HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Venkatachalapathi Vasu
Applicant
-and-
Toronto Community Housing Corporation and Rachel Gindil
Respondents
DECISION
Adjudicator: Mary Truemner
Indexed As: Vasu v. Toronto Community Housing ______________________________________________________________________
AppearanceS BY
Venkatachalapathi Vasu, Applicant ) Self represented
Toronto Community Housing Corporation, ) Ian Faulkner, Paralegal
Respondent )
Rachel Gindil , Respondent ) Self represented
INTRODUCTION
1On July 14, 2008, the applicant, Venkatachalapathi Vasu, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”) alleging discrimination and harassment in housing based on disability and race, colour, place of origin, ethnic origin, ancestry and creed.
2The applicant and his wife are tenants in a seniors’ building (the “building”) operated by the respondent, Toronto Community Housing Corporation (“TCHC”). The personal respondent is a fellow tenant. The allegation against TCHC is that it failed to investigate and protect him from discrimination and harassment by the personal respondent after he reported her discriminatory conduct.
3At the commencement of the second day of hearing, September 15, 2009, and prior to dealing with several outstanding Requests for Orders During Proceedings (Requests) filed by the applicant and TCHC, TCHC’s legal representative stated that his client admitted to having violated the Code by failing to provide a poison-free environment where harassment occurred as alleged in the Application. He also stated that TCHC agreed to the remedies proposed by the amended Application subject to TCHC’s position that aspects of those remedies which involved implicating or identifying the personal respondent were subject to my decision with respect to the allegations against her. This position was reconfirmed in final submissions at the close of the hearing.
4The personal respondent confirmed that she disputed the allegations of discrimination as against her, and objected to the Tribunal ordering any remedy which would involve her name or implicate her.
5TCHC proposed that the hearing proceed, but that TCHC would not adduce any evidence as long as my order would not expand the remedies beyond what was requested in the applicant’s Request of January 28, 2009 to expand the remedy section of the Application. The personal respondent agreed and the applicant agreed to withdraw his other outstanding Requests.
Summary of Evidence
Incidents Prior to May 24, 2008
6The applicant testified that he had noticed the personal respondent in the common areas of the building many times since moving into his home in 2006. The first time was when he moved into the building on October 6, 2006, and he noticed that the personal respondent and other women were in the lobby, talking together. He overheard some of them say that new people are coming and that they will bring down the standards of the building. He was unable to be specific about who they meant by “the new people”, nor could he say who exactly was speaking. He did not identify the personal respondent as someone who spoke. The second time that the applicant noticed the personal respondent was when she approached his wife, in what the applicant described as a demeaning and demanding manner, to ask if she was going to attend Bingo.
7He described two other encounters with the personal respondent. One involved the personal respondent asking the applicant about the cost of his scooter, which he told the personal respondent was approximately $5,000, and asking if he received any help with the cost. The personal respondent did not reply because he felt the question was inappropriate. The second occasion involved the personal respondent asking him a question about the size of his apartment. The applicant did not answer the applicant’s question which he felt was inappropriately personal.
8The applicant’s wife, Vasantha Vasu, provided evidence about only one encounter with the personal respondent, and that was with respect to the personal respondent’s Bingo inquiry. Her testimony was very similar to the applicant’s in that she characterized the tone of the personal respondent’s invitation to play Bingo as unfriendly. She also said that when she told the personal respondent that she would not play Bingo, the personal respondent asked why she was always in her apartment as if it were a jail. Ms Vasu said that she did not reply, and went up to her apartment.
9The personal respondent testified that she remembers welcoming the applicant and his wife to the building, but states that she was providing some orientation, welcoming them to play Bingo, as she would to any new tenants in the building given her role as a tenant “leader”. She stated that she was an organizer of the Bingo, but has recently stopped because of her health.
10The personal respondent does not remember any conversation with the applicant about the cost of his scooter or the size of his apartment, but the personal respondent’s ability to recall many events was weak. For example, she stated that she never received any correspondence from or communicated with the Tribunal, and that she had no idea who filed the Response on her behalf, despite the fact that the Response contained information consistent with her testimony. She stated that the signature at the bottom of the Response was not hers. She denied that any friend or family member assisted her in dealing with the Tribunal, and stated that she was ashamed of being accused of discriminating against the applicant so that she did not let anyone know about her involvement with the Tribunal. When I asked her how she knew about the hearing dates and the mediation dates earlier in the year, she replied that the corporate respondent had alerted her to the dates.
11Given that the Tribunal sent the Application, instructions on how to respond, and Notices of Mediation and Hearing to the personal respondent’s address, given that they were not returned as undeliverable, given that the personal respondent has participated in the multi-month process as if she has received correspondence from the Tribunal, it makes no sense to me that the personal respondent was not aware of the Response.
Incidents on May 24, 2008
12The allegations of discrimination mainly involve an encounter between the applicant and the personal respondent on May 24, 2008 at approximately 6:00 p.m. when the applicant was walking in the lobby outside the laundry room while waiting for his laundry to finish. The applicant testified that he often walked in the lobby area for exercise, and often chatted with his friends, Margo Grills and Harvey Ginsberg, who were also tenants and who socialized in the lobby area most evenings. On this particular evening, he greeted Ms Grills and Mr. Ginsberg who were seated in the lobby and chatting with each other. The applicant testified that he carried on quietly with his walking exercise, and noticed a few minutes later that the personal respondent had come to sit with Ms Grills and Mr. Ginsberg. As he walked by them, the personal respondent rudely spoke to the applicant about the noise his walker made, telling him to oil a wheel. He ignored her because his walker was not very noisy, and she demanded that he listen to her and get out of the lobby.
13The applicant testified that he was very upset, and that he told her to “shut up” or to mind her own business. He does not remember the exact words that she used when she spoke to him, but distinctly remembers her saying, “Out, out out!” He felt horrible, but continued to walk. He testified that she reacted to the way he ignored her by referring to him as a “garbage tenant” and “paki tenant” with language that implied that TCHC has brought the standard of living down in the building by allowing people like him to live there. He asked who she was calling a “paki tenant” and she screamed back at him that he would be receiving a letter from management.
14The applicant called Ms Grills as a witness. Ms Grills testified that she observed the personal respondent address the applicant in their lobby on May 24, 2008 after the personal respondent came to sit and chat with her and Mr. Ginsberg in the area of the sofas. Ms Grills testified that the applicant was walking about in the lobby at this time with his walker, and was making a slight noise, she thinks because of the bricks on the floor. She testified that the personal respondent asked Mr. Ginsberg and then her whether the noise bothered them. Both of them replied that it did not, but the personal respondent said that she was going to say something anyway, and aggressively requested the applicant to attend to a noisy wheel of his walker. Ms Grills testified that the applicant told the personal respondent to mind her own business, and he continued walking. The personal respondent then said aloud, “garbage tenant” so that the applicant responded in an angry tone, asking who she was calling a garbage tenant and asking her to watch her mouth. Ms Grills testified that the personal respondent told the applicant that he was going to get a letter, and ordered the applicant out of the building, shouting the words, “Out, out, out.” Ms Grills testified that the personal respondent then said that she did not believe that the applicant was sick because he walks too fast. Ms Grills did not hear the personal respondent use the word “Paki” during this exchange with the applicant.
15Ms Grills identified a letter dated September 3, 2008 as one that she and Harvey Ginsberg wrote to record what they witnessed on May 24, 2008 to assist an inquiry into a complaint of discrimination by the applicant who Ms Grills described as “the complainant”. She identified her own and Mr. Ginsberg’s signatures on the bottom of the letter, and explained that Mr. Ginsberg had since passed away. The letter corroborated her testimony.
16The personal respondent called no witnesses but testified herself about the incident in the lobby. She explained that she was good friends with Ms Grills and Mr. Ginsberg, and used to sit with them every night. On May 24, 2008, she sat with her two friends as usual. The personal respondent testified that Ms Grills had a big headache and said that there was too much noise so that Mr. Ginsberg asked her to tell the applicant that he makes too much noise. She said that she politely told him, “Excuse me. It makes too much noise,” and she politely suggested that he put oil on the wheels or walk outside.
17The personal respondent testified that the applicant then began to scream at her. She denies that she ordered him “Out, out, out” of the building or called him “Paki” or anything bad like “garbage”. She says that the only comment she made was with respect to his wheel and the fact that other tenants walk outside.
FINDINGS OF FACT
18There was no dispute and I accept that the applicant is a person with disabilities who uses a walker, and that he is of East Indian origin and a member of the Hindu faith. With respect to the October 6, 2006 allegations, the applicant could not identify the personal respondent as the maker of the statements, nor could he say whether the statements related to the grounds identified in his Application.
19I am satisfied that the personal respondent asked the applicant’s wife about Bingo, and asked the applicant about the cost of his scooter and the size of his apartment. Further in the decision, I decide that nothing bears on these facts.
20The personal respondent testified that she did remember the encounter with the applicant in the lobby of the building on May 24, 2008, but I do not find that her account of what happened is credible. As well, the applicant, by his own admission, did not remember the actual words exchanged with the personal respondent. However, Ms Gillis, a friend of both the applicant and the personal respondent, provided credible evidence, supported by a letter prepared for the TCHC shortly after the event.
21Ms Grills testified that the personal respondent asked her and Mr. Ginsberg if the noise the applicant was making bothered them and they both replied that it did not. The personal respondent was rude and shouted at the applicant, using the word “garbage” and telling the applicant to leave by shouting, “Out, out, out!” I accept that the epithet “paki” was not used based on Ms Gillis’ testimony and on the absence of any reference to it in the letter she authored with Mr. Ginsberg.
22I accept that on May 24, 2008, the personal respondent yelled a stream of comments and orders at the applicant and that this diatribe was triggered by the applicant’s use of his walker. I find the comments were vexatious, insulting, demeaning and humiliating. I also accept the applicant’s evidence that he felt “stripped of his dignity”, “humiliated”, “profoundly shocked” and “horrified” by the personal respondent’s harassment.
23Given TCHC’s agreement with the allegations in the Application at the outset of the hearing, I find that TCHC’s staff received several complaints from the applicant about the harassment, and that the complaints were made between May and June, 2008. These complaints were initially ignored. The superintendent told the applicant that he should simply avoid the personal respondent because his was a case of “he said, she said.” This response ignored the fact that Ms Gillis and Mr. Ginsberg, who witnessed the May 24, 2008 incident, largely supported the applicant’s complaint. While TCHC did ultimately investigate the allegations, this investigation did not occur until much later, after the applicant had commenced this Application.
THE CODE
24Sections 2 and 9 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 of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, 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.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
25The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, and include the power to order monetary compensation for loss arising out of an infringement of the Code, including compensation for injury to dignity, feelings and self-respect, and the power to direct any party to do anything that promotes compliance with the Code.
DECISION
26With respect to the October 6, 2006 comments that the applicant overheard on moving day, there is no evidence that the personal respondent made or encouraged any of them. I find no breach of the Code in respect of these allegations. Similarly, while I accept the applicant’s testimony that the personal respondent approached the applicant and his wife with an invitation to Bingo, and that the personal respondent asked the applicant about the cost of his scooter and the applicant’s apartment size, his description was insufficient to establish a Code violation. While the applicant uses his scooter because he has a disability, mere reference to it by the personal respondent in this context cannot be construed as discriminatory in the absence of other facts linking the inquiry to discrimination on the identified grounds. The personal respondent may have been rude or may have been perceived by the applicant and his spouse as asking overly personal or rude questions, but that too is not sufficient to link these encounters to the grounds listed in the Application. Even if I were to find that the personal respondent was rude, rude treatment is not contrary to the Code unless there is a nexus to a Code ground. Foldes v. Woodbine Entertainment Group, 2009 HRTO 1222.
27I accept that the stream of comments and orders made by the personal respondent to the applicant on May 24, 2008 was a course of vexatious comment which was unwelcome within the meaning of the Code.
28In responding to the applicant’s complaints about the personal respondent, TCHC failed to follow its own Human Rights, Harassment and Fair Access Policy and failed to properly investigate the applicant’s allegations in a timely manner contrary to sections 2 and 9 of the Code. Certainly, the Tribunal has held that there is a duty under the Code for an employer to take reasonable steps to investigate allegations of discrimination by an employee; see Nelson v. Lakehead University, 2008 HRTO 48 at paras. 92 – 93.
REMEDIES
29The applicant insisted that he sought only $322.00 as monetary compensation for the infringement of his Code. The parties agreed that TCHC would not examine witnesses on the condition that the remedies listed in the Application as amended were the only remedies the applicant was seeking. In the circumstances, the Tribunal orders TCHC to pay the applicant $322 as compensation for injury to dignity, feelings and self-respect. If this amount is not paid within 30 days of the date of this Decision, post-judgment interest will be payable in accordance with the Courts of Justice Act.
30The applicant made a wide ranging request for other remedies, but the Tribunal must ensure its orders are remedial and not punitive in nature, and it must ensure that the public policy objectives of the Code are advanced. Also, its orders need to be clear and enforceable. Therefore, in the circumstances of this case, where TCHC has agreed to the remedies requested in the Application, the Tribunal also orders the following:
The TCHC must write to all of its staff by March 31, 2010 affirming its commitment to provide housing free from discrimination and harassment, and reminding staff of their obligations and responsibilities under TCHC’s Human Rights, Harassment and Fair Access Policy, and the obligation to investigate a tenant’s report of discriminatory treatment immediately.
By September 30, 2010, all TCHC staff at the applicant’s building must attend training on the Human Rights, Harassment and Fair Access Policy and on their obligations as housing and service providers under the Code.
By March 31, 2010 the TCHC must write to all tenants in the applicant’s building describing their obligations as co-tenants under the Code. A TCHC representative must present the letter at a tenants’ meeting in the building before September 30, 2010. At that meeting, TCHC will retain a person with expertise in human rights to provide information and training about the Code to the tenants.
By March 31, 2010, the personal respondent and a TCHC representative must meet and discuss the letter and the personal respondent’s obligations toward other tenants.
By March 31, 2010, the TCHC will obtain at least 3 Code cards, available from the Ontario Human Rights Commission at www.ohrc.on.ca, and post them in prominent locations throughout the building, including the lobby, so that they are obvious to tenants.
31With respect to the other remedies affecting the personal respondent that the applicant requests, most are punitive in nature, such as the request that she be barred from leading any Bingo activities, and they are therefore not appropriate. The public policy objectives of the Code are better advanced by educational processes focusing on TCHC. With respect to the request that the personal respondent be ordered to provide a public apology, the jurisprudence of the Tribunal has declined to order apologies on the basis that such orders are viewed as inappropriate or an ineffective remedy, and they raise potential freedom of expression concerns; see for example Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.). With respect to the request that the personal respondent be ordered to provide a promise to undergo training, training for the personal respondent is appropriately dealt with by the fourth remedy ordered above, and ordering a promise is fraught with the same problems considered by the Tribunal in the context of requests for apologies.
32The personal respondent appeared confused by the hearing, but she expressed regret that the applicant was offended by any of her actions. She also stated that she no longer participates in Bingo activities, and provided evidence that she is seeking a transfer out of the building because she is afraid that the applicant is offended by her presence. In the circumstances, no further remedy is ordered against the personal respondent, beyond the requirement, as stated above, that she meet with TCHC by March 31, 2010 to discuss her obligations to abide by the Code in her relations with other tenants.
Dated at Toronto, this 22^nd^ day of February, 2010.
“Signed By”
Mary Truemner
Vice-chair