Serguei Kostrikov v. York Condominium Corporation #201, 2011 HRTO 974

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Serguei Kostrikov Applicant

-and-

York Condominium Corporation #201 Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: May 19, 2011 Citation: 2011 HRTO 974 Indexed as: Kostrikov v. York Condominium Corporation #201

APPEARANCES

Serguei Kostrikov, Applicant ) Self-represented York Condominium Corporation #201, ) Jeremy Schwartz, Counsel Respondent )

1This is an Application filed on March 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing on the basis of race, ethnic origin, sexual solicitation or advances, and reprisal. It is one among several Applications filed by residents of condominium units against their condominium corporation, the Respondent. All but two of those Applications have been dealt with by the Tribunal. This Application, along with the other remaining Application, were the subjects of a Summary Hearing held on February 25, 2011 pursuant to a Case Assessment Direction (“CAD”). The CAD directed the parties to be prepared to deal with the question of whether either of the Applications should be dismissed under Rule 19A.1 of the Tribunal’s Rules of Procedure. The parties were also advised to be prepared at the Summary Hearing to deal with the respondents’ Requests that the Tribunal dismiss the Application on the basis that 1) the Tribunal has no jurisdiction; 2) the Application discloses no prima facie case of discrimination or harassment; 3) the Application is frivolous, vexatious and an abuse of the Tribunal’s process and 4) the Application lacks particulars.

DECISION

2For the reasons which follow, I do not dismiss the Application at this early stage under Rule 19A of the Tribunal’s Rules of Procedure in so far as the Application alleges discrimination on the basis of race and ethnic origin, but I order the applicant to provide further particulars. The other allegations, reprisal and discrimination because of sexual solicitation or advance, are dismissed.

Dismissing Under Rule 19A

3Rule 19A.1 of the Tribunal’s Rules of Procedure reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

4As 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.

Race and Ethnic Origin

5The Application itself provides very little information to explain why the applicant believes that he was reprised against or treated unequally on the basis of his race, ethnic origin, or because he refused a sexual solicitation or advance. The Application instead describes a “black list” allegedly created by the President/Chairman of the respondent’s Board of Directors (the “Chairman”) which called certain residents, including the applicant, names like “whore, prostitute, rabble, fool, blockhead and idiot.” The Application does not specifically state which slur was written next to the applicant’s name.

6With respect to the applicant’s written articulation of why he believes that he was discriminated against because of his race and ethnic origin, Form 1-B of the Application states: “Race and race-related grounds – Racialization by name.” A description of the “black list” is provided in the section where the applicant was instead asked to describe himself in terms of his race and ethnic origin.

7At the Summary Hearing, the applicant explained that he considers his race and ethnic origin to be Slavic. The applicant explained that he intended to provide evidence at a Hearing that the Chairman ignored his ongoing requests for repairs and extra parking because the applicant is Slavic. He explained that he came to this conclusion in the Spring of 2008, when the Chairman expressed his dislike for Slavs in the context of a conversation with the applicant in the parking garage about security. The applicant explained that he proposes to give evidence at the Hearing that the Chairman made a remark in Russian that the applicant translated into English as, “It is your brothers who are damaging the cars. You Slavs are all bitches.” The applicant explained that he has no brothers and therefore concludes that the Chairman was blaming the vandalism done to cars in the garage on Slavic people.

8The applicant also described a subsequent incident in the lobby when the Chairman allegedly called the applicant and his wife the word in Russian that the applicant translated into English as meaning “bitch” or “bitches”. The applicant explained that the word is usually directed at women to insult them, because it typically means women who have “loose” sexual values such as prostitutes, but it can also be used as profanity to insult men.

9Given the applicant’s submissions regarding the above alleged comments by the Chairman, which clarify his allegations in the Application, I cannot find that there is no reasonable prospect for that part of the Application which alleges discrimination on the basis of race and ethnic origin to succeed. I therefore do not dismiss the Application at this preliminary stage pursuant to Rule 19A in so far as the Application alleges discrimination on the basis of race and ethnic origin.

Sexual Solicitation or Advance

10As an explanation for why the applicant believes he experienced sexual solicitation, sexual advances or reprisal for refusing a sexual solicitation or advance, Form 1-B of the Application states:

David Tartakovsky – the Chairman of the Condominium Board of Directors. He used in his work in the Corporation the “black list” of building residents. At this list we were name called: whore, prostitute, rabble, fool, blockhead and idiot. [Grammar and punctuation are reproduced as in original text].

11I find that the above explanation is not sufficient to link the list to the alleged discrimination on the basis of sexual solicitation or advance. At the Summary Hearing, the applicant explained that the reason he checked off the box on the Application to indicate sexual solicitation or advance was because of the Chairman’s use of the Russian word, which he translated as “bitch”. The applicant made no argument to link this alleged name-calling with a sexual solicitation or advance. He agreed that the Chairman did not desire him sexually. While the alleged name-calling may be insulting, without further evidence that the Chairperson used the alleged word in order to obtain a sexual favour from the applicant, particularly given that the applicant explained that the term can be used as a profanity to insult men, I find that the Application has no reasonable prospect of success with respect to these grounds. I therefore dismiss the Application in so far as it alleges sexual solicitation or advance.

Reprisal

12Section 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.

13In Noble v. York University, 2010 HRTO 878, at paragraphs 33-34, the Tribunal summarized the key elements in reviewing what must be established to justify a finding of reprisal:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

14Form 1-B of the Application indicates that the applicant believes that the respondent reprised against him for starting or taking part in a human rights proceeding, but he indicates that the human rights proceeding for which he is being reprised against is this Application. (He wrote down the file number of this Application). The applicant’s submission on Form 1-B of the Application explains reprisal by basically repeating the paragraph that the applicant wrote to explain why he believes he was discriminated against on the other grounds discussed above. He states:

David Tartakovsky used in the Corporation work the “black list” of building residents with a name calling: whore, prostitute, rabble, fool, blockhead and idiot. According to this list we were refused high-grade services. For most of us it was forbidden in many respects to even come into the office. In the list 18 people which during many years suffered insults and discrimination. [Grammar and punctuation are reproduced as in original text].

15The above paragraph may describe a kind of reprisal if it is interpreted as an allegation that the respondent refused services to residents who were “black listed” but that is not necessarily a reprisal as defined by Code. I find that the information provided by the applicant in his Application, even if true, cannot be construed to be an action taken against or threat made to the applicant because he started a proceeding or is participating in a proceeding under the Code. The Application makes no sense when it alleges that the respondent reprised against the applicant for filing the Application, and the paragraph above does not seem to be related to reprisal for starting a proceeding under the Code. Because intent is a necessary component of reprisal under the Code, reprisal for starting a human rights proceeding can only be possible after the respondent knows it has been filed. At the time the applicant completed the Application thereby starting this proceeding, he was simultaneously alleging reprisal for starting this proceeding.

16At the Summary Hearing, the applicant provided no argument or description of evidence he plans to adduce in order to support an allegation of reprisal for any attempt to claim a right under the Code or to participate in a proceeding under the Code. Without any description in the Application or at the Summary Hearing of what might amount to reprisal under the Code, I find that there is no reasonable prospect of success. That part of the Application that alleges reprisal is therefore dismissed.

NEXT STEPS

17Submissions made by the applicant at the Summary Hearing have clarified why he alleges discrimination because of race and ethnic origin, but the Application itself is devoid of the particulars that the applicant provided at the Summary Hearing. The applicant still needs to articulate them clearly and more fully in writing so that the respondent may properly respond. The applicant must therefore file with the Tribunal and serve on the respondent further written particulars within 14 days of receiving this Interim Decision.

18The further particulars the applicant shall file must describe in writing the incidents the applicant orally described at the Summary Hearing which the applicant alleges constitute discrimination on the basis of race and ethnic origin. His description on Form 1-B of the Application, “Race and race-related grounds – Racialization by name,” is insufficient. In particular, he must provide the approximate dates when the Chairman’s comments or “name callings” were made. He must also describe what word, if any, was written beside his name on the “black list”. If the list is in his possession, he must attach a copy. If he does not have a copy of the list, then he must indicate how he knows that his name was on it and how he knows what was written beside his name. He must also describe in detail how the respondent used the list to treat him differently.

19Once the respondent receives the applicant’s particulars, it may file with the Tribunal and deliver to the applicant any responding submissions and clarify any Requests it intends to pursue. The respondent’s submissions are to be filed within 14 days of receiving the applicant’s particulars.

20I am not seized.