HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Phillip Patterson

Applicant

-and-

Ottawa Community Housing Corporation

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: May 11, 2010

Citation: 2010 HRTO 1074

Indexed as: Patterson v. Ottawa Community Housing Corporation

Appearances

Phillip Patterson ) Joshua Cohen,

Applicant ) Representative

Ottawa Community Housing Corporation, ) Laura Clark,

Respondent ) Counsel

[1] This is an Application filed on December 7, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination in housing, goods, service or facilities, on the grounds of sexual orientation, family status and marital status. A hearing took place on April 7, 2010 in Ottawa, Ontario.

[2] The Application arises out of the death of a man named Richard Nowe in December 2007. The applicant testified that he had been in a long-term relationship with Mr. Nowe for approximately 30 years. At the time of his death, Mr. Nowe was living alone in an apartment managed by the respondent Ottawa Community Housing Corporation (OCHC). The applicant alleges that the respondent failed to treat him as Mr. Nowe’s spouse and, as a result, the biological family of Mr. Nowe took control of the apartment and Mr. Nowe’s remains. In addition to the significant emotional loss experienced by the applicant who was, in his words, “shut out” of the final arrangements for Mr. Nowe, the applicant alleges that he lost his own family heirlooms and other personal property which were kept in Mr. Nowe’s apartment.

[3] Linda Wallingford, Tenant and Housing Manager for the respondent, testified that unfortunately the respondent had no knowledge of any relationship between the applicant and Mr. Nowe either before or after Mr. Nowe’s death. It was not until the filing of this Application that the respondent had any information about the relationship. The respondent did not, however, contest the applicant’s evidence that he and Mr. Nowe had been involved in a relationship for approximately 30 years.

[4] A number of preliminary issues were disposed of by way of interim orders on July 13, 2009, [2009 HRTO 1033](https://www.minicounsel.ca/hrto/2009/1033) and August 24, 2009, [2009 HRTO 1304](https://www.minicounsel.ca/hrto/2009/1304). The decisions clarify that the only proper respondent to this Application is the OCHC.

[5] The narrow legal question engaged by this Application is whether there was any reasonable basis for OCHC to know about the relationship between Mr. Nowe, such that it could have acted in a manner to protect the applicant’s rights as Mr. Nowe’s long-term partner.

[6] The hearing took approximately 3 hours. The Tribunal heard evidence from the applicant as well as 3 witnesses from the respondent. The applicant and his friend, Mr. Cohen, who assisted him, are both hearing impaired and I am grateful to Ms. Bath and Ms. Cambria who provided ASL translation support during the hearing. Both Mr. Cohen and the applicant indicated that they were using a combination of lip-reading and translation when others spoke. Both spoke directly to the Tribunal rather than using translation when it was their turn to speak. As a result, I heard the complainant’s evidence and Mr. Cohen’s questions and submissions without the assistance of translation.

[7] Despite the tragic nature of this case, I must conclude that there was no reasonable basis for OCHC to know anything about the relationship between Mr. Nowe and the applicant.

[8] The parties acknowledged that the applicant and Mr. Nowe lived in separate units, operated by the respondent in different parts of the City of Ottawa and that neither of them advised the respondent of the nature of their relationship at any time. The parties agreed that there were no references to either Mr. Nowe or the applicant in any of the various tenancy documents they updated and signed on an annual basis stretching back to 1994.

[9] The parties agreed that the applicant and Mr. Nowe each declared on an annual basis that they lived alone and neither listed the other as an emergency contact. The only exception to this, according to Mr. Cohen, is that Mr. Nowe used an alias for the applicant, listing him as the emergency contact using “Mrs. Patterson” or some variation of the name McKinnon in the years 1994, 1996 and 2007. The emergency contact was not a factor in any event since it was Mr. Patterson who first contacted the police about his concerns about Mr. Nowe’s well being.

[10] The parties also agree that at no time, including the period of time surrounding the death of Mr. Nowe, did the applicant inform the respondent that he was in a relationship with Mr. Nowe nor did he request access to Mr. Nowe’s apartment to retrieve any items that may have belonged to him.

[11] The events leading up to the discovery that Mr. Nowe had passed away are similarly not disputed. The applicant testified that he became concerned about Mr. Nowe when he had not heard from him for several days. He contacted the call centre for the respondent and asked them to conduct a “wellness check”. He also called the police and asked them to do the same. The applicant testified that he did not tell the respondent or the police at that time that he and Mr. Nowe were in a relationship. Two officers attended at the applicant’s residence later that day to advise the applicant of Mr. Nowe’s death and at that time, the applicant disclosed that he and Mr. Nowe had been in a long-term relationship.

[12] The applicant immediately contacted Mr. Nowe’s mother, Selma Nowe, to inform her of the death of her son. The applicant testified that he hoped that the biological family of Mr. Nowe would collaborate with him in dealing with Mr. Nowe’s remains and the disposition of his property. However, the applicant testified that he was completely “shut out” by the other family members, to the point that he was advised by Ottawa Police Service to stay away from the family or he would be charged with harassment. He was not advised of any service for Mr. Nowe, the place where he was ultimately buried, nor did he participate in the disposition of the property which included many of his own personal items and family heirlooms.

[13] The applicant testified that he told the police that he and Mr. Nowe were “old lovers” and this is reflected in a police report from December 6, 2007 which was produced by the applicant. The applicant admitted, however, that he did not tell anyone at OCHC about his relationship with Mr. Nowe nor did he ask OCHC at any time for access to Mr. Nowe’s apartment in order to retrieve his items.

[14] Ms. Wallingford testified that a call was received on December 6, 2007 by the respondent’s call centre from the Ottawa Police Service who requested access to Mr. Nowe’s unit. Mr. Simoneau, who worked in maintenance at the time, testified that he met the police at the apartment and gave them access to the unit. Mr. Simoneau testified that he never entered the unit and that another employee named Denis Cleroux, who was with him at the time, was sent to the district office on Murray Street in Ottawa to get the tenancy file for the police. The file was delivered to the police at Mr. Nowe’s apartment shortly thereafter by Fred Lorquet, the Tenant and Community Worker. Both Mr. Simoneau and Mr. Lorquet testified that they had no knowledge of the relationship between Mr. Nowe and the applicant and they could not remember the police mentioning the applicant at all.

[15] Ms. Wallingford testified that the next contact the respondent received was from Mr. Nowe’s mother who lived in Nova Scotia. It was Ms. Nowe who advised the respondent that Mr. Nowe had passed away and that members of the family would be coming to take care of his belongings. Ms. Nowe did not mention the applicant during that call.

[16] Mr. Simoneau was asked by Mr. Cohen about Mr. Nowe’s belongings. Mr. Simoneau testified that, about two weeks after his death, Mr. Nowe’s sister came from Nova Scotia and dealt with Mr. Nowe’s belongings.

[17] The difficulty for the applicant, who was completely forthright in his testimony, is that there is no evidence that the respondent had any knowledge of his relationship with Mr. Nowe. In addition to the various tenancy documents they each signed, the applicant testified that his partner was very private and asked him not to tell other people in the building about their relationship. He was required, for example, to pretend that he was Mr. Nowe’s brother to Claire and Gerry Letang who were the superintendants of Mr. Nowe’s apartment building.

[18] I gave Mr. Cohen the opportunity to point out to me the evidence which he felt supported the argument that OCHC knew about the partnership between the applicant and Mr. Nowe. He pointed to tenancy agreements going back to 1994, 1995 and 2007 where Mr. Nowe had listed the applicant as an emergency contact using an alias such as “Mrs. Patterson”, or “P. McKinnon”. At the time of his death in 2007, Mr. Nowe had listed “Lynne McKinnon” as his emergency contact which was apparently an alias for Mr. Patterson. In my view, it is not reasonable to expect that OCHC would have been able to decode the emergency contact, and in any event, Mr. Patterson was notified first of Mr. Nowe’s death because he had contacted the police and advised them of his concerns. In any event, it was not OCHC who contacted either the applicant or Mr. Nowe’s mother to advise them of his passing. The police notified the applicant first and he then notified Mrs. Nowe.

[19] The second piece of evidence referred to by Mr. Cohen is that the applicant told the police he and Mr. Nowe were “old lovers”. He asked me to infer that the police must have told OCHC about their partnership. There is no evidence that the police communicated this fact to OCHC.

[20] Despite the fact that there was no evidence to support the claim, the respondent recognized the tragic nature of the case and agreed to consider developing a form which would allow tenants to name a person who would be responsible for managing access to their apartment if they passed away. The respondent also undertook to provide the applicant with the contact information for the investigating officer to assist the applicant in obtaining more information about the circumstances of Mr. Nowe’s death.

[21] The applicant in this case was, quite understandably, in search of any information he could find about the circumstances of the death of the man with whom he had been in a 30 year relationship. At the conclusion of the hearing I explained that the Application would be dismissed because it could not be established that OCHC had any knowledge of his relationship with Mr. Nowe, a fact which he acknowledged. I also advised him that I understood his concerns about approaching either OCHC or Mr. Nowe’s other family members in light of the warning that he had received from the police. Mr. Cohen persisted in making the argument that the Tribunal had an obligation to provide a significant monetary remedy for the applicant’s experiences, which in his view, arose from historical, systemic discrimination against gays, lesbians, bisexual and transgendered people. Mr. Cohen may be correct that the secrecy which characterized the relationship between the applicant and Mr. Nowe as well as the reaction of the family and the complications associated with the police are connected to historical patterns of discrimination. However, I cannot hold the respondent accountable for those experiences in the absence of any evidence that anyone associated with it knew about the relationship between the applicant and Mr. Nowe.

[22] For all of those reasons, the Application is dismissed.

Dated at Toronto, this 11^th day of May, 2010.

”signed by”______________

Leslie Reaume

Vice-chair```