HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Messmer
Applicant
-and-
Piliwood Investments Ltd. and Raymond Bubel
Respondents
A N D B E T W E E N:
Michael Messmer
Applicant
-and-
Kimbel Management Ltd.
Respondent
A N D B E T W E E N:
Ivan Plumridge
Applicant
-and-
Piliwood Investments Ltd. and Raymond Bubel
Respondents
A N D B E T W E E N:
Ivan Plumridge
Applicant
-and-
Kimbel Management Ltd.
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Messmer v. Piliwood Investments Ltd.
APPEARANCES BY
Michael Messmer and ) Debbie Draganits, Counsel
Ivan Plumridge, Applicants )
Piliwood Investments Ltd., )
Kimbel Management Ltd. and ) Kristin A. Ley, Counsel
Raymond Bubel, Respondents )
1These are four Applications filed June 8, 2009, and perfected on August 18, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on October 12, 2005.
2The hearing in this matter was held in Sarnia, Ontario on October 13, 2010, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicants, the personal respondent and one additional respondent witness, John Cox, who had little evidence material to the disposition of these Applications. On consent, cross-examination of all party witnesses was deferred until after I had completed my questioning of all witnesses. Following the oral hearing, the parties filed their final submissions in writing, with reply submissions received from applicants’ counsel on January 14, 2011.
Background
3The applicants are a same sex couple who reside in an apartment building in Sarnia. They allege that they experienced discrimination and harassment because of their sexual orientation in respect of their occupancy of accommodation contrary to s. 2 of the Code, arising out of certain events that occurred during the period from March 17, 2004, to June 30, 2005.
4The respondent Piliwood Investments Ltd. (“Piliwood”) is the owner of the apartment building at which the applicants reside and is also the lessor. The respondent Kimbel Management Ltd. (“Kimbel”) is the property manager for the building. The personal respondent Raymond Bubel is the President and a shareholder of Kimbel, and also is the Property Manager for Piliwood.
5Many of the allegations in this proceeding relate to an individual named David Williamson and his spouse Lynne Labbe, who were superintendents at the apartment building where the applicants lived (the precise legal status of Mr. Williamson’s employment by the corporate respondents will be addressed below). Neither of these individuals was called to testify before me.
Preliminary matters
6At the outset of the hearing on October 13, 2010, the applicants raised two preliminary matters. The first matter relates to the scope of the transitional applications. The complaints, as originally filed with the Commission, address events up to and including June 30, 2005. At a later point in time, the applicants state that they were asked for an update from the Commission, and they provided an updated chronology of events dealing with matters that post-date the events referenced in their complaints. The complaints were not amended to include these later events, and neither an intention to amend the complaints nor the updated chronology were provided to the respondents during the time that the applicants’ complaints were in the Commission’s process.
7As stated in s. 53(5) of the Code, a transitional application must be “with respect to the subject-matter of the complaint” as filed with the Commission. Rule 12.3 of the Transitional Rules states that a transitional application under s. 53(5) “must be based on the subject-matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 of the Transitional Rules contemplates that an applicant may seek to amend the complaint, this must be done “having regard to Rule 12.3”. This Tribunal has interpreted these provisions as meaning that the amendment of a transitional application to include post-complaint events generally will not be permitted, in the absence of exceptional circumstances such as where there is evidence of an intention to amend the complaint while still in the Commission process and where the respondents have notice of the post-complaint allegations: see DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281; Li v. Novopharm, 2009 HRTO 885.
8Accordingly, as there was no evidence before me to support an intention to amend the complaints while they were still in the Commission process and no evidence that the respondents were made aware of the post-complaint allegations at that time, I ruled that the subject-matter of the transitional applications before me in this proceeding was restricted to the events set out in the complaints during the period from March 17, 2004 to June 30, 2005.
9The applicants next requested that the hearing in this matter be adjourned so that the transitional applications could be consolidated with certain new applications, which had been filed by the applicants with this Tribunal pursuant to s. 34 of the Code. As of the date of the hearing, these new applications were in the process of being reviewed by the Tribunal for completeness and had not yet been served on the respondents. These new applications arise out of the alleged conduct of different individuals than those who were involved in the transitional applications before me. The new applications also potentially give rise to issues of timeliness in respect of the allegations raised and of whether at least some of these allegations already have been appropriately dealt with in another proceeding. Accordingly, I ruled that it was premature to consider the potential consolidation of the transitional applications with the new applications, and denied the applicants’ request for an adjournment.
The applicant’s allegations
Events of March 17, 2004
10The applicants moved into the building in 1996 and initially occupied apartment 210 and then moved into apartment 801 as of June 1, 1997. The applicants had a fractious relationship with the tenants in apartment 701, which escalated over time and led to threatening words and behaviour by these tenants towards the applicants and the involvement of the police.
11Ultimately, on March 9, 2004, the applicants filed an application with the then Ontario Rental Housing Tribunal (“ORHT”) against the landlord and the superintendents alleging that they had failed to prevent harassment of the applicants by other tenants because the applicants are a same sex couple and thereby created a “poisoned environment” for the applicants and interfered with their reasonable enjoyment of the premises. The ORHT application also raised an issue about garbage accumulating on the balcony of apartment 701 and the landlord and superintendents’ failure to address this situation.
12After the ORHT application was filed, the applicants were required to serve the application on the landlord and the superintendents, which they did. Immediately following service of the ORHT application, a number of incidents occurred which are raised as allegations in the complaints.
13The applicants state that on March 17, 2004 at 11:40 a.m., Mr. Messmer was contacted by phone by a representative of Kimbel and threatened with eviction if they proceeded with the ORHT application. It is acknowledged by the applicants that nothing was said about the applicants’ sexual orientation at this time.
14Later that same day, at 4:15 p.m., the applicants state that Mr. Plumridge’s daughter and her children were coming to visit them because it was Mr. Plumridge’s birthday. Previously, the daughter had been permitted to park her truck in an area generally used by the Superintendents. However, the applicants state that on this occasion, one of the Superintendents, Ms. Labbe, yelled and screamed at the daughter to move her truck to another area. There is no evidence that any statement was made by Ms. Labbe about the applicants’ sexual orientation.
15Shortly thereafter, at 5:20 p.m., the other individual who was acting as a Superintendent, Mr. Williamson (the precise legal status of this individual will be addressed below), came to the applicants’ apartment door and stated that he wanted back the storage room being used by the applicants. Mr. Messmer states that he said that they were happy with the arrangement they had regarding the storage room, and would not give it back. Mr. Messmer states that Mr. Williamson was yelling, and said that they would take the storage room back and that the applicants should “just watch and see”. No statement was made at this time about the applicants’ sexual orientation.
16I asked the applicants about the basis upon which they were alleging that the incidents on March 17, 2004, relate to their sexual orientation. Their evidence is that the ORHT application disclosed their sexual orientation and status as a same sex couple, and that it was this disclosure that precipitated these events. I do not accept this evidence.
17In giving his evidence, Mr. Messmer first conceded that Mr. Williamson and Ms. Labbe may have been aware of the applicants’ sexual orientation prior to service of the ORHT application, then stated that he did not think they were aware, and then stated affirmatively that they were not aware. However, the ORHT application itself makes repeated reference to the tenants from apartment 701 being aware of the applicants’ sexual orientation and status as a same sex couple as far back as 1997, and sharing this information with other residents of the building. In these circumstances, it is simply not credible that Ms. Labbe and Mr. Williamson were not already aware of the applicants’ sexual orientation and status as a same sex couple by the time the ORHT application was served.
18Rather, I find that the events of March 17, 2004, were precipitated not by the applicants’ sexual orientation, but because they initiated an application to ORHT which was critical of the landlord and superintendents. I find that it is more likely than not that Mr. Williamson and Ms. Labbe already were aware of the applicants’ sexual orientation and status as a same sex couple prior to service of the ORHT application, and there is no evidence before me to indicate that this was an issue for these individuals prior to service of the ORHT application. In my view, given the timing of the issues that arose on March 17, 2004, it is more likely that it was service of the ORHT application which was critical of the actions of these two individuals that was the cause of their actions on that date, rather than the applicants’ sexual orientation or status as a same sex couple. Taking actions in response to service of an ORHT application is not a matter within my jurisdiction, and does not provide a basis for a finding of a violation of the Code.
19I note that the applicants’ ORHT application proceeded to a hearing on April 14, 2004, and a decision was issued on May 11, 2004. The ORHT member found that “there was no evidence of overt harassment between the two sets of tenants” (being the applicants and the tenants in apartment 701) and that he “cannot find grounds to cause the landlord to intervene in the matter”. The ORHT member did find that the landlord had failed to prevent the accumulation of garbage on balconies, and ordered the landlord to “ensure that balconies are free of garbage and other refuse”. A request for review was initiated by the applicants, and was dismissed on June 8, 2004. While the respondents in this proceeding submitted that the March 17, 2004 events already had been adjudicated by ORHT, it is not necessary for me to rule on this submission in light of my finding that these events do not give rise to a violation of the Code.
Events of June 2004
20The applicants allege that a number of different events during June 2004 constitute discrimination on the basis of sexual orientation on the part of the respondents. I have separately identified below each of these events.
21Early in the morning hours of June 3, 2004, the applicants state that they observed someone breaking into a tenant’s van and called the police. At 10:30 a.m., Mr. Plumridge went to check on these tenants, whose apartment was in the basement, so see if everything was alright. Mr. Plumridge states that he knocked on the apartment door, but no one answered. Mr. Plumridge then proceeded to walk down the hall towards the elevators. Mr. Williamson’s shop was in the basement at the far end of the hall. Mr. Plumridge states that Mr. Williamson came out of his shop and hollered, “What the fuck are you doing skulking around here? Were you in my shop?” No derogatory remarks were made by Mr. Williamson regarding the applicants’ sexual orientation. While Mr. Williamson’s alleged comments are clearly upsetting and objectionable, once again I do not find any link to the applicants’ sexual orientation or status as a same sex couple arising out of this incident.
22Later that morning, the applicants received a highlighted copy of the apartment building policies in their mailbox. At the bottom of the page is a handwritten note which the applicants state is in the handwriting of Ms. Labbe, which says: “801 p.s. garbage is being removed from 701 balcony, how about your plants be sure not to water to much, the dog we have begun eviction if they don’t get rid of it”. The applicants state that they have artificial plants that do not require water. They allege that this note is discrimination because of their sexual orientation because they were the only tenants who received a document of this nature in their mailbox. In my view, the evidence does not support any link or connection to the applicants’ sexual orientation or status as a same sex couple arising out of this incident. The statement that the garbage was being removed from the balcony of apartment 701 is consistent with the order made by the ORHT member. The statement about the dog (addressed below) relates to an issue raised by the applicants in relation to neighbouring tenants on the 8th floor. While there may not have been a factual basis to support the comment about watering plants too much, this does not, in my view, provide evidence of a link to the ground of sexual orientation.
23On the afternoon of June 3, 2004, the applicants received a visit from Reg Dupuis, who was a Property Manager for Kimbel. During this visit, the applicants raised with Mr. Dupuis a number of issues that they had with the superintendents and with the building, including being sworn at by Mr. Williamson, having a highlighted copy of the building policies left in their mailbox, and the neighbour’s dog defecating and urinating on the rooftop deck outside their apartment. Mr. Messmer’s evidence is that at this meeting the applicants raised the issue of their sexual orientation, and Mr. Dupuis said that he had no problem with this. Ms. Messmer’s evidence is that Mr. Dupuis told them that Mr. Williamson was yelling at them because of their sexual orientation. In contrast, the evidence of Mr. Plumridge, who also was present for this meeting, is that he does not recall Mr. Dupuis saying this. Mr. Dupuis was not called as a witness before me.
24It is notable, in my view, that on June 18, 2004, Mr. Plumridge wrote a letter to Mr. Dupuis following up on their meeting, in which a number of issues are raised, including that Mr. Williamson swore at Mr. Plumridge in the basement hallway, that a highlighted copy of the building policies was put in their mailbox, and that the neighbour’s dog was still urinating and defecating on the roof. Nowhere in this letter is any reference made to any of these matters being related to the applicants’ sexual orientation, or to any admission by Mr. Dupuis that this was the reason for the superintendents’ behaviour. Accordingly, I do not find support for the applicants’ allegations arising out of the meeting with Mr. Dupuis. Nor do I find sufficient reliable evidence that the applicants raised an allegation of discrimination or harassment because of their sexual orientation at the June 3, 2004 meeting sufficient to charge the respondents with an obligation to take reasonable steps to respond.
The incident on July 18, 2004
25On July 18, 2004, at about 5:30 p.m., the applicants were going out for dinner. This was two days after their wedding. As they were walking through the parking lot and getting into their van, they passed by Mr. Williamson, who said, “What? No camera today?” Due to incidents that had occurred at the building, the applicants state that they had been advised to carry a video camera with them in order to document events. Mr. Messmer replied, “Why would we need one?”
26As they were driving out of the parking lot, Mr. Messmer states that Mr. Williamson yelled, “fucking asshole fags” and stated some other things that were unintelligible. While Mr. Plumridge’s evidence at the hearing was that Mr. Williamson said “asshole fags”, to the extent that it makes any difference I prefer Mr. Messmer’s evidence as he was on the side of the vehicle closest to Mr. Williamson and his evidence coincides with what was written in a joint letter from the applicants to Mr. Dupuis later that day. Accordingly, I find that Mr. Williamson on this day yelled “fucking asshole fags” at the applicants as they were driving out of the apartment parking lot. In a subsequent part of this decision, I will address the respondents’ liability for this conduct.
27Later that day, the applicants wrote a detailed letter to Mr. Dupuis setting out the incident that had just occurred and expressly stating that Mr. Williamson’s intent was “to offend, harass and discriminate against us quite publicly” and that they wished to file a formal complaint against Mr. Williamson. The applicants requested a written response from Mr. Dupuis within two weeks, and requested that steps be taken to stop this type of behaviour.
28No response to this letter was received by the applicants. As noted above, Mr. Dupuis was not called as a witness before me to indicate what, if any, steps he took in response to this letter. Mr. Bubel’s evidence is that he was never made aware of this letter. Given the state of the evidence on this point, I find that the respondents took no steps to respond to the applicants’ complaint about the incident on July 18, 2004. Once again, in a subsequent part of this decision, I will address the respondents’ liability for this failure to take action.
The events from July 26 to August 22, 2004
29On July 26, 2004, the applicants sent a further letter to Mr. Dupuis following up on the issue of the neighbour’s dog and the feces on and around their rooftop deck. This issue was raised again in a letter dated August 1, 2004. When the applicants still had not received any response on this issue, on August 12, 2004, Mr. Plumridge contacted the Lambton Health Unit to complain about this situation as a health issue. The Health Unit apparently contacted Mr. Dupuis directly, which precipitated an immediate and angry telephone call to Mr. Plumridge by Mr. Dupuis.
30The applicants’ complaints allege that Mr. Dupuis threatened that if the applicants contacted the landlord again for any reason, they would be taken to the ORHT and evicted for “anything and everything”. The complaints further allege that Mr. Dupuis on this phone call referred to the applicants as “princesses”. In his evidence at the hearing, Mr. Messmer testified that Mr. Dupuis’ actual words were “princesses in their ivory tower”. Although Mr. Messmer was not on the phone with Mr. Dupuis, he testified that he heard Mr. Dupuis say this. This was not corroborated by Mr. Plumridge, who was the person actually on the telephone line with Mr. Dupuis. Following the phone call, Mr. Plumridge made four pages of detailed notes regarding this telephone call, and there is no reference to the applicants being called “princesses” in these notes. Rather, Mr. Plumridge’s notes record Mr. Dupuis as saying that the applicants think they can “rule the roost” wherever they are living. In his evidence before me, Mr. Plumridge could not affirm one way or the other whether Mr. Dupuis had said “princesses” or “princesses in their ivory tower” during this phone call. Given the state of the evidence on this point and in light of the absence of any reference to “princesses” in Mr. Plumridge’s contemporaneous notes, I do not find that the evidence supports that Mr. Dupuis referred to the applicants as “princesses” or “princesses in their ivory tower” on this telephone call.
31I accept the applicants’ evidence that Mr. Dupuis was angry on this telephone call. While the complaints allege that Mr. Dupuis threatened the applicants with eviction, what Mr. Plumridge’s notes record Mr. Dupuis as actually stating is that he was putting them on notice that “any further issues would be dealt with at the Tribunal – he would be taking us to the Tribunal”. While I appreciate that this was an upsetting phone call for the applicants to receive, I do not find that their sexual orientation was a factor in Mr. Dupuis’ actions. Rather, I find that Mr. Dupuis’ call was precipitated by the applicants involving the Lambton Health Unit in the issue relating to the neighbour’s dog. This does not give rise to a matter within my jurisdiction.
32The applicants allege that the failure to address the issue with the neighbour’s dog amounts to discrimination because of their sexual orientation, on the basis that other tenants did not experience the same difficulty in getting their issues addressed. First, there is no actual evidence before me that other tenants got their issues addressed in a more timely manner. Second, by this time it is clear that the applicants’ relationship with the landlord and superintendents had deteriorated, particularly following the applicants’ March 2004 ORHT application. I find that it is the deterioration of this relationship due to the allegations raised, the pursuit of legal action, and the continued documentation of incidents by video camera that is more likely to have caused the landlord and superintendents to not take particularly timely actions in response to the applicants’ concerns, as opposed to their sexual orientation.
33The applicants also have raised before me an issue regarding the amount they were being charged for air conditioning, which was $20 per month, as opposed to what they saw as the cost advertised in apartments in the building for rent, which was $15. On cross-examination, the applicants conceded that it was reasonable for the amount charged to differ depending upon the size of the unit and the number of air conditioners in use. There is no evidence before me that there is any difference in what was being charged for a rental unit in the building of the same size as the applicants’ apartment and with two air conditioners. In any event, even if the landlord was asking less from new tenants, this does not support an allegation of discrimination within the meaning of the Code, nor is there any evidence to connect this issue to the applicants’ sexual orientation.
34The applicants also sent a letter dated August 2, 2004 requesting where to send their rent cheques due to issues with the superintendents. When they received no reply, they sent post-dated cheques directly to Mr. Dupuis. I see nothing arising from this that gives rise to discrimination under the Code.
Further conduct by Mr. Williamson – September 5, 2004 to June 16, 2005
35Mr. Messmer states that on September 5, 2004, he heard banging outside on the roof and went to his living room window to see what was going on. Mr. Messmer states that he saw Mr. Williamson out on the roof picking up garbage left by the neighbours in apartment 802. Mr. Messmer states that Mr. Williamson came up onto their rooftop deck and said, “What are you looking at you fucking asshole?” Nothing further was said by Mr. Williamson on that occasion. In his evidence, Mr. Messmer acknowledged that Mr. Williamson did not like picking up garbage and dog feces left by the tenants in apartment 802. There also is evidence before me that Mr. Williamson did not like being “documented” by the applicants. In my view, these are more likely explanations for Mr. Williamson’s conduct on this date, as opposed to the applicants’ sexual orientation.
36Both applicants testified that during the period from September 5, 2004 to June 14, 2005, Mr. Williamson would on occasion open his apartment door a crack while they were passing by and call the applicants “fags” or “assholes” when no one else was around. The applicants’ evidence is that this happened about two to three times per month on average, and often occurred when Mr. Plumridge was returning home from work. The applicants’ evidence is that Mr. Williamson could see Mr. Messmer leaving to go pick up Mr. Plumridge from work, and would be waiting for them when they returned. Neither applicant could recall a specific occasion when this conduct occurred, although they were both clear in their evidence that this happened. Mr. Plumridge acknowledged that this conduct occurred more frequently during the period before he quit his job in November 2004, but states that it continued to occur after that time although with less frequency.
37There were no witnesses to this behaviour. Mr. Williamson did not testify before me, and so I do not have his response to this allegation. On balance, I accept the applicant’s evidence that on occasion during the period from September 2004 to June 2005 and more frequently prior to when Mr. Plumridge quit his job in November 2004, Mr. Williamson would open his apartment door a crack and call the applicants “fags” or “assholes” or some combination of these two words. While they had difficulty recalling certain specific details of some events, I generally found the applicants to be credible witnesses, and their evidence as to Mr. Williamson’s conduct is consistent with similar comments that he made on other occasions.
38In the evening on April 28, 2005, there was an incident where the new tenants in apartment 802 were throwing things off their balcony into the street, including plates, spaghetti and part of the refrigerator. The police were called. The superintendents were out of town, and so were not immediately available to address the situation. When the superintendents returned at 12:43 a.m., they went to the 8th floor to speak to the tenants in apartment 802 and a loud argument ensued.
39Mr. Messmer’s evidence is that he was behind his own apartment door with his video camera on, in order to record the audio. The applicants’ apartment door was closed at this time. Mr. Messmer states that he subsequently went onto the deck in order to better record what was happening. There was some dispute at the hearing as to whether Mr. Williamson would have been able to see Mr. Messmer while he was out on the rooftop deck. In any event, Mr. Plumridge’s evidence is that while Mr. Messmer was on the deck, he (Mr. Plumridge) opened the door a crack as the superintendents were coming back from apartment 802 towards the elevator. Mr. Messmer’s evidence is that Mr. Williamson said, “Did you get that on tape cocksuckers?” Mr. Plumridge’s evidence is that Mr. Williamson said, “Did you get that assholes?” or “Did you get that fags?” Both applicants testified that Mr. Williamson proceeded to go on a tirade for several minutes, which included calling the applicants “cocksuckers”, “assholes” and “fags”, although Mr. Plumridge is not as certain as Mr. Messmer that the term “cocksucker” was used. Both applicants testified that Mr. Williamson’s speech was slurred, and they believe that he had been drinking.
40Despite it being stated in their complaints that some of this incident is documented on video taken by Mr. Messmer, the applicants stated at the hearing that most of the audio does not show up because it was windy out on the roof. The applicants did not produce the video or audio of this incident prior to the hearing, nor did they have it at the hearing itself. In the absence of production of the video and/or audio recording of this incident and the ability of the respondents to review and cross-examine the applicants on its contents, I am not prepared to make any factual finding arising out of this incident.
41On June 14, 2005, the applicants were on the elevator when Mr. Williamson also got on. As the applicants exited the elevator, Mr. Messmer states that Mr. Williamson moved towards them and said “fuck”. Mr. Messmer states that he was wearing his video camera around his neck at the time, with the audio on. This tape also was not produced in this proceeding. Once again, in the absence of production of the audiotape of this incident and the ability of the respondents to review and cross-examine the applicants on its contents, I am not prepared to make any factual finding arising out of this incident.
42On June 16, 2005, the applicants were exiting the building and stopped to chat with a worker who was installing windows and doors in the building. As they proceeded to their van, the applicants state that Mr. Williamson approached the worker and made derogatory comments about them. Ms. Messmer’s evidence is that Mr. Williamson said, “Watch out for those guys because they are cocksuckers and fags and are videotaping the 8th floor”. Mr. Messmer’s evidence is that Mr. Williamson was obsessed with the applicants having videos and was telling everyone that they were videotaping. Mr. Plumridge’s evidence is that Mr. Williamson said, “You shouldn’t be talking to those guys because they’re assholes and fags”. Mr. Plumridge states that he is clear in his evidence that Mr. Williamson called them “fags” and “assholes” on this occasion, and that Mr. Williamson usually called them “asshole fags” or “cocksucking fags”, one or the other. There is no evidence that there was a video or audio recording of this incident.
43While there is a discrepancy between the evidence of the two applicants as to the precise words used by Mr. Williamson on this occasion, in my view there is sufficient commonality to support a finding on balance of probabilities that Mr. Williamson referred to them as “fags” on this occasion and warned the worker in some fashion to stay away from them.
44As previously indicated, I will address the respondents’ liability for Mr. Williamson’s conduct at a later point in this decision. The evidence before me does not indicate that Mr. Williamson’s conduct during this specific period of time was brought to the respondents’ attention prior to the filing of the human rights complaints.
The incident on June 30, 2005
45On June 30, 2005, at 5:30 p.m., the applicants were returning from buying groceries. As they entered the building and proceeded toward the elevator, they were approached by Mr. Williamson who said, “What you got the camera for boys?” At this time, Mr. Messmer was wearing the video camera around his neck. When the applicants did not respond, Mr. Williamson repeated his question a couple of times. There then ensued an exchange during which Mr. Williamson told the applicants that they had to talk to him, and Mr. Messmer replied that he did not want to talk to him. At this point, the applicants were attempting to get onto the elevator, and Mr. Williamson was blocking their way. Mr. Messmer then raised the video camera to record that it was Mr. Williamson who was bothering them, and Mr. Williamson said, “that’s all I need” or “that’s all I was waiting for”, and proceeded to punch the video camera into Mr. Messmer’s face, breaking his glasses and leaving a scar. Mr. Plumridge’s evidence is that the impact of the punch shut down the video camera.
46The applicants state that they proceeded to get into the elevator, and Mr. Williamson got on with them. After there was silence for the first few floors, Mr. Messmer states that Mr. Williamson said, “You guys are pathetic”. Mr. Plumridge’s version is that he said, “You guys are sick”. Both applicants state that Mr. Williamson later said that he could get two “cocksucking fags” out of his building whenever he wanted to. The applicants state that Mr. Messmer told Mr. Williamson that they were calling the police and that he would be going to jail, to which Mr. Williamson responded that they would see who goes to jail.
47The applicants did report the incident to the police, and Mr. Williamson was arrested and charged with assault. He was subsequently convicted and sentenced to one year’s probation.
48Mr. Bubel’s evidence is that after hearing about the assault, he went down to Sarnia and spoke with Mr. Williamson. He states that he confirmed with Mr. Williamson that he had assaulted Mr. Messmer, and asked why he had hit him. He states that Mr. Williamson said that he was constantly being harassed by the applicants with their camera and, after a year and a half of having a camera put in his face, he just lost it. Mr. Bubel states that upon confirming the assault, he made an immediate decision to terminate the employment of Mr. Williamson. However, because Mr. Williamson and Ms. Labbe were husband and wife and Ms. Labbe required notice of termination, Mr. Bubel acknowledged that they were not removed from the building until late July 2005. The respondents’ position is that, while Mr. Williamson was only a contract employee and could have been removed immediately from the building, Ms. Labbe required notice of termination because she was employed as the building superintendent and had not been involved in the assault.
49I accept the applicants’ evidence that this incident occurred as alleged. The question for me is the extent to which their sexual orientation was a factor in this incident.
50Clearly, in relation to the comment made by Mr. Williamson in the elevator that he could get two “cocksucking fags” out of the building any time he wanted, there is a direct and explicit link to sexual orientation.
51However, with regard to the actual physical assault, I have greater difficulty finding the same link or connection with the applicant’s sexual orientation. Rather, in my view, the preponderance of the evidence supports that the precipitating cause of the assault was Mr. Messmer raising the video camera to record Mr. Williamson, rather than the applicants’ sexual orientation. This is consistent with Mr. Williamson’s preceding questions about the camera, the timing of the physical assault, the previous statements made by Mr. Williamson about the video camera, and the applicants’ own evidence that Mr. Williamson was obsessed with the video camera. This is also consistent with Mr. Bubel’s evidence as to what he was told by Mr. Williamson. While this is hearsay evidence, as Mr. Williamson was not called as a witness (apparently he could not be located), I have discretion to admit hearsay evidence, which I exercise here particularly since it is only one piece of evidence that is supported by much other evidence before me.
52Accordingly, I find that the applicants’ sexual orientation was not a factor in the actual physical assault by Mr. Williamson. In reaching this conclusion, I am aware that my finding is somewhat inconsistent with the finding of the Criminal Injuries Compensation Board (“CICB”) that Mr. Messmer was the victim of hate-motivated criminal harassment and assault, notwithstanding that Mr. Williamson had neither been charged with nor convicted of a hate crime. However, I note that Mr. Messmer’s claim before the CICB was considered on the basis of written documentation and the respondents were not parties to that proceeding, while I had the benefit of hearing oral evidence and receiving submissions from all parties. Ultimately, it is the applicants’ onus to establish by evidence tendered before me that their sexual orientation was a factor in the assault, and I find that this onus has not been satisfied based on the evidence before me.
53With regard to the respondents’ response to this situation, I find that the respondents did take reasonable steps to address Mr. Williamson’s conduct by terminating his employment and requiring him to move out of the building. While I appreciate that there was a one-month delay from the time of the assault until Mr. Williamson’s departure from the building, I do not regard this as unreasonable in the circumstances.
Liability of the respondents
Liability for conduct of Mr. Williamson
54In this decision, I have made the following findings of fact regarding the conduct of Mr. Williamson, who is not a party respondent to this proceeding:
that on July 18, 2004, he yelled “fucking asshole fags” at the applicants as they were driving out of the apartment parking lot;
that on occasion during the period from September 2004 to June 2005 and more frequently prior to when Mr. Plumridge quit his job in November 2004, he would open his apartment door a crack and call the applicants “fags” or “assholes” or some combination of these two words;
that on June 14, 2005, he referred to the applicants as “fags” and warned a worker in some fashion to stay away from them; and
that on June 30, 2005, after the physical assault, he made a comment to the applicants in the elevator that he could get two “cocksucking fags” out of the building any time he wanted.
55I find that this conduct by Mr. Williamson constitutes harassment of the applicants because of their sexual orientation, given Mr. Williamson’s explicit use of the terms “fags” and “cocksuckers”. I also find that Mr. Williamson’s conduct created a poisoned environment for the applicants in relation to the occupancy of accommodation because of their sexual orientation, in light of the repeated nature of these comments and the period of time over which they were made.
56It is one of the vagaries of the Code that s. 2(2), which protects tenants against harassment by the landlord or agent of the landlord or by an occupant of the same building, does not list protection against harassment because of the ground of sexual orientation. In my view, it is not necessary for me to determine whether the absence of reference to “sexual orientation” in s. 2(2) of the Code precludes a finding of harassment on this ground (as held in A. v. Colloredo-Mansfeld (No. 3) (1994), 1994 CanLII 18420 (ON HRT), 23 C.H.R.R. D/328 (Ont. Bd. Inq.)) or whether “harassment” because of sexual orientation can be regarded as a violation of the general protection against discrimination set out in s. 2(1) of the Code (based upon the reasoning in Crozier v. Asselstine (1994), 1994 CanLII 18435 (ON HRT), 22 C.H.R.R. D/244 (Ont. Bd. Inq.)). I also, in my view, do not need to address the question of whether the absence of protection against harassment because of sexual orientation in s. 2(2) of the Code is in violation of s. 15 of the Charter (see Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493), which was not raised or argued before me.
57This is because my finding that the applicants have been subjected to a poisoned environment because of their sexual orientation is a violation of the general protection against discrimination set out in s. 2(1) of the Code, which does list the ground of sexual orientation: see Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.) at paras. 9 and 10.
58Accordingly, on the basis of these authorities, I find that Mr. Williamson’s conduct towards the applicants constitutes discrimination against the applicants because of their sexual orientation, contrary to ss. 2(1) and 9 of the Code.
59The question at this stage is whether any or all of the respondents are liable for this conduct of Mr. Williamson. This question falls to be determined by the application of s. 46.3 of the Code, which provides as follows:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
60As a result, the questions for me are: (1) whether Mr. Williamson was “an officer, official, employee or agent” of either Piliwood or Kimbel or both; and (2) whether his conduct was “in the course of his employment”.
61With regard to the former issue, the applicants take the position that Mr. Williamson was employed by Piliwood or Kimbel or both as one of the Superintendents of the building. In support of this position, the applicants rely upon a letter dated March 26, 2002 and sent by Kimbel to the tenants at their apartment building that states that Kimbel had employed Mr. Williamson and Ms. Labbe (his spouse) as the new Building Superintendents. The applicants also rely upon actions taken and statements made by Mr. Williamson during his time at the apartment building, including demanding the keys back to storage spaces being used by the applicants, dealing with various tenant issues, referring to the apartment building as “his building”, and otherwise presenting himself as a building superintendent.
62Mr. Bubel’s evidence is that the March 26, 2002 letter is in error, and that only Ms. Labbe was employed as the Building Superintendent. His evidence is that Mr. Williamson was a contract employee who was employed from time to time to perform maintenance, renovations and other like jobs at the building. Mr. Bubel’s evidence is that Mr. Williamson was employed in this capacity from time to time by either Piliwood or Kimbel or both, and that the names of both Piliwood and Kimbel would have been on the cheques paid to Mr. Williamson for his work. Mr. Bubel testified that any monies paid for services as the Building Superintendent were paid to Ms. Labbe, and that Mr. Williamson submitted his hours for payment, was paid at an hourly rate and was regarded as a contract employee by both corporate respondents and by Revenue Canada. Mr. Bubel’s evidence was that there was no contract with Ms. Labbe as the Building Superintendent, but it was understood between her and the corporate respondents that this was her position and she was paid a salary with deductions on this basis. In contrast, Mr. Bubel states that Mr. Williamson was paid as a contract employee. While Mr. Bubel states that the cheques paid to these individuals would support his evidence in this regard, no such evidence was tendered by the respondents at the hearing.
63While it may be true that the payment of salary for the Building Superintendent position was made to Ms. Labbe and that separate payments were made to Mr. Williamson as a contract employee, I do not accept Mr. Bubel’s evidence that Mr. Williamson was not in fact employed by the corporate respondents as one of the Building Superintendents. On Mr. Bubel’s evidence, Mr. Williamson and Ms. Labbe were hired as a husband and wife team because of the round-the-clock nature of the Building Superintendent position. As previously noted, they were both introduced to the tenants as the new Building Superintendents. In the response initially filed with the Commission in February 2006 on behalf of the respondents by their then counsel, Mr. Williamson is described as “the Respondent’s former superintendent” and it is stated that, as of the time the responses were filed, “Mr. Williamson is no longer the superintendent at that building”. It was only in the Responses filed with this Tribunal almost three-and-a-half years later in response to the Applications that Mr. Williamson is described as a “private contractor” and as never having been an employee of the corporate respondents.
64In my view, the reality of the situation is that both Ms. Labbe and Mr. Williamson were jointly employed as Building Superintendents, notwithstanding that the salary for this position may have been paid to Ms. Labbe. I find that they both worked in this position jointly as a husband and wife team. I further find that, in addition to performing this role for the corporate respondents, Mr. Williamson also performed additional work in the form of maintenance and renovations, for which he was paid by the corporate respondents as a contract employee. Given that payments were made for the Building Superintendent position and for Mr. Williamson’s additional work as a contract employee by way of cheques showing the names of both corporate respondents, I find that Mr. Williamson was employed by both corporate respondents.
65Accordingly, on the first issue under s. 46.3 of the Code, I find that Mr. Williamson was an employee of both Piliwood and Kimbel both as a joint Building Superintendent with his spouse Ms. Labbe and also as a contract employee performing maintenance and renovation work at the building.
66This leads to the second issue, which is whether Mr. Williamson’s conduct can be regarded as having been “in the course of his employment”. In my view, it was. The Supreme Court of Canada has held that a purposive approach must be taken to the interpretation of this phrase in the context of human rights legislation, and that it would be wrong to import the notions of vicarious liability from tort law: see Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84; Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.
67Mr. Williamson’s presence in the apartment building was due to his employment by the corporate respondents as a joint Building Superintendent and as a contract employee. While it is true that Mr. Williamson lived in the building, this was only as a result of his employment by the corporate respondents. It was this presence in the building, which directly emanated from his employment by the respondents, which afforded Mr. Williamson the opportunity to make derogatory comments to and about the applicants because of their sexual orientation. He also in his position as joint Building Superintendent exercised a certain degree of control or authority over the applicants as tenants in the building, which particularly manifested in his demands for the return of keys to storage space and his threats to get the applicants out of the building.
68Accordingly, I find that Mr. Williamson’s conduct was “in the course of his employment” within the meaning of s. 46.3 of the Code.
69On this basis, I find the two corporate respondents, Piliwood and Kimbel, jointly and severally liable for the violation of the applicants’ rights under ss. 2(1) and 9 of the Code.
Liability for failure to respond to complaint
70It is well established in the Tribunal’s jurisprudence that an employer may be held liable for the way in which it responds to a complaint of discrimination: see Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789; Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30.
71In this case, the applicants reported the incident of July 18, 2004 to Mr. Dupuis, who was employed as a Property Manager for Kimbel, and expressly referred to their report as a “formal complaint” and requested that action be taken to ensure that Mr. Williamson’s conduct was not repeated. There is no evidence before me to indicate that Mr. Dupuis or anyone else at Kimbel took any steps in response to this complaint.
72In my view, this was a clear violation of Kimbel’s obligation as Mr. Williamson’s employer to take steps to respond to a complaint of harassment or discrimination. Had Mr. Dupuis or anyone else at Kimbel taken steps at this time to investigate and address Mr. Williamson’s conduct and to bring home to Mr. Williamson both the inappropriateness of his derogatory comments about the applicants’ sexual orientation and the potential consequences of any continuation of such conduct, the ensuing events may never have occurred. Instead, by failing to respond to the applicants’ complaint about Mr. Williamson’s discriminatory conduct, Kimbel effectively set the stage for the subsequent occurrences of Mr. Williamson’s discriminatory conduct.
73Accordingly, on this basis I find that Kimbel is directly liable for a further breach of ss. 2(1) and 9 of the Code due to its failure to take reasonable or indeed any steps to respond to the applicants’ complaint.
74The evidence before me is that Mr. Dupuis was employed by Kimbel and not by Piliwood. The complaint about Mr. Williamson’s conduct was made by the applicants to Mr. Dupuis at Kimbel Management Ltd. There is no evidence that the applicants’ complaint was brought to the attention of Piliwood or Mr. Bubel. As a result, liability for this breach of the Code is restricted to Kimbel and does not extend to Piliwood or Mr. Bubel.
Personal liability of Mr. Bubel
75Mr. Bubel personally was not the employer of Mr. Williamson, and so is not liable for his conduct pursuant to s. 46.3 of the Code. Further, as stated above, while Mr. Dupuis reported to Mr. Bubel as President of Kimbel, Mr. Bubel’s evidence is that the July 18, 2004 complaint was never brought to his attention, and there is no evidence to contradict this. Indeed, when the assault of June 30, 2005, did come to Mr. Bubel’s attention, he took immediate steps to address this with Mr. Williamson and terminated his employment and required him to leave the building a short time later. Accordingly, in my view, there is no basis in the evidence before me to impose personal liability on Mr. Bubel, and I dismiss all Applications as against him personally.
76In their submissions, the applicants seek to rely upon an allegation that, at a point in time subsequent to the matters at issue before me, Mr. Bubel was overheard making the statement, “How do we get those fags out of here?” This comment is alleged to have been made in August 2005, after the time period addressed in the complaints underlying the Applications. When Mr. Messmer attempted to give evidence regarding Mr. Bubel’s alleged statement, I ruled that this was outside the scope of the transitional Applications before me. Accordingly, I place no reliance upon this allegation in making my findings herein.
Remedy
Damages for injury to dignity, feelings and self-respect
77Each of the applicants seeks $130,000 in damages as against each of Kimbel and Piliwood. While a similar amount was sought as against Mr. Bubel, I have dismissed the Applications as against him personally and thus there is no basis for any monetary remedy as against him.
78Section s. 45.2(1)1 of the Code empowers this Tribunal to order a party who has infringed a right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
79In calculating intangible losses, the Code requires a general evaluation of the circumstances of the Code violation and its effects to determine appropriate monetary compensation for injury to dignity, feelings and self-respect. There are two general criteria that are applied in making this evaluation: (1) the objective seriousness of the conduct; and (2) effect on the particular applicant who experienced discrimination. A fundamental principle applied by this Tribunal is that cases with similar facts should lead to an equivalent range of compensation, recognizing unique circumstances: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880.
80In terms of the impact on Mr. Messmer, he testified that went through a couple of years of being demeaned, belittled, and treated as less than human by Mr. Williamson. Mr. Messmer stressed that it was more than being treated differently, it was being treated sub-humanly. Mr. Plumridge testified that he has problems when he is required to remember and re-live these events, including blanks in his memory and stuttering. These problems were apparent in his evidence at the hearing. Both applicants state that these events have caused them not to feel safe in the building where they live, and in Mr. Plumridge’s case this can give rise to feelings of panic.
81The applicants introduced medical reports into evidence before me, which were prepared for the purpose of the CICB hearings. None of the doctors or counsellors were called to directly give evidence before me, nor does it appear that there was full disclosure of the notes and records of these medical professionals. While these reports indicate that both applicants have been diagnosed with post-traumatic stress disorder (“PTSD”), I note that much of the impact on the applicants discussed in these reports derives from the physical assault by Mr. Williamson, which I have found not to be in violation of the Code. Accordingly, I place little weight on these reports in determining the awards of compensation for injury to dignity, feelings and self-respect.
82In their submissions, the respondents note that one of these medical professionals suggests in her report that the impact on the applicants might be ameliorated if they no longer lived in the apartment building. The respondents also submit that the applicants did little to avoid Mr. Williamson, and in fact provoked him by carrying around a video camera. In my view, it is not a reasonable response to discrimination and a poisoned environment to require the applicants to uproot themselves from their home in order to mitigate their losses. Nor, in my view, is it reasonable to suggest that the applicants should have altered the normal course of their lives for the purpose of avoiding the discriminatory conduct of Mr. Williamson. With regard to the carrying of the video camera, I have taken this into account in relation to my finding that the physical assault was precipitated by this and not by the applicants’ sexual orientation, which is not in any way intended to excuse Mr. Williamson’s conduct. Rather, it is simply to state that it was this, and not the applicants’ sexual orientation, that led to the physical assault.
83There is no doubt that there is a broad spectrum in the range of compensation awarded for intangible losses. Crawford v. 2176534 Ontario, 2010 HRTO 1412, is a case dealing with discrimination because of sexual orientation in relation to the occupancy of accommodation, where it was found that the applicant was referred to as a “faggot” and there was a threat to paint his house pink, which resulted in an award of $850 for intangible losses, which is on the very low end of the scale. This very modest award appears to have been influenced by the adjudicator’s assessment of the applicant’s lack of credibility and tendency to exaggerate events and their impact upon him in pursuit of a higher award of compensation.
84In contrast, Pereira v. Daf’d Restaurants, 2010 HRTO 1782, is a case in which discrimination in employment because of sexual orientation was found, as the applicant was subjected to comments about being “gay”, which resulted in an award of compensation for intangible losses in the total amount of $3,500. It should be noted that this award was regarded by the adjudicator as being lower than warranted, but was what had been requested by the applicant.
85Van Adrichem v. Lopes, 2010 HRTO 1091, is a case where discrimination because of disability in respect of occupancy of accommodation was found, as a result of harassing and demeaning comments made by the landlord about the applicant’s intellectual disability. This resulted in an award of $5,000 for intangible losses, which again was regarded by the adjudicator as being lower than warranted but was what had been requested by the applicant.
86McCreary v. 407994 Ontario, 2010 HRTO 2369, is a case where discrimination in employment because of race and ethnic origin was found, based in part upon discriminatory comments made by the respondents. An award of $8,750 was made for intangible losses, based in part upon the fact that the applicant’s employment was terminated.
87In the instant case, I find that an award for intangible losses should fall somewhere within the range of awards made in these cases, which also include consideration of derogatory and demeaning comments. While I appreciate that no amount of monetary compensation can truly compensate an applicant for the injury to their dignity caused by discrimination, the award that I make in this case must bear some relation to this Tribunal’s existing jurisprudence and awards made in similar cases.
88In my view, I regard the comments made by Mr. Williamson to be objectively serious, given the highly derogatory nature of the terms used. It also, in my view, is serious that an egregious incident of discriminatory conduct was reported by the applicants to Kimbel, and there is no evidence that any action was taken to address the situation. In terms of the emotional impact on the applicants, I find that Mr. Williamson’s conduct and the failure by Kimbel to address this conduct had a significant impact on their sense of safety and well-being in the place they had chosen for their home. However, in fashioning my award, I will not have regard to the diagnosis of PTSD or the medical reports, which I find are more proximately related to the physical assault.
89In all of these circumstances, it is my view that an award of $7,500 to each applicant as compensation for injury to dignity, feelings and self-respect is warranted. I find that Kimbel and Piliwood are jointly and severally liable for payment of this award. While it is correct that I found both Kimbel and Piliwood jointly liable for Mr. Williamson’s conduct as their employee and only Kimbel liable for the failure to respond to the applicants’ complaint, I find that impact on the applicants was the same; and it is the impact on the applicants that this monetary remedy is directed towards, rather than apportioning relative blameworthiness as between the two corporate respondents.
90I further find that the applicants are entitled to pre-judgment interest on this award, at the rate of 2.8% per annum (derived from the rate set under the Courts of Justice Act for the fourth quarter of 2005 when the complaints were filed) for a period of six years from the date of the last incident, in the total amount of $1,260 for each applicant.
91In evidence before me were the awards for pain and suffering made by the CICB both to Mr. Messmer in the amount of $7,500 and to Mr. Plumridge in the amount of $3,000. The jurisdiction of the CICB to make an award of this nature derives from the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, and applies to a person suffering an injury or death due to the commission of a crime of violence under the Criminal Code. In the instant case, Mr. Williamson was charged with and convicted of criminal assault. As I have stated above, I have not found that the act of physical assault was a violation of the Human Rights Code on the basis that the evidence does not support that the applicants’ sexual orientation was a factor causing the assault, and hence the award for intangible losses that I have made in this decision does not encompass the physical assault. Accordingly, to the extent that the CICB made an award of pain and suffering as a result of the criminal assault, there is in my view no overlap or duplication in the awards made herein and the awards made by the CICB.
92I do note, however, that the award made by the CICB to Mr. Messmer is stated to be not only for the criminal assault, but also for “hate-motivated criminal harassment”. It is unclear from the CICB decision what specific actions were relied upon to make this finding and the extent to which this aspect of the conduct at issue in that proceeding contributed to the award for pain and suffering, as opposed to the impact of the criminal assault. I therefore leave it to the CICB to determine whether there is any overlap between my award of compensation to Mr. Messmer for injury to dignity, feelings and self-respect and the CICB’s award to him for pain and suffering.
Special damages
93In the remedies sought before this Tribunal, the compensation requested was expressed as a total sum and no separate claim was made for special damages. There was evidence before me regarding the cost of replacing Mr. Messmer’s eyeglasses which were broken in the physical assault (for which he was reimbursed by the CICB award), the cost of counselling (for which both applicants were partially compensated by the CICB awards) and for potential surgery to repair the scar on Mr. Messmer’s face suffered in the physical assault (for which Mr. Messmer has the right to seek compensation from the CICB).
94In my view, these special damages are more proximately the result of the physical assault by Mr. Williamson, as opposed to the conduct I have found to be in violation of the Code. Accordingly, I make no additional award of compensation for special damages.
Other individual remedies sought by the applicants
95The applicants request a written apology from the respondents for their discriminatory conduct. It is unclear whether the ordering of an apology by this Tribunal would be in violation of the right to freedom of expression in the Charter of Rights and Freedoms: see Gurney v. McDonald’s Restaurants of Canada, 2011 HRTO 984. In any event, I do not believe that ordering an apology would be helpful or appropriate in this case, and I decline to do so. The applicant and all parties have a written decision setting out the findings that I made pursuant to this legal process, and that, in my view, is a proper and sufficient outcome.
96The applicants also request that the respondents be ordered to cease discriminating against them and to provide an assurance that they will no longer discriminate against them or violate the Code. The Code is already a legal statute in this province which imposes rights, obligations and responsibilities on the citizens of Ontario, including the respondents. In my view, nothing would be served by ordering the respondents to stop discriminating against the applicants, which they are already legally prohibited from doing, or by ordering the respondents to provide an assurance that they will comply with the Code, which they are already required to do.
Public interest remedies
97Pursuant to s. 45.2(1)3 of the Code, this Tribunal has the power to order the respondents to do anything that, in the Tribunal’s opinion, the respondents ought to do to promote compliance with the Code.
98The applicants request that the respondents be required to develop and implement a company-wide human rights policy and training for staff at all levels. There is no evidence before me that the respondents currently have developed or implemented a human rights policy. In my view, given what I have found to have occurred in the instant case, it would be appropriate for the two corporate respondents to develop and implement such a policy, if they have not already done so, which sets out the rights, obligations and responsibilities under the Code and which provides a complaint mechanism, particularly for tenants to raise issues of potential Code violations and have them addressed. If the respondents already have developed and implemented such a policy, it shall be reviewed to ensure that it complies with the order I have made. The corporate respondents also shall take appropriate steps to ensure that their staff and tenants are made aware of this policy. This shall be done within six months of the date of this decision.
99With regard to training, in my view it would be appropriate for management and building superintendents employed by the two corporate respondents to receive training on their rights, obligations and responsibilities under the Code. This can be achieved by requiring all management and building superintendents to take the e-learning course on the website of the Ontario Human Rights Commission called “Human Rights in Rental Housing”. This training shall be completed within six months of the date of this decision.
100The applicants further request that the policy developed by the respondents be available for audit and subject to enforcement by this Tribunal to ensure implementation of the policy and training. It is not the Tribunal’s role to audit or enforce policies or training in the manner sought by the applicants. However, the Tribunal does order the respondents to provide to the Tribunal and to the applicants a copy of the human rights policy it develops and implements, a report on the steps taken to make staff and tenants aware of this policy, and confirmation that the required training has been completed, within seven months of the date of this decision.
ORDER
101For all of the foregoing reasons, I hereby make the following order:
within 30 days of the date of this decision, the respondents Kimbel and Piliwood shall pay, jointly and severally, to each of the applicants the sum of $7,500 as monetary compensation for injury to dignity, feelings and self-respect;
within 30 days of the date of this decision, the respondents Kimbel and Piliwood shall pay, jointly and severally, to each of the applicants the further sum of $1,260 as pre-judgment interest;
post-judgment interest shall accrue on the above amounts at a rate of 3.0% per annum commencing 30 days after the date of this decision;
within six months of the date of this decision, Kimbel and Piliwood shall develop and implement a human rights policy, which sets out the rights, obligations and responsibilities under the Code and which provides a complaint mechanism, particularly for tenants to raise issues of potential Code violations and have them addressed, and shall further take appropriate steps to ensure that their staff and tenants are made aware of this policy;
within six months of the date of this decision, Kimbel and Piliwood shall require all management staff and building superintendents to take the e-learning course on the website of the Ontario Human Rights Commission called “Human Rights in Rental Housing”; and
within six months of the date of this decision, Kimbel and Piliwood shall provide to the Tribunal and to the applicants a copy of the human rights policy they develop and implement, a report on the steps taken to make staff and tenants aware of this policy, and confirmation that the required training has been completed.
Dated at Toronto, this 28th day of July, 2011.
“Signed by”
Mark Hart
Vice-Chair```