Morris v. Toronto Community Housing Corporation, 2011 HRTO 2099

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William (Tom) Morris

Applicant

-and-

Toronto Community Housing Corporation

Respondent

DECISION

Adjudicator: Naomi Overend

Date: November 21, 2011

Citation: 2011 HRTO 2099

Indexed as: Morris v. Toronto Community Housing Corporation

ORAL SUBMISSIONS

) William (Tom) Morris, Applicant ) Self-represented with the ) assistance of John Agnew

Toronto Community Housing ) Gordon Steinberg, Paralegal Corporation, Respondent )

1The applicant filed this Application alleging discrimination in housing on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”).

2Pursuant to a Case Assessment Direction dated May 10, 2011, the Tribunal directed, on its own initiative, that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application will succeed.

3In its Case Assessment Direction, the Tribunal directed that the summary hearing would proceed by way of teleconference. Pursuant to Rule 19A.2, the Tribunal directed that the parties be prepared to address the following issue:

The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application and Response, it appears that the applicant may be unable to prove such a link.

The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s own Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish a reprisal.

4Prior to the Notice of Summary Hearing being issued, the Tribunal also sent the parties two Case Assessment Directions (“CAD”) asking for their written submissions on the issue of a delay and the effect of a prior settlement agreement. The parties sent in written submissions on these issues (as well as the issue of deferral, which is now moot).

5In his oral submissions, the applicant explained that he set out the particulars regarding the conduct that was resolved by the settlement agreement as background only and is not relying on them as allegations of discrimination that need to be determined by this Tribunal. Accordingly, it is unnecessary for me to deal with this issue.

FACTUAL BACKGROUND

6The applicant was a tenant in a building owned and operated by the respondent housing corporation. He has since moved to a facility not owned by the respondent, apparently as a result of the ongoing problems he describes in his Application.

7Briefly, the applicant alleges that after he moved into his unit in the fall of 2007, he experienced problems with the respondent and its staff. He alleges that his apartment was in a poor state of repair and there were accessibility features (the applicant has a mobility disability) that needed to be repaired and/or installed. These were largely completed by early 2008, although they were the subject of a Landlord and Tenant proceeding in September 2008. At that proceeding, the parties reached a settlement, which included a monetary provision. As indicated above, the applicant is not relying on these allegations for anything more than background.

8The applicant alleges that there were problems with snow not being removed from his accessible parking spot during the winter of 2007/2008. Moreover, in his oral submissions, he made further allegations that the superintendent, Al Melo, and the assistant superintendent, “Andy,” verbally harassed him in the 2007 and 2008 period. According to the applicant, this verbal harassment stopped, apparently because Mr. Melo was re-assigned to another building.

9The bulk of the applicant’s allegations concern what he regards as the respondent’s failure to protect him from the escalating abuse from his neighbour. He said this was an ongoing problem from 2008. Although the chronology sets out three incidents between August 2008 and July 2009 specifically involving this neighbour, the applicant advised in his oral submissions that the behaviour escalated from verbal assaults to physical assaults to threats with weapons over the period he lived there. He moved from the unit in the respondent building in July 2010.

10The applicant alleges that he asked the respondent’s representatives to move him, but this request (or requests) was rebuffed. At one point, he alleges he was told by the housing manager that the respondent did not believe in transferring “problems” elsewhere.

11Not unexpectedly, the respondents have a different view of events. For the purposes of this summary hearing, it is not necessary or appropriate to sort out whose version might be correct.

DECISION

12The allegations against the respondent staff and the failure to remove the snow from the applicant’s parking spot are dismissed for delay. The remaining portion of the Application concerning the applicant’s interactions with his neighbour and the respondent’s alleged failure to act is dismissed on the basis that it does not have a reasonable prospect of success.

ANALYSIS

Delay

13The applicant alleges that the abusive comments allegedly made by the then superintendent and assistant superintendent ceased some time in 2008 when they stopped working in the building he lived in. The problem with the snow removal is alleged to have occurred in the first winter he lived in the building (i.e., the winter spanning 2007-2008).

14The Application was filed in March 26, 2010. This is approximately two years after the incidents alleged above. Section 34 of the Code states in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15The applicant did not file within the one year. Moreover, the parking issues and “verbal abuse” by the respondent employees cannot be seen as part of a series of incidents which includes the problem the applicant had with his neighbour/fellow tenant, which by all accounts is a distinct issue. Unless the Tribunal is satisfied that the delay in filing about those allegations was incurred in good faith, the Application must be dismissed as out of time.

16As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

17The applicant’s sole explanation for the delay is that he was not informed of any timelines during the application process. This, of course, would not assist him as by the time he entered the “application process” these allegations were already out of time. It was clear that the applicant was vexed by issues relating to his unit, so much so that he had already pursued an application to the Landlord and Tenant Board. Why he chose to disregard the alleged parking and verbal abuse issues at that time is not clear. There was nothing to prevent the applicant from filing a separate human rights application even while pursuing other avenues of legal recourse.

18Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this portion of the Application. It is not necessary, therefore, to address the issue of prejudice.

No Reasonable Prospect of Success

19The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In the first case decided under the new procedure, Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

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

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

20The applicant submits that he has endured an escalating level of abuse at the hands of his neighbour, and indifference on the part of the respondent such that he was no longer safe in his home. He does not make the link between this alleged treatment by his neighbour, and resulting indifference to his safety by the respondent, to his disability other than saying he is disabled. This is insufficient. That is, the treatment (be it the abuse or the neglect) must be because he had a disability, not just that he was badly treated and also had a disability.

21When I questioned the applicant further about the reason for the alleged treatment, he answered that the abuse by the neighbour seemed to start after he befriended another tenant in the building who was also disabled. I asked him to explain the connection between this other tenant and his neighbour and he said he had heard rumours that “there was some nonsense going on between the two men” and that when he became friends with this tenant, that’s when the neighbour started hating him. Again, the alleged hostility was not because the applicant befriended someone with a disability, but because he befriended someone whom the neighbour disliked and who happened to have a disability.

22The Tribunal does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation of unfairness and/or harassment and a ground under the Code. In the absence of such a nexus, no violation of the Code can be found.

23Applying the reasoning in Dabic, I find that what the applicant alleges may not reasonably be considered to amount to a Code violation. Accordingly, the applicant has no reasonable prospect of success in establishing discrimination on the basis of the allegations concerning the treatment by the neighbour and the respondent’s failure to protect him from that.

ORDER

24The Application is dismissed.