W.P. v. Taylor Creek Co-operative Homes Inc., 2011 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

W.P.

Applicant

-and-

Taylor Creek Co-operative Homes Inc. and Dione Nembhard

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: January 5, 2011 Citation: 2011 HRTO 44 Indexed as: W.P. v. Taylor Creek Co-operative Homes

1This Interim Decision addresses four issues: (1) the applicant’s request to anonymize his name; (2) the applicant’s request to remove individual respondents; (3) the respondents’ request to defer this Application to a proceeding before the Ontario Superior Court of Justice; and (4) the applicant’s request for an Interim Remedy.

2The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 1, 2009, alleging discrimination in housing on the basis of sex and reprisal. The applicant alleges that he has been denied a three-bedroom townhouse unit in the respondent Taylor Creek Co-operative (the “cooperative”) because his three children are all the same gender. He alleges that other families, with fewer children and/or only one parent, have been offered larger units because their children are different genders.

3In addition, the applicant alleges that he and his wife have had some disputes with the three managers and the Board of Directors with respect to their “business practices” and that this has also resulted in them being overlooked with respect to their request for a larger unit. He characterizes this allegation as “reprisal.”

REQUEST TO ANONYMIZE

4By virtue of the nature of this Application, the applicant’s children, all of whom are minors, would be identified if the applicant’s identity was not anonymized. Accordingly, the Tribunal grants the applicant’s request to use initials to identify him rather than his full name.

REQUEST TO REMOVE RESPONDENTS

5The applicant filed a Request to Withdraw an Application (Form 9) with respect to the nine individually-named respondents, who comprise the Board of Directors of the co-operative. The respondents did not respond to this Request to Withdraw. Given the Tribunal’s clear direction against the unnecessary naming of respondents, and the lack of allegations against the individuals named, this Request is granted.

DEFERRAL

6In the Response, filed June 15, 2010, the respondents requested that this Application be deferred pending the outcome of a proceeding before the Ontario Superior Court of Justice. The respondents failed to attach the Notice of Application that commenced this proceeding, but did so on July 14, 2010, in response to a request from the Tribunal.

7This document reveals that the co-operative was seeking a judgment for arrears for non-payment of monthly housing charges and a writ of possession of the unit. In a subsequent declaration, filed with respect to his Request for Interim Relief, the applicant explains that he believed he was being over-charged by the co-operative, and was unable to get anyone from management or the Board of Directors to discuss this with him. He states that he then made a decision to not pay the monthly housing charge until this issue was resolved.

8From the above description, it would appear that that particular dispute is unrelated to any ground under the Code, although it may be connected to the alleged strained relations between the applicant, his wife and the co-operative management and board. The respondents have failed to explain why the outcome of this proceeding will be determinative or even relevant to the determination of this Application. Accordingly, the Request to defer is denied.

INTERIM REMEDY

9The applicant seeks the following interim remedy:

The housing charge for the Applicant and his family shall continue to be calculated as a subsidy under the Social Housing Reform Act.

The Applicant shall pay the housing charge, in full, on the first day of each month.

The Applicant shall pay the outstanding arrears owing to the Co-op within 30 days of this interim order being granted.

10The last two of these requested orders appears to relate to the dispute with the co-operative which is before the Superior Court. As discussed above, there is no apparent connection between this issue and the issue in the applicant’s Application. Given the lack of connection between the Application and the relief sought, the Request with respect to these two remedies is dismissed.

11With respect to the remaining requested remedy concerning the housing charge, some background information is necessary. The applicant sets out in the declaration attached to his Request for Interim Remedy (Form 16) that from April 2007 until December 1, 2010, he received a subsidy from the co-operative, which meant that his housing charge was much lower than market rent.

12In 2010, his housing charge was either $347 or $362 per month (there is a slight discrepancy between the information in the applicant’s declaration and the personal respondent’s declaration). As of December 1, 2010, the co-operative was slated to charge him market rent of $1,158 per month, a difference of approximately $800 per month.

13The applicant, who is in receipt of Ontario Works, is eligible for a shelter allowance of up to $726, leaving him and his family with a shortfall that he calculates to be $432 per month. The applicant does not allege that this is discrimination on the basis of a prohibited ground, but that it amounts to reprisal for filing an Application with the Tribunal, contrary to s. 8 of the Code.

14The respondents were served with the Notice of Application on March 26, 2010. As noted above, they filed their Response on June 15, 2010. By letter dated July 27, 2010, the co-operative advised the applicant and his wife that the “internal temporary assistance” provided by the co-operative would come to an end “effective December 1, 2010” at which time they would be charged market rent.

15Despite getting notice of this in the July letter, and confirmation of the co-operative’s position in late September 2010 (with the actual amount of the market rent), the applicant has not sought to amend his Application to include this allegation of reprisal. The first time this allegation is referred to is in his Declaration dated November 4, 2010.

16The first test in granting an interim remedy, as set out in Rule 23.2 of the Tribunal’s Rules of Procedure, is that the Application appears to have merit. The problem for the applicant is that, as it currently stands, his Application does not address the issue of reprisal on which the Request for interim remedy is founded. The presumption inherent in this prong of the test is that the Application must relate to the interim relief requested.

17Turning to the issue of whether it would be “just and appropriate in the circumstances” to grant the interim remedy (see Rule 23.2(c)), I would note that, by circumventing the process of seeking to amend his Application, the applicant has deprived the respondents of the right to make submissions on the appropriateness of such an amendment. While they have responded to the factual allegations in their declaration (e.g., whether the applicant was singled out), it would appear from the respondents’ submissions that they do not appreciate how these allegations fit within the framework of the Code, and have not addressed the issue of reprisal directly in their material.

18In the circumstances, it would not be appropriate and just to grant the interim remedy sought by the applicant in the absence of reference in the Application to the allegations upon which the request is founded. The Request for interim relief is, accordingly, denied.

19I am not seized of this matter.