Taranco v. Michedes, 2010 HRTO 128

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Taranco Applicant

-and-

Ontario Human Rights Commission Commission

-and-

Peter Michedes aka Panayitis Michaelides Respondent

DECISION

Adjudicator: Sheri D. Price Date: January 28, 2010 Citation: 2010 HRTO 128 Indexed as: Taranco v. Michedes

WRITTEN SUBMISSIONS BY

Michael Taranco, Applicant ) On his own behalf Ontario Human Rights Commission ) Isfahan Merali, Counsel

INTRODUCTION

1This Complaint was referred to the Tribunal by the Commission pursuant to section 36(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as it read prior to June 30, 2008 (the “Code”), and alleges discrimination on the basis of age and sex in respect of accommodation. Specifically, the complainant alleges that the respondent refused to rent, or even to show, the applicant an apartment on the basis of the complainant’s sex and age. The complainant was a 47-year old man at the time he alleges the respondent refused to show him an apartment because he wanted a “young girl” as a tenant instead.

BACKGROUND

2In an Interim Decision in this matter, 2009 HRTO 67, the Tribunal ordered that the Complaint would proceed by way of written hearing. In the absence of any participation in the proceeding by the respondent, the Commission and the complainant were directed to submit their evidence on the Complaint in affidavit form. However, neither the Commission nor the complainant submitted any affidavit or other evidence in the written hearing. Thus, on April 9, 2009, the Tribunal issued a Decision, 2009 HRTO 426, dismissing the Complaint on the basis that no evidence had been presented and there was no basis upon which the Tribunal could find that the respondent had violated the complainant’s rights under the Code or order the requested remedies.

3On April 27, 2009, the Commission filed a Request for Reconsideration of the Tribunal’s Decision on the basis that it misread the Tribunal’s Interim Decision and failed to understand that it was required to submit affidavit evidence in the written hearing. For the reasons set out in the Interim Decision in 2009 HRTO 1439, I granted the Request for Reconsideration, and ordered that the written hearing in the Complaint would proceed.

4The respondent has never participated in this proceeding at either the Commission or the Tribunal level, even though the Tribunal found in 2009 HRTO 67 (Can LII) that he had notice of the complaint and the proceeding before the Tribunal. Accordingly, he was not entitled to further notice of or participation in the proceeding: 2009 HRTO 67. Nonetheless, the Tribunal directed that the respondent be served personally by the Commission and the complainant with a copy of the Interim Decision granting the Request for Reconsideration, and the complainant’s and the Commission’s affidavit evidence, submissions and argument which they wished the Tribunal to consider in making a decision on the merits of the Complaint and with respect to the appropriate remedy.

5In accordance with that Interim Decision, on September 30, 2009, the Commission filed with the Tribunal the affidavit of the complainant, as well as its written submissions in this matter. It also submitted the affidavit of a process server which indicates that the respondent was personally served with the required materials, in accordance with the earlier Order. The respondent has not contacted the Tribunal in respect of this matter.

FACTS

6The following facts were set out in the complainant’s affidavit. As they were uncontested, and there is no reason to question them, I accept them as proven.

7The respondent is or was the owner and/or landlord of a rental property located in Toronto, Ontario. The complainant very much wished to rent a particular bachelor apartment on the second floor of that building for some time. He was familiar with the building and knew a previous tenant of the unit. He had also attempted to rent the unit in 2006, but it had already been rented when he called about it on that occasion.

8On April 1, 2007, the complainant called the respondent in response to a sign in front of the building indicating that the bachelor apartment was available for rent. During that telephone conversation, the respondent advised the complainant that the rent for the unit was $650.00 per month and the complainant and the respondent made an appointment for April 3, 2007 to allow the complainant to view the unit.

9On April 3, 2007, the complainant met the respondent in front of the building where the apartment was located. Immediately upon seeing the complainant, who was 47 years old at the time, the respondent told the complainant that the apartment was for a student and refused to show it to him. The complainant responded by showing the respondent documents to prove that he was, in fact, a student. The respondent then told the complainant that he wished to rent the apartment to a “young girl” student. He told the complainant that he was “too big” for the apartment. He also stated that the complainant was “too old” and repeated that the unit would be suitable for a “young girl”.

10The complainant persisted and told the respondent that he would like to be the judge of whether or not the apartment was too small for him. The complainant told the respondent that it was contrary to human rights legislation to select tenants based on sex and age. The respondent continued to refuse to show the complainant the unit and told him that there were better places for him in the area. Ultimately, the landlord walked away and called the complainant “crazy”.

11The complainant was very upset and disappointed by the landlord’s refusal to show him, let alone rent him, an apartment which he had been hoping to rent for a long time. The unit in question was larger and much sunnier than the complainant’s basement apartment, had a kitchen and a treed patio/balcony, yet was still within the complainant’s price range and desired location. The basement apartment, though somewhat cheaper, was only a room with a bathroom in a basement. In addition, the larger apartment would have allowed the complainant to move some of his personal belongings from storage, into his apartment with him.

12The complainant testified that he felt very shocked, offended and dismayed by the respondent’s refusal to show or rent him the apartment based on factors over which he had no control, namely his age and sex. He testified that he felt very hurt, broken and alone. He described the incident as a true affront to his dignity. He also testified that the April 3, 2007 incident was a setback for him, in the sense that, for a long time afterwards, he did not feel up to searching for another apartment and ended up staying in his basement apartment as a result.

DECISION

13The relevant sections of the Code are as follows:

2.(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

14The evidence in this case clearly establishes that the respondent refused to consider the complainant’s application for tenancy because of his age and sex. The respondent expressly and a number of times during his brief conversation with the complainant stated his preference for a young female tenant. That fact, and the fact that the respondent also told the complainant that he was “too old” lead me to the inevitable conclusion that the respondent discriminated against the complainant on the basis of age and sex in respect of occupancy of accommodation, contrary to sections 2 and 9 of the Code, by refusing to show or rent him the apartment in question.

REMEDY

15Having found that the Code was breached by the respondent, I turn to the question of remedy.

Statutory Provisions

16Section 45.2 of the Code establishes the Tribunal’s remedial authority in this case:

s.45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) May direct a person to do anything with respect to future practices; and

(b) May be made even if no order under that paragraph was requested.

17Although this Complaint was not an Application under the new section 34 (i.e. Part IV) of the Code, the remedial provisions in s. 45.2 nonetheless apply by virtue of s.55(2) of the Code. Section 55(2) states that the Tribunal must deal with this Complaint in accordance with the new Part IV of the Code as though it were an Application made to the Tribunal under that Part IV of the Code.

Remedies Sought

18In this case, the Commission requests that the Tribunal order the respondent to pay the complainant the sum of $10,000.00 as general damages as part of its jurisdiction under s.45.2(1) of the Code to award monetary compensation “for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.” It also requests prejudgment and postjudgment interest on these amounts pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43.

19The Commission seeks an order for the above amount due to the intersectional grounds of infringement of the complainant’s right to be free from discrimination (i.e. on the bases of age and sex). In S.H. v M. Painting, 2009 HRTO 595, the Tribunal found that while the intersectional nature of a complainant’s experience does not automatically translate into a greater award of damages as compared to someone who identifies with only one prohibited ground, it may be a way for the Tribunal to understand the complainant’s experience when assessing the impact of the discrimination on the complainant’s dignity, feelings and self-respect.

20The Commission also submits that the amount of monetary compensation awarded to the complainant in this case should reflect the significant impact that the respondent’s willful and reckless actions had on the complainant both at the time of the discrimination and since that time, including, in particular, the respondent’s failure to engage in the Commission and Tribunal processes.

21In addition, the Commission requests that the Tribunal order a number of what it describes as public interest remedies:

1. an order that the respondent retain an independent expert in human rights to draft an anti-discrimination policy and an internal complaints mechanism regarding the renting of apartments, which accords with the Code and with the Commission’s Policy on Human Rights and Rental Housing;
2. an order that the policy be attached to the respondent’s rental applications and posted in prominent locations in the respondent’s rental buildings; and
3. an order that the respondent provide the policy to the Commission and notify the Commission in writing that he has complied with the other orders, within 10 business days of such compliance.

22The Commission submits that the Tribunal has a broad authority under s.45.2 (3) of the Code to direct a party to do anything necessary to achieve compliance with the Code. It submits that this authority is an important part of the Tribunal’s mandate to interpret and apply the Code, which is remedial legislation. The Commission submits that the Tribunal’s power to award public interest remedies is particularly important where, as here, the respondent refuses to participate in the processes established pursuant to the Code, as this suggests that the respondent does not take his, her or its obligations under the Code seriously. (Pchelkina v. Tomsons, 2007 HRTO 42 at para. 33).

Monetary compensation

23The Tribunal has broad discretion to award remedies which it considers appropriate in the circumstances and which advance the remedial purposes of the Code. (Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 80).

24When discrimination is found to have occurred, an award of monetary compensation under s.45.2(1) of the Code recognizes that the complainant’s right to be free from discrimination has intrinsic value and compensates the complainant for the loss of that right as well as intangible losses due to injury to dignity, feelings and self-respect.

25As with other individual remedies, the purpose of ordering that monetary compensation be paid to a complainant is to attempt to restore the complainant to the position s/he would have been in had the discrimination not occurred. An award of monetary compensation, it is perhaps axiomatic to say, seeks to compensate the victim of discrimination, and not to punish the perpetrator. When it comes time to determine a just and appropriate remedy, the focus is on the experience of the complainant and not on the party responsible for infringing his or her rights. This was recently affirmed by the Tribunal in Hughes v. 1308581 Ontario, 2009 HRTO 341, at para. 87:

Given that the focus of the provision is to compensate the complainant for the breach of her rights under the Code, the financial impact these damages will have on the party responsible for the contravention of the Code is not a factor to be considered by the Tribunal.

26Having said that, the actions of the respondent may be relevant in determining the harm done to the complainant and consequently the amount of compensation required to restore a complainant in the position s/he would have been in, but for the discrimination. For example, in Chan v. Tai Pan Vacations, 2009 HRTO 273 at para 54, the Tribunal made a “substantial” award of monetary compensation to the applicant, in part because of the retaliatory and callous nature of respondent’s discriminatory actions and their impact on the applicant.

27In making an award of monetary compensation to remedy a breach of the Code, the Tribunal should consider the following factors: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness, frequency and duration of the offensive treatment (Sanford v. Koop, 2005 HRTO 53; ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.)).

28I have no doubt, based on the complainant’s evidence, that the respondent’s actions on April 3, 2007 in refusing to show or rent the complainant the apartment unit which he very much wanted to rent hurt and upset him a great deal. He was shocked and dismayed to be denied accommodation based on factors beyond his control, namely his age and sex. Moreover, the respondent’s actions had negative practical consequences for the applicant who lost the opportunity to dramatically improve his living circumstances. My finding on the basis of the complainant’s uncontradicted evidence is that the respondent’s actions also discouraged him for a long time from trying to find alternate accommodation equivalent to that denied him by the respondent.

29I accept the Commission’s submission, supported by its Policy on Human Rights and Rental Housing, that housing is of fundamental importance and that many, like the complainant in this case, experience hardship in finding adequate and affordable living accommodation. I also accept that the complainant’s difficulties were compounded by the respondent’s discrimination against him on the basis of his age and his sex.

30In the circumstances of this case, I find that the complainant’s right to be free from discrimination on the basis of his sex and his age was violated. I also find that his dignity and feelings were injured by the respondent.

31The loss of the right to be free from discrimination and the often corresponding injury to dignity, feelings and self-respect are intangible losses and difficult to quantify. (Mcdonald v. Mid-Huron Roofing, 2009 HRTO 1306 at para. 52). Although it may be inherently difficult to arrive at an amount of monetary compensation which will appropriately compensate the complainant for the loss of his right to be free from discrimination and the injury to his dignity, feelings and self-respect, that is nonetheless my task.

32Having considered the matter carefully, I award the applicant the sum of $5000.00 as monetary compensation for the infringement of his right to be free from discrimination. I arrive at this amount mindful of the respondent’s blatant and callous disregard for the complainant’s right to be free from discrimination in respect of housing. The respondent told the applicant that he would not show or rent the apartment to him because of his age and sex and also, apparently, because of his size, which is not in and of itself a prohibited ground under the Code. Even though the complainant informed the respondent at that time that his actions were discriminatory and a violation of the Code, the respondent just walked away and told the complainant that he was “crazy”. Thus, at the time of the discriminatory incident, the respondent was given an opportunity by the complainant to consider his actions and to change course. He did not do so. Rather, he persisted in discriminating against the complainant in respect of occupancy of accommodation based on prohibited grounds under the Code. The respondent’s actions are relevant to the quantum of damages, not because I seek to punish the respondent, but because the callous and blatant nature of the respondent’s discriminatory actions exacerbated the injury to the complainant’s feelings and dignity. This factor militates in favour of a higher award of monetary compensation.

33On the other hand, in considering the seriousness, duration and frequency of the respondent’s discriminatory conduct, I note that this was a single event (albeit with potentially lingering practical consequences for the complainant) between two individuals who were not in an ongoing relationship.

34Moreover, I must reject the Commission’s submission that in fashioning an award of monetary compensation, I ought to award the complainant a greater amount due to the respondent’s non-participation in the human rights process than if the respondent had participated. Although the respondent’s non-participation is perhaps an appropriate factor to consider when determining what, if any, orders for future compliance ought to be made under s. 45.2(3) of the Code, I do not find that it is an appropriate consideration in determining the amount of monetary compensation to be paid to the complainant.

35Monetary compensation seeks to compensate the complainant for the violation of his rights under the Code. In this case, it was alleged and proven that the respondent violated the complainant’s rights under the Code in April 2007 when he refused to show or rent the complainant an apartment because of prohibited grounds under the Code. I do not see how the respondent’s failure to participate in the hearing constituted discrimination against the complainant in respect of housing, nor was it part of the Complaint filed under the Code and referred to the Tribunal for determination. The respondent’s decision not to participate in the hearing was a choice he was entitled to make. The consequence for the respondent is that the only evidence and submissions before me are those of the other parties. However, in my view, it would be inappropriate for the Tribunal to increase the amount of monetary compensation for the infringement of the complainant’s rights under the Code by having regard to the respondent’s participation or non-participation in these proceedings.

Orders for Future Code Compliance

36It has been established that the respondent is engaged in activities covered by the Code, namely, rental accommodations, and that he discriminated against the complainant on the basis of prohibited grounds under the Code. The respondent has an obligation to be aware of and abide by his responsibilities under the Code. In the circumstances, I find that the Commission’s requested remedies for future compliance are appropriate in this case, with two exceptions.

37First, I decline to order the respondent to draft a rental housing policy which complies with both the Code and the Commission’s Policy on Human Rights and Rental Housing. I do not diminish the value of the Commission’s Policy, and I am cognizant of the fact that s. 45.5 of the Code requires the Tribunal to consider the Commission’s policies when requested to do so and permits it to consider such policies when it wishes to do so. Nonetheless, the fact is that landlords operating in Ontario are legally required to comply with the terms of the Code and the Tribunal’s remedial authority under s.45.2(3) of the Code is to ensure future compliance with the Code. Although compliance with both the Code and the Commission’s Policy would arguably enhance future compliance with the Code, I am not satisfied that it would be fair and appropriate to order the respondent to implement a policy which potentially goes beyond what is required by the Code.

38I also decline to order that the Policy be attached to the respondent’s rental applications, although I do order that it be posted in a prominent location in the respondent’s rental buildings. I am not satisfied based on the evidence in this case that attaching the Policy to all rental applications is required to ensure future compliance with the Code.

39In all other respects, the Commission’s requests for orders for future Code compliance are just and appropriate in the circumstances and are granted.

ORDER

40The Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent will pay the applicant $5000.00 as monetary compensation, together with prejudgment interest on this amount at the applicable rate under the Courts of Justice Act, R.S.O. c. C.43, from April 3, 2007 to the date of this Decision;

2. Postjudgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act;

3. Within 90 days of the date of this Decision, the respondent shall, at his own expense:

   (i) retain an independent expert in human rights to draft an anti-discrimination policy with an internal complaints mechanism which complies with the Code for the rental buildings he owns or manages;

   (ii) post such policy in a prominent location in each of his rental buildings;

4. Within 10 business days of complying with the orders in para. 3, above, the respondent shall send a copy of the policy to the Commission and advise the Commission in writing that he has posted the policy in a prominent place in his rental buildings.