Whyte v. Sudbury (City), 2011 HRTO 885

Human Rights Tribunal of Ontario

B E T W E E N:

James Whyte Applicant

-and-

City of Greater Sudbury – Housing Services and Shelly Upton Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: May 6, 2011 Citation: 2011 HRTO 885 Indexed as: Whyte v. Sudbury (City)

1This Application was filed on May 5, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination with respect to housing because of disability and receipt of social assistance. The applicant alleges he was subjected to disability discrimination when the respondents refused to grant him a rent-geared-to-income, two-bedroom apartment because his sleep disorder conditions do not qualify for extra rooms under the respondent City's criteria. The applicant further indicates that he has a learning disability and requires an additional room also in relation to this disability.

2The respondents filed a Response on July 23, 2010. The organizational respondent is the agent and administrator of the social housing program for the City of Sudbury and the personal respondent is the Program Supervisor of housing services (collectively the "respondents"). The respondents deny the allegations of discrimination and indicate that medical needs and equipment are considered in assessing requests for an additional room; however, local occupancy standards have determined that certain sleep conditions do not qualify.

3The applicant alleges that the last event was March 15, 2010; however, the respondents dispute the date of the last event. The respondents indicate that the applicant was informed, by notice dated April 14, 2009, that an internal review upheld an original March 20, 2009 denial of the applicant's request for an additional bedroom.

4By way of a Case Assessment Direction dated on April 5, 2011, the Tribunal sought written submissions from the parties with respect to the issue of delay because it appears that the Application may have been filed more than one year after the last incident of alleged discrimination.

DECISION

5Section 34 of the Code provides:

(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.

6Based on a review of the parties' submissions and the accompanying materials, the chronology of events underlying this Application are as follows:

• On February 9, 2009, the applicant applied to the respondents to include his fiancé in his residential application and requested that he and his fiancé be added to the two-bedroom wait list;
• On March 20, 2009, the respondents wrote to the applicant and advised that there was insufficient documentation to determine the need for a second bedroom;
• On March 24, 2009, the applicant requested an internal review of the March 20th decision. The applicant indicated that both he and his fiancé had sleep disorders, that he had attempted to hand in medical information but this was declined by the respondents' front desk and that another medical form would follow after his fiancé's upcoming appointment with her doctor;
• On April 14, 2009, the respondent City wrote to the applicant and advised that an internal review had upheld the original decision to deny the applicant a second bedroom. The letter indicated that the applicant's supporting documentation did not satisfy the requirements of a "disability or serious medical condition" and that "consideration for an additional bedroom is not given for frequent night time waking or insomnia";
• On May 26, 2009, a lawyer on behalf of the applicant wrote to the respondents indicating that the applicant believed that his request had been denied because of lack of medical evidence and as such, additional medical evidence indicating the applicant's fiancé had a sleep disorder necessitating a separate bedroom was now being provided;
• In November 2009, the applicant wrote to the respondents indicating that he and his fiancé would be married in September 2010 and needed to move into a two-bedroom apartment by then. The applicant referenced his and his fiancé's medical practitioners and expressed concern that the respondents had failed to consult the medical practitioners for more information. It appears that the applicant provided the respondent with additional medical documentation dated September 2009 confirming that he suffers from chronic insomnia, has a learning disability and prefers to sleep in a quiet room. The applicant sought information as to whether he had any legal recourse and indicated that he was available to discuss the issues and provide more medical documentation;
• On December 29, 2009, the applicant submitted another application seeking to join his fiancé at her existing residence and requesting that they be granted a two-bedroom apartment;
• In January 2010, the respondents wrote to the applicant indicating that the applicant's appeal of the original refusal of a two-bedroom apartment was denied. The letter stated that extra bedrooms are not granted for sleep disorders. The letter further stated that the applicant's new application to join his fiancé's household was being processed and under consideration;
• On March 15, 2010, the respondents wrote to the applicant. The letter advised that the applicant's current request to join his fiancé's household was granted and confirmed that the original decision denying the two-bedroom had been reconsidered and upheld.

7Pursuant to s. 34(1)(b) of the Code, an applicant is considered timely if it is made within one year following the last incident in a "series of incidents". In Bish v. Canadian Union of Public Employees, 2011 HRTO 221, the Tribunal explained 'series of incidents' at paragraphs 15 and 16:

The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a "continuing contravention" applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a "continuing contravention", there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

The distinction between "continuing effects of an act of alleged discrimination" and "further acts of discrimination" has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto 2010 HRTO 1495.

8I find that the above-noted chronology establishes a series of alleged events of various acts of discrimination. The final two-bedroom application was denied on March 15, 2010 and it appears this denial forms the basis of the last event identified in the Application. The respondents acknowledge that they provided the applicant with a final decision letter dated March 15, 2010, albeit the respondents' suggestion this was done on a gratuitous basis to reiterate the earlier reviews from 2009.

9The chronology indicates that the original February 2009 request was filed by the applicant in order to add his fiancé to his household and seek a two-bedroom transfer; whereas the December 2010 application was to add the applicant to his fiancé's household and seek a two-bedroom transfer. It also appears that throughout the chronology various medical documents were being submitted and considered – some providing information about the applicant's fiancé's condition and some providing information about the applicant.

10As such, although from the respondents' perspective little changed about the applicant's request for a two-bedroom because sleep disorders were determined to not satisfy the occupancy standards, it appears from the applicant's perspective his requests and supporting documents were an evolving process The applicant made additional submissions and provided additional medical documents to demonstrate the nature of his and his fiancé's disorders.

11Therefore, while the occupancy standards being applied throughout the chronology are the same, it appears there were two applications with various pieces of medical documentation. As such, I do not accept the respondents' argument that nothing changed in 2010 from the 2009 decision. Rather, based on the material filed by the parties, I find that additional medical information was noted to be forthcoming in 2009 and more information was later filed and eventually the location of the request changed. Thus, it appears the request and the basis of the request evolved in nature from 2009 to 2010.

12Based on the chronology of events, it appears the Application satisfies the requirements of section 34 of the Code as the last alleged event took place in March 2010 and the Application was filed in May 2010. Accordingly, I find that all of the allegations raised in the Application from 2009 onward form part of a series of alleged incidents and acts of discrimination that extend to and include allegations within the one year period and therefore the Application is timely.

13Given my finding that the allegations raised in the Application form a series of incidents and the last in this series occurred within one year of the Application filing date, I do not need to consider section 34(2) of the Code and whether any delay was incurred in good faith or whether any substantial prejudice would be caused to the respondents.

14In light of the fact that the parties previously indicated that they were amenable to participating in mediation and now that the applicant has representation, the parties are directed to write to the Tribunal, copied to each other, within seven days of the date of this Interim Decision, indicating whether they will participate in mediation.

15I am not seized.