Mitchell v. Forestwood Co-operative Homes Inc., 2011 HRTO 105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Mitchell

Applicant

-and-

Forestwood Co-operative Homes Inc.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl Date: January 14, 2011 Citation: 2011 HRTO 105 Indexed as: Mitchell v. Forestwood Co-operative Homes

APPEARANCES

Richard Mitchell, Applicant ) Self-represented Forestwood Co-operative Homes, ) Celia Chandler, Counsel Respondent )

1This is an Application filed by the applicant on February 6, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), in which he alleges that he suffered discrimination at the hands of the respondent in respect of housing and employment because of race, colour, place of origin, disability, family status and receipt of public assistance. The applicant self-identifies as a young black man.

2The allegations appear to be as follows: that the respondent evicted the applicant from his co-operative unit owing to the grounds identified in the preceding paragraph; and, that for the same reasons the respondent did not consider his job applications for a number of positions that became available at the housing co-operative project.

3In its Response, the respondent indicates that the membership and occupancy rights of the applicant in the co-operative were declared terminated by the Ontario Superior Court of Justice because the applicant had fallen into arrears of housing charges. It also indicates that his job applications were not considered because the Occupancy By-law of the co-operative prohibits members of the co-operative, such as the applicant, from being permanent employees of the co-operative.

BACKGROUND

4In a previous Case Assessment Direction the Tribunal directed that this hearing be set down for one day and that the hearing be limited to hearing the applicant’s case. The parties were directed to be prepared to address whether the applicant had established a prima facie case.

DECISION

5In Jagait v. IN TECH Risk Management, 2009 HRTO 779, the Tribunal described the test to be considered in the context of dismissing an application for failure to establish a prima facie case of discrimination as follows:

The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions…

See also: Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.

6In my view, the applicant has not established a prima facie case of discrimination as the applicant’s allegations, if accepted as true, are insufficient to establish a violation of the Code. While the Application raises grave concerns, and the applicant appears quite frustrated in terms of his dealings with the respondent, there is no apparent connection between the matters complained of and a prohibited ground of discrimination. Further, there do not appear to be any allegations or particulars in the Application to support a finding, or an inference that the applicant was subject to discrimination on the basis of any of the grounds alleged by the applicant.

7In my view, there is no foundation for the claim that any of the grounds of discrimination as alleged by the applicant were factors in the respondent’s dealing with the applicant with respect to housing or employment. The applicant merely asserts that those grounds were factors in the respondent’s treatment of him, and other than these bald allegations, there are no other specifics before the Tribunal upon which the applicant connects his allegations to those prohibited grounds. In my view, the applicant’s allegations, even if accepted as true, could not support a finding or inference that he was subjected to discrimination on the basis of any of the prohibited ground raised by the applicant.

8The applicant has not established a prima facie case of discrimination. In the circumstances it is not necessary for me to hear from the respondent’s witnesses.

9The Application is dismissed.