HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.P. by his next friend V.P.
Applicant
-and-
Yvon Gauthier
Respondent
A N D B E T W E E N:
V.P.
Applicant
-and-
Yvon Gauthier
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: J.P. v. Yvon Gauthier
APPEARANCES BY
J.P. by his next friend V.P. and V.P., ) V.P. on behalf of herself and J.P Applicants ) ) ) Yvon Gauthier, Respondent ) Michael Doupe, Counsel ) )
1This is a decision with respect to two Applications made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with respect to identical facts, which were heard in North Bay on October 13, 2011. These Applications are with respect to the alleged denial of accommodation on the basis of family status and disability, contrary to s.2 of the Code. One application is on behalf of J.P. (the “complainant”), the son of V.P. (the “applicant”) because he was allegedly denied accommodation on the basis of disability because he has been diagnosed with Attention-Deficit Hyperactivity Disorder (“ADHD”). The other application is by the applicant on the basis of family status because she was allegedly denied accommodation because her son, J.P., has been diagnosed with ADHD.
2The respondent Yvon Gauthier filed two Responses denying the allegations in the Applications. Mr. Gauthier and his wife, Mrs. Collette Gauthier, are co-owners of a townhouse visited by the applicant.
3Though the Applications were never formally consolidated by the Tribunal, they were scheduled for hearing on the same day and I determined that it was appropriate to hear these two Applications at the same time. Neither party had any objections to hearing the Applications together.
Preliminary Issues
4The Tribunal issued three separate Case Assessment Directions in this matter directing both parties to comply with their obligations pursuant to the Tribunal’s Rules with respect to the delivery and filing of witness lists, a summary of each witness’s intended evidence, and the documentary evidence that the parties intended to rely upon.
5On October 7, 2011, the respondent filed with the Tribunal the anticipated evidence of Collette Gauthier, its only witness and advised that it would not be relying on any documents at the hearing. This was delivered to the applicant via ordinary mail and the applicant asserted on the morning of the hearing that she had not received this correspondence.
6In advance of the hearing, the Tribunal received no documents or correspondence from the applicant, though she did contact the Tribunal via telephone to advise that she was proceeding with the Applications.
7At the hearing, the applicant advised that she had delivered to the respondent and filed with the Tribunal her witness list and a summary of each witness’ anticipated evidence, on at least two occasions, the last being on October 7, 2011. The Tribunal is not in receipt of this alleged fax and neither is counsel for the respondent. The applicant did not have any proof of having delivered or filed the documents, including confirmation of having sent the fax to the Tribunal or respondent, nor copies of the documents themselves at the hearing.
8On the morning of the hearing, because the Tribunal was not in receipt of her witness list I asked the applicant to identify who she intended to call as a witness and to provide any documents that she intended to rely upon. The applicant advised that she intended to call three witnesses in support of the Applications: herself, her son J.P. and her mother S.V. and that she did not intend to introduce any documentary evidence.
9The respondent raised as a preliminary issue that the Applications should be dismissed because the applicant had not complied with the Tribunal’s Rules and the directions in the three Case Assessment Directions. The respondent asserted that it was prejudiced because it did not have a summary of the witnesses’ intended evidence and that the applicant had not provided any documentary evidence with respect to J.P.’s alleged disability or alleged damages.
10The applicant stated that she had complied with the Rules and that she had sent a witness list and summary of their anticipated evidence to the respondent and the Tribunal. The applicant stated that it would be unfair not to let her proceed with her case.
11I ruled orally that I would not dismiss the Applications because of the applicant’s failure to comply with the Tribunal’s Rules and the three Case Assessment Directions. This decision was made because I find that both the applicant and the respondent did not comply with the Tribunal’s Rules and three Case Assessment Directions. Though the respondent did eventually send his witness statement on October 7, 2011, this was on the Friday before the long weekend via regular mail and I accept that the applicant did not receive this correspondence. I was satisfied that any potential prejudice to the respondent could be addressed (see below), and that therefore dismissal of the Applications in such circumstances would have resulted in unfairness to the applicant.
12I advised the parties, however, that the Tribunal had other powers to address any potential prejudice, including limiting the extent of the oral evidence to the parties’ respective pleadings and allowing an adjournment of the hearing to respond to any unforeseen evidence. I invited the parties to advise the Tribunal if they felt that they were prejudiced during the course of the hearing. I note that neither party at any time after this preliminary objection took the position that it was prejudiced or surprised by any oral evidence.
13Prior to the calling of any evidence the Tribunal advised the parties that a decision in this matter would largely depend on an assessment of the credibility of the witnesses. The respondent asked the Tribunal to order that the witnesses be excluded from the hearing. The applicant did not object and the Tribunal ordered the exclusion of all non-party witnesses because it was appropriate to do so.
evidence
The Applicant’s Evidence
14After a brief opening statement from the applicant, V.P. testified under oath. She explained that on some day in the middle of June 2009, which was likely a Wednesday, she, her mother and her two sons visited a townhouse, which was being rented by Mr. and Mrs. Gauthier.
15The applicant testified that she had left a message earlier in the day, and that her call was returned by Ms. Collette Gauthier in the afternoon. The applicant stated that she told the applicant that she could not visit the townhouse at 7 p.m. that evening because, her son J.P. who has ADHD had to take medication at that time. The applicant proposed seeing the townhouse at 6 p.m. or at 8 p.m. The applicant testified that Mrs. Gauthier during the call refused her request to visit the townhouse at any other time that day.
16The applicant testified that she made arrangements with Mrs. Gauthier and that S.V., the applicant’s mother drove to pick-up the applicant and her two children, who were staying at a woman’s shelter, and that then the applicant drove the car to the townhouse arriving at 7 p.m.
17The applicant testified that they visited the townhouse, which was vacant, and that both children were very excited and running up and down the stairs and around the apartment. Her mother S.V. and Mrs. Gauthier were together behind the applicant talking in French. The applicant testified that she gave her son his medication at 7:05 p.m. and that they continued to look around the apartment. She also testified that though her son was excited he was not yelling, screaming or crying.
18The applicant then said that as they were downstairs about to leave, at approximately 7:10 p.m., that Mrs. Gauthier put both hands on her ears and asked the applicant in French “est-il retardé?” Translated into English this means, “is he retarded?” The applicant testified that she became very upset by the insult and left without asking about an application to rent the townhouse.
19The applicant testified that she was not able to secure alternate housing either because the rental units were too small or too expensive and that she had to move in with her sister.
20The applicant also testified that within days of viewing the townhouse that she sought the assistance of the Canadian Equality Rights and Accommodation (“CERA”), a non-profit organization because she believed that she and her son’s rights had been violated by the respondent. The applicant then tried to introduce into evidence the statements allegedly made by Mrs. Gauthier to Mr. John Fraser an employee of CERA. The respondent objected on the basis that this was hearsay and that Mr. Fraser was not a witness.
21The applicant advised the Tribunal that she was not present when Mr. Fraser and Mrs. Gauthier had the telephone conversation. I therefore told the applicant that I would not accept this evidence for the truth of its content because the applicant had not been a witness to the conversation and Mr. Fraser was not a witness in the proceeding. I note that though the Tribunal has the power to admit any evidence including hearsay, it would not have been appropriate to do so in this case since the applicant was not a witness to the conversation and little weight could be placed on the reliability of such second hand evidence, which is in essence “double” hearsay, especially when Mr. Fraser was an available and compellable witness. However, the issue became moot when the applicant then stated that Mr. Fraser had been included on the witness list, in the fax allegedly sent to the Tribunal and that she had contacted him about one month ago to advise him of the hearing date and that he would testify via telephone conference. I then asked the applicant why she had failed to include Mr. Fraser as a witness less than half an hour before when I had asked her to identify her intended witnesses. The applicant stated that she forgot to mention that Mr. Fraser would be testifying.
22I told the applicant to contact Mr. Fraser during the lunch break to verify that he could testify via telephone conference. I advised the respondent that I would hear any objections with respect to introducing the evidence of Mr. Fraser via telephone conference after the lunch break.
23The respondent’s counsel cross-examined the applicant and afterwards the Tribunal also asked questions to clarify the applicant’s testimony.
24During these questions it became clear that in fact the reason that the applicant could not visit the apartment at 7 p.m. was because she could not make childcare arrangements to look after her children. She stated that there were special rules at the woman’s shelter about who could look after children and that no one was available at 7 p.m.
25The applicant also admitted that there was no reason why she could not give J.P. his medication at 7 p.m. The applicant also clarified that the medication that she gave to J.P. at 7:05 p.m. was in fact not Ritalin but a drug that would cause him to fall asleep within 20 to 30 minutes because he was a nervous sleeper and suffered from sleep apnea. She testified that this drug had to be administered exactly at 7 p.m. every night as per her doctor’s direction and that J.P. fell asleep at 7:30 p.m. every night. In fact, the prescription bottle that the applicant presented to the Tribunal specifies that the drug should be taken “before bedtime”.
26The applicant also maintained that she had contacted CERA within two days of visiting the apartment despite the fact that she pled in her Application that she had contacted them six weeks later on August 5, 2009.
27The applicant also testified that her monthly income was approximately $1,600 dollars per month and that she had anticipated that her mother would move in with her. However, this did not occur because her mother moved outside the area.
The Testimony of S.V.
28The applicant then called her mother S.V. as a witness. S.V. testified that she drove her daughter and her two grandchildren to visit the townhouse. S.V. said that when her daughter got in the car that she stated that Mrs. Gauthier had refused to let her view the townhouse at 6 or 8 p.m. She stated that when they visited the townhouse that she stayed behind the applicant to speak to Mrs. Gauthier in French, since it was their first language. S.V. stated that the children were excited but that J.P. was not overly excited, crying or otherwise uncontrollable.
29S.V. testified that when they were downstairs getting ready to leave that Mrs. Gauthier put both hands to her ears and stated “oh mon dieu ye tu donne retarde stafant la” (sic). (S.V. was asked to write the statement down and this was tendered as an exhibit.) Loosely translated into English this means, “oh my god, is that child ever retarded.” S.V. further testified that her daughter responded to Mrs. Gauthier that she had told her that J.P. needed to take his medication and that was why she could not visit the apartment at 7 p.m. and wanted to visit the townhouse at 6 or 8 p.m. S.V. stated that the applicant then gave J.P. his medication and they left the townhouse.
30I asked S.V. if she knew the name of the medication given to J.P. When S.V. had difficulty remembering and pronouncing the name the applicant tried to interrupt the witness to tell her the answer. I cautioned the applicant that she could not attempt to give answers to witnesses who were testifying. S.V. ultimately remembered that it was J.P.’s nightime medication that helped him fall asleep.
31During cross-examination, counsel for the respondent questioned S.V. because there was an inconsistency in the evidence of the applicant and S.V. since both claimed to have driven the car to the townhouse. Once again the applicant tried to provide her witness with what she understood to be the proper response. I advised the applicant that this was a legal proceeding, that she could not interrupt S.V. during her testimony, and that it was improper of her to try to influence her evidence.
32During cross-examination S.V. admitted that she had a pleasant conversation with Mrs. Gauthier who behaved in a polite manner. S.V. does not recall asking for or being given a rental application.
J.P.
33Since the applicant had indicated that she wanted to call her son J.P., who was seven years old at the time of visiting the townhouse, as a witness earlier in the morning I asked her what his anticipated testimony would be.
34The applicant stated that he had no recollection of the events other than the fact he was excited about moving into the townhouse. The applicant stated that J.P. has no recollection of any statements being made by Ms. Gauthier and that, regardless, he does not understand French.
35In light of the limited evidence that the applicant sought to elicit from J.P., both parties agreed that it would not be necessary to call J.P. as a witness and that the Tribunal could accept as true that J.P. was excited about moving into the townhouse and that he never heard or understood any alleged comment said by Mrs. Gauthier.
The testimony of John Fraser
36The Tribunal made arrangements to have a telephone conference with Mr. Fraser for the purposes of hearing his testimony. Though counsel considered this to be irregular, he did not object to Mr. Fraser’s evidence being tendered via telephone, because he wanted to have the matter dealt with in one hearing day. It also became clear during Mr. Fraser’s testimony that he had reviewed notes that he had made both in order to refresh his memory and during his testimony. I asked the respondent if he and his counsel wanted copies of these notes, which could be faxed to the venue. This offer was declined as the respondent did not want to delay the hearing so Mr. Fraser did not disclose his notes.
37Mr. Fraser testified that on August 5, 2009 he placed a “cold call” to Ms. Gauthier. Mr. Fraser did not speak directly with the applicant but relied on notes taken by one of his co-workers on July 29, 2011 when the applicant first called CERA. The purpose of Mr. Fraser’s call was to see if he could assist the applicant in obtaining the rental unit. CERA was also involved in drafting the Applications to the Tribunal.
38Mr. Fraser admitted under oath that he had no independent recollection of the conversation between himself and Mrs. Gauthier. He told Mrs. Gauthier that she had discriminated against the applicant and her son. He says that Mrs. Gauthier said that J.P. was screaming, yelling and crying and that she was devastated when she saw his behaviour. He admits that Mrs. Gauthier told him that she believed that she had done nothing wrong but that the applicant could make an application to rent the townhouse. Mr. Fraser testified that he did not tell the applicant that she could make an application because he believed that it would not be treated in a fair manner since Mrs. Gauthier had allegedly said that she would rather sell her home than rent to a family like the applicant’s.
39During cross-examination Mr. Fraser stated that the applicant did not contact him approximately one month ago to have him be a witness at the hearing, and he had no idea that today was the date of the hearing. Mr. Fraser stated that he would have diarized the hearing date and he would have notes if the applicant had in fact contacted him as she claimed.
The testimony of Collette Gauthier
40Mrs. Gauthier was the only witness for the respondent. She testified that she and her husband have owned a number of properties, being landlords for over 30 years. At the time of this incident they owned 12 townhouses in the same condominium complex. She stated that the unit in question was being rented for $850 to $875 dollars per month and that utilities were an additional $300 dollars per month.
41Mrs. Gauthier testified that on the day of the visit she had a telephone conversation with the applicant to schedule a time. Mrs. Gauthier stated that during this telephone call, she was never advised by the applicant that she could not visit the apartment at 7 p.m. or that J.P. had ADHD and needed to take medication at that time. Mrs. Gauthier stated that either herself or her husband were available and that they could have accommodated the applicant’s request to view the apartment at 6 or 8 p.m., but that no such request was made.
42Mrs. Gauthier testified that she left her home and was at the townhouse slightly early and that the applicant, her two children, S.V. and a friend of the applicant arrived at 7 p.m.
43She stated that she did not speak with S.V. in French, because she did not know if the applicant could understand French and she did not want to exclude her from the conversation because that would be impolite.
44Mrs. Gauthier testified that when she came downstairs that J.P. was screaming and crying on the floor. Mrs. Gauthier stated that the applicant was repeatedly screaming at him to shut-up, which was not calming down the child. Mrs. Gauthier said that she was shocked by the applicant’s conduct in dealing with the child and that it was the grandmother who was finally able to calm him down. Mrs. Gauthier testified that the applicant apologized and said that her son had ADHD and that she gave him a pill. Mrs. Gauthier claimed that she did not understand what ADHD was but that she was devastated by the incident.
45Mrs. Gauthier next testified that S.V. said that they were interested in renting the townhouse and asked her about the next step in the process. Mrs. Gauthier told S.V. that she would not be renting to the applicant because she was concerned about the noise and the other tenants. Mrs. Gauthier stated that S.V. said “you Gauthiers are all the same” and left. Mrs. Gauthier denies having made any derogatory comments against J.P. and said that she does not say such rude things and that she is a respectful person.
46Mrs. Gauthier recalled her conversation with Mr. Fraser, which she says occurred one and a half months later. She stated that Mr. Fraser told her that she was not allowed to refuse to rent the unit to the applicant because her son had ADHD. Though the original unit visited by the applicant had already been rented she offered that the applicant could apply to rent another unit that would soon be vacant. She said that during that call she told Mr. Fraser that she was having difficulties as a landlord and was considering selling the units. Mrs. Gauthier testified that she had just gone through the process of evicting tenants because they had dogs, which was in violation of the lease. In fact, Mrs. Gauthier testified that she and her husband have transferred responsibility of the rental units to her son and they are no longer landlords.
47During cross-examination, Mrs. Gauthier testified that she did not call the applicant because she did not have her contact information and she expected that Mr. Fraser was communicating with her. She also admitted that the individuals who had rented the unit in question did not have children, however, she clarified that she frequently rented units to families.
Reply Evidence
48The applicant was asked the identity of the other individual who had visited the apartment with the applicant’s family and why she was not called as a witness. The applicant responded that A.S. was a seventeen year-old girl who was living at the woman’s shelter at the time. The applicant stated that because A.S. was a minor the shelter would not permit her to look after the children. The applicant stated that she remained in contact with A.S. who was in school in Toronto but that she had never discussed this Application or “what was going on” because A.S. had her own issues. The applicant stated that she never spoke to A.S. about the alleged statement made by Mrs. Gauthier and that she did not know if A.S. had overheard the statement.
Submissions of the Parties
49During closing submissions, counsel for the respondent withdrew his preliminary arguments and stated that the respondent was content to have the Tribunal decide the Applications on their merits. The respondent took the position that the applicant’s credibility had been undermined because, amongst other things, she had lied to the Tribunal about providing her witness list and other documents, and she had lied when she stated that she had contacted Mr. Fraser a month before to advise him of the hearing. Further, she tried to influence her mother’s testimony and therefore demonstrated a propensity to control her evidence. Respondent’s counsel also asked the Tribunal to draw an adverse inference because the applicant had failed to call A.S. to testify as a witness since he considered that A.S. was a “more” impartial witness than V.P.’s mother.
50The Tribunal explained to the applicant the meaning of an adverse inference and asked her if she had anything to say about this issue. The applicant stated that she had in fact talked to A.S. who had confirmed that she overheard the statement made by Mrs. Gauthier. The applicant stated that she did not call A.S. as a witness because she lived in Toronto and did not know how she was going to bring her to North Bay to testify. I put to the applicant that this statement was completely the opposite of what she had testified to less than 10 minutes before (see paragraph 48 above). She maintained that she had discussed this issue with A.S. and that the reason she could not testify was that she could not come to North Bay. When I asked her why she had not made arrangements to have A.S. testify via telephone conference, the applicant said that she did not know that this was possible. I then put to her that she had testified that she had made arrangements so that Mr. Fraser could testify via telephone conference and that she therefore knew that this was possible. The applicant then said that A.S. could not testify because she had school that day.
analysis and findings
51For the reasons that follow I dismiss both of the Applications.
52A successful claim of discrimination pursuant to section 2 of the Code requires an applicant to show that one of the prohibited grounds was a factor in disadvantage experienced by the applicant. Discrimination need not be the only, or even the principal factor in a respondent’s decision or actions, but an applicant must show that it was one of the factors. In these Applications, the applicant must establish on a balance of probabilities that the respondent denied her and her son accommodation and that the applicant’s family status and her son’s disabilities were factors in the denial of accommodation.
53One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
54I find that the testimony of the applicant, her mother S.V. and Mrs. Gauthier are critical to assess whether the allegations in the applications have been proven. I find that the testimony of Mr. Fraser is not determinative since he was relying on third-hand information of what had occurred during the visitation of the townhouse during his conversation with Mrs. Gauthier. Further, he has no independent recollection of this conversation.
55Paragraph 3 of the Application states:
In approximately mid-June 2009, I visited the townhouse at 7 pm with my son. My son was excitable since I was unable to give him his pill at the appropriate time. Mrs. Gauthier told me that my son was too loud and “retarded”. I explained to Mrs. Gauthier that he was overdue for his pill and is not always that loud. Mrs. Gauthier refused to let me fill out an application or ask more questions.
56The testimony of the applicant as a whole does not support the allegations made in the Applications. For example, she states that she told Mrs. Gauthier that she could not visit the townhouse at 7 p.m. because her son had to take medication. In fact, if she made this statement to Mrs. Gauthier I note that it is not accurate. The issue was that she allegedly could not make childcare arrangements at 7 p.m. because that was the only time that no one at the shelter was available to watch the children. The fact that J.P. had to take medication at that time was completely irrelevant to her ability to visit the townhouse. Further, there was nothing to prevent the applicant from giving J.P. his medication at exactly 7 p.m. as admitted by the applicant on cross-examination.
57I also find that it is improbable that Mrs. Gauthier would have refused the applicant’s request to view the apartment at either 6 or 8 p.m. I accept Mrs. Gauthier’s testimony that as professional landlords either she or her husband could have accommodated the applicant’s request to view the townhouse at either 6 or 8 p.m. Regardless, the applicant agreed to view the townhouse at 7 p.m., instead of making alternate arrangements to view it later in the week.
58The most troubling aspect of the testimony given by the applicant is with respect to the reasons she gave as to why she did not call A.S. as a witness. Within ten minutes, as noted above, the applicant gave two opposite and irreconcilable reasons for her unwillingness to call A.S. as a witness. I note that the applicant presented both explanations to the Tribunal with equal fervour and conviction. However, the applicant’s responses as described above at paragraphs 48 and 50 completely undermine the credibility of all of the applicant’s testimony and statements made to the Tribunal during the course of the hearing. I do not find the applicant to have been a credible witness given the number of inaccuracies and inconsistencies in her evidence.
59With respect to the events that occurred during the course of the visit, including whether Mrs. Gauthier made a derogatory comment regarding J.P., I find that there are inconsistencies between the recollection of the applicant and S.V. The most significant inconsistencies include that the applicant and S.V.:
a. do not recall the same statement being made by Mrs. Gauthier;
b. the applicant’s alleged response to the statement differs, whereas the applicant testified that she got angry and left without saying anything, S.V. recalls the applicant trying to explain the circumstances to Mrs. Gauthier; and
c. though S.V. says that the applicant then proceeded to give J.P. his nightime medication, the applicant testified that she had given this to him five minutes before and not at that time.
I find that the applicant and S.V. gave inconsistent evidence with respect to this critical interaction with Mrs. Gauthier. I am unable to find either account reliable.
60Having considered the statements made by the witnesses, I accept that it is more likely than not that J.P. was yelling, crying and lying on the floor at 7:10 p.m. as described by Mrs. Gauthier. The applicant had testified that J.P. was usually in bed by 7:30 p.m., and I find it probable that he was tired and behaving as described by Mrs. Gauthier. This is especially likely if I accept the evidence of the applicant that she had given him his medication five minutes earlier and based on the evidence before me was surely taking effect by that time.
61I find, therefore, that S.V.’s and the applicant’s statements that J.P. was not screaming and crying is implausible and were an effort to minimize his conduct. If he was not behaving uncontrollably then why was it necessary to even advise Mrs. Gauthier about the fact that he had ADHD. I note that all the witnesses agree that Mrs. Gauthier did not object or try to stop both children from running around the townhouse. I find that this is evidence that she did not have any prejudice about renting the unit to a family with children. I accept Mrs. Gauthier’s evidence that it was the applicant’s own conduct during the visit that caused her not to consider the applicant as a tenant.
62Having heard the evidence of the parties, I find the evidence of the applicant and of S.V. unreliable. For the reasons discussed above, the applicant has not established on a balance of probabilities that the applicant or her son were refused accommodation for discriminatory reasons or that Mrs. Gauthier made a derogatory comment.
63Both applications are dismissed.
Dated at Toronto, this 12th day of December, 2011.
“signed by”
Geneviève Debané
Vice-chair