HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shannon Engel
Applicant
-and-
Winkleigh Co-operative Housing Corporation
Respondent
DECISION
Adjudicator: Sherry Liang
Indexed as: Engel v. Winkleigh Co-operative Housing Corporation
APPEARANCES:
Shannon Engel, Applicant ) John Battaglio, Representative
Winkleigh Co-operative Housing ) Richard Campbell, Counsel
Corporation, Respondent )
1This is an Application filed on July 31, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant, a former member of the respondent housing co-operative, Winkleigh Co-operative Housing Corporation (“Winkleigh”), alleges that she was discriminated against in housing on the grounds of disability. The applicant also alleges that Winkleigh engaged in a reprisal under the Code when it brought a court application seeking her eviction (which was granted) following the filing of this Application. On July 19, 2010, the Tribunal heard this Application and gave an oral ruling dismissing it.
3At the hearing, the Tribunal heard the evidence of the co-ordinator of Winkleigh, of the applicant, and of two witnesses called by the applicant. The Tribunal decided that it would not hear evidence from Merv Haas, as his intended evidence amounted to his views about the court process, plus his observations of the effect of the eviction process on the applicant. This evidence was either opinion rather than factual, and not helpful to the issues before the Tribunal, or (in the case of the evidence about the impact of the process on the applicant) would not meaningfully add to the evidence already given by the applicant. The Tribunal also ruled that it would not hear evidence from John Battaglio, as his intended evidence about the court process was in the nature of submissions which could be received through final argument.
4The Tribunal also excluded some of the intended evidence of Ben Bishop, relating to the difficulties in obtaining legal representation for the applicant during the court proceedings, as it was not clear that this was relevant to the issues in the Application.
5The evidence was that Winkleigh’s membership, through a general membership meeting, sets monthly rent charges for its members. As of April 2009, the applicant was in repeated arrears on her rent and was sent a notice by Winkleigh advising that it intended to consider her eviction at a meeting on April 23, 2009. She attended at this meeting with two representatives, and subsequently signed a Performance Agreement in which Winkleigh agreed to suspend the its decision to evict the applicant on condition that she pay her arrears in full by the next Board meeting, as well as her monthly rent after that.
6The Performance Agreement was co-signed by a representative of Community Functionality Facilitation Inc. (“CFF”), which Winkleigh understood intended to employ the applicant and was willing to pay her arrears once it received certain project funding it was expecting.
7The applicant did not comply with the Performance Agreement. Although a few small payments were made, the arrears continued to mount. The evidence is that the funding expected by CFF has never been received, even as of the date of this hearing. There were several more meetings over the following months during which the applicant, through her representatives, reiterated the intention to pay the arrears. At an August 2009 meeting, which the applicant attended, the Board made a second decision to evict the applicant, but once again agreed to suspend the eviction on certain conditions, one of them being a further Performance Agreement. One of the applicant’s witnesses states that the applicant never received that further Performance Agreement but the applicant stated that she chose not to sign a further agreement because she felt she had already signed one. I prefer the applicant’s evidence on this point, as it is more consistent with the documentary evidence and the overall context.
8Winkleigh brought a court application to obtain a Writ of Possession, which was granted on February 16, 2010, after several adjournments. In the material filed by the applicant opposing the eviction proceeding, the applicant states that she has mental and physical disabilities, and that she has been an Ontario Disability Support Program recipient since October 2009. She states, among other things, that Winkleigh failed to meet the procedural requirements of the Co-operative Corporations Act, R.S.O. 1990, c. C.35, and its By-laws with respect to the eviction proceedings. At the hearing before me, and in the Application, the applicant refers in particular to a meeting of July 21, 2009, which was attended by her representatives from CFF. She states that she was not advised of this meeting by either Winkleigh or her representative.
9The Tribunal asked the applicant’s representative at the outset of the hearing whether he intended to refer to any medical evidence with respect to the applicant’s disabilities, as the Application mentioned such evidence but none had been provided prior to the hearing. He stated that he did not. The applicant was asked during her evidence whether she had any medical evidence to support her description of her disabilities and she stated that although she did, she chose not to file it with the Tribunal. After her evidence concluded, however, her representative sought leave to file a medical report. After hearing the submissions of the parties, I ruled that I would defer ruling on whether it was necessary for me to receive the report.
10At the conclusion of the hearing, I issued the following oral ruling:
This is an Application in which a member of a housing Co-op alleges that the Co-op violated the Code in the manner in which it dealt with her.
The evidence is that the applicant was in arrears of her rent. The Board gave her notice that it intended to evict her, but suspended the eviction process when she signed a Performance Agreement after a meeting in April 2009.
She did not comply with the Performance Agreement. There were a few small payments made, but the arrears continued to accumulate.
There were further meetings over the next number of months and ultimately, the applicant refused to sign a further performance agreement and the Co-op brought an application to the Superior Court to obtain a Writ of Possession.
The Court granted the Co-op’s application.
Before the Tribunal, the applicant testified that she has certain medical conditions, and that the stress of the eviction process exacerbated these conditions.
The only evidence that the Co-op was made aware of any possible disability of the applicant was that it was told in April 2009 that the applicant had made an application for ODSP benefits. Those benefits were approved sometime in the fall of 2009.
I will start with some general principles. In order to prove discrimination on the basis of disability, the applicant has to show that she was either treated unequally on the basis of her disability, or that her disability prevented her from having equal opportunities to housing that the Co-op unreasonably refused to accommodate.
The Tribunal does not have the mandate to decide as a general question whether the Co-op acted fairly or unfairly in the eviction process, or provided her with the degree of due process that is required when a Co-op evicts a member. I will say that it appears that this is exactly what the Court, in hearing an application by a co-op for a Writ of Possession, is mandated to decide: see Windward Cooperative Home Inc. v. Shuster, 2007 CanLII 8010 (ON SCDC), [2007] O.J. No. 967 (Div. Ct.).
In this case, the Court found that it was fair to issue the Writ of Possession, and the Tribunal does not have the jurisdiction to review that decision or overturn it.
The Tribunal’s jurisdiction is more limited than the Court’s – its role is to decide not whether something is fair or unfair in a general sense, but whether it is discriminatory. I stress this because although I heard evidence about the meeting of July 2009 and whether it was an eviction meeting to which the applicant should have been given notice, or an informal update meeting, it is not necessary for me to decide that issue.
I note that this was an issue put before the Court, as part of the applicant’s general position there that it would be unfair to grant the Co-op’s application for a Writ of Possession. But in any event, the question of whether the applicant should have been given notice of that meeting does not go to the issue of whether the Co-op’s actions were discriminatory, within the meaning of the Code. As I have just stated, and as the Tribunal said in Ellis v. Peel, 2010 HRTO 221, the Tribunal’s mandate is not to assess the fairness of the procedures used by the Co-op. I will add, neither is it to determine whether the Court’s decision was fair.
My mandate is to decide whether there has been discrimination within the meaning of the Code.
In this case, the evidence does not establish that the Co-op discriminated against the applicant, or engaged in a reprisal against her when it took eviction proceedings to the Court.
First, there is no evidence that the Co-op treated the applicant any differently on the basis of her disability during the process of her eviction.
I will assume for the purposes of this decision that the applicant does suffer from a disability covered by the Code. Even on that assumption, there is very little evidence that the Co-op knew that the applicant had any disabilities, beyond the very general information that she had applied for ODSP benefits.
And there is certainly no evidence that they took account of any disability in the manner in which they treated her, to her detriment.
Second, even if I assume that the applicant’s disabilities were an obstacle to her equal access to Co-op membership, which gives rise to a duty to accommodate, there are several answers to this. There is no evidence that the applicant asked for accommodation of her disability in her dealings with the Co-op. She signed the performance agreement in May 2009 in which she agreed specifically to pay all her arrears by May 19, 2009, and continue to pay her monthly rent after that. She did not comply with this agreement, and did not suggest at the time that there was any duty by the Co-op to accommodate her disability by waiving her rent or her arrears, or in any other manner.
In addition, the Court has said clearly, in Windward Cooperative Home Inc., that the fact that a person is disabled does not excuse them from paying monthly charges to a co-op in accordance with the by-laws and their occupancy agreement. The Court found that the requirement to pay rent does not by itself result in discrimination against a person who, because of a disability, is financially unable to pay.
I am therefore unable to find that the Co-op discriminated against the applicant in the manner in which it treated her.
The applicant’s materials also alleged that the eviction proceeding before the Court was a reprisal contrary to the Code. I do not think that a party that pursues its legal rights before a Court, and obtains a judgment in its favour, could be found to have engaged in an illegal reprisal. And there is certainly no evidence that the eviction proceedings were in any way connected to the applicant’s efforts to enforce her rights under the Code.
I am therefore satisfied that the Co-op did not engage in a reprisal under the Code when it brought eviction proceedings before the Court.
Because of my findings, it is unnecessary to address the Co-op’s submission that, under section 45.1 of the Code, this Application should be dismissed on the basis that the Court appropriately dealt with the substance of the issues raised here.
I find that the Application cannot succeed because the applicant has not shown any discrimination by the Co-op.
I will just briefly address the issue of the medical evidence. After the applicant had given all her evidence, the applicant’s representative stated that he wished to submit some medical evidence that established the nature of her disabilities. He said that the evidence would be relevant to show the impact of the eviction proceedings on the applicant. Because of the sensitive nature of the document, and the impact that it would have on the hearing and potentially the re-opening of the applicant’s evidence, I decided to defer receiving that evidence until it was clear that it was necessary. Having considered the evidence as a whole, I am satisfied that there is no need to receive that evidence.
As I have stated, there is no evidence that the Co-op was aware of any of the contents of that medical evidence at the time it was making its decisions. The only possible relevance of the evidence would therefore have been on the question of what impact the eviction process had on the applicant and potentially, the damages that I might award had I found a violation of the Code.
Since I have found that there is no violation of the Code, it is unnecessary to consider the question of damages.
I thank the parties for their presentations today.
11The Application is dismissed.
Dated at Toronto this 20th day of July, 2010.
“Signed by”
Sherry Liang
Vice-chair