XY v. Toronto Housing Connections, 2011 HRTO 1989

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Toronto Housing Connections and City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 2, 2011

Citation: 2011 HRTO 1989

Indexed as: XY v. Toronto Housing Connections

1The applicant filed an Application pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 9, 2011, alleging discrimination on the basis of disability in the areas of housing, and goods, services and facilities. The applicant alleges that she has received special priority on the respondent’s waiting list, but had to decline several units that were offered to her because they did not accommodate her disability. She alleges that she found an alternate housing provider which could accommodate her disability, but that the respondent would not accommodate her request to be housed with the alternate housing provider. Along with her Application, the applicant also filed a Request to Expedite and a Request for Interim Remedy.

2The respondent filed a Response in which it submits that it is responsible for the administration of the largest wait list for subsidized housing in Canada and for determining initial eligibility and assignment of priority statuses. The respondent is a wholly owned subsidiary of Toronto Community Housing Corporation (“TCHC”). In the Response, the respondent submits that TCHC is the largest social housing provider in Canada and the City of Toronto (“City”) is the service manager for social housing in the geographical areas of the City and assigned the responsibility of administering social housing programs therein. Pursuant to the Social Housing Reform Act, 2000, S.O. 2000, chap. 27 (“SHRA”), the City delegated responsibility to TCHC for administering the centralized waiting list for social housing units.

3In an Interim Decision dated July 21, 2011 (2011 HRTO 1377) (“the expedited Interim Decision”), the Tribunal denied the applicant’s Request for Interim Remedy, but allowed her Request to Expedite. Further to the expedited Interim Decision, a Notice of Confirmation of Hearing, dated August 10, 2011, was issued by the Tribunal scheduling a hearing on an expedited basis for September 28, 29, and 30, 2011. Pursuant to an Interim Decision (2011 HRTO 1726) (“the September Interim Decision”), the September hearing dates were cancelled because the respondent’s representative had previously advised that he was unavailable on the selected hearing dates. The Tribunal stated that it would send the parties a revised Notice of Hearing.

4Subsequent to issuing the September Interim Decision, the Tribunal received a Request for Order During Proceedings (“RFOP”) from the Human Rights Legal Support Centre (“HRLSC”) on behalf of the applicant. In the RFOP, the applicant seeks to add the City as a respondent and requests a mediation date with all the parties in the event that the City is added as a party.

5The Tribunal issued a Case Assessment Direction (“CAD”) dated September 29, 2011 in which it stated that it would not be appropriate to schedule an expedited hearing before determining whether the City would be added as a respondent. The Tribunal directed the respondent and the City to file a Response to the RFOP, directed the HRLSC to confirm in writing whether it was now representing the applicant, and stated that following its ruling on the RFOP, the Tribunal would convene a case conference call to schedule hearing dates and set dates for disclosure.

6The respondent and the City filed Responses to the RFOP. The HRLSC provided written confirmation that it represents the applicant for the purposes of the RFOP. The applicant also filed a Reply to the RFOP responding to some of the issues raised in the Response to the RFOP filed by the City.

The Applicant’s Position

7In her RFOP and in her Reply to the City’s Response to the RFOP, the applicant seeks to add the City as a respondent. She submits that in her Application, she alleges that the respondent has failed to accommodate her disability by failing to administer the centralized waiting list in accordance with the Code. The applicant notes that the respondent has submitted in its Response that it has no discretion to accommodate the applicant, if accommodation requires it to rank the applicant higher than another household.

8The applicant submits that as a service manager defined pursuant to the SHRA, the City has been delegated significant powers including the establishment and administration of a centralized waiting list. In the event that the Application is upheld, the City, the applicant submits, may ultimately be liable as the service manager because decisions of the respondent, by legislation, may be deemed to be decisions of the City. The applicant further submits that as result of these powers and the deemed decision provisions of the SHRA, the City has the discretion to accommodate the applicant if accommodation requires the respondent to rank the applicant, because of her disability, higher than other households and place her into housing with different housing providers.

9The applicant provided a document issued by the Toronto Social Housing Unit called “City Guideline” and submits that the City has established local priority rules for several groups not addressed under the SHRA including the homeless and the terminally ill.

The Respondent’s position

10The respondent consents to the City being added as a respondent. It submits, “The addition of the City of Toronto is required in order to appropriately address the issues and allegations contained in the Applicant’s claim”.

The City of Toronto’s position

11The City opposes being added as a respondent in this Application. It does not deny that it is a service manager pursuant to the SHRA, but submits that there are no allegations in the Application that the City discriminated against the applicant or was even aware of her circumstances prior to receiving the RFOP. The Application names several individuals from the respondent as violating the applicant’s rights, but those individuals are not employees of the City.

12The City submits that as a service manager, it is responsible for establishing procedures governing applications for rent-geared-to-income (“RGI”) assistance and one or more waiting lists for RGI in designated housing projects in accordance with the Regulations under the SHRA. Pursuant to an agreement effective May 1, 2002, TCHC agreed to manage the centralized waiting list on behalf of the City, including the obligation to manage the subsidiary waiting list and to determine the eligibility of households that have applied for RGI assistance. The respondent is a wholly owned subsidiary of TCHC and, as a service provider to TCHC, it manages the centralized waiting list. The City submits that most housing providers, including the one that the applicant asserts in her Application was willing to provide her with a unit, are required by the SHRA to use the waiting list system managed by the respondent to fill vacancies in their RGI units. A subsidiary waiting list has been established for this housing provider and the applicant was number 13 on the wait list as of the time the Response to the Request for Interim Relief was being sought. The City submits that because it has only the powers conferred by the SHRA, any issue with which the applicant has with the SHRA or its regulations must be directed to the Province of Ontario and not the City.

13The City asserts that the applicant has not explained any connection between the City and any alleged discrimination, but merely baldly asserts that the City has discretion to rank the applicant higher than another household. The City submits that the applicant has not met the test for adding a party to the Application and there are no allegations made in the Application that could lead to a finding that the Code was infringed by the City.

14It would be unfair, the City submits, to add it as a respondent as there is no allegation of discrimination against the City to which it can respond.

Analysis

15The Tribunal, on it own initiative, or at the request of a party, may add parties to a proceeding if it appears that they may have infringed a right under s. 36 of the Code. The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application, under s. 1.7 of the Tribunal’s Rules of Procedure.

16In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 the Tribunal explained that the following three considerations are relevant to deciding whether to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

17At the outset, the Tribunal must consider whether there are allegations made in the Application that could lead to a finding that the Code was infringed. As the Tribunal explained in Marchese v. Fortinos, 2009 HRTO 25 at para. 12:

The threshold for adding a party at a preliminary stage of the proceeding is a low one; the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant’s rights under the Code; see Epstein, supra, at para. 20. On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. This must be so, not only to protect a proposed respondent, but also to demonstrate fairness: see Arzem, supra at para. 61.

18In this case, I accept the City’s submissions that the Application does not specifically allege that the City violated the applicant’s Code rights or was even aware of her situation. The two individuals who are named in the Application as having violated the applicant’s rights are not employees of the City. The Application contains no direct assertions that the City allegedly violated the applicant’s rights under the Code.

19However, in light of the provisions of the SHRA, I find that the allegations currently contained in the Application could, if proven, support a finding that the City violated the Code. Of course, whether or not the respondent or the City is found to have violated the Code will be determined following a hearing on the merits of the Application.

20By the combined effect of s. 4(1) of the SHRA and the Schedule at O. Reg. 638/00, the City is a service manager for the geographic area of the City of Toronto. In addition to the powers delegated to it under the SHRA, as a service manager, the City is required to establish and administer a centralized waiting list for rent-geared-to-income (see s. 68(1) of SHRA and s. 35(1) of O. Reg. 298/01). The City, in its submissions, states that pursuant to an agreement effective May 1, 2002, TCHC agreed to manage the centralized waiting list on behalf of the City. Both the City and the respondent agree that the respondent is a wholly owned subsidiary of TCHC and manages the centralized waiting list.

21The City has the discretion, further to s. 77(4) of the SHRA, to implement local priority rules that apply in addition to the priority rules under the SHRA. According to its guidelines, the City has chosen to give priority to several groups not addressed under the SHRA including the homeless and the terminally ill and there is no indication that the City has delegated this power to either TCHC or the respondent. Accordingly, I accept the applicant’s submissions that the City has the power to create special priority categories, including a priority category for persons with environmental sensitivities, and by so doing it would entitle the applicant to a priority placement on the waiting list.

22Furthermore, it appears that the decisions of the respondent are deemed, by law, to be the decisions of the City. This is found at ss. 16(1), (9) and (10) of the SHRA which state:

(1) A service manager may enter into an agreement with any person providing for that person to perform all or some of the duties or exercise all or some of the powers of the service manager under this Act with respect to all or part of the service manager’s service area.

(9) The person performing the service manager’s duties or exercising its powers shall be deemed to be acting on behalf of the service manager in doing so, and a decision made by the person in performing those duties or exercising those powers shall be a decision of the service manager.

(10) A service manager that has entered into an agreement under this section providing for another person to perform any of the service manager’s duties or exercise any of its powers under this Act remains responsible for the performance of those duties and the exercise of those powers.

23Furthermore, I note that in the event that her Application is upheld, as a remedy, the applicant is seeking that policies be amended. Pursuant to section 45.2 of the Code, the Tribunal cannot order a remedy against a non-party.

24I do not find that at this stage of the proceedings it would be unfair to add the City as a respondent. While the Application is scheduled for an expedited hearing, after cancelling the September hearing dates for the reasons set out in the September Interim Decision, additional hearing dates have yet to be set by the Tribunal as well as a timetable for the parties’ disclosure and production requirements.

25The City is therefore added as a respondent and the style of cause is amended accordingly. The City is directed to file a Response to the Application within 35 days from the date of this Interim Decision.

26The City is also directed to advise the other parties and the Tribunal, by email, within five days from the date of this Interim Decision, whether it consents to mediation. If the City is agreeable to a mediation date, the Tribunal will schedule a mediation with the parties within one month after the date by which the City, pursuant to this Interim Decision, is to file its Response.

27If the City does not consent to mediation, the Tribunal will issue a Case Assessment Direction and schedule a conference call hearing to establish a timetable for the parties’ production and disclosure requirements and set expedited hearing dates.

Order

28The Tribunal orders that:

a) the City be added as a respondent;

b) within thirty-five days of the date of this Interim Decision that the City file its Response; and

c) within five days of the date of this Interim Decision the City email the other parties and the Tribunal to advise whether or not it consents to mediation.