HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hélène Théberge
Applicant
- and-
Eagleson Co-operative Homes Inc. and Monique Poirier
Respondents
DECISION
Adjudicator: Maureen Doyle
Date: February 25, 2011
Citation: 2011 HRTO 394
Indexed as: Théberge v. Eagleson Co-operative Homes
AppearanceS
Hélène Théberge Applicant ) Self-represented
Eagleson Co-operative Homes Inc. and ) Éliane Lachaîne,
Monique Poirier, Respondents ) Counsel )
Introduction
1This Application began as a complaint to the Ontario Human Rights Commission dated December 3, 2007. The complaint was abandoned and was subsequently filed as an Application to the Human Rights Tribunal of Ontario pursuant to s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).
2The applicant identifies herself as a woman with a disability, namely, as a person with a mental illness. She alleges that the respondent housing cooperative (“the co-op”), and the personal respondent, Monique Poirier, an officer of its volunteer Board of Directors, discriminated against her on the basis of disability, contrary to the Code. In particular, she alleges that one of the co-op’s by-laws, which does not permit her to pay her housing charges in cash, discriminates against her. She states that if she cannot pay her debts in cash, her stress, depression and anxiety increase.
3By way of remedy, the applicant seeks accommodation of her disability, a variety of other orders against the respondents and the Government of Ontario, as well as substantial amounts of monetary compensation for the injury to her dignity, feelings and self-respect.
4The respondents ask that the personal respondent be removed as party to the Application and ask that the Application be dismissed on several grounds.
Conduct of thE Hearing
5The hearing of this matter was originally scheduled to take place on February 9 and 11, 2010. The applicant sought an adjournment of those hearing dates on the basis that she was unable to prepare for the hearing due to the high level of anxiety and tiredness she was experiencing at the time.
6In an Interim Decision, 2009 HRTO 2226, the Alternate Chair granted the applicant’s request and found the applicant’s ill health was an exceptional circumstance justifying an adjournment. The Alternate Chair went on to say:
However, in order for the Tribunal to ensure that this matter will not be unduly delayed again, should the applicant require a further adjournment, the applicant will be required to provide the Tribunal with medical confirmation for any further adjournment requests.
7The hearing of this matter commenced on May 14, 2010. As a further accommodation to the applicant, hearing dates were scheduled to occur only in the afternoon and were not scheduled on consecutive days. Additional hearing days were scheduled for May 20, October 12, October 22 and finally December 14, 2010.
8The applicant was self-represented. The respondents were represented by counsel. I spent considerable time mapping out the order of proceeding for the parties to ensure the applicant understood what was happening and when it would happen.
9On October 22, 2010, the respondents commenced their case. The respondents’ two witnesses were present and ready to testify. The respondents had provided will-say statements for the two witnesses in advance of the hearing as required by the Tribunal’s Rules. The applicant advised that she was becoming nervous and did not feel capable of cross-examining them at that time. She requested an adjournment. The respondents opposed the request for an adjournment.
10I refused the adjournment, but, in the circumstances, the parties agreed that both respondents’ witnesses would be examined in chief and the applicant could conduct her cross-examination on the next hearing day. The applicant advised that she would likely seek counsel to represent her at the next hearing day.
11At the October 22, 2010 hearing I canvassed the parties for their mutually available hearing dates. Available dates included December 14, 2010. Counsel for the respondents advised that she would oppose any further requests for an adjournment, including any request citing unavailability of counsel, on the basis that the hearing had already taken considerable time to complete and the applicant had had more than ample opportunity to obtain counsel previously.
12On November 2, 2010, the Tribunal issued a Notice of Hearing confirming December 14, 2010, as the next hearing date. The Notice advised that the hearing would only be rescheduled for reasons such as a previously scheduled medical or court appointment which could not be changed. The parties were directed to make any adjournment request within 10 days of the Notice. Neither party did so.
13On December 2, 2010, the applicant emailed the Tribunal stating she would receive a Legal Aid Certificate at the beginning of January and that Mr. F. Kabemba would represent her. She did not request an adjournment and Mr. Kabemba did not advise the Tribunal that he was on the record for the applicant.
14On December 13, 2010, counsel for the respondents emailed the Tribunal in response to the applicant’s December 2, 2010 email. She referred to the earlier Interim Decision, noted there was no proof of any illness, and that the applicant had had ample time to secure legal representation. In her view there were no exceptional circumstances justifying an adjournment if one was in fact being sought.
15On December 13, 2010, the Tribunal emailed the parties confirming it had not received any request to adjourn and that the hearing would proceed on December 14, 2010 as scheduled. There is no suggestion the applicant did not receive this communication.
16On December 14, 2010, the hearing reconvened. The applicant did not appear. I stood the hearing down for 30 minutes to await her arrival or some communication explaining her failure to attend. The applicant did not attend and the hearing proceeded. No further evidence was called by the respondents and counsel for the respondents made closing submissions. She asked that the Application be found to have been abandoned, or, in the alternative, dismissed on the basis of s.45.1 of the Code or for failure to establish a breach of the Code. I reserved my decision.
December 30 Request to Adjourn
17On December 30, 2010, the applicant emailed the Tribunal requesting an adjournment of the hearing until March 2011 as an accommodation of her disability. She explained she is not a lawyer and was unaware of what procedures to follow. She indicated that there had been a good deal of paperwork to sign and return in attempting to secure Legal Aid and that this had delayed any action by her lawyer. She advised that he was presently out of the country and would deal with her file upon his return.
18Though the applicant is unrepresented, she is not an unsophisticated litigant. She is well educated and is a qualified social worker. She sought and received advice about her claim from the Bank of Canada, more than one lawyer, and her elected representatives. She was successful in an earlier challenge to the co-op’s policies before the Divisional Court of Ontario Eagleson Co-operative Homes Inc. v. Théberge, 2006 CanLII 29987 (ON. S.C.D.C.).
19Before me she conducted her case effectively, presented both oral and documentary evidence on her own behalf, and carefully and completely examined her witness.
20The applicant had previously requested an adjournment and was successful in that request. However, as the earlier Interim Decision made abundantly clear and the November 2, 2010 Notice reiterated, future adjournments would only be granted for exceptional circumstances and, if sought for medical reasons, the applicant would be required to provide supporting documentation.
21The applicant did not make a timely request for an adjournment of the December hearing date. In fact it is clear she did not request an adjournment at all. Rather, she failed to appear at the hearing on December 14, 2010. Her subsequent request for the adjournment until March 2011 fails to provide any information to support such an extraordinary action.
22In Ouwroulis v. New Locomotion, 2009 HRTO 335 the Tribunal discussed an applicant’s responsibilities when bringing a human rights application at paragraphs 4-7 as follows:
Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.
When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.
Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.
The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed
23I find that in all of these circumstances the applicant has been given a fair opportunity to advance her position and I decline to grant her the retroactive adjournment she now seeks. The hearing of this matter has been concluded and I have determined the Application.
Decision
24The Application is dismissed. My reasons follow.
Background
25The applicant has presented evidence relating to her concerns that the No Cash Policy and By-law may not have been enacted according to provisions of the Co-operative Corporations Act, R.S.O. 1990, c. C-35 (the “Co-op Act”). She has also presented evidence relating to her concerns that meetings and votes may not have been conducted properly or according to the provisions of that Act. She has enumerated remedies she seeks to address the irregularities she alleges. The issue properly before this Tribunal, however, is much more narrow. Simply put, the issue for the Tribunal is whether the Policy or the By-law discriminates against the applicant on the basis of disability. There has been no allegation that the rationale for adopting the Policy and By-law was discriminatory, and there has been no dispute regarding the co-op’s stated reason for putting an end to cash payment for housing charges at the office. Absent a finding of discrimination, the proper running of the co-op according to the Co-op Act is beyond the scope of this Tribunal’s jurisdiction.
26The co-op is a non-profit housing co-operative, which functions by means of member volunteers and part-time employees. There are 45 units over several floors and there are normally anywhere from 50 to 55 members.
27At the time relevant to this Application, the personal respondent, Monique Poirier, was president of the Board of Directors of the co-op.
28The applicant is a resident and member of the co-op.
29In 2007 the co-op changed its policy and declined to accept cash payments for housing charges. The Board of Directors advised the members of the co-op of this change in a memorandum dated January 26, 2007:
As of on [sic] March 01, 2007, there will be a ‘no cash policy’ implemented for Co-op member’s housing charges. The office is not equipped with sufficient security, nor an administrative capacity to take large amounts of cash securely. Commencing March 01, the office will only accept cheques for housing charges. If necessary, money orders will also be accepted, but only if given directly to the Coordinator. Until the new policy takes effect, members who pay cash must pay directly to the Coordinator, or assume all risk.
A new strong box will be placed outside the office before March 01 so members may securely drop off their cheques and correspondence for the office. The office will inform members when the strong box is installed.
The new policy does not affect change for laundry, or paying for stamps, light bulbs, faxes and photocopies with cash.
We apologize for any inconvenience this may cause, and we thank members for their assistance in helping make our Co-op a safer and more secure place to live.
30The By-law incorporating the No Cash Policy reads as follows:
Method of Payment for Housing Charges
Housing Charges are to be paid by cheque, money order, direct cash deposit by using the Co-op’s bank account number or direct transfer from a member’s account to the Co-op’s account. Upon request, the office will procure the bank account number to the member. No cash will be accepted by the office.
31Materials before me include two letters from the applicant’s family doctor, Dr. D. Colpitts. On September 7, 2007, the applicant presented a doctor’s letter to Ms. Poirier. The letter dated August 30, 2007 stated as follows:
Ms. Théberge requires accommodation to allow her to optimally manage her medical conditions independently, such as the opportunity to pay her debts in cash.
32In a letter dated June 3, 2008, Dr. D. Colpitts advised that the applicant was assessed by psychiatrist Dr. Hanna Pytiak on August 14, 2002 and was diagnosed with dysthymia and borderline personality disorder. Dr. Colpitts provided some information with regard to those diagnoses and their manifestation in the applicant. She also advised that the applicant continued to see Dr. Pytiak and requested that “her psychiatric disability could be accommodated and she could continue to pay her bills/rent in cash”.
33The applicant takes the position that the No Cash policy discriminates against her on the basis of her disability.
34The respondents dispute that the applicant has a disability. The respondents have taken the position that the only evidence before the Tribunal regarding disability is the two letters from the applicant’s family doctor and that these are insufficient to establish that she suffers from a disability. They also submit that even if the applicant is a person with a disability, there has been no violation of the Code, given the alternate methods of payment available to members.
35The applicant testified that due to her mental illness, she is prone to excessive spending and, in order to address this problem, she pays her debts in cash. This is consistent with the June 3, 2008 letter from her doctor. She testified that she cannot maintain a chequing account as this would cause her too much stress.
36The applicant testified that she had previously paid her housing charges in cash and described several attempts to continue to do so starting in March 1, 2007. These attempts were refused, resulting in her receiving notices of arrears. She attempted on several occasions to convince the Board of Directors and fellow members to either rescind or excuse her from the application of the No Cash Policy.
37Shannon Williams, a former member of the co-op, gave evidence in support of the applicant. She also considered the manner in which the policy change had been decided was inconsistent with what is expected of a Board of Directors of a co-op. She witnessed the applicant’s attempts to pay her housing charges in cash and the refusals. She testified about meetings where the applicant attempted to persuade the co-op to excuse her from operation of the No Cash Policy. She shared the applicant’s concerns about voting irregularities.
38A February 1, 2007 [incorrectly dated as 2006] letter from the co-op was in evidence at the hearing, and stated as follows:
The no cash policy is a policy adopted by the Board for the Co-op and is an administrative issue. As stated in the memo given to members ‘The office is not equipped with sufficient security, nor an administrative capacity to take large amounts of cash securely. Commencing March 01, the office will only accept cheques for housing charges.’
If you insist on paying cash, you may go to any TD Bank branch and pay your housing charge in cash directly to the Co-op’s account on the 1st of each month. The information needed to make the deposit is [banking name account and branch numbers provided].
39The applicant testified that she did not consider the possibility of paying in cash at the co-op’s bank to be accommodation of her disability, as this was an option that was open to everyone. On cross-examination, the applicant confirmed that she had received the above-noted letter and stated that, though she had never chosen this form of payment, she believed it was “probable” that she would receive a receipt similar to the receipts she receives when she pays her credit card bill.
40The applicant testified about an attempt to challenge the applicability of the policy on February 2, 2007, when she wrote to the president of the co-op asking for the number of the article and the name of the law authorizing the co-op to refuse payment of housing charges in cash. She advised the president that unless she received this information she would conclude that that the new policy was illegal. She did not request accommodation of a disability but, rather, advised that payment in cash suited her best.
41She testified that that she received a response to her February 2, 2007 letter, advising her that the No Cash Policy was an administrative policy. She testified that the response also stated that she could make payment in cash into the co-op’s bank account at its bank.
42The applicant testified about continuing attempts to pay her housing charges in cash and to influence the question of the adoption of the new No Cash Policy, or at least its applicability to her. She testified about the assistance she sought in this regard from her municipal councillor and from her counsel.
43The applicant testified that on April 14, 2007, she received a notice to appear before the Board of Directors due to her outstanding housing charges. She testified that she panicked and consulted a lawyer who wrote a cheque on her behalf. He provided the coordinator with the cheque for the outstanding amount and a letter dated April 19, 2007, stating:
Ms. Théberge is currently having health related issues which do not allow her to do a lot of things including those related to her own needs. Given the privacy concerns she has due to the proximity in the neighbourhood, I wish to dispense the board from a detailed statement of the health concerns of this client. She has instructed me to apply to the board for an exception to pay her charges in cash.
44The Board of Directors gave her an extension to June 1, 2007 to pay according to the policy, but when she did not, they required that she appear at a meeting of the Board due to the matter of her outstanding housing charges. She testified that at that meeting on June 27, 2007, she disclosed her mental illness and advised that she suffered from anxiety and depression to such an extent that she was unable to keep a chequing account and that she had to pay her debts in cash.
45The Board of Directors continued to consider the applicant’s housing charges in arrears and determined to terminate her membership (and her residency) in the co-op. The applicant requested that a meeting of the general membership be called, and made reference to s. 171.8(2) of the Co-op Act seeking to make an appeal to the general membership regarding the decision of the Board of Directors to undertake proceedings for a writ of possession.
46A meeting of the members was convened August 13, 2007 to permit her to appeal the Board’s decision to the members. She testified that she provided documentation, including an appeal from her and an explanation to the directors and to the members that they were obliged to obey the law, including the Code. She also spoke at the meeting. The applicant testified that Ms. Poirier spoke about the events and about the No Cash policy and said that, if the applicant insisted, she could pay in cash at the bank. The applicant testified that she considered this to be far from accommodating her disability. In fact, she testified that would increase her stress and anxiety. Further, it was her position that it should not be up to her to make deposits on the co-op’s behalf.
47The co-op made application to the court to have the applicant’s membership and occupancy rights terminated and payment of the arrears of her housing charges. The day before court proceedings her lawyer provided a cheque to the co-op for the outstanding housing charges. He also advised that she would agree to make payment for her housing charges by money order. The applicant testified that she agreed to make her future housing charge payments by money order, but that it was not ideal for her.
48She testified that she appeared at court on October 2, 2007. She testified that she felt anxious and it was her view that the Registrar was rude. She testified that she mentioned to him that she had given a medical letter to the co-op, but that at that point Ms. Poirier interjected saying that it had not been a letter from a psychiatrist.
49The applicant testified that she felt very hurt by that and that the administration of the co-op had no right to substitute their opinion for the medical expertise of her doctor. On cross-examination, she testified that she did not provide the court with the doctor’s letter dated August 30, 2007, but that she did speak about the letter in court. She testified that the hearing there lasted just under one hour. She testified that counsel for the co-op (not the same as counsel at these proceedings) said that a co-op does not have to provide shelter to persons with mental illness. She told the court that the co-op has an obligation to accommodate someone who suffers from a physical or mental disability. She testified that the Registrar did not react to this and that it was as if she had said nothing at all. She testified that she left the courtroom in tears and that she received the court’s endorsement by mail.
50The court’s endorsement states that the applicant had paid the arrears in full, but that in future she was to pay in compliance with Article 3.1.1 regarding the Method of Payment for Housing Charges.
51The applicant has paid her housing charges by means of a money order since December 2007. She confirmed that the co-op’s bank is across the street from the bank where she obtains the money orders. She testified that there is no service charge for a money order.
52In cross-examination, the applicant confirmed that there are several payment options available to her, but she commented that they do not suit her. She maintained that the money order is the best of the options, but that she uses it only because she is forced to. She also agreed that the co-op’s bank is closer to her home than the bank where she gets the money orders, but that she continues to obtain her money orders at that bank, as she owes them money.
53With regard to bill payment, she also testified that she does have a credit card and that she pays her credit card bill in cash at the bank which issued the credit card. She testified that this is not her own bank, and that to make payment she first makes a withdrawal of cash at her own bank and then goes to the bank which issued the credit card to pay the bill in cash. She receives a receipt which includes the amount paid, the date, and possibly the number of her credit card. She testified that she is satisfied with the information noted on the receipt.
54The respondents called Mr. Lee as a witness. He has been employed as coordinator of the co-op since July 27, 2007. He is not a co-op member, nor is he a member of the Board of Directors. He is responsible for the finances of the co-op and maintenance of the building and he also oversees members moving in and out from time to time. He reports to the Board of Directors.
55He testified that, since 2007, housing charges are paid by cheque or by money order, but that it is also possible for members to pay in cash directly at the co-op’s bank. He testified that it is also possible for a member to arrange a monthly transfer of funds from his or her account to the co-op’s bank. He testified that the only cash payments accepted at the office are for small items, such as stamps, photocopies, use of the barbeque or $15.00 per month for parking.
56He gave evidence as to the costs which would be associated with installing security equipment in the co-op office in order to permit them to retain large sums of cash there.
57The respondents also called Ms. Poirier as a witness. She served on the co-op’s Board of Directors from the spring of 2004 to April 2008. In her fourth year on the Board she was elected as president. She recounted an incident of lost cash which had led to the adoption of the No Cash policy.
58Upon review of the totality of the evidence, I am satisfied that this matter can be decided on the basis of the applicant’s evidence alone.
Analysis
59The term “disability” is defined in section 10(1)(b) and (d) of the Code to include a condition of “mental impairment” or “mental disorder”. The letters from the applicant’s family doctor provide the history of the applicant’s diagnoses by a psychiatrist, indicate that she continues to receive ongoing treatment from the psychiatrist, and also indicate a need for accommodation of her psychiatric disability. I find that the medical evidence establishes that the applicant suffers from mental illness, and, as a result, is a person with a disability as defined under the Code.
60The applicant has been clear in her testimony and her representations to the co-op, and through correspondence from her doctor and from her counsel, that the ability to pay her debts in cash is crucial to her given her disability. The later June 3, 2008 letter from her doctor also states the applicant’s need to pay her debts in cash.
61The No Cash Policy and By-law operate so as to prevent co-op members from paying their housing charges in cash at the co-op office. To this extent, it has an adverse impact on the applicant due to her disability, and accommodation to the point of undue hardship is required.
62Incorporated into the Policy and By-law, however, are specific provisions for those choosing or needing to pay these charges in cash; they are provided with the necessary information and they may make payment directly at the co-op’s bank. Further alternatives are payment by money order or direct transfer of funds from a member’s account to the co-op’s account.
63In her February 2007 communication with the co-op about the No Cash policy, the applicant did not indicate that she required accommodation for her disability. Rather, she stated that payment in cash suited her best. The earliest point at which the co-op was advised that the applicant required accommodation of a disability was the April 14, 2007 letter from her counsel.
64As of the April 14, 2007 date when the co-op had been advised that the applicant required accommodation of a disability, they had made it known that housing charges could be paid by money order or in cash at the co-op’s bank, and, further, had provided the applicant with the banking information required to make cash payment into the co-op’s account. This possibility was reiterated to the applicant on several occasions, including at the August 13, 2007 meeting regarding her appeal of the decision to pursue her eviction.
65The question remaining, therefore, is whether the opportunity to pay in cash at the co-op’s bank is reasonable accommodation of the applicant’s disability.
66In the course of her testimony, the applicant has indicated that the co-op’s bank is no further from her home than is one of the banks where she does business, a bank where she says she owes some money and from where she currently obtains money orders. It cannot be concluded, therefore, that to pay housing charges in cash at the co-op’s bank would involve cost or significant additional inconvenience for the applicant. In stating that this method of payment would be unacceptable to her, she has stated that it would be more stressful, but the evidence does not indicate how this would be the case.
67Certainly, it has been her representation to the co-op that to manage her stress she must pay her debts in cash, and in examining the letters from her physician, it is not apparent that this method of cash payment at the co-op’s bank would be contrary to her need to make cash payment. Rather, it appears to meet squarely her stated need for paying debts in cash.
68Further, I note that the applicant makes use of a credit card and pays her credit card bill at the bank, in cash, receiving a receipt. It is not plain and obvious that the method of cash payment provided for by the co-op is significantly different from that arrangement.
69In the absence of medical evidence which states a requirement for accommodation beyond the ability to pay debts in cash, given representations made both by the applicant and in a letter from her counsel regarding the need to pay her debts in cash, and the applicant’s own evidence that no extra expense or significant additional inconvenience would be associated with payment in cash at the co-op’s bank, I am not persuaded that the Policy and By-law, insofar as they provide for alternate methods of payment, including payment in cash at the co-op’s nearby bank, discriminate against the applicant on the basis of disability. Accordingly, by making the Policy and By-law applicable to the applicant, I do not find that the respondents have discriminated against the applicant contrary to the provisions of the Code.
70Of course, nothing in this Decision should be understood as saying that the current arrangement of payment by money order cannot be continued by the applicant and the co-op to the extent that they continue to find this arrangement the most satisfactory.
71Given my finding that that the applicant has not been discriminated against on the basis of disability contrary to the Code, I do not find it necessary to consider the other arguments raised by the respondent.
Order
72The Application is dismissed.
Dated at Toronto, this 25th day of February, 2011.
”signed by”___________
Maureen Doyle
Vice-chair