr. Sukkau required the applicant to give him gifts and to pay him money to stay in the shelter.

f. When he was asked to leave the shelter, nothing was done to assist him in finding a new home. When he asked for help, Mr. Sukkau responded that he should ask God for help in finding another shelter.

g. The personal respondent Lester Murphy made inappropriate sexual remarks in the applicant's presence which he later concluded might have been a sexual come-on.

6The respondents state the allegations, even if accurate which is denied, do not disclose a prima facie case of discrimination. At best (or worst) the complaints may suggest a need for training for caseworker staff in how to manage relationships with residents of the shelter. The respondents state that the complaint contains no allegation that the applicant was denied services or received less service or different service than any of the other clients of the corporate respondent.

7The respondents state that the Application is out of time in that it was filed more than six months after the last alleged incident. The respondents state that no reason has been given for the delay in filing the complaint.

8Mr. Drenic self identifies as born in Croatia and a person with a disability. He is unable to work and he was in receipt of Ontario Disability Support Payments at the time of the events giving rise to this complaint. He has had to make use of homeless shelters at various times over the past seven or eight years. He has been a resident of the House of Friendship in 2001 and then again in January, February and April 2006. The allegations in the complaint arise out of these latter stays in 2006.

9At the core of this Application are the related allegations that the applicant was asked to leave the hostel on January 31, 2006 without good reason and was offered no assistance in finding a new place to sleep and that he gave gifts to Mr. Sukkau as a condition of remaining resident in the hostel.

10At the CRC the applicant testified that he gave the gifts in the hopes of remaining a resident. He was unable to say when he gave the gifts, which comprised two fish, two bottles of wine and a bag of chicken bones. He agreed that Mr. Sukkau at no time requested the gifts or implied that they were required in order to stay in the shelter. There is no evidence that the gifts were sought by Mr. Sukkau or tied in any way to remaining as a resident of the hostel.

11The applicant states that he paid Mr. Sukkau for his time taking photographs of him around the shelter and at various locations around Kitchener in April 2006. Mr. Sukkau agrees that he did take a number of photographs of the applicant at his suggestion and acknowledges the applicant offered him money for his time. He initially refused, but when the applicant insisted took the money and donated it to the House of Friendship in the applicant's name. There is no evidence that these events were anything more than an aspect of the friendly relationship that developed between these two men. This evidence does not support finding the applicant was treated differently in accessing the services of the corporate respondent.

12When asked to leave the hostel the applicant had been resident for 27 days, longer than the great majority of residents. The uncontradicted evidence of the respondents is that the House of Friendship provides short term emergency housing for men in a hostel environment. Virtually all of its residents leave within a month of arrival. The majority are resident for less than 10 days. The only exceptions to this would be residents who are incapable of caring for themselves and who are waiting for placement in a long term care facility or are in need of other care.

13Upon admission the new resident is assigned a caseworker who, amongst other things, works with the resident to develop a Case Plan to leave the hostel. Although the corporate respondent would prefer that the development of the Case Plan be a collaborative effort, at the end of the day whether the resident likes it or not, the Case Plan will always have an end date and except in exceptional circumstances described above, will contemplate the resident leaving after two to three weeks or at most a month of residence. The respondents state that the discharge date for a resident is most often tied to the receipt of income such as an ODSP payment , or a paycheque etc.

14The precise details of the Case Plan as it related to the applicant are unknown. If there was a record of his Case Plan, it would have been destroyed within months of his leaving the shelter. Extant records filed by the corporate respondent indicate that the respondents knew that the applicant was awaiting his ODSP payment at the end of January 2006. The respondents state the applicant should have been made aware more than once of the fact that he would be required to leave when he got his ODSP at the end of the month.

15The applicant denies that there ever was a Case Plan and states that it was a surprise when he was asked to leave on January 31, 2006. He does acknowledge receiving his ODSP on January 30.

16On this point, I prefer the applicant's evidence. His evidence was generally truthful and there was little basis for challenging the veracity of his evidence in this regard. The respondents simply could not remember and were relying upon what ought to have been done and what they should have said.

17However, whether there was a Case Plan or whether it was clearly communicated to him, it is uncontradicted that the trigger for the applicant's departure was receiving his ODSP payment at the end of the month of January. At that point he would have been resident from January 4 to January 31, 2006 longer than almost all residents. The applicant was not, nor is he now, a person who is incapable of caring for himself or in need of assistance with the activities of daily living. Accordingly he was told, likely by Mr. Sukkau, and possibly on short notice that he had to leave on January 31.

18The applicant alleges that the House of Friendship had an obligation to assist him in finding an alternative shelter and did not. When he asked for assistance he alleges Mr. Sukkau said that God would help him. If such a thing was said in the manner suggested it would be insensitive of Mr. Sukkau. However, given their ongoing relationship it seems unlikely the applicant is remembering that interaction accurately. In any event, nothing in this event amounts to a violation of the Code.

19The applicant stated that he wanted to establish a residence in the Kitchener-Waterloo area and return to school. He thinks it unfair and illegal that he was asked to leave the hostel on January 31, 2006. He stated that the House of Friendship was obligated by law to find him an alternative placement when it asked him to leave. In this regard he relied upon a document entitled Toronto Shelter Standards which he obtained from the City of Toronto website and provided immediately after the hearing.

20I have reviewed the Toronto Shelter Standards. The respondents also provided a policy document informing its operations – the Waterloo Region Emergency Shelter Guidelines. I accept the applicant's evidence with respect to the policy and practice in the Toronto shelter system. However, I also find that those policies do not apply to the House of Friendship. While he suggested that the Council of the Ontario College of Social Workers and Social Service Workers would have made the regulations which are applicable across the province, he was unable to point to any law that would require the same standards of the House of Friendship located in a different municipality.

21The policy document respecting the operation of shelters in the Waterloo Region does not contain any language preventing the corporate respondent from asking the applicant to leave when it did. For example:

3.1.5 Length of Stay

There is no standard length of stay in the Shelter system. Length of stay is based on individual shelter policy, A copy of Shelter's length of stay policy will be on file with the Region and re-submitted if revised. When residents reach the length of stay limit, they may be asked to leave the shelter.

Analysis

22The Application is dismissed.

23There is no evidence of a contract between the applicant and either personal respondent within the meaning of s. 3 of the Code, or of any settlement that might have been breached nor is there any evidence that would support a finding of a reprisal under section 8 of the Code. Accordingly, those aspects of the Application are dismissed.

24I find that the decision to ask the applicant to leave the House of Friendship was made in accordance with the policies and practices of the corporate respondent and was not made for any reason related to any of the alleged grounds of discrimination. The applicant's discharge may have caught him off-guard, but there is no evidence that would support a finding that the fact of his being asked to leave or the manner in which the decision was made is in violation of any provision of the Code.

25The applicant agreed that he could not say that he was treated differently than anyone else in terms of services offered by the House of Friendship, rather he stated that the shelter system as a whole is abusive. This may be so, but as regards these respondents this fact does support the conclusion that they have violated the applicant's rights under the Code.

26The applicant stated that he objected to the religious discussions he had with Mr. Sukkau. Mr. Sukkau agreed the two men had many such discussions, but said that the applicant initiated these discussions. They began in the shelter during January and continued via email through February and March. Regardless of who initiated the discussions, there is nothing in the Code preventing these two men from having such discussions so long as they did not result in the applicant being subject to differential treatment on the basis of creed. There is no evidence that he was subject to differential treatment in any respect. I also find the applicant's participation in these discussions was un-coerced and voluntary and had no consequences one way or the other in his accessing the services provide by the respondents or in his treatment by them.

27It is also clear from the evidence at the CRC that the applicant has a great concern about being identified as gay. He gave evidence to the effect that he is subject to harassment by gay men frequently. He also testified that he is also able to identify a gay man within moments of any contact. He says that he is vigilant to identify gay men in order to protect himself from their unwanted attention. This is a matter of concern for him and it became part of the discourse that went on between him and Mr. Sukkau. It was agreed that the applicant began this thread of their discussion.

28The applicant stated that Mr. Sukkau described him as being "like a gay" because he did not have a female partner at the time. Mr. Sukkau testified that he did recall some discussion wherein he attempted to get the applicant to think about the fact that gay men were a marginalized and oppressed group in our culture and reflect on how he might identify with their plight. It is more likely than not that Mr. Drenic misunderstood what he acknowledges were one, perhaps two comments, in an extended dialogue between the two men that was unconnected to any of the services provided by the respondents. In particular, I find that Mr. Sukkau did not say that the applicant was gay, or like a gay. In any event there is no evidence the applicant was subject to differential treatment in any respect as a consequence of these discussions.

29The allegations that Mr. Murphy said some things the applicant later perceived to have possibly been a sexual come-on must also be seen in the context of this overweening concern that he not be perceived as gay. In any event the applicant agreed that Mr. Murphy did not treat him any differently than any other resident before or after the alleged incident.

30For all of these reasons the Application is dismissed. Having dismissed the Application on this basis there is no need to consider the argument of the respondents that the Application is out of time.