Amine Chourbagi v. Forest City Housing Co-operative Inc., 2011 HRTO 67

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amine Chourbagi

Applicant

-and-

Forest City Housing Co-operative Inc., Laura Yeomans, Jeff Connor, Carol Lamonte, Krysta Hill

Respondents

DECISION

Adjudicator: Brian Sheehan

Date: January 11, 2011

Citation: 2011 HRTO 67

Indexed as: Chourbagi v. Forest City Housing Co-operative

APPEARANCES

Amine Chourbagi, Applicant ) Ruby Chourbagi, Representative

Forest City Housing Co-operative Inc, ) Lucy Lee, Counsel

Laura Yeomans, Jeff Connor, Carol Lamonte, )

Krysta Hill, Respondents )

INTRODUCTION

1This Application was filed on October 2, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the “Code”).

2The applicant alleges that she was subject to discriminatory treatment by the respondents in relation to accommodation on the basis she was in receipt of social assistance benefits contrary to section 2 of the Code. It is further alleged that, contrary to section 8 of the Code, she was subjected to a reprisal by the respondents for enforcing her rights under the Code.

THE FACTUAL BACKGROUND

3The applicant receives social assistance pursuant to the Ontario Disability Support Program (ODSP).

4The respondent Forest City Housing Co-operative Inc. (the “Co-op”) is a non-profit corporation set up specifically to provide rental housing for persons in the London area who are unable, because of their economic position, to rent accommodation at market rates. The Co-op receives the fair market value of the units it rents through subsidies underwritten by the Canada Mortgage and Housing Corporation (“CMHC”) pursuant to an Operating Agreement it has with the CMHC.

5The respondent Jeff Connor was a resident of the Co-op from 2001 to May 2005. He was the Chair of the Rules Committee from 2002 onwards.

6The respondent Carol Lamonte was the Treasurer of the Board of Directors of the Co-op for the period from 2003 to 2006. In that capacity she acted as the liaison between the Subsidy Committee and the Board of Directors.

7The respondent Laura Yeomans was a resident of the Co-op from 1995 to May 2005. She was a member of the Subsidy Committee from 2002; and was Chair of that Committee throughout 2004 to May 2005.

8The respondent Krysta Hill was resident of the Co-op from 1996 until June 2004. Ms. Hill sat on a number of committees including being Chair of the Subsidy Committee.

9The applicant, along with her daughter Ruby Chourbagi, has lived in a unit of the Co-op since 1989. For an elongated period of time there has been an ongoing issue regarding the monthly housing charge (rent) that the applicant is required to pay to the Co-op.

10The monthly housing charge of a resident was determined semi-annually by the Subsidy Committee of the Co-op. Initially, the applicant’s housing charge was based upon the calculation of 25% of her monthly income which was attributable entirely to her monthly ODSP allowance. A set amount representing a “utility credit’ was deducted from the 25% of income figure to determine the specific amount of the applicant’s monthly housing charge.

11In 1999, however, pursuant to an audit conducted by CMHC the method of calculating the applicant's monthly housing charge was altered. The Operating Agreement between the Co-op and CMHC provided that residents in receipt of social assistance were required to pay the greater of the “shelter component” of their social assistance allowance or 25% of their income. Schedule B of the Operating Agreement included the following provision:

Social Assistance Recipients

Occupants receiving welfare assistance or family benefits shall pay the shelter component of the welfare of the family benefit payment or the amount required by application of the total payment to the gradated occupancy charge scale, whichever is the greater.

12For the applicant the impact of this alteration in the method of calculating her monthly housing charge resulted in it being increased from $122 to $233 a month.

13The applicant subsequently made repeated overtures to the Board of Directors of the Co-op and to representatives of CMHC regarding the alteration in the calculation of her monthly housing charge. From the applicant's perspective requiring her to pay the “shelter component” of her ODSP allowance resulted in her being treated in a discriminatory fashion in comparison to individuals not in receipt of social assistance. For those individuals, their monthly housing charge would always be 25% of their monthly income; while residents in receipt of social assistance faced the prospect of a higher amount for monthly housing charge due to the “shelter component” associated with their social assistance.

14In 2001, the applicant filed a complaint with the Ontario Human Rights Commission. Initially, the Co-op was named as a respondent under that complaint. The applicant, however, discontinued the proceeding against the Co-op but continued the proceeding against CMHC. Neither party offered any clarification as to the outcome of that proceeding.

15In 2002, the applicant commenced an action in Small Claims Court against the Co-op, asserting amongst other things, that the manner in which the monthly housing charge was applied to individuals on social assistance violated section 15 of the Canadian Charter of Rights and Freedoms. The Court in that case transferred the action to the Superior Court of Justice; however, the applicant was required to file a new Statement of Claim. The applicant never filed a new Statement of Claim with the Superior Court of Justice.

16In March 2004 a new issue arose with respect to the applicant's monthly housing charge. The previous August the CMHC as part of a review of the operations of the Co- op, advised the Board of Directors that they were required to obtain proof of income of all residents of the household. Accordingly, the Subsidy Committee, as part of its semi-annual review advised the applicant that it required documentation regarding any income received by her daughter Ruby. Since her daughter was a student at the University of Western Ontario, it was the applicant’s view that her daughter’s income was excluded from the calculation of her monthly housing charge pursuant to the Operating Agreement between the Co-op and the CMHC. Accordingly, she refused to provide information pertaining to her daughter's income. She did, however, provide a copy of her daughter's student card.

17After a further request of the Subsidy Committee for income verification pertaining to her daughter, the applicant retained the services of legal counsel who by letter advised the Co-op that it was the position of the applicant that she was not required to provide any information regarding her daughter’s income.

18The Subsidy Committee passed the matter on to the Board of Directors. The Board advised the applicant in light of her failure to provide the requested information, she was deemed to be a member not in good standing. As a result, she was no longer eligible for a subsidy and had to start paying rent at full market value. Furthermore, the Board took the position that since the subsidy provided to the applicant for the months of April, May, and June was contingent on the applicant providing the requested documentation, rent at full market value was applicable for those months. The applicant was, therefore, $1044.00 in arrears on her rent.

19The Board commenced the process leading to the potential eviction of the applicant. The applicant was, however, provided a further opportunity to provide the requested documentation. She, again, declined to do so. The Board then continued with the process for evicting the applicant. The stated reasons for the eviction included not only a refusal to provide income verification documentation, and the arrears in rent; but also alleged that the applicant harassed Board members and employees of the Co-op.

20The Board subsequently voted to terminate the applicant's occupancy rights and gave her notice to vacate her unit by July 31, 2004. The applicant appealed the Board’s eviction decision. On August 8, 2004 the members of the Co-op voted to dismiss the applicant's appeal. The effective date of the eviction was, however, amended to August 31, 2004.

21In the early part of August 2004 the applicant submitted to the Board of Directors documentation from the University of Western Ontario confirming that the applicant’s daughter was a registered full-time student at that institution. Notwithstanding that information being provided, the Board proceeded with the process for the eviction of the applicant.

22The Co-op brought an application for a writ of possession and arrears of rent in the Superior Court of Justice. That application was dismissed by Justice Jenkins in a February 25, 2005 decision.

23In the spring of 2005, there was further a development regarding the applicant's monthly housing charge. At that time the applicant provided information from her ODSP caseworker as to a breakdown of the “shelter component” of her ODSP allowance setting out the utilities and insurance portion of the “shelter component”. Those amounts exceeded the monthly utility credit that the Co-op had previously been utilizing. The Co-op received permission from CMHC to adjust the applicant's monthly housing charge in light of the new information received from her ODSP caseworker. The impact of that change was that monthly housing charge paid by the applicant was reduced from $335.00 to $276.00. For the applicant this reduction significantly alleviated her financial hardship.

24Evidence was also heard with respect to certain statements allegedly made by certain of the individual respondents. In particular the applicant testified that she overheard a conversation between Laura Yeomans and Krysta Hill where Ms. Yeomans suggested that the applicant should go back to her former country. Similarly, Linda Anderson, a resident of the Co-op testified that Ms. Yeomans made a statement a number of years ago to the effect that the applicant should go back to her own country. Ms. Yeomans, in her evidence, denied making those statements.

DECISION

25There are three distinct components to the Application which will be dealt with separately.

Differential Treatment for Residents in Receipt of Social Assistance

26Individuals in receipt of social assistance benefits are clearly treated differently for the purposes of the calculation of the monthly housing charge than other residents of the Co-op. Such individuals are potentially required to pay a higher monthly housing charge since they are required to pay the greater of the “shelter component” of their social assistance monthly allowance or the 25% of monthly income calculation that applies to all other residents entitled to a subsidy. The utilization of the “shelter component” of a resident’s social assistance allowance may result in a considerably higher monthly housing charge for that resident. On a comparative basis the sole reason that resident was paying a higher amount was that he /she was in receipt of social assistance benefits.

27The Tribunal is, however, of the view that it is not appropriate to inquire into this component of the Application since that issue was not brought forward in a timely fashion. The relevant provisions of the Code pertaining to delay are the following :

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

28The applicant filed the complaint that this Application is based upon some six years after the change in the method of calculating her monthly housing charge was implemented. It is at that point that the claim of discriminatory treatment crystallized; and in accordance with section 34(1) of the Code to be timely that issue should been brought forward within one year of that date.

29Turning to the discretionary authority of the Tribunal under section 34(2) to allow the Application to be heard notwithstanding it was filed outside the one year limitation period, there is little basis in the case at hand to suggest that the delay was incurred in good faith. With respect to the requirement of good faith, the applicant failed to provide the Tribunal with a reasonable explanation as to why she did not pursue her rights under the Code in a more expeditious manner. On this point, the Tribunal has set a fairly high onus on an applicant to provide a reasonable explanation for any delay incurred, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

30Even if it was suggested that the applicant incurred the delay, in part, because she initially pursued the matter through the Small Claims Court action, the Tribunal has repeatedly held that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a good faith explanation for the delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, and Hassell v. Parkdale United Church-Ottawa, 2010 HRTO 991.

31Additionally, the decision of Deputy Justice Leighton to transfer her Small Claims Court action to the Superior Court of Justice was dated January 8, 2003. Yet the applicant did not file her Human Rights complaint until almost three years later.

32There is also a strong argument that the applicant would be barred from proceeding with that component of her Application pursuant to section 34(11) of the Code. That section prohibits an individual from filing an application claiming an infringement under the Code if that claim of infringement is also being relied upon in an outstanding civil proceeding initiated by the individual.

33The Small Claims Court initiated by the applicant dealt with the precise claim of discrimination based on receipt of social assistance benefits that are the subject matter of this aspect of the Application. While, it is noted that the applicant did not specifically refer to an infringement of the Code as part of her Small Claims Court proceedings there is no doubt, the issues raised in the civil proceeding mirror the issues raised in this aspect of the Application. The exact same facts were pleaded in both proceedings, and the claim for relief, regarding this component of the Application, is the same.

34The wording of section 34(11) stipulates that the bar will apply if the proceeding has not “been finally determined or withdrawn”. It would appear that currently the civil proceeding remains outstanding as the applicant has neither made any overture to transfer the matter to the Superior Court of Justice or to withdraw that action.

The Reprisal Allegation

35The applicant asserts that the actions of the Co-op in demanding income verification regarding her daughter and the subsequent efforts to evict her constituted a reprisal against her for filing the Small Claims Court action.

36With respect to this aspect of the Application it is a trite, but important point, to emphasize, that this Tribunal does not have overarching jurisdiction to decide whether the actions of the Co-op were fair and reasonable in the circumstances. The overriding issue before the Tribunal in this case is not whether the Co-op acted appropriately and fairly in seeking to evict the applicant. It may have, or it may have not, been appropriate for the Co-op to distribute certain information regarding the applicant to members of the Co-op as part of the eviction process. Likewise, it may have or it may have not, been appropriate for the Co-op to continue to proceed with the eviction process after the applicant had provided definitive evidence that her daughter was a student at the University of Western Ontario.

37For the Tribunal to find that there was a violation of section 8 of the Code it would be necessary to find a causal connection between the Co-op taking the actions it did and the applicant seeking to enforce her rights under the Code. Moreover, as suggested in Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (O.H.R.T.) there must be evidence that the respondent intended to retaliate against the applicant for her seeking to enforce her rights under the Code for there to be a finding of a violation of section 8 of the Code.

38The Tribunal is of the view that the evidence falls well short of establishing that the actions of the Co-op were in retaliation for the fact that the applicant had commenced the Small Claims Court action. The triggering event causing the Co-op to seek documentation from the applicant regarding her daughter’s income was the CMHC client review report forwarded to the Co-op in August 2003. In that report the following recommendation was set out:

When we reviewed the rent-geared-to-income (RGI) application form we discovered an error. Your form indicates that only $75 of an adult children’s income is to be shown on the form. CMHC requires proof of income for all residents of the household. When completing the calculation, the co-op may only require $75 of the other household resident’s income but it is a requirement that they provide proof of their full income. It is a total household income review so all information must be provided. Please correct this form before your next RGI review.

39In subsequent correspondence from the Subsidy Committee their request for documentation being sought was predicated on following the recommendation of CMHC. Reference is made to the following excerpt from the May 17, 2004 letter sent to the applicant:

In our letter, dated March 24, 2004 the subcommittee required that you provide documentation for your daughter Ruby's income by March 29, 2004 and you have not responded to this request. In an effort to adhere to CMHC requirements that all household income be reported for all persons residing in the unit receiving subsidy, we again request that you provide this information.(emphasis in original)

40The applicant submitted that Justice Jenkins in the dismissing of the Co-op’s writ of possession application indicated that the actions of the Co-op were a reaction to the Small Claims Court action being pursued.

41Any factual finding of Justice Jenkins in the writ of possession application is not binding on this Tribunal in its evaluation of whether there was a breach of the Code. Additionally, it is noteworthy that Justice Jenkins’ finding was that he determined that the actions of the Co-op were precipitated not only by the fact that she initiated the Small Claims Court action but also by the fact that she refused to produce certain information requested by the Board of Directors.

42Accordingly, the Tribunal is of the view that the actions of the Co-op were in furtherance of complying with a directive of the CMHC and were not, in any manner whatsoever, motivated by an intention to retaliate against the Applicant for commencing the Small Claims Court proceeding.

Comments Allegedly Made by Certain Board Members

43The evidence was far from definitive that Laura Yeomans made the comments attributed to her. Moreover, even if it was determined she made those comments, in the circumstances, those comments would not support a finding that there had been a breach of the Code. There was not any evidence to suggest that the Board’s decision–making was improperly influenced, even in part, by the prejudicial viewpoint of any member of the Board, including Ms. Yeomans.

44Additionally it is noted the comments in question were associated with applicant’s place or origin. Pursuant to section 53 of the Code and Rule 6.3 of the Rules of Procedure for Transitional Applications, the Tribunal, in the case of a transitional application, only has jurisdiction to deal with the grounds set out in the original complaint or an amended complaint. The complaint was not amended to include place of origin as a grounds of discrimination, therefore, the Tribunal would not have jurisdiction to make a finding of the breach of the Code based on that ground of discrimination.

Conclusion

45It is therefore determined that the respondents did not breach the Code and the Application is, therefore, dismissed.