John v. Gateway Property Management Corporation, 2010 HRTO 1922

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Princely John

Applicant

-and-

Gateway Property Management Corporation

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: September 22, 2010

Citation: 2010 HRTO 1922

Indexed as: John v. Gateway Property Management

APPEARANCES

Princely John, Applicant ) Cecil Norman, Representative

Gateway Property Management Corporation, Respondent ) Kristin Ley, Counsel

INTRODUCTION

1This is an Application filed December 29, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights Complaint (the "Complaint") was filed with the Ontario Human Rights Commission on May 21, 2008, and abandoned upon filing this Application with the Tribunal. The applicant alleges that the respondent discriminated against him in accommodation on the grounds of disability, colour, ethnic origin, race, and reprisal.

NATURE OF THE DISPUTE

2The applicant self-identifies as of Indian ethnic origin. In late 2001, the applicant entered into a lease with the respondent, Gateway Property Management Corporation (the "Landlord"). The Landlord managed the property as agent on behalf of the owner Wilfrid Laurier Estates Rental Pool.

3In August 2006, the Landlord completed construction work on the rental premises that caused some damage to the applicant's rental unit. When the Landlord did not repair the damage, the applicant stopped paying rent. Pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "RTA"), both the Landlord and the applicant made applications to the Landlord and Tenant Board (the "LTB"). The LTB issued its decision on November 22, 2007 (the "LTB Decision").

4In his application to the LTB the applicant alleged that the Landlord failed to repair his unit, failed to provide proper notice for a rent increase, and failed to pay interest on the applicant's last month's rent deposit. The LTB found that the Landlord: (1) failed to provide proper notice for a rent increase, (2) during the period of March 2007 to August 2007 improperly delayed repairing the applicant's unit as compared to the repair of other units, and (3) failed to pay interest on the applicant's last month's rent deposit.

5Pursuant to an Interim Decision dated December 22, 2009, 2009 HRTO 2243, I determined that, except for claims of discrimination and reprisal, the LTB made findings on all of the other issues in this Application. Pursuant to s. 45.1, I exercised my discretion to dismiss the parts of this Application that have already been considered and dealt with by the LTB.

6The issues remaining in this Application are whether or not those actions by the Landlord amount to discrimination or reprisal under the Code on the grounds alleged by the applicant.

7At the hearing the applicant acknowledged that the LTB also found that the construction work did not result in an asthmatic attack. He then stated that he wished to withdraw his claim based on disability from his Application. The respondent did not object. In the circumstances I accepted the request to withdraw that aspect of the applicant's claim.

ANALYSIS AND FINDINGS

8The relevant provisions of the Code provide 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.

2.(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under his Act, without reprisal or threat of reprisal for so doing.

Improper notice of rent increase

9The LTB found that the applicant had not been given proper notice of a rent increase that was to take effect September 1, 2007. The applicant testified that he believes that his race, colour, and ethnic origin is the reason he did not receive timely notice of the rent increase. He offered no other evidence to support this conclusion. He agreed he is unaware whether other tenants also failed to receive this particular notice.

10The respondent argues that this was an administrative error by employees working out of the London office, who had no knowledge of the applicant's race, colour, or ethnic origin. Further, the error affected all tenants who were due for that rent increase so there was no differential treatment.

11Fred May was the building superintendent at the relevant time. He testified that he had no involvement with rent increase decisions or notices and that these matters were handled by the administrative offices in London. The particular building where the applicant resided is located in Hamilton.

12Maureen McMahon worked in the Human Resources department responsible for all of the Landlord's Canadian properties. She testified that rent increase notices are automatically generated by property management software and then mailed out by administrative assistants in the London office. She testified that approximately 30 to 40 of these notices are generated and mailed each month. The demographics of the Landlord's tenants at any of its rental locations would not be information available to central office administrative assistants. Furthermore, there would be no reason for these employees to visit any of the properties. Thus it is highly unlikely they would know any particulars about the applicant's race, colour, or ethnic origin.

13On a balance of probabilities I find that the respondent's explanation regarding an administrative error makes more sense than the applicant's argument that I must infer that his race, colour, or ethnic origin were the reason he did not receive the notice. The applicant has not been able to offer any evidence that this was not an administrative error and that other tenants were not equally affected. Furthermore, he has not provided any evidence to connect the omission to a Code ground beyond his allegation that the alleged grounds must have been the reason. Thus I prefer the respondent's evidence that this was an error where the applicant was not treated differently than other tenants I find that there was no connection between the action of the respondent and a Code ground.

Delay in repair of applicant's unit beyond the repair of other damaged units

14The applicant testified that during the construction work, he made several requests that damage to his unit be repaired but that his communications were ignored or neglected. The applicant alleges that one must infer that the repair delay was racially motivated. He testified that his spouse wears ethnic clothing and he feels judged when going out of the apartment. He provided no specific examples. He claims to be one of the few Indian families in the building. On cross-examination, however, he admitted that he did not know the racial background of the other tenants.

15Both Mr. May and Ms. McMahon testified that the Landlord hired a contractor for the specific construction work that caused the damage at issue here. Mr. May agreed that the applicant brought the damage to his attention. Mr. May investigated and reported to the contractor damage to several units, including the applicant's. The contractor indicated to Mr. May that it would conduct all the repairs when the work was finished and he relayed this information to the applicant.

16Mr. May testified that the building comprised both rental units and owner-occupied units. He was responsible for the maintenance of approximately 90 rental units including the applicant's. Mr. May testified that whereas he can prioritize normal repairs that are required within the rental units he had no authority to direct the timing of the repairs that the contractor was required to complete because of construction work damages.

17While the LTB did find that repair of the applicant's unit was delayed beyond the other units damaged by the construction work, on the evidence provided by the applicant I am not persuaded that he has established a connection between the delay in repairing his unit and Code protected grounds. The applicant was not able to present any evidence regarding the race of the occupants in the other apartments repaired prior to his. He was not able to offer any evidence that linked his spouse's ethnic attire to any action of the Landlord that would have led to a delay in the repair of his apartment, and he did not offer any evidence beyond his allegation that the delay was racially motivated. On the evidence the applicant has presented I am not persuaded that he has linked the delay to a Code ground.

Failure to pay interest on last month's rent deposit

18The respondent's undisputed evidence is that as a property manager agent for owners of various rental buildings, on certain procedures it took direction from the owners. For the owner of this particular building, it was its practice to not pay interest on the last month's rent deposit until a tenant vacated. Thus the Landlord followed this practice with all tenants in the applicant's building and records submitted substantiate that this was the practice.

19The respondent does not dispute that the LTB found that this contravened the RTA and thus the interest was owing. However, as per the records, the applicant was treated no differently than any other tenant. On a balance of probabilities I find that the Landlord did not discriminate against the applicant when it failed to pay interest on the last month's rent deposit, in contravention of the RTA.

Reprisal

20In Thorogood v. International Brotherhood of Electrical Workers, 2010 HRTO 1852, the Tribunal identified the following elements that must be established in a reprisal claim under the Code:

1. An action taken against, or threat made to, the complainant;
2. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

21The Tribunal in Thorogood also identified that "there is no strict requirement that the complainant has filed a complaint or application under the Code," and the Tribunal need not "find the respondent did in fact violate the complainant's substantive rights to be free from discrimination" in order to make a finding of reprisal.

22In this Application I am unable to find that the required elements for reprisal are present.

23First, with respect to the failed notice and the failure to pay interest, even if I were to find that the applicant attempted to enforce his Code rights and that the respondent was aware of that, given my finding that the failed notice was an administrative error and the failed interest payment a policy applied across the board to all tenants, I would be unable to find the required intention on the part of the respondent to retaliate with these actions.

24Second, with respect to the delayed repairs, there is insufficient evidence that the applicant had earlier attempted to enforce Code-related rights. The applicant submits that he had complained often in the past about required repairs and in fact the applicant and the Landlord had been before the LTB several times. The applicant entered into evidence several letters that he had written over time to the predecessor property management companies as well as to the Landlord after it became the property manager – all complaining that requested repairs had not been attended to. In none of these letters does the applicant suggest that his Code-related rights are impacted or that Code grounds are the reason he feels repairs have not been completed. The applicant has not provided any evidence that he had attempted to enforce his Code rights prior to the delayed repairs.

25I find that the applicant has not made out a claim of reprisal under the Code.

26This Application is dismissed.