Mohamud Osman v. Toronto District School Board, 2011 HRTO 1476

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamud Osman

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 8, 2011

Citation: 2011 HRTO 1476

Indexed as : Osman v. Toronto District School Board

APPEARANCES BY

Mohamud Osman, Applicant ) Self-Represented

Toronto District School Board, Respondent ) Glorie Alfred, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 16, 2007.

2The applicant alleges that he experienced discrimination because of colour, ethnic origin, place of origin and race, arising out of various alleged acts or omissions by the Respondent, Toronto District School Board (the “Board”) representatives in relation to the Board’s lease agreement with College of Toronto. While this complaint was characterized by the Commission as a complaint relating to the “occupancy of accommodation” under s. 2(1) of the Code, in my view this characterization is in error as that provision clearly applies to residential accommodation and not to commercial lease agreements. Rather, this complaint is more accurately characterized as a complaint of a violation of the right to contract without discrimination covered by s. 3 of the Code.

3The hearing in this matter was held on January 7, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, 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 applicant and three respondent witnesses. On consent, cross-examination 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 the applicant on February 14, 2011.

Preliminary matters

4On December 1, 2010, I issued an Interim Decision in this matter (2010 HRTO 2387) removing the personal respondents as parties to this proceeding.

5On January 3, 2011, the respondent served and filed witness statements for the hearing, which identified that the witnesses who would be called by the respondent Board would be the individuals who formerly had been named as personal respondents to this proceeding.

6On January 4, 2011, the applicant wrote to the Tribunal to object to the respondent calling as witnesses persons who previously had been named as personal respondents. The applicant indicated that he had retained legal counsel as a result of the respondent Board’s actions, and requested an adjournment of the January 7, 2011 hearing date as his counsel was not available to attend the hearing.

7The Tribunal requested and considered submissions from the respondent, which opposed the adjournment request, and also considered submissions in reply from the applicant. On January 6, 2011, the Tribunal advised the parties by letter that the adjournment request was denied with reasons to be provided in due course.

8The applicant wrote a further letter dated January 6, 2011, raising various concerns, and was advised by the Tribunal that these matters could be raised with the adjudicator at the hearing.

9At the commencement of the hearing on January 7, 2011, I addressed the concerns raised by the applicant. It is indisputable that a corporate respondent can only act through the conduct of individual persons who are acting on its behalf. Accordingly, when a corporate respondent, such as the respondent Board, is called upon to defend itself in a legal proceeding, it must necessarily call as witnesses those individuals who were involved in the actions at issue. In this case, those individuals were the persons who formerly had been named by the applicant as personal respondents in this proceeding. I explained to the applicant that my decision removing these individuals as personal respondents did not in fact change anything in terms of the Board’s need to call and rely upon these individuals as witnesses in this proceeding. Accordingly, in my view, there was nothing that had changed as a consequence of the delivery of the respondent’s witness statements on January 3, 2011, that necessitated the applicant retaining legal counsel at that time or that justified a last-minute adjournment of the hearing.

10This matter had been scheduled for hearing on January 7, 2011, since August 3, 2010. If the applicant wished to retain legal counsel to represent him at the hearing, he had ample time to do so. This Tribunal does not permit last-minute adjournments of long-scheduled hearings solely because a party has chosen to retain counsel at the 11^th hour who is not available on the scheduled hearing date: see Vallentyne v. Royal Canadian Legion, 2009 HRTO 534; Pileggi v. Champion Products, 2009 HRTO 316.

11For these reasons, I denied the applicant’s request for adjournment.

Background

12The applicant is one of two partners who operate College of Toronto, an accredited elementary and high school program registered with the Ministry of Education. While this program was not restricted to the Somali-Canadian community, at the material time the clientele of the program was exclusively Somali-Canadian. There were approximately 40 students enrolled in the program at the material time.

13On August 29, 2005, College of Toronto entered into a lease agreement with the respondent Board to utilize space at Richview Junior Public School (“Richview”) in Toronto to run its program. The lease agreement commenced on September 1, 2005, and was for a term of one year, with an option to renew the lease for an additional one year period.

14The lease agreement was overseen by the Board’s Real Estate Services Department. The individual responsible for managing the lease agreement on behalf of the Board originally was a Leasing Agent named Hazel Rickett, who departed from the Board in July 2006. This responsibility thereafter was assumed by the Real Estate Coordinator, Donna Jondreau, who at that point was responsible for managing approximately 400 tenants. Ms. Jondreau reported to Gabriella Sicheri, the Manager of Real Estate, who in turn reported to Sheila Penny, Executive Superintendent – Facility Services.

15Richview was being used at the time by a number of tenants of the Board, including an adolescent day program, a day care and several other programs.

The evidence

16As indicated above, the lease agreement included an option to renew for a period of an additional one year. Pursuant to Article 2.05 of the lease agreement, the tenant had the right to renew the lease by written notice to the landlord not less than 180 days prior to expiry of the initial term. This right to renew was subject to the ability of the landlord, within a further 30 days, to notify the tenant that it required the premises for its own purposes. By the terms of the lease agreement, the option to renew would have needed to have been exercised by College of Toronto by March 3, 2006.

17There is no dispute that College of Toronto did not provide written notice of its intention to renew the lease by March 3, 2006. The applicant states that sometime in March 2006, he had a discussion with Ms. Rickett, the Board’s Leasing Agent, in which he advised her that College of Toronto wanted to renew the lease agreement and asked her what he needed to do and whether he should send an e-mail or write a letter. The applicant’s evidence is that Ms. Rickett told him that he did not need to do anything and to just leave it with her, but that he needed to provide her with post-dated rent cheques for the renewal term. The applicant states that he provided these post-dated cheques to the Board, but that they were lost. Ms. Rickett was not called to testify as a witness by either party at the hearing.

18On June 16, 2006, Ms. Sicheri sent the applicant a letter advising that College of Toronto had not exercised its right to renew the lease, and informed him that the Board was not prepared to lease the premises to College of Toronto beyond August 31, 2006. The applicant was asked to vacate the premises on or before that date.

19Following receipt of that letter, efforts were made by the applicant to renew the lease agreement for a further one year term. As stated above, Ms. Jondreau assumed responsibility for the lease agreement with College of Toronto in July 2006. Her evidence is that she was concerned that College of Toronto did not have other premises to which it could move its program in time for September 2006. In addition, her evidence is that while there were other Board programs that the Board wanted to move into the premises being used by College of Toronto, some lead time would be required in order to prepare these premises. Further, she stated that there was insufficient time for this to happen between the end of College of Toronto’s lease agreement on August 31, 2006 and the commencement of the school year in September 2006. As a result, Ms. Jondreau’s evidence is that she appealed to her superiors on College of Toronto’s behalf to grant a one-year renewal of the lease agreement.

20The agreement to renew the lease was confirmed by letter dated August 31, 2006, from a solicitor retained by the Board. The letter from the Board’s solicitor included several express terms for renewal of the lease agreement, including: that College of Toronto would restrict its operations to school hours from 7:00 a.m. to 6:00 p.m. on Mondays to Fridays and not on statutory holidays or weekends and that operations outside those hours would not be permitted; that College of Toronto would take care not to permit damage to the premises or the building or facilities; and that there would likely be no opportunity to extend the tenancy beyond July 31, 2007, and that College of Toronto should plan accordingly. This renewal agreement was signed by the applicant on August 31, 2006, with an amendment that the lease would expire on June 30, 2007.

21Ms. Jondreau testified that she was not actively responsible for the management of the lease agreement with College of Toronto during its first year, but attended weekly meetings with Ms. Rickett at which she was made aware of some of the issues pertaining to College of Toronto’s tenancy. She testified that there were allegations that College of Toronto students were left unsupervised in the gym at Richview, and that other tenants would complain that they would arrive in the morning and College of Toronto students would already be in the gym unsupervised. She also testified that she was made aware of an issue at Richview where firecrackers had been let off in the gym, causing a fire, and that there were allegations that College of Toronto students had caused vandalism and damage to property. Ms. Jondreau’s evidence is that the other tenants at Richview had been there for many years, and such problems had not been experienced prior to the lease agreement with College of Toronto. This evidence is supported by the evidence of Ms. Sicheri.

22As a result of her awareness of these issues, Ms. Jondreau states that an explicit decision was made by the Board to emphasize in the renewal agreement the terms around the hours of operation permissible under the lease and the requirement to take care not to damage the premises, building or facilities. Her evidence is that when she spoke to the applicant in late August 2006 about the terms of the renewal agreement, she expressly raised with him the issues of lack of supervision in the gym, damage to property, and the setting off of firecrackers. Ms. Jondreau cannot recall whether the applicant expressly acknowledged that College of Toronto students were responsible for this, but she states that the applicant told her that the students would be properly supervised if he had another year and that College of Toronto would be a “model tenant”.

23The applicant denies that such discussion occurred as stated by Ms. Jondreau. His evidence is that the negotiations around the renewal of the lease agreement were occurring in late August 2006, at a time when he was in the United States. He states that he received an e-mail from Ms. Jondreau dated August 28, 2006, asking him to call her to discuss the lease, and that he returned the call after he returned. He states with absolute certainty that there was no discussion around any issues with College of Toronto during the first year of the lease agreement. Rather, he states that the discussion was around College of Toronto’s failure to exercise its right to renew in accordance with the terms of the lease. He states that Ms. Jondreau said that she would discuss the matter with her superiors, and that he would be contacted by the Board’s solicitor. He states that he next received the letter from the solicitor on August 31, 2006, which he signed and returned.

24The applicant’s evidence is that no issues had been raised with him regarding the conduct of College of Toronto students during the first year of the lease, that he had been given no formal notice of these issues, and that no investigation of these issues had been conducted by the Board. He does recall an issue from May 2005, after Victoria Day, when the fire alarms at Richview went off and the building had to be evacuated. His evidence is that Ms. Rickett and another Board official came to Richview and investigated this issue, but could not determine who had triggered the fire alarms. He states that he checked with all of his students about this issue, and did not find that any of his students had been responsible for this.

25The applicant’s evidence is that on the day she came to Richview to investigate the fire alarms, Ms. Rickett also spoke to him about the head of another program at Richview, the adolescent day program. The applicant states that Ms. Rickett said that the applicant thought that this person was his friend, but that this person was the one “who said everything bad about you and your school”. The applicant states that Ms. Rickett didn’t tell him any details about what “bad” things this individual was saying, and he didn’t ask. He also states that Ms. Rickett said that the applicant was in competition with everyone else in the building, but that she didn’t say what she meant or provide further details.

26The applicant also gave evidence that at some point one of the caretakers at the school said that College of Toronto was being accused of everything that was going wrong at the school. It was unclear from the applicant’s evidence whether this was said to him in the first or second year of the tenancy.

27It is clear from the evidence that the negotiations surrounding the renewal of the lease agreement took place in a very short period of time at the end of August 2006. As late as Monday, August 28, 2006, Ms. Jondreau had sent the applicant an e-mail stating that she had reviewed his request regarding the status of College of Toronto’s tenancy with Ms. Sicheri, and that the termination letter still applied and College of Toronto was required to vacate the premises by August 31, 2006. So it is clear that the discussions leading to the renewal of the lease agreement took place over the last three days of August 2006.

28It is possible that, in the rush of this last-minute negotiation, Ms. Jondreau may not have explicitly raised with the applicant the reason for including the emphasized terms in the renewal letter. It is also possible that, in this rush, the applicant was not focused on the discussion of these re-emphasized terms and the reason for their inclusion in the renewal letter, but rather was more focused simply on agreeing to whatever he needed to in order to get the lease renewed.

29What is indisputable, however, is that these terms were emphasized in the renewal letter from the Board’s solicitor. The lease agreement already included a term relating to “permitted hours of access” which is the same as set out in the solicitor’s letter, and the tenant was already responsible under the lease agreement for any damages to the leased premises or the building. As a result, in my view, there would have been no reason to re-emphasize these provisions in the renewal letter unless there was some issue in the Board’s mind as to whether College of Toronto was in compliance with these terms. Accordingly, whether or not these issues were expressly raised by Ms. Jondreau with the applicant, I accept the evidence of Ms. Jondreau and Ms. Sicheri that issues were raised by Ms. Rickett regarding the conduct of College of Toronto students during the first year of the tenancy and that these issues were the reason that these specific terms were re-emphasized in the renewal letter.

30Notwithstanding that the lease agreement was renewed as of September 1, 2006, and rent was payable by College of Toronto on a monthly basis on the first day of each month, College of Toronto did not pay its rent for the first three months of the lease. On November 2, 2006, the Board’s solicitor sent a letter to the applicant’s attention raising this failure to pay rent and noting that the applicant had delivered a cheque for this rent that was post-dated to November 21, 2006, even though he had been told that this was unacceptable. The letter from the Board’s solicitor states that the Board was giving formal notice of default and would terminate the lease if full payment of the amount outstanding was not received by November 16, 2006. Notwithstanding this notice, the Board subsequently agreed to accept payment of the outstanding amount by certified cheque or bank draft not later than November 21, 2006, with which College of Toronto complied.

31The applicant’s evidence is that he had spoken with Ms. Jondreau about College of Toronto’s difficulties in meeting its rent payments, and that she had told him that it would not be a problem if College of Toronto was unable to pay its rent for two or three months. This is denied by Ms. Jondreau, who states that she had put her own reputation on the line going to bat to get the lease agreement renewed for City of Toronto, and would not have agreed to such non-payment of rent.

32On December 12, 2006, the Board’s solicitor sent a further letter to College of Toronto advising that its December 1, 2006 rent cheque had been returned “not sufficient funds”. Once again, the Board gave formal notice of default and indicated that if it did not receive a certified cheque or bank draft for the outstanding amount by December 18, 2006, it would terminate the lease. College of Toronto was advised that, pursuant to the terms of the lease agreement, if there was a third notice of default, the Board would be entitled to terminate the lease agreement without any further notice. The applicant provided the required cheque to Ms. Jondreau personally on December 18, 2006, when she was at Richview.

33A meeting was held with all of the tenants at Richview on December 18, 2006, in order to introduce the person who had been designated as the Site Manager and to review fire and safety procedures. The evidence indicates that at this meeting, there was also discussion about various issues pertaining to the use of the shared gymnasium, and that a schedule for use of the gym was worked out between the tenants.

34Ms. Jondreau’s evidence is that prior to this meeting, she had received complaints about College of Toronto students being unsupervised in the gym, about acts of vandalism such as toilets backing up and being deliberately clogged, and about the interaction between College of Toronto students and students in the adolescent day program. Ms. Jondreau doesn’t believe that she spoke directly to the applicant about these issues, because she didn’t know first-hand that it was College of Toronto students who were responsible. But she states that these concerns were why she called the December 2006 meeting, so that she could introduce the tenants to each other, introduce the Site Manager, and set some rules around the use of the gym.

35It is not disputed that no issue or concern was expressed by anyone at this meeting regarding College of Toronto or their students and the use of the gym, and that none of the other issues regarding vandalism or threatening behaviours were raised at this meeting.

36The applicant’s evidence is that after the meeting, he spoke with Ms. Jondreau and raised requests for the use of a small room as an office and for the ability to erect a sign advertising College of Toronto on the school grounds. He states that he said that he would like Ms. Jondreau’s assistance, and would call her to discuss these requests. His evidence is that Ms. Jondreau responded by saying, “Don’t call me, you don’t need to call me, you don’t need to talk to me”. This is denied by Ms. Jondreau, although she acknowledges that she was not happy about College of Toronto being in arrears for the first four months of the lease after everything she had done to assist the applicant in getting another year on the lease. There is no dispute that sometime in March 2007, without getting the Board’s approval, College of Toronto erected a sign on the school grounds.

37On February 22, 2007, Ms. Jondreau received e-mail correspondence from the Site Manager advising that the previous day, a protruding electrical wire in the building had been set alight. In addition, two weeks earlier, a flyer attached to a door at the school had been set on fire. It also was relayed that there was a fair bit of evidence of damage done, probably with a lighter, in various other parts of the building. The Site Manager expressed his suspicion that there appeared to be an individual at the school who thinks it is fun to start small fires. Ms. Jondreau testified that it could not be determined who was responsible for this, although the Site Manager expressed that he believed that it was a College of Toronto student. There is a notation in Ms. Jondreau’s handwriting at the top of this correspondence which states “File – Richview – College of Toronto”. Ms. Jondreau couldn’t recall at the hearing whether this indicated that she believed at the time that a College of Toronto student was responsible, or whether she made this notation later in the context of collecting materials for this proceeding.

38On March 14, 2007, Board counsel sent a letter to College of Toronto advising that the March rent cheque had not been received until March 9, 2007, and was post-dated to March 14, 2007. College of Toronto was reminded that its failure to pay its March 2007 rent by March 1, 2007, entitled the Board to terminate the lease agreement without further notice. Board counsel stated that if the April 2007 rent payment was not received on time, the Board would consider terminating the lease and locking College of Toronto out of the premises. After this, it appears that there were no further issues regarding late payment of rent up until the termination of the lease.

39On May 23, 2007, the applicant wrote to Ms. Jondreau requesting a further renewal of the lease agreement. This was denied by the Board. The applicant then wrote a further letter to the Board dated May 24, 2007, asking that the Board’s decision be reviewed, and describing the merits of the program operated by College of Toronto and highlighting the community being served.

40This resulted in a letter from Ms. Penny dated June 6, 2007, indicating that the Board could not consider the applicant’s request, as the space College of Toronto was occupying was required by the Board for its own program starting September 2007. Ms. Penny further reminded the applicant that he had signed a renewal letter on August 31, 2006, in which he expressly acknowledged that the Board would not likely be in a position to renew the lease beyond the end of the renewal term. Ms. Penny expressed that the Board had provided the extension of the lease with the hope that College of Toronto would have ample time to seek an alternative location.

41The applicant then retained legal counsel who wrote to the Board’s solicitor on June 12, 2007. In this communication, applicant’s counsel acknowledged that there was no legal basis to seek renewal of the lease and that the Board had a legitimate program for which it needed the space. However, applicant’s counsel requested that the Board re-consider its decision on humanitarian and compassionate grounds, including the possibility that College of Toronto be permitted to use other vacant space at Richview. The Board’s solicitor responded later that same day to advise that he had discussed the matter with his client, but that the Board was unable to accommodate College of Toronto’s request. It was stated that the Board required the space being utilized by College of Toronto for use by an alternative program currently located in the building which needed room to expand. It was further stated that the vacant space at Richview consisted of one room only, which the daycare in the building had requested the use of some time ago. As a result, the Board’s solicitor indicated that there was no space in the building available.

42Sometime later in June 2007, the applicant contacted the office of one of the Board’s trustees. At this time, the applicant raised the issue of discrimination, and stated that the lease was not renewed because College of Toronto was a school for Somali-Canadians. This contact was brought to Ms. Jondreau’s attention on June 25, 2007, and she responded later that same day to indicate that the lease agreement would terminate on June 30, 2007, and that all parties were of the understanding and had the tenant’s agreement that the premises would be vacated by June 30, 2007. Ms. Jondreau stated that the Board had a request to expand the adolescent day program and the daycare at Richview and based on the agreement with College of Toronto was planning on finalizing these arrangements in the summer of 2007. She also raised that College of Toronto had “a history of lack of supervision of their students, vandalism (setting fires, blocking toilets so that they cause flooding), and . . . threatening behaviour to [adolescent day program] students”. Ms. Jondreau also indicated that College of Toronto had a history of arrears for which it was placed on formal notice of default several times over the past year.

43The Board trustee contacted Ms. Penny by e-mail and raised questions as to why College of Toronto was being “kicked out” of Richview and whether there was another space in the area where this program could be re-located. Ms. Penny responded with a long voicemail message on June 28, 2007, following which the trustee replied that all relevant details had been covered off and he agreed with the Board’s decision. The applicant’s evidence is that he was contacted by the trustee and told that the decision not to renew was based on some of College of Toronto students’ behaviour, that some of the other tenants had complained, and that the Board does not want to renew leases for organizations that give it these kinds of problems.

44In her evidence before me, Ms. Jondreau testified that two of the rooms being used by College of Toronto were leased to an agency that wanted to utilize the same kind of resources being used by the adolescent day program at Richview. Ms. Jondreau testified that the existing adolescent day program was for students who are unable to attend regular Board schools due to mental or behavioural issues, but who are nonetheless considered Board students. She states that staff on-site are professional counsellors who work with these students, and there are Ministry requirements in terms of the amount of space per student and staff to student ratio. The agency that moved into this space as of October 2007 wanted to be able to use the same resources as were being used by the adolescent day program, and the space this agency moved into was adjacent to the space being used by the adolescent day program.

45Ms. Jondreau states that she had prior discussions with this agency in which she indicated that this space would become available for its use by August 31, 2007. Ms. Jondreau testified that the Board had planned to move this agency into Richview the previous year when College of Toronto did not renew its lease; however, given that the initial lease with College of Toronto only expired on August 31, 2006, she knew that there would be insufficient time for the agency to move in by September 2006. She states that some thought was given to getting the space ready over the fall of 2006 and moving the agency into the space over the Christmas holiday, but that was not a good plan because the students being served by this agency did not like to be moved in the middle of the school year. Ms. Jondreau states that this was part of her rationale for renewing the lease with College of Toronto to June 30, 2007, and then having the summer to get the space ready for September 2007.

46Ms. Jondreau testified that the third room being used by College of Toronto and the vacant space across the hall were required for the Board’s safe and caring schools program (“SCSP”), which moved into this space in September 2007. The SCSP is for students who are suspended or expelled. As a result, the SCSP cannot be operated in a regular Board school. Ms. Jondreau testified that SCSP was looking for space in Etobicoke for the 2006-07 school year. Once again, however, because the space could not be ready for September 2006, a decision was made to renew College of Toronto’s lease and leave SCSP where it was until the following summer.

47When asked why in her e-mail to the office of the Board trustee she had stated that the Board had received a request from the daycare to expand as one of the reasons College of Toronto’s lease could not be further extended, Ms. Jondreau testified that this statement was in error and may have been made because she was busy with her workload and hadn’t checked the file.

48On July 4, 2007, Ms. Jondreau sent e-mail correspondence to the applicant regarding the sign that College of Toronto had erected on the Richview grounds. In her correspondence, Ms. Jondreau notes that it had come to her attention that the applicant had not removed the sign from “our lands”. Ms. Jondreau stated that if the sign was not removed within 48 hours, the Board would remove it at the applicant’s cost. Ms. Jondreau also requested that the applicant remove the bricks that were holding the sign in place, as these were being used to break windows at the school.

49The applicant objects to Ms. Jondreau’s use of the term “our lands” in this e-mail correspondence, which he alleges is racial discrimination. The applicant also disputes that the bricks holding up the sign were used to break windows, as he states that these were large concrete blocks and that none of them were missing when he removed the sign. Ms. Jondreau states that her e-mail correspondence was just repeating what she had been told by the school caretaker.

The applicant’s allegations

50As stated above, the applicant alleges that he experienced discrimination because of colour, ethnic origin, place of origin and race (collectively referred to herein as racial discrimination) arising out of the foregoing events. In the complaint filed with the Commission, the applicant states that he is filing the complaint “on behalf of College of Toronto”. At the commencement of the hearing, I sought clarification as to who was the applicant in this proceeding, College of Toronto or Mohamud Osman. The applicant stated that he, Mohamud Osman, was the applicant and not College of Toronto, and that he was alleging that he personally had experienced racial discrimination in violation of the Code.

51As previously indicated, this complaint was wrongly characterized by the Commission as a complaint relating to the “occupancy of accommodation” under s. 2(1) of the Code, as that provision clearly applies to residential accommodation and not to commercial lease agreements. Rather, this complaint is more accurately characterized as a complaint of a violation of the right to contract without discrimination covered by s. 3 of the Code. In the instant case, the contracting party was College of Toronto and not Mr. Osman personally. Accordingly, it is not at all clear to me that Mr. Osman personally has the legal status to allege a violation of College of Toronto’s rights arising out of its lease agreement with the Board. In any event, given my disposition of this proceeding, it is not necessary for me to resolve the question of Mr. Osman’s legal status to maintain this proceeding, although I have considerable doubt as to his ability personally to do so.

52The applicant first alleges that he experienced racial discrimination arising out of the renewal of the lease agreement, on the basis that the Board imposed terms upon College of Toronto that were not imposed on other tenants. In particular, the applicant objects to the inclusion of the term that there would likely be no opportunity to extend College of Toronto’s tenancy beyond the end of the renewal term.

53In my view, there is nothing discriminatory about the inclusion of this term or any of the other terms. College of Toronto had a one-year lease that expired on August 31, 2006. It did not take the steps specified in the lease agreement to exercise its right to renew for a further one year term, and so the tenancy should have ended as of August 31, 2006. However, given the applicant’s pleas to Ms. Jondreau, the Board relented and granted College of Toronto an additional tenancy period, to June 30, 2007. Whether or not the applicant thought College of Toronto had exercised its right to renew when he spoke with Ms. Rickett in March 2006, there was never any right under the lease agreement for College of Toronto to extend its term, even if properly renewed, beyond two years. What the renewal letter did was to give College of Toronto notice that its tenancy was unlikely to be extended beyond the end of the renewal term, so that it would have ample time to plan accordingly and make alternate arrangements. I see nothing discriminatory in the Board doing so. In fact, to the contrary, I see that Ms. Jondreau and the Board extended themselves in order to accommodate College of Toronto’s plea for another year, when they could have insisted upon the legal right under the lease agreement not to do so.

54The applicant next alleges discrimination arising out of the Board “blocking” his attempt to extend College of Toronto’s lease beyond the end of the second year. I find it hard to understand this argument. College of Toronto had no legal entitlement to any tenancy with the Board beyond June 30, 2007. Further, it was made clear to College of Toronto at the time of renewal that there would likely be no opportunity to extend its tenancy beyond this date. So it is difficult for me to comprehend how the Board “blocked” the applicant’s attempt to extend the lease, when he had no legal entitlement to do so and had been told long before that this would not likely be an option.

55In any event, I am satisfied on the evidence that the space being leased by College of Toronto at Richview in fact was required for other Board programs. The evidence indicates that as of October 2007, an agency which operates a program for Board students who are unable to attend regular schools due to mental or behavioural issues in fact moved into two of the rooms previously being leased by College of Toronto. I accept Ms. Jondreau’s evidence that there had been prior discussions about moving this agency into Richview following the expiry of the first year of College of Toronto’s tenancy, but that it was too late to have the space ready in time given that College of Toronto’s initial lease expired as of August 31, 2006. This was a Board program, in the sense that the adolescents attending the program were considered to be Board students, and this program required the space in order to utilize the same resources being used by the existing adolescent day program. There is nothing discriminatory in the Board making a decision to use the space in this manner.

56The evidence also indicates that the third room being used by College of Toronto and the vacant space across the hall was required for SCSP, a Board program for suspended and expelled students. Ms. Jondreau’s evidence is that SCSP moved into the space as of September 2007, and there is no evidence to contradict this. Ms. Jondreau also gave detailed evidence about prior discussions regarding SCSP, including the need for space in Etobicoke and the idea of moving SCSP into this space for the 2006-07 year but not having enough time to get the space ready given that College of Toronto’s lease expired on August 31, 2006. I appreciate that e-mail correspondence from Ms. Jondreau and from the Board’s solicitor had previously referred to the use of this space by the daycare, and did not mention SCSP. I have heard Ms. Jondreau’s explanation that this was in error, perhaps due to her busy workload. I accept that this statement was in error. The alternative would be that Ms. Jondreau invented the day care expansion in June 2007 as an excuse not to consider granting a further lease to College of Toronto, then scrambled around during the summer of 2007 to find some other program that could use the vacant space and found SCSP, and got all of this in place for SCSP to begin operating in that space in September 2007. I find that scenario considerably less credible than simply accepting that Ms. Jondreau made an error.

57Accordingly, the bottom line on this issue is that College of Toronto had no legal right to a further lease with the Board beyond June 30, 2007 and the Board required the space being used by College of Toronto for other Board programs. That, in my view, is the end of the issue.

58However, the applicant raises two further issues arising out of the Board’s decision not to grant College of Toronto a further lease at Richview. First, he takes the position that the fact that College of Toronto was in arrears during the second year of its tenancy was a factor in the Board’s decision, which is supported by Ms. Jondreau’s e-mail of June 25, 2007 and the Response filed by Board counsel in this proceeding. He then relies upon a newspaper article about two Orthodox Jewish private schools who were millions of dollars in arrears as a basis for alleging racial discrimination. In my view, this is comparing apples to oranges. The evidence before me indicates that these two private schools were large schools with longstanding leases with the Board, and that the issues between the Board and these schools were resolved by settlement agreement. In my view, in making a decision whether to grant a further lease to a tenant, it is entirely appropriate for the landlord to consider the tenant’s history of rent payments and whether the tenant was in arrears. That, in my view, is all the Board did in this case.

59The second issue relates to the allegations raised by the Board regarding the conduct of College of Toronto students. The applicant states that these issues were never formally brought to his attention, that no investigation was conducted, and that there is no evidence that College of Toronto students in fact were responsible for the issues at the school. All of which appears to be true. However, that alone is not a sufficient basis to support an allegation of racial discrimination under the Code.

60While this Tribunal has recognized that an employer or a landlord is under an obligation to take reasonable steps to respond to allegations of a violation of the Code, there is no evidence or allegation before me that the applicant, College of Toronto or anyone else involved in this matter made a complaint of a Code violation that the Board failed to properly or adequately respond to. Rather, what the applicant is alleging is that the Board had some obligation to give him notice about complaints regarding College of Toronto students and/or to investigate such complaints before placing any reliance upon them. With respect, that does not give rise to an allegation within my jurisdiction under the Code.

61The allegation before me is that the applicant experienced racial discrimination by the Board in relation to the Board’s decision not to grant a further lease to College of Toronto. In order to support such an allegation, the applicant must first provide evidence establishing some link or nexus between the Board’s decision and his race, colour, ethnic origin or place of origin. If such evidence is provided, then the evidentiary burden shifts to the respondent to provide a credible, non-discriminatory explanation for its decision.

62In the instant case, it appears that at least one of the factors in the Board’s decision not to grant a further lease was tenant complaints about the conduct of College of Toronto students. The issue for me is not whether the Board gave notice of these complaints to the applicant or investigated these complaints or can prove that College of Toronto students were responsible. Rather, the issue for me is whether this aspect of the Board’s decision is credible, in the sense that it was sincerely held, and non-discriminatory.

63In terms of being credible, I accept the evidence of both Ms. Jondreau and Ms. Sicheri that complaints about the conduct of College of Toronto students had been raised with them by Ms. Rickett. In this regard, I note the applicant’s own evidence that Ms. Rickett was an honest, straightforward person with whom he had no issue. I accept that these complaints were the basis that certain lease terms were re-emphasized in the renewal letter. I also accept Ms. Jondreau’s evidence, which is uncontradicted, that the other tenants at Richview had been there for many years and that prior to College of Toronto’s tenancy, no similar problems had been experienced. In my view, this is more than sufficient evidence to establish that the concerns were sincerely held and credible.

64I also find that the Board’s concerns were non-discriminatory, in the sense that there is no evidence before me to indicate that racial discrimination was a factor underlying these concerns or that other tenants of different racial backgrounds were treated differently. In fact, the evidence before me is that there was no standard procedure at the Board for notifying tenants regarding complaints made against them by other tenants or for investigating such complaints. While in some general sense, it may seem fair or appropriate for a landlord to have such a policy or procedure, a general lack of fairness is not in and of itself sufficient to support a finding of racial discrimination.

65The applicant also raises the issue that College of Toronto was prevented from obtaining space at another Board facility. In my view, this allegation does not give rise to a violation of the Code for many of the reasons I already have discussed above. In addition, however, Ms. Penny testified that in fact the Board did not have any other available space in the area that could have accommodated College of Toronto. There is no evidence to contradict this.

66The applicant next alleges that the Board racially discriminated against him by failing to approve his request for a business sign, even though the lease agreement states that this would be approved by the landlord within a reasonable time. The applicant does not indicate in his submissions what provision of the lease agreement he is relying upon to support this allegation. Indeed, Schedule C, paragraph 7 of the lease agreement expressly states that “no sign, advertisement or notice shall be inscribed, painted or affixed on any part of the outside or inside of the Building (including windows) whatsoever, except a name plate on the interior entrance of the Demised Premises”.

67In any event, I am aware of the applicant’s evidence that other tenants at Richview had erected signs on the school grounds. While the applicant sent photos of these signs with his final submissions, I have had no regard to such evidence as it was tendered following the hearing. However, I did hear the applicant’s oral evidence that such signs had been erected, which was not contradicted by the respondent witnesses.

68Ms. Jondreau’s evidence is that the request to erect a sign was raised by the applicant in the fall of 2006, when College of Toronto was in default of the lease. While she doesn’t specifically recall the applicant re-raising the issue of the sign on December 18, 2006, when she was at Richview for the meeting, she does acknowledge that she was not happy with the applicant after having stuck her neck out for College of Toronto to get the lease renewed and then having College of Toronto immediately default on the rent for the next four months. In my view, if there was any failure on the Board’s part to give timely consideration to the applicant’s request for a sign, it is more likely attributable to Ms. Jondreau’s understandable unhappiness with College of Toronto’s untimely rental payments than to any issue of racial discrimination.

69The applicant alleges that Ms. Jondreau’s request on July 4, 2007, for the sign to be removed from “our lands” is discriminatory, as it suggests that the applicant as a Somali-Canadian is being excluded. In my view, this is an extremely strained interpretation of what Ms. Jondreau was saying. Ms. Jondreau’s evidence is that she was using the term “lands” which is a defined term under the lease agreement, and that the use of the term “our” was intended to signify that these were the Board’s lands. In my view, that is an entirely sensible explanation of the use of this language, and does not give rise to any issue of racial discrimination.

70The applicant also takes issue with the allegation that the bricks holding the sign were used to break windows at the school. Even assuming that no bricks from the sign in fact were used to break windows at the school, I do not find that to be a sufficient basis to support an allegation of racial discrimination for all of the reasons already discussed above. Ms. Jondreau was relaying information that had been provided to her by the school caretaker, which may have been inaccurate. But in the absence of evidence of some link or nexus to the applicant’s race, which has not been provided, that is not discrimination.

71The applicant alleges that College of Toronto was falsely accused about everything that went wrong at the school, and that this amounts to racial discrimination. In my view, this allegation is no different than the allegation I have already addressed above in relation to the Board’s decision not to grant a further lease to College of Toronto. In order to amount to discrimination, there must be some act or omission which imposes a disadvantage on the applicant for reasons relating to a ground of discrimination prohibited under the Code. The act which the applicant alleges to have imposed a disadvantage on College of Toronto is the Board’s decision not to grant a further lease beyond June 30, 2007. Prior to that time, there is no evidence of any disadvantage experienced by the applicant or College of Toronto arising out of the allegations about the conduct of College of Toronto students. In any event, for all of the reasons indicated above, there is no freestanding obligation under the Code requiring a landlord to investigate complaints about tenant conduct that do not allege any violation of the Code.

72For all of these reasons, the Application is dismissed.