HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Trevor Ellis

Applicant

-and-

Regional Municipality of Peel

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 1, 2010

Citation: 2010 HRTO 221

Indexed as: Ellis v. Peel (Regional Municipality)

1This Application was filed June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with two Requests for Order During Proceedings seeking the removal of the personal respondents, Lisa Mulholland and Angela Lippensky, early dismissal on the basis of no prima facie case and a request to clarify the scope of the Application. A hearing in this Application is scheduled for May 6, 2010. The applicant did not file Responses to the Requests for Orders.

2The applicant filed a complaint with the Ontario Human Rights Commission on November 27, 2007 alleging that the respondent, Regional Municipality of Peel (“Region of Peel”) had discriminated against him with respect to housing on the basis of age, colour and family status. In his statement of additional facts, the applicant narrowed his claim to discrimination on the basis of age or because he pays low rent in accommodation, contrary to section 2 of the Code.

3The applicant was approved for subsidized housing based on ”rent geared to income” which means that his rent was determined based on his income at any given time. He obtained a subsidized unit in a non-profit housing corporation owned by the Region of Peel (“Peel Housing”) in 2002.

4In 2005, Peel Housing sent the applicant a request for updated income information for the purpose of determining the appropriate rent. The parties disagree whether responses were provided by the applicant, whether the responses were timely or responsive to the requests. The respondents assert the applicant failed to provide timely satisfactory information and eventually the applicant was advised in October 2006 that his rent would increase effective March 1, 2007 to market rent of $845.00/month.

5The applicant appealed this decision to revoke his subsidy in accordance with the appeal procedures set out in the Social Housing Reform Act, to the Service Manager. The Service Manager rendered a Decision on November 21, 2006 stating that the subsidy would be reinstated upon provision of certain information by December 15, 2006. The respondents assert the information was not provided.

6The applicant fell behind in the payment of rent and in May 2007 an application for termination of tenancy for failure to pay rent came on before the Landlord and Tenant Board (the “LTB”) in May 2007. The LTB determined that it had no jurisdiction to hear the applicant’s arguments relating to the calculation of his subsidy and directed that the applicant’s tenancy be terminated. Eviction was carried out around June 2007.

7The applicant’s request for reconsideration by the LTB was denied and a judicial review application to Divisional Court was also dismissed.

Scope of the Application

8In his original complaint and detailed statement of additional facts, the applicant raises several issues that do not fall within the mandate of the Tribunal.

9The applicant asserts that some of the procedures set up by Peel Housing, such as requirement to deliver the tenant eligibility package directly to the building superintendent, and the time frames for doing so, are unfair. He complains that the Service Manager did not provide him with the information he required to make internal appeals and that the culture at Peel Housing is not “transparent”. He proposes that there should be an independent appeal process for disputes about the entitlement and the extent of the rental subsidy. The Tribunal will not review the general fairness of the procedures established by Peel Housing to determine eligibility for subsidized housing.

10The applicant has set out a short history of the advocacy for social housing in Canada, none of which is arguably relevant to the issues before the Tribunal. While this history will not be struck from the statement of facts, it will not be necessary for the applicant to comment further on this history at the hearing.

11The applicant submits that neither the Region of Peel nor Peel Housing ever counselled him on the provisions of the Ontario Works Acts or other Acts that may assist him in paying his rent and that as a social housing landlord, not a for-profit landlord, they should have done so. The Tribunal will not inquire into the adequacy of the corporate respondent’s attempt to counsel the applicant to assist in obtaining alternative sources of income to pay his rent.

12The applicant makes reference to the case of another elderly person who was evicted from subsidized housing. The circumstances of this person are not before the Tribunal in the present Application.

13The applicant notes that section 203 of the Residential Tenancy Act, 2006 specifically prohibits the LTB from hearing issues related to the calculation of rental subsidies. That is confirmed by the Divisional Court decision of January 23, 2009 in respect of the applicant’s appeal of his eviction. There is nothing in this legislative choice that amounts to discrimination against the applicant on the basis of age or receipt of public assistance.

14The applicant notes that the LTB permits the eviction of a tenant without the obligation to hold a hearing. He asserts that he was not afforded a proper hearing before either the Service Manager or the LTB before his eviction and that this breaches his Charter rights. The Tribunal’s mandate is not to assess the fairness of the procedures used by the Service Manager or to determine whether the LTB procedures comply with the Charter.

15The applicant alleges that the actions taken by the corporate respondent amount to “malfeasance.” The applicant acknowledges that the Tribunal’s authority does not extend to making determinations of “malfeasance.”

16The applicant asserts that the corporate respondent owed him a duty of care to ensure that he is housed safely. The Tribunal will not make any determination about a duty of care owed to the applicant. The right under the Code relates solely to the right not to be discriminated against on a prohibited ground. The Code does not guarantee a right to housing.

17The applicant asserts that the respondents breached his section 7 and section 15 Charter rights. The Tribunal’s authority does not extend to making those determinations.

18The applicant’s refers to the priority rules established for persons with special needs. There is no indication that the respondents’ priority rules had any impact on the applicant’s situation and therefore the priority rules are not an issue in the present Application.

19The applicant makes allegations of systemic discrimination against older tenants and tenants who receive rent subsidies. In my view, the specific facts of this case do not raise systemic issues. This Application relates to the specific circumstances of the applicant from 2005 until his eviction in 2007.

20Essentially, the applicant’s argument is that Peel Housing deliberately charged him market rent and took steps to ensure his eviction because of his age and the fact that he was entitled to a rental subsidy, so that they could rent the unit at market rent.

21The Tribunal will only be addressing the above issue as described in paragraph 20.

Request to Dismiss the Application

22In my view, it is not plain and obvious that the applicant has not or will not be able to make out a breach of the Code and therefore the Request for early dismissal is refused.

Removal of the Personal Respondents

23The personal respondents are identified by the applicant as Supervisors of Resident Services. However, nowhere in the body of the original complaint does he specify any interaction with either of them. The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5 in deciding whether to remove personal respondents from a proceeding:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

24As there are no factual allegations involving the personal respondents, I do not see a compelling reason to continue this Application against them and they are removed from the style of cause.