Radden v. Prince Edward County, 2011 HRTO 1402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caspar Radden

Applicant

-and-

Corporation of Prince Edward County

Respondent

A N D B E T W E E N:

Inge Radden

Applicant

• and -

Corporation of Prince Edward County

Respondent

Decision

Adjudicator: Mary Truemner

Date: July 26, 2011

Citation: 2011 HRTO 1402

Indexed as: Radden v. Prince Edward County

1These are applications filed on December 9, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The applicants allege that the respondent discriminated against them with respect to services on the basis of age and disability, and that the respondent engaged in reprisals contrary to sections 1 and 8 of the Code.

2The Applications against the Corporation of Prince Edward County (the “County”) relate to two other Applications filed by the applicants against Sandbank Home Inc. (“Sandbank”) and Frontier Management (“Frontier”). The applicants, who are married, expected to live in a home that was well constructed in a timely manner, and in a quiet neighbourhood. However, they claimed that Sandbank and Frontier frustrated their plans by their alleged bad conduct. The applicants made allegations regarding the construction of their home and the contract for that home, and Sandbank’s and/or Frontier’s construction and commercial activities in and around the applicants’ home and neighbourhood. Some of the examples cited included issues related to alleged unauthorized use of land, improper disposal of construction materials, and unnecessary and excessive traffic. The Tribunal dismissed the application against Sandbank and Frontier on March 3, 2011 for the reason that the applicants did not demonstrate how the allegations, even if true, might reasonably be considered to amount to a violation of the Code, or how there was a reasonable prospect that the applicants could prove, on a balance of probabilities, a connection between the events described and the alleged grounds of discrimination based on evidence they had or evidence that was reasonably available to them. [Radden v. Sandbank Homes, 2011 HRTO 451, reconsideration denied (2011 HRTO 1401)] .

3The Tribunal issued a Case Assessment Direction (the “CAD”) on February 1, 2011 directing that a Summary Hearing be held, in writing, to deal with the present Applications against the County. The CAD directed the applicants to argue how they would be able to demonstrate their alleged violations of the Code by the County. The CAD noted that the Applications claim that the County treated the applicants differently because it covered up the alleged violations of Sandbank and Frontier “probably because we are 68 and 69 years old” and the County “did not expect at our age we can discover their wrong-doings and did not expect that we in our age would exercise our Human Rights, so they retaliate – discriminate- harass us ...”

4The February 1, 2011 CAD also noted that the Applications allege that the County “joined forces with the Alleged violator Sandbank Homes Inc. – like ‘gang-raping’ of elderly in Prince Edward County.” The CAD directed the applicants to provide “written submissions and any supporting documentation to indicate how they can prove, on a balance of probablitites, that they experienced discrimination on the basis of age and/or disability, and reprisal for enforcing their rights under the Code, and the evidence they would use to establish that.”

5The applicants filed their submissions on March 1, 2011. They attached e-mails, letters and notes as well as a DVD which shows development activities in the community. They filed more submissions on May 27, 2011 entitled “New Evidence” and then more submissions on June 27, 2011 also entitled “New Evidence”. I have reviewed all of these documents and the DVD.

DO THE APPLICANTS’ ALLEGATIONS CONSTITUTE DISCRIMINATION OR REPRISAL WITHIN THE MEANING OF THE CODE AND DO THE APPLICATIONS HAVE NO REASONABLE PROSPECT OF SUCCESS?

6The issues before me involve a legal analysis about whether the allegations, if true, might reasonably be considered to amount to a violation of the Code, and whether there is a reasonable prospect that the applicants can prove, on a balance of probabilities, a violation by linking the events they describe to the alleged grounds of discrimination using evidence they have or evidence that is reasonably available to them. As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7The applicants’ submissions are hundreds of pages long. They explain that the applicants are disabled and elderly. They bought their home in what they say was supposed to be in a newly developed retirement community for people “55 plus”, but they have been surrounded by litter, noise, nuisances and disruptions caused by alleged violations of rules, by-laws and regulations by Frontier and/or Sandbank. Without commenting on possible Code violations of any housing development which attempts to restrict occupants or owners to people over 55 years old, I understand that the applicants purchased their home expecting to live in a quiet community with other seniors, and they feel that the County has violated the Code because it allows Frontier and/or Sandbank to infringe zoning by-laws and to cause allegedly unlawful noise, nuisances and disruptions. The submissions explain that the applicants have continually complained to the County about Frontier and/or Sandbank, but the County tried to ignore the applicants’ complaints and refuses to enforce the by-laws, rules and regulations. The applicants allege that, instead, the County covers up Frontier and/or Sandbank’s alleged unauthorized commercial land use and alleged by-law violations.

8Even if the allegations were true, and the County chooses not to perform its duty in investigating unauthorized land use or violations of its by-laws, the applicants do not describe how they would prove that this alleged corruption or “nepotism” (in favour of Frontier and/or Sandbank) by the County is because of the applicants’ age or disability or because of reprisal as defined by s. 8 of the Code, which states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9The applicants do not refer to any evidence such as an e-mail or a conversation where the respondent might have indicated that their reason for allegedly not protecting the applicants from Sandbank and/or Frontier’s various infractions was because the applicants are elderly or disabled, or because they tried to claim or enforce a right under the Code. The applicants’ submissions allude to what may be some circumstantial evidence: the applicants reference examples where the County has enforced by-laws or road standards for other residents in other areas. However, the applicants do not refer to evidence that the people the County allegedly protects are younger or without disabilities, nor do the applicants refer to evidence that would demonstrate that the County enforces by-laws against and prevents unfairness by Frontier and/or Sandbank in housing developments where younger people or people without disabilities reside. In fact, the applicants appear to offer a theory that the County is promoting Frontier and Sandbank as if to profit in some way by Frontier and Sandbank’s success. The applicants imply that the County is treating them unequally, not because of their age or disability or because of reprisal, but because Frontier and Sandbank have some sort of immunity with the County. The applicants say that the County “discriminates” against them as compared to Frontier and Sandbank which is not discrimination as contemplated by the Code.

10While the applicants do not explicitly allege constructive discrimination, it appears that part of their allegations involves an expectation that the County should do more to protect them than people who are younger or without disabilities. Even if the applicants mean to advance the argument that the County’s failure to enforce its by-laws, etc., has an adverse impact on older people or people with disabilities, in which groups the applicants belong, the applicants have failed to demonstrate that they have any evidence to support such an allegation.

11Nothing in or attached to the submissions indicates that the applicants have any evidence that demonstrates that the County’s alleged refusal to enforce by-laws or otherwise protect the applicants from alleged infractions by Frontier and/or Sandbank is differential treatment because of their age or disability or because of reprisal for asserting their rights under the Code.

DECISION

12The applicants seem to be very frustrated with the lack of assistance provided by the County in their dealings with Sandbank and/or Frontier, but they did not demonstrate how the allegations against the County, even if true, might reasonably be considered to amount to a violation of the Code, or how there is a reasonable prospect that the applicants can prove, on a balance of probabilities, a connection between the events described and the alleged grounds of discrimination based on evidence they have or evidence that is reasonably available to them.

13Consequently, I find that there is no reasonable prospect that the Applications or any part of the Applications will succeed. The Applications are dismissed.