Jakobek v. Toronto Standard Condominium Corporation No. 1626, 2010 HRTO 2020

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Jakobek Applicant

-and-

Toronto Standard Condominium Corporation No. 1626 and Deaconwood Property Management Inc. Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 4, 2010 Citation: 2010 HRTO 2020 Indexed as: Jakobek v. Toronto Standard Condominium Corporation No. 1626

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ ongoing failure to file a Response to the Application, and to provide directions to the applicant with respect to disposing of his Application.

BACKGROUND

2The applicant filed an Application on June 3, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), alleging discrimination on the basis of disability in housing.

3On August 14, 2009, the Tribunal issued a Notice of Application and delivered the Application to the respondents by regular mail at the address provided by the applicant. The Notice directed the respondents to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. The Notice also provided the following warning:

If you fail to respond to the Application, the Tribunal may deem you to have accepted all of the allegations in the Application, proceed to deal with the Application without further notice to you, deem you to have waived all rights with respect to further notice or participation in the proceeding and decide the matter based only on the material before the Tribunal.

4The respondents did not file a Response. An Interim Decision dated December 8, 2009, 2009 HRTO 2105, (“the December Interim Decision”) was issued directing the respondents to file a Response within 10 days and warning of the consequences for failing to do so. The Interim Decision stated:

An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules which reads as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

If the respondents wish to participate in this proceeding, they must file a Response by December 18, 2009, together with an explanation of why the Response was not filed in accordance with the August 14, 2009 Notice. If a Response is not received, the Tribunal may proceed without further notice to the respondents [sic] and may take any or all of the steps set out in Rule 5.5.

5On December 8, 2009, a representative of the respondent Deaconwood Property Management Inc. (“the representative”) sent an email to the Tribunal advising that a joint Response had been filed for both respondents. In response to a December 9, 2009 email from the Tribunal, the representative advised that the Response was sent by mail.

6On February 1, 2010, the representative was emailed and advised that the Tribunal had no record of receiving the Response and requested that it be resent by email by February 3, 2010. To date, the Tribunal has not received the Response.

7A further Interim Decision was issued, 2010 HRTO 684, dated March 29, 2010 (“the March Interim Decision”) directing the respondents to file their joint or separate Responses within 5 days along with an explanation for their failure to file a Response and failure to respond to the Tribunal’s February 1, 2010 email. The respondents were warned that, if they failed to respond as directed, the Tribunal would deem the respondents to have accepted all of the allegations in the Application and to have waived their right to further notice or participation in the proceeding.

8The representative responded by email stating, “I am uncertain why you are not receiving my mail, or email with attachments, which is why I am not attaching anything to this one”.

9Subsequent to the receipt of that email, another individual, Robin Panchan, wrote the Tribunal on behalf of a new property manager, Larlyn Property Management (“Larlyn”). Larlyn requested an update on the status of the Application and asked for “forgiveness” from the Tribunal for a lack of Response from the respondent Deaconwood.

10By Interim Decision dated May 26, 2010, 2010 HRTO 1180, (“the May Interim Decision”) the Tribunal directed the respondents to clarify the relationship between the respondent Toronto Standard Condominium Corporation (“Condominium Corporation”) and the respondent Deaconwood, whether Panchan was now the contact person for the respondent Condominium Corporation, and to identify a contact person for the respondent Deaconwood. The Tribunal stated that if a Response was prepared by the representative on behalf of both respondents, it must be sent to the Tribunal immediately together with any documentation to show whether and when that Response was originally sent to the Tribunal. The respondents were directed to advise the Tribunal if a Response could not be located and the respondents’ efforts to locate the Response. The respondents were given a specified period of time to respond to the May Interim Decision.

11Larlyn sent a letter to the Tribunal dated May 27, 2010 in which it stated:

Robin Panchan is an employee of Larlyn Property Management Ltd. who has been retained to act on behalf of the Toronto Standard Condominium Corporation No. 1626 effective May 1, 2010.

Neither Robin Panchan nor Larlyn Property Management are affiliated and/or act on behalf of Deacon Wood Propertly Management Inc. Deacon Wood was the former management company who acted on behalf of the Condominium Corporation. This agreement was terminated April 30, 2010. You may contact Deacon Wood directly at [address].

As per my email dated May 13, 2010 the condominium corporation has issued a purchase order to Patriot Lock & Door to install handicap automatic door operators at the resident entrance doors. The parts are on order and once received the work will be completed.

Larlyn did not file a Response.

12The Tribunal sent the respondents and Larlyn the May Interim Decision and Larlyn’s May 27, 2010 letter and directed the respondent Deaconwood to make submissions. The respondent Deaconwood has not filed any submissions and the time for doing so has passed.

13The Tribunal still has not received a Response from the respondents.

CONSEQUENCES OF RESPONDENTS’ FAILURE TO FILE A RESPONSE AND COMPLY WITH THE TRIBUNAL’S RULES AND DIRECTIONS

14In Kearns v. 1327827 Ontario, 2009 HRTO 457, the Tribunal set out the consequences for failing to file a Response and comply with the Tribunal’s rules and directions:

[11] The Code is an important public statute which enshrines our most basic and fundamental rights and freedoms. The enforcement procedures in the Code are equally important, since without an effective means of claiming a violation of a right, and seeking redress where a violation is found, those fundamental human rights would have little meaning.

[12] The procedures established by the Tribunal’s Rules provide a mechanism to resolve disputes arising under the Code fairly and expeditiously. An individual who believes his or her rights have been infringed may bring an Application. That Application must be complete and set out the allegations which, in the applicant’s view, constitute a violation of the Code. Before serving an Application on a person or organization named as a respondent, the Tribunal will review the Application to ensure that it is complete and that it appears to be within the jurisdiction of the Code.

[13] Once served with an Application, if the respondent wishes to participate and defend against the claim made by the applicant, the respondent has only to file a Response. The Tribunal provides a respondent with clear notice of what is required, and has prepared a Guide which assists a respondent in completing its Response. The Response also provides a respondent with an opportunity to indicate which facts or allegations in the Application are agreed to, and which are disputed.

[14] A respondent who refuses, or chooses not to file a Response should not be able to frustrate the objects of the Code, and the applicant’s right to assert a claim and seek a timely determination of that claim. Section 40 of the Code requires the Tribunal to dispose of Applications in a way which will provide for “a fair, just and expeditious resolution of the merits of the application”. Where no Response is filed, in order to fulfill this statutory mandate, the Tribunal will proceed to determine the Application in the absence of the respondent. In all but the rarest of cases, the Tribunal will deem the respondent to have waived its right to participate pursuant to Rule 5.5(c) and deem the respondent to have accepted all of the allegations set out in the Application pursuant to Rule 5.5 (a).

15Based on the above sequence of events, I am satisfied that the respondents received notice of the Application, but, even with Larlyn’s May 27, 2010 letter, are refusing or choosing not to participate in this proceeding.

16The consequences of the respondents’ failure to file a Response and comply with the Tribunal’s rules and directions is that the Tribunal deems them to have accepted all the allegations in the Application and to have waived all rights with respect to further notice or participation in this proceeding.

DIRECTIONS

17Subsection 43(2) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an Application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, unless the applicant waives his right to make oral submissions, the Tribunal shall schedule a one-day hearing.

18The applicant is directed to address the following in any further written or oral submissions that he decides to make.

19The onus is on the applicant to establish on a balance of probabilities that a violation of the Code has occurred. The Tribunal’s decision to deem the respondents to have accepted all the allegations set out in the Application does not mean that findings of discrimination have been or will be made. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), the Supreme Court of Canada defined discrimination as follows:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

20Based on my review, the Application raises the following issues with respect to liability:

a) Did the respondents discriminate against the applicant on the basis of disability when they:

a. Initially refused to allow him to park his scooter in one of the parking lots he owns in the residential parking lot for the building?

b. Failed to change their by-laws to allow for such parking after they approved the parking of his scooter in this location?

c. Failed, upon the applicant’s request, to modify the doors between the elevator and the garage with an automatic door opener that is activated upon being swiped by a passcard?

b) Are both respondents liable or is one respondent liable for any Code violation and if one, which respondent?

21The Tribunal’s remedial powers are set out in subsection 45.2 of the Code, which provides:

(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 1 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 or 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.

22Based on my review, the Application raises the following issues with respect to remedy:

(a) Is the applicant entitled to compensation for injury to dignity, feelings and self-respect resulting from the discrimination and if so, from what respondent(s)?

(b) Should the Tribunal direct the respondent(s) to do anything else to promote compliance with the Code?

23With respect to compensation for injury to dignity, feelings and self-respect, the Divisional Court has held that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).

ORDER

24The Tribunal therefore makes the following orders:

a) The respondents are deemed to have accepted all of the allegations set out in the Application.

b) The respondents are deemed to have waived all rights with respect to further notice or participation in this proceeding.

c) Within 21 days of the date of this Interim Decision, the applicant shall file any further written submissions and/or documents that he wants the Tribunal to consider in decision this Application, and inform the Tribunal if he wants to attend a hearing.

d) If the applicant informs the Tribunal that he does not want to attend a hearing, the Tribunal will proceed to finally determine the Application, including deciding the appropriate remedy, based on the materials before the Tribunal that the applicant has filed.

e) If the applicant wants to attend a hearing, the Tribunal’s Registrar will schedule a one-day hearing.

25I am not seized of this matter.