HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erica Searchwell

Applicant

-and-

Rob Phillips

Respondent

DECISION

Adjudicator: Naomi Overend

Date: May 26, 2011

Citation: 2011 HRTO 1000

Indexed as: Searchwell v. Phillips

APPEARANCES

Erica Searchwell, Applicant ) Self-represented

Rob Phillips, Respondent ) Self-represented

INTRODUCTION

1Erica Searchwell, the applicant, lives in the T.C. Douglas Housing Co-operative (the “Co-op”) where Rob Phillips, the respondent, is the manager. In 2009-2010, she experienced financial difficulties that made her eligible for subsidies on her rent. For some of this period, she did not receive these subsidies, which she attributes to discrimination on the part of the respondent. On January 18, 2010, she filed an Application alleging discrimination on the basis of family status, marital status, receipt of public assistance and reprisal in housing, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent acknowledges that the applicant did not receive the subsidies to which she would have otherwise been entitled, but states it was because the applicant consistently refused to fill out the appropriate forms required for such subsidies. He states that he sent her numerous follow-up letters and emails, and even offered her assistance, but that the applicant failed to follow through on the paperwork in time for her to receive the subsidies.

3For the reasons that follow, I find that the applicant has failed to establish discrimination on any of the grounds listed in her Application.

EVIDENCE

4Both the applicant and the respondent testified. Given that neither party was represented, and that the respondent had filed a detailed chronology of events in his Response, the most efficient manner of dealing with the issues seemed to be to administer the oath to both parties at the outset of the hearing and then ask questions as the issues were sequentially addressed. I asked the parties if they had any objection to proceeding in this manner. Neither party expressed any reservations and so I explored the issues, allowing both parties to testify in this manner.

5It became clear over the course of their testimony that the applicant and respondent largely agreed on the sequence of events, although the interpretation they gave to the underlying documents and events conflicted. Accordingly, it was unnecessary for me to make credibility assessments in reaching most of my factual conclusions.

6The applicant has lived in the co-op with her son since 2003. For part of that period, she earned a high enough wage that she paid market rent; the remainder of that time, she has received a subsidized rent. She had a job in 2008, but starting in January 2009, was on Employment Insurance (“EI”), following which she was on Ontario Works (“OW”). This made her eligible for what is termed rent geared to income (“RGI”) assistance.

7The co-op runs on a fiscal year from September 1 through to August 31. The co-op determines the level of subsidies for the upcoming year by having eligible members fill out an RGI application. There is a limited amount of money available for subsidies, and they are granted on a first come/first served basis. Once the available money is allocated, people who apply thereafter are put on a waiting list.

8A member’s need for a subsidy can alter over the course of the year. For instance, a member may become employed, in which case the amount of the subsidy for which they are eligible may diminish or disappear altogether. For that reason, persons who are not on a fixed income, and who are in receipt of a subsidy, are required to submit monthly verification of their gross income.

9Alternatively, a member who, like the applicant, was employed can lose that employment. Such a person can apply partway through the fiscal year for emergency assistance. In the applicant’s case, she became eligible to pay reduced housing charges (the term used for rent by housing co-operatives) in early 2009, when she notified the co-op that she was going on EI.

10In addition to receiving monthly verification of the member’s gross income, the co-op requires members to advise it of any gross income of those individuals who live with the member (except for children in attendance at school). In determining the level of subsidy, the co-op takes into account the gross income of the household, not just that of the member. This is significant because in the first half of 2009 (as well as for a portion of 2008), the applicant’s mother was living with her.

11As manager, the respondent is responsible for determining the monthly housing charges for all members who are in receipt of housing subsidies. He does this calculation on the basis of the verification of the gross monthly household income from the preceding month. The respondent testified that it is important for him to receive that information for all income deemed “temporary” (which includes EI income) in order for him to perform this monthly calculation.

12The applicant was advised when she went on EI that she had to submit, on a monthly basis, EI benefit income verification for each two-week period she received EI benefits. The document book contains several emails from the respondent, commencing in February 2009, advising her that he had not received this information and asking her to please submit it.

13While at first it appears that the applicant was confused about what was required of her, as the months wore on, it became clear that she simply could not be bothered getting the information from EI and seemed to feel that the respondent’s insistence on this information was unreasonable. The respondent offered to help her retrieve this information from Service Canada on the office computer. In the alternative, he suggested she speak to two other members of the co-op who were on EI and able to submit this information in an acceptable manner. The applicant did not follow up on any of these suggestions.

14The applicant testified that she did not use the online services of EI and so could not remember her password. However, it would also appear that she did nothing to attempt to retrieve this information from EI until the board of the co-op insisted in September 2009.

15The applicant had advised the co-op the previous year in her RGI application for 2008 that her mother was living with her. Her mother’s monthly income was included in the calculation of her housing charges after she went on EI in 2009. In April that year, she advised the respondent that her mother owned a house, on which she was paying property taxes, and she did not know if she “should be claiming for her.” The respondent responded to the applicant’s email that day, advising her that as long as her mother was living with her, her income had to be included in the calculation of housing charges.

16In June 2009, the applicant was given a copy of the rent geared to income application for the following year. She complained to the respondent that although her mother’s income was being included in the calculation of her housing charge, her mother was not contributing to the rent, and that she could not get her mother to provide income verification.

17The applicant asked the respondent to inform her mother that she had a responsibility and on June 17, 2009, he wrote a letter to Mrs. Searchwell that the applicant was paying an additional $289 per month in rent on account of her income. He also indicated that if she did not submit income verification for the upcoming year (or move out) the applicant would lose her eligibility for RGI assistance.

18The applicant submitted her RGI application at the end of June without submitting her mother’s income verification. The respondent wrote to her concerning this omission as well as her failure to submit her EI income verification for the period from February through to June 2009.

19At some point in July 2009, the applicant wrote an email to the respondent (an undated copy of which was submitted by the applicant) in which she states: “Well apparently according to her she hadnt [sic] moved in, so i really dont [sic] know what to write other than she went home on july 3rd or 4th.”

20The respondent responded to this by saying that, because she had included her mother in her RGI application, he needed a formal letter from the applicant stating that her mom is no longer living with her. He emphasized that an email would not do and included the following in bold letters: “I need a signed letter for the file.” This requirement was restated and emphasized in subsequent correspondence with the applicant. He even went as far as preparing a letter for her, which the applicant refused to sign.

21The applicant was unable to explain why she did not comply with this requirement other than, like the requirement to submit her EI bi-weekly stubs, she regarded this as an unreasonable request. She suggested that she was somehow being singled out.

22I accept the respondent’s explanation that the by-laws and guidelines governing the co-op required this information, and that he also required this information for auditing purposes. The applicant offered no evidence in support of her contention that she was being singled out.

23Also, I would note that the respondent approached the staff liaison of the co-op board in late July 2009, and she supported his demands for this information. This situation was made somewhat more complicated by the fact that the applicant was herself a member of the board, a position which she had held since 2005.

24On September 23, 2009, the applicant appeared before the Board of Directors, at their invitation, to discuss her failure to submit the income verification and a signed letter of change in household composition, as well as the termination of her RGI subsidy. She testified that she signed a letter “on the spot” stating that her mother had moved out.

25The following day, she submitted a letter that she had gone on the Service Canada website, but because her EI benefits ended on August 29, 2009, she was no longer able to retrieve the bi-weekly reports. She submitted a letter from HRDC that confirms that she received payments from December 28, 2009 through to August 29, 2009. This was accepted as proof of income in the circumstances and the RGI application was deemed complete.

26However, by this point, there was no more money left in the subsidy budget and the board voted to “disapprove” the applicant’s RGI application, but to add her name to the waiting list. She was advised that she would be charged full housing charges as of November 1, 2009.

27By this time, the applicant was on OW and not in a position to pay full market rent. In the months that followed, she went into arrears, and was threatened with eviction. She applied for emergency assistance, but was denied this on the basis that only members who were not in arrears were eligible for this assistance.

28Her OW workers intervened periodically, and the amount of her arrears would diminish. On January 13, 2010, she was brought before the Board of Directors, which voted to defer the motion to terminate her occupancy membership on the condition she meet four specific terms. In February 2010, the Board of Directors voted to grant her emergency assistance once she paid off the $1,306 in accumulated arrears.

29The applicant’s OW workers were informed of this decision. They, in turn, advised the respondent that OW would pay $981 towards the arrears. The remaining $325 was to be paid by the applicant from her tax return. By March 1, 2010, the arrears issue was resolved and the applicant was eligible for the emergency assistance grant.

30The respondent was advised of the completed Application by letter dated March 18, 2010.

DECISION AND ANALYSIS

31The applicant bears the onus to prove, on a balance of probabilities, that the respondent’s behaviour was based, at least in part, on one of the enumerated grounds in the Code. Her reason for alleging family status discrimination is because the respondent unreasonably included her mother’s income as part of the household income even after she told him that her mother had moved out. However, I accept the respondent’s explanation that he continued to include her mother’s income because the applicant failed to submit a signed letter that her mother was no longer a member of her household. Contrary to the applicant’s contention that this requirement was unreasonable, it is her refusal to sign the letter that I find to be unreasonable.

32It is not disputed that the applicant is a single mother or that she was in receipt of social assistance at the relevant time, but simply being a member of a protected group is not sufficient to prove discrimination. The applicant must also demonstrate that the adverse treatment she received occurred because she was in receipt of social assistance or because she was a single mother. This is where the applicant fails.

33The evidence amply demonstrates that the respondent’s actions were as a result of the applicant’s refusal to comply with even the most basic requirements to verify her monthly household income. There was no evidence led from which I could infer that the applicant’s marital status, family status or receipt of social assistance were factors in the respondent’s decision.

34As for reprisal, the applicant must demonstrate that the respondent intentionally retaliated against her for attempting to claim or enforce her rights under the Code. The evidence does not demonstrate that the applicant, in fact, attempted to claim or enforce any rights under the Code prior to filing her Application. There is no reference to the Code or discrimination in the applicant’s correspondence with the respondent, nor did she testify to any verbal communications of that nature.

35The applicant did file her initial Application with the Tribunal in January, while she was still in dispute with the co-op (which, I note, was not named as a respondent) concerning the arrears of her rent, but the evidence suggests that the respondent would have first been aware of it sometime after March 13, 2010, when it was served on him by the Tribunal. By that time, all matters between the applicant and respondent (and co-op) had been resolved.

36In summary, the applicant has failed to prove that the respondent’s actions constituted discrimination under the Code. Accordingly, the Application is dismissed.