Owens v. Minnick & Company Appraisers Ltd., 2011 HRTO 375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Owens

Applicant

• and-

Minnick & Company Appraisers Ltd.

Respondent

decision

Adjudicator: Douglas Sanderson

Date: February 22, 2011

Citation: 2011 HRTO 375

Indexed as: Owens v. Minnick & Company Appraisers

APPEARANCES

Richard Owens, ) Self-represented Applicant ) )

Minnick & Company ) Susan Adam Metzler, Appraisers Ltd., ) Counsel Respondent )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services on the basis of association with a person identified by a prohibited ground of discrimination.

Decision

2For the reasons which follow, I dismiss the Application.

Agreed Facts

3Many of the facts regarding the Application were not in dispute and at the outset of the hearing the parties agreed to the following facts. The applicant sought a home equity loan through Canada Lend, a broker. Canada Lend retained the respondent to appraise the applicant’s home located at 54 Scott Acres Boulevard in Caledonia, Ontario. The respondent’s employee, Doug Lishman, conducted the appraisal on November 22, 2009. In the Neighbourhood section of the appraisal report, Mr. Lishman stated, amongst other things:

“…the subject property is in close proximity to the Native occupation of Douglas Creek Estates (approximately ¼ mile southeast of the subject)…”

Mr. Lishman appraised the value of the house to be $210,000. The applicant considered the appraised value to be too low and believed that citing proximity to Douglas Creek Estates and the controversy associated with it to be an improper consideration. The applicant asked the respondent to amend the appraisal accordingly. The respondent considered the appraisal to be based on valid and relevant factors and refused to amend it.

The Applicant’s Evidence

4The applicant testified that it is not accurate to describe the land known as Douglas Creek Estates as being under “native occupation” because the Government of Ontario purchased the land, which is now subject to the First Nations land claims process. The applicant stated that problems associated with Douglas Acres Estates were “not visited upon” Scott Acres Boulevard. He stated that his home is half a block from the local Ontario Provincial Police detachment.

5The applicant tendered a document he printed from the Ministry of Municipal Affairs and Housing entitled “Province Providing Assistance To Caledonia Residents”. The document describes financial assistance provided to twenty households in certain areas of Caledonia who were affected by the presence of protesters on the Douglas Creek lands. The applicant noted that, according to the document, the government provided financial assistance to households on Thistlemoor Drive abutting the Douglas Creek lands. The applicant considered this to be significant because one of the houses to which the Mr. Lishman compared the applicant’s house was located at Thistlemoor Drive. The document did not indicate whether the owners of this “comparator” house received financial assistance. I admitted the document subject to the weight I would attach to it and, as will be seen below, the document ultimately was not helpful to me in arriving at my decision.

6Under cross examination, the applicant admitted that First Nations protestors had occupied the land known as Douglas Creek Estates, that this occupation prevented the ostensible owner of the land from building on it and that the occupation received a great deal of media coverage. He admitted that he did not seek an appraisal of his home by another appraiser to rebut Mr. Lishman’s conclusions regarding his house’s value.

7Also in cross examination, the respondent put to the applicant an article from the Toronto Star, entitled “Caledonia residents clear hurdle”, dated Wednesday, February 10, 2010. I admitted the article, subject to the weight I would attach to it. Again, the article ultimately did not have a bearing on my conclusions. The respondent suggested to the applicant that the article established that, as late as February 2010, the dispute regarding the Douglas Creek Estate land remained a live issue in Caledonia. The applicant responded that the article addressed the certification of a class action lawsuit by residents of Caledonia against the Government of Ontario regarding police services at the height of the dispute in 2006.

Evidence of Doug Lishman

8Mr. Lishman testified for the respondent. He is a certified appraiser and works for the respondent. He stated that he had thirty years experience as an appraiser.

9Mr. Lishman explained that appraising the value of a house involves collecting and analyzing information about the subject house and the surrounding neighbourhood. A physical inspection is required, which includes taking measurements and taking pictures of the house. Following the inspection, an appraiser collects information regarding comparable houses that have sold in the area recently, preferably within the past six months. The appraiser also takes into account any factors that affect the value of the house. The appraiser then determines the reasonable value of the property based on the inspection, comparables and other factors, if any.

10Mr. Lishman considered the controversy surrounding Douglas Creek Estates to be a factor that would tend to reduce the value of properties in the area and was therefore a relevant consideration in appraising the value of the home. In his view, the occupation by First Nations protesters was a significant issue (“a big thing”) in 2006 and remains an issue, although not to the extent it once was. Mr. Lishman stated that, as a professional appraiser, he was compelled to consider all pertinent factors, good and bad, which could also include things like proximity to malls, gas stations and parks.

11In cross examination, the applicant asked Mr. Lishman if he considered Douglas Creek Estates to be under “native occupation” today. Mr. Lishman stated that he believed that it was, since, to his knowledge only native people can go on the land and he understood that one of the houses was still occupied. He also noted that in July 2009 he appraised a house near Douglas Creek Estates for the Government of Ontario which was purchasing the house because of harassment the owners experienced by First Nations protesters. Mr. Lishman stated that he was advised to be careful regarding his personal safety and to be on the look out for “native patrols”, which he was informed continued to operate in the area. He said he was advised to “run like hell” if he was observed by such a patrol. He acknowledged feeling threatened, but, fortunately, he was able to conclude the appraisal without incident. He denied this experience affected his point of view regarding Douglas Creek Estates.

12Mr. Lishman denied that a First Nations’ land claim was the same as a “native occupation” and stated that one does not imply the other. He denied that he considered Caledonia to be under siege, but stated that the controversy regarding Douglas Creek Estates impacted the entire community. He denied that his appraisal suggested that people cannot live in Caledonia, but that someone considering a move to Caledonia might well take into account the issues regarding Douglas Creek Estate.

Argument and Analysis

13Section 1 of the Code states as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

14Section 12 of the Code provides:

A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

15Accordingly, the applicant must establish that the service, good or facility provided by the respondent, i.e., the appraisal, was affected by discrimination on a prohibited ground of discrimination, in this case the respondent’s alleged bias against First Nations people. The respondent, who is not a First Nations person, must also establish that the discrimination affected him because he has a relationship, association or dealings with First Nations people.

16The applicant argued the evidence established that Mr. Lishman is biased against First Nations persons. In that regard, the applicant submitted that the term “native occupation” is charged and biased language that demonstrates an unfavourable view of First Nations and does not reflect the actual status of the Douglas Creek Estates land, which the applicant described as a “land claim”. Mr. Lishman’s experience in July 2009 when he appraised a house for the Government of Ontario gave him a negative view of First Nations persons. This bias caused him to undervalue the applicant’s home when he appraised it. Undervaluing the applicant’s house because of this bias punished the applicant because of the house’s association, by proximity, to First Nations’ land.

17The applicant also argued that Mr. Lishman intentionally selected a comparator house located on Thistlemoor Drive in order to reduce the value of the applicant’s home. The applicant inferred that the owners of the property on Thistlemoor Drive to which the respondent compared his home received compensation as described in the “Province Providing Assistance To Caledonia Residents” document he found on the Ministry of Municipal Affairs and Housing website. He further inferred that the value of the comparator house was reduced as a result of the actions of First Nations protesters, since the owners received such compensation. The applicant submitted that Mr. Lishman selected this house as a comparator because he knew it would reduce the value of his home.

18The respondent argued the applicant was simply unhappy with the value attributed to his home and is trying to use the Tribunal to achieve an unwarranted valuation. The respondent submitted that the situation at Douglas Creek Estates, characterized as a native occupation, was a fact that a professional appraiser was compelled to consider. The applicant acknowledged that the Douglas Creek Estates lands were the subject of an unresolved land claim and provided no evidence, other than his own view, that such a consideration was irrelevant to the value of his property. Specifically, the applicant did not have his house appraised by a different appraiser because, the respondent suggested, he knew the result would be no different.

19As noted above, I have decided to dismiss the Application. I accept that the applicant honestly believes the respondent undervalued his property. However, the applicant led no evidence to establish that the appraiser was incorrect, either in considering the proximity of his house to the Douglas Creek Estates land or in the value Mr. Lishman attributed to it. Consequently, there is no basis for me to find that the appraisal was flawed.

20There is no evidence that Mr. Lishman had any reason to intentionally lower the value of the applicant’s home. The information provided by the “Province Providing Assistance To Caledonia Residents” document is quite limited. It does not establish that the owners of the comparator property on Thistlemoor Drive actually received compensation and, of course, says nothing about the effect the controversy surrounding Douglas Creek Estates may have had on the value of the comparator property. The applicant did not establish that Mr. Lishman was aware of the compensation paid to residents on Thistlemoor Drive. Mr. Lishman testified that he compared the applicant’s property to properties in the area that had been sold in the previous six months. Based on a map of Caledonia provided to me, Thistlemoor Drive is near Scott Acres Boulevard. The other comparator houses are located on Scott Acres Boulevard and Lindsay Drive, another nearby street slightly further away from Douglas Creek Estates. The evidence simply does not support an inference that Mr. Lishman’s choice of these comparator properties was inappropriate or made with a view to reducing the appraised value of the applicant’s home.

21There is no dispute that the Douglas Creek Estates land was occupied by First Nations protesters in 2006 and that occupation, which received significant media coverage, was a very serious issue in Caledonia. There is also no dispute that the provincial government purchased the disputed land and the status of the land is to be determined in the First Nations land claims process. In view of the history of the matter, I cannot infer that describing the land as being subject to “native occupation” is indicative of any anti-native bias in the appraisal.

22Mr. Lishman also testified that to his knowledge the disputed land remains under the control of local First Nations and he understood in July 2009 that First Nations people continued to patrol the land. Accordingly, the status of the land remained to be resolved and, while the situation was much calmer than in 2006, Mr. Lishman had reason to believe that conflict regarding Douglas Creek Estates remained a possibility. The applicant provided no evidence showing this belief to be unreasonable. I cannot find that such an unresolved dispute and potential for conflict would be an irrelevant consideration when appraising the value of properties in the area regardless of the parties to the dispute, and that taking this into consideration demonstrates anti-native bias.

23Consequently, I find the evidence does not support a conclusion that the appraisal of the applicant’s home was informed by discriminatory considerations.

24Having found no discrimination in the appraisal, I need not determine whether the applicant has a relationship, association or dealings with First Nations people that would bring him within the provisions of section 1. The Application is dismissed.