King v. Enersource Hydro Mississauga, 2010 HRTO 699

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Romeo King

Applicant

-and-

Enersource Hydro Mississauga Inc., Milac Holdings Limited, Irving Wolkowicz and Nando Iannicca

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: March 30, 2010

Citation: 2010 HRTO 699

Indexed as: King v. Enersource Hydro Mississauga ________________________________________________________________

APPEARANCES

Romeo King, Applicant ) On his own behalf

Irving Wolkowicz, Respondent ) On his own behalf

Milac Holdings Limited, Respondents ) Tracy Kay, Counsel

Enersource Hydro Mississauga Inc., ) Sarah Crossley, Counsel

Respondents )

City of Mississauga, Respondents ) Casey Picard, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which he alleges discrimination on the basis of race in the context of housing.

2In an earlier Interim Decision, 2009 HRTO 1579, the Tribunal ordered that a telephone conference hearing be held to address the following issues:

a) whether there is a prima facie case of discrimination against any of the respondents;

b) whether the allegations of discrimination fall within the social area of "housing" as opposed to "goods, services and facilities";

c) if a prima facie case is found to exist against Iannicca, whether he should be removed as a respondent and the Corporation of the City of Mississauga substituted as the respondent;

d) whether the Application should be dismissed on the basis of delay in relation to Milac and Wolkowicz. In addressing this issue, the applicant should be prepared to make submissions regarding whether the delay was incurred in good faith and the respondents should be prepared to make submissions as to whether they have incurred substantial prejudice, as referred to in section 34(2) of the Code.

e) whether the Application is within the jurisdiction of the Tribunal.

3The telephone conference hearing was held on March 25, 2010. I heard submissions from the applicant and from Enersource Mississauga Inc. ("Enersource") and Nando Iannicca ("Iannicca"). After hearing submissions from the applicant, I determined that it was not necessary for me to hear from the remaining respondents.

4The circumstances that give rise to the Application are clearly distressing to the applicant and I do not doubt the applicant's sincere belief that he was mistreated by the respondents.

5However, for the reasons set out below, I conclude that the Application should be dismissed against all the respondents. In the case of Milac Holdings Limited ("Milac") and Irving Wolkowicz ("Wolkowicz"), the dismissal is based on delay. In the case of Enersource and Iannicca, a dismissal is appropriate because the applicant failed to make out a prima facie case of discrimination.

THE ALLEGATIONS

6The applicant asserts that his health is at risk from overhead hydro cables. He is also concerned about a hydro easement on his property as well as a noise attenuation fence, which he states is in disrepair.

7At the hearing of this matter, the applicant was given an opportunity to clarify his allegations against each of the respondents and to explain how these could result in a finding of discrimination under the Code. He was also given an opportunity to explain the delay in filing the Application.

8Enersource is a company which provides electricity within Mississauga. The applicant alleges that Enersource discriminated against him when it:

a. refused to repair the noise attenuation fence located on or near his property. This resulted in the accumulation of water, putting him at increased risk because of electricity and radioactive transmissions;

b. some 11 years before the filing of the application, attended on his property with police officers in order to access the easement and perform repairs; and

c. treated him with contempt by providing him with the name of a manager (not the chief executive officer, which he had requested) when he sought to complain about Enersource's refusal to repair the fence.

9Iannicca is the applicant's municipal councillor. The applicant alleges that Iannicca discriminated against him in failing to speak to or contact the applicant directly when he communicated with Mr. Iannicca's office to ask for the repair of the noise attenuation fence.

10Milac was a land developer. The applicant alleges that Milac discriminated against him in 1988 by selling him land owned by a hydro company. He states that Milac ought to have advised him of the hydro company's easement.

11Wolkowicz is a lawyer who represented the applicant in the purchase of his home. The applicant alleges that Wolkowicz discriminated against him when the applicant purchased his home in 1988, by failing to advise him of the hydro company's easement. He also alleges that Wolkowicz discriminated against him in 1998 by failing to return the applicant's telephone calls in a timely manner.

TIMELINESS

12Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year time of the alleged incident or the last incident in a series. It also gives the Tribunal discretion to accept late applications in certain circumstances.

13Section 34 states:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

Was the Application Filed in Time?

15The allegations against Milac and Wolkowicz relate to incidents which occurred 10 to 20 years before the Application was filed. The allegations that Enersource discriminated against the applicant by attending on his property with police officers relate to an incident which occurred in 1998, over 10 years before the filing of the Application.

16In regards to these allegations, I find that the Application was filed outside the one year limitation period provided for in section 34 of the Code.

Was the delay in good faith?

17The next question for me to consider is whether the delay was incurred in good faith. At a minimum, this requires that the applicant provide some reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424.

18In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons directly impeded the applicant's ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question. See Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674

19At the hearing of this matter, the applicant was given an opportunity to explain the delay in filing the Application. He acknowledged that he knew about the easement since at least 1998 and explained that he did not bring this Application earlier because Wolkowicz delayed in returning his calls and because, only now, did he feel it was necessary to resort to an Application before the Tribunal.

20In my view, the information provided by the applicant is vague and does not adequately explain why he could not comply with the limitation period set out in the Code. The delays in question are significant and the incidents complained of occurred between ten and twenty years before the Application was filed. I am not satisfied that the applicant was unable to pursue his allegations under the Code in a timely manner or that the delay was incurred in good faith. Because of my determination, it is not necessary for me to consider whether there would be any substantial prejudice to any person affected by the delay.

PRIMA FACIE CASE

21I turn now to Enersource and Iannicca's arguments that the Application should be dismissed against them because the applicant has failed to make out a prima facie case.

22The applicant bears the onus of establishing prima facie case of discrimination. If the applicant establishes a prima facie case, the onus shifts to the respondent to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination. However, if the applicant cannot establish a prima facie case of discrimination, the Application will generally be dismissed and the respondents will not be required to address the allegations.

What is a prima facie case?

23To establish a prima facie case, the applicant must show that the allegations he has made (if they are made out) could form the basis of a finding of discrimination in his favour.

24It is well-established that the threshold for establishing a prima facie case of discrimination is not high; the Tribunal recognizes that discrimination is often not overt and it does not hold the applicant to an exacting standard of proof at this stage of the proceeding. The applicant's allegations are presumed to be true and the question becomes whether the respondents' behaviour (as alleged by the applicant) could constitute discrimination under the Code.

25In my view, the applicant has failed to establish a prima facie case of discrimination in this case.

26The Tribunal does not have a general power to decide whether the respondents treated the applicant fairly or appropriately. The Tribunal's powers relate only to alleged discrimination and violations of the Code. In other words, while the applicant has clearly stated that he feels mistreated by the respondents, to establish a prima facie case, he must also explain that this alleged mistreatment could form the basis of a finding of discrimination.

27Even accepting that Enersource refused to repair the noise attenuation fence and provided the applicant with incorrect contact information, I cannot conclude that these allegations could lead to a finding of discrimination.

28It is undisputed that Enersource is in the business of providing electricity. The applicant has not provided any evidence or made any allegation that Enersource owns the noise attenuation fence or bears any responsibility for it. In the circumstances, I accept that Enersource would have refused to repair any noise attenuating fence and that the applicant's race had no bearing in its refusal.

29Similarly, based on the applicant's allegations, I am not satisfied that there is a connection between the applicant's race and the fact he was directed to a manager (not the CEO) to make a complaint. There is no evidence or allegation suggesting that, by referring the applicant's complaint to a manager rather than the company's CEO, Enersource treated the applicant differently from any of its other clients.

30In regards to Iannicca, based on the applicant's own allegations, there is no basis to conclude that Iannicca was aware of the applicant's race or that race could have factored into his handling of the applicant's complaint. The applicant acknowledged that he never spoke to or met with Iannicca. The fact Iannicca may have met the applicant's wife while campaigning or that he may have spoken to her on the telephone on another occasion does not, in my view, demonstrate that he knew that the applicant was a racialized person. Further, even accepting that Iannicca refused to meet with the applicant directly regarding his concerns about fence, there is no evidence or allegation suggesting that Iannicca treated the applicant differently from any of his other constituents. Even accepting the applicant's allegations, I cannot find that they would give rise to a finding of discrimination.

31Accordingly, the Application is dismissed.