Agnew v. 2009-2010 Board of Directors of City Park Co-operative Apartments, 2011 HRTO 1275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rachael Agnew

Applicant

-and-

2009-2010 Board of Directors of City Park Co-operative Apartments,

John Williams and Philip Eram

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: July 4, 2011

Citation: 2011 HRTO 1275

Indexed as: Agnew v. 2009-2010 Board of Directors of City Park Co-operative Apartments

APPEARANCES

Rachael Agnew, Applicant ) Self-Represented

2009-2010 Board of Directors of City )

Park Co-operative Apartments ) Raj Anand, Counsel

and Philip Eram, Respondents )

John Williams, Respondent ) Self-Represented

INTRODUCTION

1This November 4, 2010 Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondents harassed the applicant with respect to accommodation because she is a “single Caucasian woman” contrary to s. 7 of the Code and reprised against the applicant because she claimed or enforced her rights under the Code contrary to s. 8 of the Code.

2By Case Assessment Direction dated March 18, 2011, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.

3The summary hearing was held by teleconference on June 6, 2011, and the applicant was given an opportunity to explain how she could prove her allegations that the respondents infringed her rights under the Code.

4For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

5Although the respondents may well dispute some or all of the applicant’s allegations, they have not yet been required to file Responses to the Application (although Mr. Williams did). Accordingly, in determining whether the Application has a reasonable prospect of success, I have considered only the facts as asserted by the applicant. These are set out below.

6The applicant resides in an apartment in City Park Co-operative Apartments (“the co-op”). In her Application, she contends that another resident in the co-op, the personal respondent John Williams (“Mr. Williams”), whose apartment is located two floors above the applicant’s, has been bothering the applicant with his loud music since February 2008.

7The applicant alleges that she complained about Mr. Williams’ music to the co-op’s security guard; the co-op’s property manager, the other personal respondent in this matter, Philip Eram (“the property manager”); and the co-op’s Board of Directors; but none of them ever did anything to rectify the matter. The applicant alleges that the respondents’ failure and/or refusal to address her noise complaints is part of an attempt by the respondents to get the applicant to move out of the co-op. The applicant states that she does not know why the respondents are trying to make her move out of the co-op.

8The applicant alleges that since neither the security guard, nor the Board of Directors or the property manager would do anything to help her, she left two telephone messages for Mr. Williams directly, complaining about his noise, on July 10, 2010. The applicant submits that the police arrived at her home several hours later, prepared to charge the applicant with harassment. Ultimately, the applicant says she was “cautioned” but not charged. The applicant submits that the property manager, the co-op security guard, Mr. Williams and the Board of Directors colluded to have her charged with harassment.

9The applicant also complains that she and another co-op resident who had complained about Mr. Williams’ noise were left out of a co-op survey about Mr. Williams’ noise, and that the property manager misled the Board of Directors by hiding the fact that complaints about Mr. Williams’ noise had come from the applicant as well as another resident of the co-op.

10In addition to the above allegations, the applicant alleges that the respondents engaged in a number of other “manoeuvres” intended to make her move out of the co-op:

1. The applicant alleges that the co-op security guard threatened to kill her one day in August or September 2009. (The security guard denies this.) The applicant alleges that the property manager is responsible for the security guard’s alleged threat because he gives the security guard his orders. The Board of Directors did not fire the co-op security guard over the incident.

2. The applicant alleges that in September 2010, another co-op resident physically assaulted her because he believed that the property manager had given him permission to behave in such a way. The applicant alleges that the co-op security guard misinformed the police about what had occurred and that, based on such misinformation, the police were “ready” to arrest the applicant for assault.

3. The applicant alleges that she has had numerous problems with another resident of the co-op who complained about the applicant and her cat(s) on numerous occasions, and who allegedly attempted to strike the applicant with her cane, among other things. The applicant contends that the property manager declined to do anything about the other resident’s behaviour, thus indicating that he supported such behaviour.

4. The applicant alleges that her file in the co-op office has been tampered with. Specifically, she alleges that letters are missing from her file, and that the file contains “fake” letters to the applicant which she never received, anonymous letters erroneously attributed to the applicant and false reports from the co-op security guard.

5. The applicant alleges that she had to wait for a one-bedroom apartment for approximately 10 years, while other people who moved into the co-op after the applicant got one-bedroom apartments which fit the applicant’s criteria ahead of the applicant.

ANALYSIS

Whether Code applies to relationship between co-op residents

11In his Response to the Application and during the summary hearing, Mr. Williams submitted that, as he does not provide the applicant with accommodation or employment or anything else which would make him subject to the Code, the Code does not apply to his interactions with the applicant. He submits that the Tribunal has no jurisdiction over him as an individual and that the Application against him ought to be dismissed accordingly.

12Mr. Williams is mistaken about the Code’s application to his relationship with the applicant. The applicant contends that the respondents, including Mr. Williams, infringed her rights under s. 7(1) and s. 8 of the Code. In my view, both of these sections clearly apply in respect of the relationship between the applicant and Mr. Williams. Section 7(1) of the Code expressly provides that “Every person who occupies accommodation has a right to freedom from harassment because of sex … by an occupant of the same building.” Sections 8 and 9 of the Code, read together, provide that “no person” shall reprise against someone for the reasons outlined in s. 8 of the Code. In my view, the prohibition against any “person” committing reprisals within the meaning of s. 8 of the Code clearly applies to Mr. Williams as well as other residents of the co-op.

13However, whether Mr. Williams is subject to the Code is a completely separate issue from whether the applicant has a reasonable prospect of success of proving that the respondents infringed her rights under the Code in the manner alleged. I turn now to that issue.

Harassment on basis of “single Caucasian woman”

14The applicant contends that the respondents’ actions, outlined above, constitute harassment on the basis of sex contrary to s. 7(1) of the Code. The applicant does not allege that the respondents subjected her to a vexatious course of conduct which was sexual in nature. Rather, the applicant’s allegation pursuant to s.7(1) of the Code is that the respondents harassed her because she is a “single Caucasian woman".

15As I explained during the summary hearing, the Tribunal’s power to hear and determine human rights Applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to accommodation on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy mistreatment which is not based on a prohibited ground in the Code. Thus, in order to succeed in her Application, the applicant would have to prove not only that she was mistreated by the respondents, but that such mistreatment was linked to the applicant’s status as a “single Caucasian woman”.

16When asked during the summary hearing how she could prove that the respondents acted the way they allegedly did because the applicant is a single Caucasian woman, the applicant candidly acknowledged that she did not know. The applicant states that she has a feeling that the respondents think that, as a single Caucasian woman, the applicant is vulnerable and that they can get her to move out of the co-op by letting Mr. Williams play his music loudly. The applicant states that she does not believe that the respondents would have dismissed her complaints about Mr. Williams’ noise if she had been a man or a gay man.

17The applicant may very well have a genuine belief that the respondents interacted with her in the manner they allegedly did because she is a single Caucasian woman. However, the applicant’s belief that the respondents mistreated her because she is a single Caucasian woman is not evidence. It is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant’s feelings or beliefs. The Tribunal cannot find that the respondents discriminated against or harassed the applicant unless there are facts alleged which, if true, would allow the Tribunal itself to link the respondents’ actions towards the applicant to her status as a single Caucasian woman.

18In her Application and at the summary hearing, the applicant did not allege any facts which, if true, would allow the Tribunal to conclude that the respondents mistreated her because she is a single Caucasian woman. The applicant’s claim that the respondents harassed her because she is a single Caucasian woman therefore has no reasonable prospect of success and must be dismissed.

Reprisal

19In order to succeed in her claim of reprisal under s. 8 of the Code, the applicant must establish that she claimed or enforced her rights under the Code; instituted or participated in proceedings under the Code; or that she refused to infringed another person’s rights under the Code; and that the respondents intentionally retaliated against her for doing so: Noble v. York University, 2010 HRTO 878.

20In this case, there is no suggestion that the applicant instituted or participated in proceedings under the Code or refused to infringe another person’s rights under the Code. However, the applicant contends that she claimed or enforced her rights under the Code when she asked the respondents for assistance in preventing Mr. Williams from “inflicting” his music on her. She submits that the respondents reprised against her when they failed and/or refused to do anything about Mr. Williams’ loud music and also by colluding to attempt to have the applicant charged by the police with criminal harassment.

21During the summary hearing, the applicant also alleged that Mr. Williams did certain things because the applicant had complained about his noise. Specifically, the applicant alleges that Mr. Williams said that he did not like the applicant’s attitude; left one or more anonymous letters on the applicant’s doorstep which accused the applicant of being a homophobe; and made comments about the applicant’s sex life. The applicant acknowledged during the summary hearing that these allegations were not included in her Application.

22I find that the applicant’s reprisal claim has no reasonable prospect of success because the applicant has no reasonable prospect of success in proving that she claimed or enforced her rights under the Code when she complained about Mr. Williams’ music.

23The applicant submits that it is her right to decide what music she listens to and to live in her own home without Mr. Williams’ interference. The applicant states that she does not know if her right not to have Mr. Williams’ music inflicted on her is covered by the Code, but submits that if it is not, then it ought to be. The applicant acknowledges that she never referred to or relied upon the Code in any of her complaints about Mr. Williams’ noise.

24Although I have no doubt that the applicant is having difficulties in her current living environment, the fact is that the Code does not prohibit excessive noise or neighbours’ other bothersome behaviours per se. The applicant was clear at the summary hearing that the content of her complaints about Mr. Williams was that he was playing his music too loudly and that it was bothering her. She did not complain to the respondents that she was being mistreated by Mr. Williams (or anyone else) on the basis of one or more of the grounds in the Code. In all of the circumstances, I find that the applicant has no reasonable prospect of proving that her complaints about Mr. Williams’ music were attempts to claim or enforce her rights under the Code.

25The applicant cannot establish that the respondents intentionally retaliated against her for claiming or enforcing her rights under the Code if she cannot establish that she claimed or enforced her rights under the Code in the first place. Accordingly, the applicant’s claim that the respondents reprised against her by not acting on her complaints about Mr. Williams’ music has no reasonable prospect of success and is dismissed accordingly.

26The Application has no reasonable prospect of success and is dismissed.