Dai v. Metropolitan Toronto Condominium Corporation No. 971, 2011 HRTO 876

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lai Seung Doris Dai

Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 971, Akbar Ali, Michael Bajohr, Ram Shakyaver, Yvonne D’souza

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: May 9, 2011

Citation: 2011 HRTO 876

Indexed as: Dai v. Metropolitan Toronto Condominium Corporation No. 971

Appearances

Lai Seung Doris Dai ,Applicant ) Self-represented

Metropolitan Toronto ) Mr. Antia, Agent

Condominium Corporation )

No. 971, )

Akbar Ali , ) Self-represented

Ram Shakyaver ) Self-represented

Yvonne D’souza, ) Self-represented

Respondents )

INTRODUCTION

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of sex, marital status and age contrary to s. 1 of the Code and that the respondents engaged in reprisals against the applicant contrary to s. 8 of the Code.

2The applicant is a resident at the respondent condominium. The respondents Akbar Ali, Michael Bajohr and Ram Shakyaver were members of the condominium’s board of directors at the material time. Ms. D’souza is an owner of a condominium but not a member of the board.

3By Case Assessment Direction dated January 11, 2011, the Tribunal made the observation that the Application appears to centre on an email sent by respondent Shakyaver in response to an email sent by the applicant raising issues regarding dirt on the ceiling of a common hallway. In his email, respondent Shakyaver addressed the applicant as “Miss”, to which the applicant takes exception. She claims that this reference has harmed her reputation in the condominium because, among other things, it suggests that she is living in an improper relationship. The applicant also claims that a subsequent email from respondent D’souza was in reprisal for the applicant’s objection to being referenced as “Miss”.

4On its own initiative the Tribunal directed that the matter be scheduled for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure:

In my opinion, the most appropriate procedure, given the issues raised in the Application, is to hold a summary hearing on whether the Application has a reasonable prospect of success. Accordingly, the Tribunal will schedule a ½ day summary hearing by teleconference.

The applicant will make her argument first. She shall be prepared to explain how there is a reasonable prospect that she could prove that she experienced discrimination on the grounds of sex, marital status and/or age under the Code or reprisal for claiming her rights under the Code, and indicate the evidence she would use to establish that.

5The Case Assessment Direction also directed the parties to deliver to each other and file with Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference. The applicant filed materials which she relied on throughout her oral submissions.

6The Summary Hearing was held by teleconference on May 3, 2011. All of the respondents participated with the exception of Michael Bajohr.

ANALYSIS

Summary Hearings

7The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Application to the Facts

9In the Case Assessment Direction, the Tribunal observed that the Tribunal does not have the power to deal with all claims of unfairness or all disputes between parties. It can only deal with applications alleging a violation of the Code, which prohibits discrimination and harassment on specific grounds.

10The matter was set down for summary hearing on the basis that the Application did not appear to identify a link between the alleged discriminatory treatment and the grounds cited. The Tribunal observed that it was unclear how the use of a common salutation for women, “Miss”, constitutes differential treatment contrary to the Code. The Tribunal also noted that it was unclear how respondent D’souza’s email demonstrates an intention to reprise against the applicant or how the applicant can been seen to be claiming her human rights in a prior email, both of which are requirements for proving reprisal under the Code: see Noble v. York University, 2010 HRTO 878 (“Noble”).

11Given the nature of the allegations, the applicant was asked at the commencement of the hearing how she wished to be addressed and she responded “Doris”. The applicant proceeded to make her oral submissions, addressing the questions raised in the Case Assessment Direction, referring to her documentary evidence in a very orderly, comprehensive fashion.

12Having reviewed the documents and considered the submissions of the applicant, I have concluded that her application has no reasonable prospect of success.

13There is no dispute about the email in which Mr. Shakyavar refers to the applicant as “Miss”. The email also contained a note asking the applicant to clarify her status as an owner of the condominium unit. The email was copied to other people and the applicant argued that she found it offensive because it would suggest to others that she is living in an improper or questionable relationship with the man who is her husband. She alleged, for example, that it created the inference that she was an unmarried woman who was improperly claiming ownership over the property owned by the man who is in fact, her husband. In the applicant’s view, her reputation was ruined by respondent Shakyavar’s reference to her as “Miss”.

14While I have no doubt that the applicant was personally offended by the reference to her as “Miss”, this is not an allegation which would meet the legal test of discrimination under the Code. “Miss” is a common salutation for women and it does not create the kind of disadvantage which is contemplated by the Code. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 2010 ONCA 593, the Court of Appeal defined discrimination in this way:

In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone. (para. 90)

15There is no evidence that the applicant was being treated differently because she is a woman, or because of her marital status or age, and no evidence that a benefit was withheld from her which is available to others or a burden imposed upon her which is not imposed on others.

16With respect to the reprisal allegations, Section 8 of the Code provides:

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.

17In Noble, the Tribunal described the evidence required to prove reprisal:

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.), 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.), 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

18There is no evidence in this case that the respondents engaged in an action, or threat, which was intended as retaliation for the claiming or enforcement of a right under the Code. The emails in question are fundamentally expressions of disagreement with the applicant’s interpretation of the use of the word “Miss”. Ms. D’souza, for example, set out in her email the view that she would not be offended by the use of the word “Miss” and that she considers the salutations “Miss/Mrs/Ms” a sign of respect. The expression of this view does not constitute reprisal under the Code.

19For all of those reasons, the Application is dismissed.

Dated at Toronto, this 9th day of May, 2011.

“Signed By”

Leslie Reaume

Vice-chair```