Reyes v. Vertica Resident Services, 2012 HRTO 1066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Althea Reyes

Applicant

-and-

Vertica Resident Services

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: May 29, 2012

Indexed as: Reyes v. Vertica Resident Services

WRITTEN SUBMISSIONS

Althea Reyes, Applicant

Alison Reyes, Representative

Vertica Resident Services, Respondent

Susan McCorquodale, Counsel

1The purpose of this Interim Decision is to address a Request for Interim Remedy (“Request”) filed by the applicant on May 16, 2012. For the reasons that follow, the Request is denied.

INTRODUCTION

2This is an Application filed 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 housing because of race, colour, and sex. In essence, the applicant alleges that the respondent discriminated against her by making racial slurs, breaching her privacy, bringing a number of court cases against her “when it knew that she was pregnant and could not attend court”, and because of a number of parking issues. She also alleges stalking and intimidation.

3The applicant filed an initial Request for Interim Remedy on May 14, 2012. It was dismissed because the applicant had not provided the necessary documents in support of her Request: 2012 HRTO 981.

4The applicant has now filed a further Request for Interim Remedy in which she asks for an order directing that:

a. the applicant have until June 4, 2012 to remove her belongings from her apartment;

b. none of the applicant’s belongings be deposed of in the meantime;

c. the applicant’s sister be given access to the apartment before midnight on June 4, 2012;

d. documents posted on the applicant’s door be removed.

5The applicant states that she had a baby on May 11, 2012 by C-section, that she is in pain and very vulnerable. Her sister is assisting her in dealing with the eviction, but she resides in another city. She has arranged for people from a church to pack the applicant’s belongings, but she states that this cannot be done before June 4, 2012.

6Along with the Request, the applicant has filed a Request for Reconsideration asking for an extension of time to June 4, 2012 to remove her belongings. Given that my decision regarding the applicant’s new Request for Interim Remedy addresses the substance of the Request for Reconsideration, it is not necessary for me to specifically address the latter.

7The respondent has not yet had an opportunity to file a Response to the Application. However, following a Case Assessment Direction dated May 17, 2012 it filed a Response to the Request.

THE FACTS

8The respondent is the applicant’s landlord. In its Response to the Request, the respondent states that it began a number of Landlord Tenant Board (“LTB”) proceedings against the applicant because she was frequently in arrears in her rent. Some of these proceedings led to the applicant paying her outstanding rent and one proceeding resulted in a settlement agreement. The respondent states that, notwithstanding these proceedings, the applicant continued to be in arrears and did not comply with the settlement agreement.

9The respondent has filed a copy of an LTB decision dated July 19, 2011, in which the LTB ordered the applicant’s eviction. The LTB’s decision does not address or refer to any allegations of discrimination. It terminates the tenancy agreement because the applicant had failed to comply with an earlier order of the LTB directing the applicant to pay her outstanding rent by July 5, 2011.

10The applicant appealed the eviction order to Divisional Court, effectively staying the eviction until the appeal could be heard. The Divisional Court’s decisions and many of the documents filed with it have also been submitted to the Tribunal with this Request.

11According to the respondent, the applicant defaulted on rent payments due during the period of the stay. The respondent applied to the Divisional Court, which (on December 16, 2011) ordered the applicant to pay her rent in accordance with the tenancy agreement, failing which the appeal would be dismissed and the stay lifted. The Court’s order indicates that the applicant attended the December 16, 2011 hearing and made submissions to the Court.

12The respondent states that the applicant again failed to pay her rent, as required. The respondent filed a motion with the Divisional Court, seeking the dismissal of the appeal. Following a hearing, the Divisional Court issued an Order dismissing the appeal. In its endorsement, the court writes:

The applicant did not attend although paged. She had advised opposing counsel that she was seeking an adjournment which was opposed. She had a friend drop off two affidavits, which I have reviewed. Ms. Reyes is in default of the Order of Sproat J. dated December 16, 2011 requiring her to perfect her appeal by Feb 28, 2012. The Feb and March rental payments were not made until March 20, 2012. The appeal has not been perfected. The health issues raised by the applicant now have been raised by her before and addressed by both Lemon J. and Sproat J. Ms. Reyes has received numerous indulgences. [Emphasis added.]

Factual disputes

13There are a number of facts in dispute. The applicant has filed emails in which she advised the respondent that she was unable to proceed with the Divisional Court proceedings because of health issues. The respondent vigourously disputes the accuracy of the documents filed by the applicant. It has filed the same email messages, but which do not refer to the applicant’s alleged health issues. The respondent states that the applicant has falsified the documents she has filed with the Tribunal and notes that she has failed to file any medical documents substantiating the alleged health issues.

14There is also a dispute between the parties as to the location of the applicant’s belongings. The applicant states that her belongings remain in the apartment. The respondent states that the applicant was evicted on May 14, 2012 and that, on May 24, 2012, the contents of the applicant’s apartment were placed in storage. The respondent states that her belongings will remain in storage and can be claimed by the applicant until June 30, 2012.

ANALYSIS

15Granting an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application and before any violation of the Code has been proven.

16The conditions for awarding an interim remedy are set out as follows in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

17In TA v. 60 Montclair, 2009 HRTO 369 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

(…) whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

18The Tribunal in TA v. Montclair, supra, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

19I am not satisfied that the applicant has met the significant onus of establishing that his Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.

20First, it is not clear that this Application appears to have merit in regards to the eviction. While the Application contains a number of allegations of discrimination, including an allegation that the respondent refused to accept the applicant’s rent cheque from third parties, there is no contention that the LTB and the Divisional Court’s decision to evict the applicant was based on anything other than her failure to comply with the tenancy agreement and the Divisional Court’s order.

21I note that there is a dispute between the parties as to the content of communications between them and whether the respondent was aware of the applicant’s pregnancy and its effect on her ability to attend court proceedings. It is not necessary for me to make findings on this issue. The Divisional Court’s endorsement of March 23, 2012 makes clear that the applicant requested an adjournment for health reasons, that this request was communicated to the Court by opposing counsel, that the Court considered affidavits the applicant filed in support of the request for an adjournment, and that the adjournment was denied. By characterizing the decision to proceed on March 23, 2012 as a discriminatory act by the respondent, the applicant seems to be attempting to appeal the Divisional Court’s denial of the adjournment to this Tribunal.

22Second, even if I were to assume (without finding) that the Application has merit, I cannot conclude that the balance of harm or convenience favours awarding the interim remedy sought or that it would be just and appropriate in the circumstances to grant it.

23While the parties dispute the location of the applicant’s belongings, it is clear that the locks to her apartment were changed on May 14, 2012 and that the eviction has already taken place. Based on the respondent’s submissions that the applicant’s belongings will remain in storage until June 30, 2012, there no longer appears to be any risk to the applicant’s belongings or possible prejudice to the applicant as a result of their disposition.

24The applicant argues that it would be most appropriate for her church group to pack her belongings. However, she has presented no basis to suggest that her belongings will be damaged if packed by the respondent. It is otherwise not clear to me that the applicant would be prejudiced by the respondent (as opposed to members of the church group) packing her things.

25I find that the applicant has not established that any of the interim remedies requested are necessary to further the remedial purposes of the Code.

26For all these reasons, the Request for Interim Remedy is denied.

27I am not seized of this matter.