Radden v. Sandbank Homes, 2011 HRTO 451

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Caspar Radden

Applicant

-and-

Sandbank Homes Inc. and Frontier Management

Respondents

A N D B E T W E E N:

Inge Radden

Applicant

• and -

Sandbank Homes Inc. and Frontier Management

Respondents

Decision

Adjudicator: Mary Truemner

Date: March 3, 2011

Citation: 2011 HRTO 451

Indexed as: Radden v. Sandbank Homes

1These are applications filed on August 27, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicants allege that the respondents discriminated against them with respect to accommodation (housing), services and contracts on the basis of age, disability and association with a person identified by a prohibited ground contrary to ss. 1, 2 and 3 of the Code. The applicants also allege that the respondents engaged in reprisals contrary to s. 8 of the Code.

2The applicants, who are married, expected to live in a home that was well constructed in a timely manner, and in a quiet neighbourhood. However, they claim that their plans were frustrated by the allegedly bad conduct of the respondents. The applicants make allegations regarding the construction of their home and the contract for that home, and the respondents’ construction and commercial activities in and around the applicants’ home and neighbourhood, citing, for example, issues related to the respondents’ alleged unauthorized use of land, improper disposal of construction materials, and unnecessary and excessive traffic.

3The Tribunal issued a Case Assessment Direction (the “CAD”) on October 22, 2010 directing that a Summary Hearing be held for the applicants to argue how they would be able to demonstrate their alleged violations of the Code. The CAD identified certain concerns that the Tribunal had with the Applications. It did not appear to the Tribunal that there was any link between the alleged discriminatory treatment and the grounds cited or an explaination as to how the applicants could demonstrate that the respondents had the intention to reprise against them for asserting any Code rights. While the Applications relate to a senior’s park, and the applicants self-identify as seniors, it did not appear to the Tribunal that these facts alone were sufficient to establish a violation of the Code.

4The applicants requested that the Summary Hearing proceed by written and not oral submissions. Their request was granted with a direction that the respondents were not required to file submissions for the purposes of the Summary Hearing. The applicants filed their submissions on January 6, 2011.

DO THE APPLICANTS’ ALLEGATIONS CONSTITUTE DISCRIMINATION OR REPRISAL WITHIN THE MEANING OF THE CODE AND DO THE APPLICATIONS HAVE NO REASONABLE PROSPECT OF SUCCESS?

5The issues before me involve a legal analysis about whether the allegations, if true, might reasonably be considered to amount to a violation of the Code, and whether there is a reasonable prospect that the applicants can prove, on a balance of probabilities, a violation by linking the events they describe to the alleged grounds of discrimination using evidence they have or evidence that is reasonably available to them. As stated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8 and 9:

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.

6Along with their submissions, the applicants submitted a DVD marked, “Promising Beginning of our new life in Active Adult 55 Plus Retirement Park” with the following headings: Night-time disturbances; High traffic in residential Zone; Air quality – pollution intake; High Speed despite 25 km/h limit; Asphalt Driveway thickness problems; Loose deck steps delivered; Hundreds of deep holes in Lawn; Loud Entertainment music; Retaliations instead of Considerations; Litter and trash en masse; Dangerous road conditions; Other unsolved Problems; Construction views without mercy; and Bulk Storage for your en-light.

7The section of the film, “Retaliations instead of Considerations”, shows construction materials being delivered on September 21, 2010 to what appears to be the lot beside the applicants’ home. The words, “retaliation to last very long”, show for a few seconds on the screen as the vehicle delivering materials drives away. An image of the applicants’ “No Trespassing” sign is then seen, followed by the words, “Warning sign gone next day.” Then there is some footage of what appears to be several screws and nails on the applicants’ lawn, given the following message that is shown: “screws + nails + litter on own property from the not caring reckless.”

8The section of the film entitled, “Other unsolved Problems”, contains footage that appears to relate to allegations of poor landscaping construction. All the other sections of the film are footage as described by the section titles listed above. It is apparent that the applicants are living in a newly constructed house, while houses around them are still being constructed with all the activity, noise and construction dust that one might see at a construction site. Nothing in the film indicates that the applicants have any evidence that demonstrates that their living situation in the midst of the construction, however uncomfortable or contractually unpredictable, is differential treatment because of their age, disability or association with someone identified by a Code ground, or because of reprisal for asserting their rights under the Code.

9The applicants’ written submissions are hundreds of pages long. They provide details of the respondents’ alleged unauthorized use of land, loud and dusty construction, improper disposal of construction materials, and unnecessary and excessive traffic. While the submissions repeatedly use and highlight, in various colours, vocabulary such as “discrimination”, “disadvantages”, “differently”, “unequal”, “reprisals” and “intentional”, they do not provide any link between the events described and a prohibited ground of discrimination or reprisal.

Age Or Disability

10The applicants state that the housing development in which they now live is a seniors’ retirement park. They do not allege that the respondents are treating them differently from any young residents, as it would appear from the applicants’ materials that there are no young residents. Instead, the applicants claim that the respondents are treating them disrespectfully and bullying them because the respondents assume they can “get away with it” simply because the applicants are seniors. The applicants claim that the respondents are harassing or discriminating against them on the basis of disability and age because elderly and disabled people are easy victims, and less able to defend themselves. There is nothing in their materials, however, that demonstrates that the alleged disrespect or bullying is because of the applicants’ age or disability.

Association

11The applicants also checked off the box entitled, “Association with a Person identified by a Ground Listed Above”, in the list of possible grounds in their Applications. Beside the box, however, the applicants wrote, “(may follow later)” and they crossed out the section of the Application that requires an explanation as to why they believe they were discriminated against on the basis of association. There is nothing in their submissions that indicates they have any evidence that they were treated differently because of an association with someone identified by a ground in the Code. I therefore find that the applicants have provided no basis to establish discrimination because of association.

Reprisal

12There is nothing in the submissions or in the film to suggest that any of the actions of the respondents was reprisal for the applicants’ claim or enforcement of their rights under the Code. In fact, it would appear that the applicants feel that their insistence on certain interpretations of their contractual rights and warranties resulted in reprisal, for example, in the context of the asphalting of their driveway. Even if true, such conduct would not constitute reprisal as described in section 8 of the Code, which states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

Decision

13The applicants seem to be very frustrated given that they chose their housing lot with the understanding that it was the quietest one in that area of the development. They apparently then found themselves next to houses in various stages of construction, and across from a lot and model home which the applicants claimed were used by the respondents for many disruptive activites, some of which they believe breached zoning by-laws.

14While the alleged activities may be problematic for the applicants, they appear to involve issues of customer protection and contracts, not human rights. The applicants did not demonstrate how the allegations, even if true, might reasonably be considered to amount to a violation of the Code, or how there is a reasonable prospect that the applicants can prove, on a balance of probabilities, a connection between the events described and the alleged grounds of discrimination based on evidence they have or evidence that is reasonably available to them.

15Consequently, I find that there is no reasonable prospect that the Applications or any part of the Applications will succeed. The Applications are dismissed.