Carpenter v. Westboro Housing Co-Operative, 2011 HRTO 637

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chris Carpenter

Applicant

-and-

Westboro Housing Co-operative

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: April 1, 2011

Citation: 2011 HRTO 637

Indexed as: Carpenter v. Westboro Housing Co-Operative

Appearances

Chris Carpenter, Applicant ) Self-represented

Westboro Housing Co-Operative, ) no one appearing

Respondent )

1The applicant filed an Application with the Tribunal on December 14, 2009, alleging discrimination with respect to accommodation on the basis of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges that he was denied an opportunity to become a member of the co-operative on the basis of his family status. Specifically, the applicant alleges that in assessing his application, the Board of Directors assumed, as a single parent, that he would have substantial support payments which would interfere with his ability to pay his rent. As a result, his application was denied.

2The respondent is an incorporated, non-profit housing co-operative. The respondent did not appear at the hearing of this matter nor did the respondent comply with its obligations under the Rules to serve and file copies of the documents that they intended to rely on at the hearing. The respondent did file a Response indicating that there were a number of documents which would be relevant to the Tribunal’s determination of this matter.

3The hearing venue was rescheduled the day prior to the hearing. The applicant received notice of the new venue and appeared at the commencement of the hearing. The respondent received notice by way of a telephone message from the Tribunal staff using the only contact information supplied by the respondent. No one representing the respondent contacted the Tribunal to indicate that they had been present at the former venue. Given the lack of participation on the part of the respondent since the filing of the response, I am satisfied that the respondent has chosen not to attend the hearing.

4In deciding this matter, I have considered the materials filed by the respondent. The respondent denies the applicant’s allegations and states that his application was rejected purely on the basis of a mathematical calculation which revealed a high debt to income ratio.

5From the applicant’s oral evidence, his documents and the written materials provided by the respondent, it is apparent that the parties agree on the following facts:

a) The applicant attended an orientation session held by the respondent on or about May 12, 2009;

b) The applicant applied for membership with the respondent on or about June 13, 2009;

c) A credit check was performed by the respondent on or about July 7, 2009;

d) By letter dated September 26, 2009 the applicant was advised as follows:

Upon review of your file by our finance committee, your application did not meet the financial requirement at this time. We are subsequently declining your application. When your financial situation stablizes, you could reapply then.

The applicant was also advised that he could appeal the decision by writing to the Board of Directors within 7 days.

e) The applicant appealed the decision by letter dated September 30, 2010. In the letter he expresses his surprise that he did not meet the financial requirements. He indicates that his financial situation is stable and attaches for the Board’s review a copy of his credit report and reiterates that he is currently working for the federal government at a salary of $66,700.00.

f) On November 12, 2010, the Board wrote to the applicant upholding the original decision. This is the first communication from the Board which raises the issue of support payments. In that letter the Board states:

Please be advised that we use a straightforward mathematical formulation to determine eligibility. Our Co-op bylaws clearly state that we look at the numbers only. Although you earn a substantial annual income with the federal public service, your debt and support payments put you into a borderline category. That is what we meant by “When your financial situation stabilizes you should reapply then.”

g) On November 19, 2009 the applicant wrote to the Board again seeking reconsideration and a face to face meeting with the Board;

h) On November 19, 2009, the applicant’s current landlord Lao Village Housing Co-operative Inc. wrote a letter to the respondent which states as follows:

The co-ordinator of Lao Village Housing Co-operative Inc. has been approached twice for information regarding the above member.

Both times they were told that Mr. Carpenter has been an excellent role model for co-op members. His housing charges have never been in arrears and he has always paid by the first of each month. He has held positions on Lao’s Board of Directors, and has gone far beyond this job description, as well as always being there to help other members any way he can.

Mr. Carpenter is a very well respected member of Lao’s Housing Co-operative and it will be difficult to find a suitable replacement for him if he should leave our co-op.

If you would like further references from our current board members, please advise.

i) On December 5, 2009, the chair of the membership committee, telephoned the applicant and advised him that the Board would not agree to meet with him and that their reasons for rejecting his application had been outlined in the letters to him.

6The applicant did not keep a copy of his original application. At the hearing he testified that it never occurred to him that he would need it. During the hearing the applicant was able to review a blank application form and indicate how he answered the questions on his original application. What is most important for the purpose of this hearing are the following aspects of the application:

a) He provided proof of employment and his average gross income at the time was $65,000;

b) He was asked about custody of his children and he indicated that he had shared legal custody of his two children and that they were with him 50 percent of the time.

c) He was not asked, nor did he indicate in his application that he was responsible for paying support of any kind;

d) He indicated his interest in volunteering with the respondent and gave details of his history of participation as a board member, president and treasurer of his current co-operative.

e) He was asked about his current rent which was $978.00 and utilities which were $50.00 per month;

f) He was asked for and provided information on his current housing co-op and confirmed that his current landlord could be contacted for a reference;

g) He provided the requested information for the respondent to conduct a credit check.

7In the Response, the respondent explains that the reference to debt and support payments in their letter of November 12, 2009 includes the fact that Mr. Carpenter was co-signer for a 20K loan, among other debts, and that while his gross income was in the 60K range, his net income was in the 46K range.” The applicant did not dispute the fact that he was a co-signer on the line of credit. There is, however, no evidence from the respondent on the mathematical calculation that they conducted to determine that the applicant had a high debt to income ratio and they do not explain their assumption that the applicant was paying support.

8The respondent appears to have made an assumption, based on the applicant’s status as a single parent sharing legal custody of his two children, that he was paying support. That assumption became one factor in the determination of the high debt to income ratio and the applicant’s lack of financial stability. There is insufficient evidence from the respondent to rebut this allegation.

9The respondents allege in their Response that they made two requests for information about the applicant from his current landlord which went unanswered. This statement is belied by the letter of Colleen McRae. Although she did not give evidence, I have no reason to doubt the authenticity of her letter.

10The applicant testified that he attempted to become a member of the respondent Co-operative because his children now attend school in a different location which is significantly farther away than their previous school. Currently, the applicant must wake his children at 6 a.m. to get them out of the house by 7 a.m. and arrive at school by 8:05 a.m. The same problem occurs in the evening. Living in the Co-operative would give the applicant at least another half hour in the morning and in evening with his children rather than spending that time travelling in the car.

11The Code prohibits discrimination on the basis of family status in the provision of accommodation. The test for discrimination is whether the applicant can establish that he experienced adverse treatment on the basis of the prohibited ground of family status. The denial of the application is based, in part, on the assumption that the applicant pays support as a single parent. This assumption was a factor in the respondent coming to the conclusion that the applicant’s financial circumstances were “unstable”. There is no reason to depart, in this case, from the general rule that prejudice and stereotyping can be inferred from the applicant’s ability to connect the disadvantage he experienced with his family status. See Hendershott v. Ontario (Community and Social Services) 2011 HRTO 482. In the absence of further evidence from the respondent to explain the circumstances of the denial, I find that the respondent has breached the Code.

12The Code provides the Tribunal with the jurisdiction to remedy the discrimination. In my view the most appropriate remedy is to ensure that the applicant receives the option to rent the first available unit in the co-operative which meets his needs.

13The applicant indicated that he had been advised by the respondent that it was better to take a unit of any size to get into the co-operative and then move to a larger unit. I will leave it to the applicant to decide, upon notice from the respondent, if he wishes to move into a smaller unit at first, or wait for a larger unit to become available.

14The applicant testified about the hardship associated with spending so much time in the car with his children because of the distance they were required to travel to school. This is, in my view, an unfortunate inconvenience, but not one that would attract significant compensation. On the other hand, it is important to make awards that promote compliance with the Code and cause a respondent to reflect on the breach. I have also taken into consideration the applicant’s desire to obtain accommodation in the cooperative and the benefits of a harmonious relationship between the parties as that process unfolds. In all of the circumstances, I find that a payment by the respondent of compensation for injury to dignity, feelings and self-respect, in the amount of $1000.00 is appropriate.