HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.A.

Applicant

-and-

Grace MacInnis Cooperative Inc.

Respondent

INTERIM decision

Adjudicator: Kathleen Martin

Date: June 7, 2012

Citation: 2012 HRTO 1123

Indexed as: T.A. v. Grace MacInnis Cooperative Inc.

Oral SUBMISSIONS

T.A., Applicant ) Self-represented

Grace MacInnis Cooperative Inc., Respondent ) Luke J. Saites, Counsel

1This 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”). The applicant alleges that the respondent discriminated against him in respect of housing on several grounds including ethnic origin, creed and family status. The applicant also alleges reprisal.

2By Case Assessment Direction the Tribunal on its own initiative directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

3A summary hearing proceeded by conference call. At the outset of the summary hearing, I asked for submissions on whether or not it was appropriate to use initials to identify the applicant given that some of the factual circumstances involve the applicant’s children and a complaint to the Children’s Aid Society of Toronto. The applicant requested anonymization and the respondent took no position. Based on the foregoing and Rule 3.11.1, I determined that initials would be used to identify the applicant.

4In addition, during the conference call the applicant referred to material which did not appear to be in the Tribunal’s file and which the respondent stated it had not received. The applicant was given an opportunity to file the additional material after the conference call.

5Upon a review of the additional material filed with the Tribunal, it appeared that certain documents referenced were missing. The applicant was given a further opportunity to provide the documentary material. The applicant filed brief submissions but did not provide any additional documents.

6After considering the material filed and the submissions made both during and subsequent to the call, I have determined that with the exception of the allegation about the eviction and family status, the Application should be dismissed as having no reasonable prospect of success.

BACKGROUND

7I note at the outset that in the course of the applicant’s various iterations of his claim, the underlying factual circumstances and the framing of the applicant’s allegations have changed somewhat. Where relevant, I highlight these changes below.

8The Application arises out of the applicant’s membership in and subsequent eviction from the respondent housing cooperative (the “Co-op”). The applicant resided in the Co-op with his spouse and children from October 2005 until, it appears, sometime in 2010. At that time, the applicant and his family were evicted following a proceeding in the Ontario Superior Court of Justice.

9While the central issue in the Application stems from the eviction by the Co-op, the applicant chronicles a history of other concerns leading up to the eviction proceeding.

10As set out in the narrative to the Application, the applicant alleges that he and his wife made a complaint about odours in their unit, which was not taken seriously by the Co-op. The applicant also alleges that since March 2008, the Children’s Aid Society of Toronto (“CAST”) has been receiving anonymous calls from a neighbour as well as from the coordinator of the Co-op about suspected child abuse. The applicant states that in the case of the latter telephone call, the caller inferred his son had bow legs and appeared in need of medical attention and questioned the sincerity of his daughter’s education. The applicant states that none of the reports of suspected abuse were validated. Further, the applicant alleges that neighbours began to make noise complaints about his family and that this became a “prevailing issue” while relegating his complaint of smoke odours to “none status”. The applicant states that the board of the Co-op gave him an eviction notice for “noise disturbance and threatening other co-op members” although it never investigated the noise complaints.

11In essence, the applicant alleges that the Co-op’s handling of the odours complaint, the reports to the CAST and the subsequent eviction proceeding were discriminatory relying on the grounds cited. The applicant also claims that he was reprised against when following his complaint of poor air quality (which he alleges is linked to pregnancy), there was an escalation of “slanderous complaints” made against his child being out of control and excessively and abnormally noisy; against his wife for being mentally challenged; and against him for being violent, threatening and intimidating.

12With respect to the eviction, the Co-op formally commenced a process to evict the applicant and his family on June 12, 2009, in the Ontario Superior Court of Justice. From the material filed, it appears that on September 17, 2009, a judgment was issued which, among other things, terminated the applicant’s membership and occupancy rights and ordered the eviction of the applicant. The applicant filed an appeal which was ultimately dismissed when certain conditions were not met. In the material filed on the other proceeding, the applicant has included an unsworn affidavit by him which sets out a similar chronology of events to that in the Application. Among other things, this affidavit alleges discrimination based on family status and reprisal under the Code and seeks a remedy of damages for violation of the “human rights act”.

13The fact of another proceeding raises a potential issue of section 34(11) and section 45.1 which was not identified in the CAD setting up the summary hearing. While the respondent made submissions that the Application should be dismissed because of section 45.1, the applicant did not provide any submissions nor did I insist that he do so given the absence of notice. This issue and any potential issue concerning section 34(11) remains outstanding given my conclusion in this decision.

14Finally, subsequent to the summary hearing, the Tribunal received a Request to Intervene from the applicant’s spouse. I provide directions below regarding this request and the issues that remain.

DECISION

15In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-9:

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.

16The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code, or an intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

17At the summary hearing, I asked the applicant to explain how he had been discriminated against based on the grounds cited and what evidence he would rely on to establish a link between the allegations of how he was treated by the Co-op and the grounds cited. I will now turn to an assessment of the applicant’s allegations.

Allegations based on ethnic origin

18In the Application, the applicant self-identifies as follows: “Race/color: Black. Ancestory/ (sic): African. Place of origin/ethnic origin: Jamaican and Citizenship: Canadian.”

19The applicant states that his family was the only black family in the Co-op. The applicant makes a general allegation that there was racial profiling in calls to the CAST and in one member’s complaint to the board of the Co-op, which is “associated” with the Co-op. He alleges that he was labeled violent, a bad parent and that he beat his wife and son; a label he states is a media stereotype of Jamaicans, which I presume is his interpretation of the complaints or reports made about him to the CAST.

20The applicant has relied on extracts from various reports to the CAST and complaints to the Co-op about alleged noise from various family members (including his son). While the applicant’s characterization that he is violent, a bad parent and that he beats his son entails some editorializing on his part, the content of these reports is negative, suggesting, among other things, that the applicant’s children may have been mistreated and that the applicant and his family are unduly noisy and do not properly manage their son’s conduct.

21In support of his allegation that this negative treatment is discriminatory, the applicant points to the following specific pieces of evidence that he would rely on to establish a connection between the actions of the Co-op and his ethnic origin and/or race:

i. In an “anonymous” letter to the CAST a caller referred to a “large black man”, which the applicant appears to suggest was a reference to him (the applicant had previously in his Application referred to this comment being in a report to the police);

ii. In another anonymous letter signed by a “Grace MacInnis member” to the CAST, the author alleged that s/he suspected violence had taken place in the applicant’s household (referring to a plumber hearing “beatings”) and they were shocked that after his infant son had been taken off of life support, that the applicant’s family came home with their other son.

iii. In another record of a complaint made to the CAST about the applicant’s son being left in a stroller unattended, the caller reports that “the family is black and speak with an African or Carribean (sic) accent”.

iv. In a summary of complaints by a co-op member (concerning the period January to September 2009) about alleged noise disturbances, the member complaining refers to the applicant’s “Jamaican” ethnicity (the applicant alleges that this complaint was relied on by the Co-op).

22I find that there is no reasonable prospect that the applicant will be able to establish that he was discriminated against by the Co-op based on his ethnic origin and/or race. When I consider the specific examples referenced, the applicant has either not produced the document (or explained how he could reasonably produce it); and/or when he has produced the document, I have difficulty seeing how the proposed evidence would assist him in proving discrimination.

23As a general comment, I note that with the exception of the last document, the applicant has not explained in any meaningful way how he would establish a link between these documents and the Co-op given that the authors are anonymous. While the applicant has broadly asserted that the members are connected to the board of the Co-op, apart from the author of one document, he does not indicate how he will establish how they are connected to the Co-op and/or how these reports about potential abuse informed the Co-op’s treatment of him.

24With respect to the first document, while the applicant referred to this document in his Application and oral submissions, the document is not included in the material produced. I note that a reference to someone’s racial and/or ethnic origin would not necessarily engage the Code and that context would be important to assessing whether a reference to someone’s ethnic origin was discriminatory. In the absence of the applicant being able to establish the context of how his ethnic origin was referenced, I do not find that the applicant has a reasonable chance of establishing a link between any disadvantage and his ethnic origin.

25With respect to the second document listed, I see no link between the complaint being made and the applicant’s ethnic origin and/or race. While the document raises concerns about the care of the applicant’s children, which I can appreciate would be upsetting to the applicant, beyond the applicant’s assertion that it is linked to ethnic origin and/or race, he has not convinced me that he can reasonably establish such a connection.

26The third document contains a referral/report to the CAST. It describes an incident and the anonymous caller expresses a concern about a child’s safety. The report includes the following introduction which contains the reference of concern to the applicant:

An anonymous caller reporting she is a neighbour. She does not know the family but reports she believes they live in a high apartment at…..[address identified]. She reports the family is black and speak with an African or Carribean (sic) accent.

27Even apart from the absence of a connection to the Co-op, I do not find that this document will assist the applicant in establishing that his ethnic origin or race was a factor in the Co-op’s treatment of him. On its face, the reference is prefaced by the caller reporting that she does not know the family and then contains a few descriptors including the address and the referral that concerns the applicant. Looking at the comment in context, I do not find that the applicant has a reasonable prospect of establishing a link between the allegation being made (a negative report to the CAST) and his race or ethnic origin such that he is being disadvantaged because of it.

28With respect to the fourth document, the applicant identified the same during the conference call and I gave him an opportunity to produce it. While the applicant produced the document, it did not contain the reference that he relies on. The applicant was given a further opportunity to explain where the reference came from but was unable to do so although he maintains in his recent submissions that he has “seen those words”. I do not find that this vague reference is sufficient for me to conclude that the applicant has a reasonable chance of establishing that the alleged comment was made at all and/or was made in such a manner that it would constitute discrimination under the Code.

29This leaves the applicant’s general assertion that he was racially profiled by the Co-op. In the absence of pointing to any evidence beyond the above references upon which he would rely, I find that there is no reasonable prospect of him establishing this claim.

Allegations based on Creed

30The applicant also alleges that he was discriminated against by the Co-op based on his creed. The applicant identifies his creed as follows:

Our lifestyle is one of a holistic approach, with the community and the world. We live by the principle do unto others as you would want for self. We practice a vegetarian lifestyle and believe in healthy living including the air we breath [sic]. We believe in being fully involved in the education of children. In the case of our family we homeschool and our children gets [sic] lesson and enrichment classes or programs from other professionals. Although we do not chastise parents who would spank their children. We do not use this form of decipline [sic].

31In the original Application the applicant alleged that he was discriminated against based on his creed because in a call to the CAST, the coordinator of the Co-op expressed doubts about the care that his wife was offering his son – suggesting that he was not receiving medical care and questioning the effectiveness of the home-schooling due to the alleged noise from the home.

32The applicant produced this document, which is entitled Referral/New Information report and stamped CAST. The details reported state that the “property manager” of the Co-op called with the lawyer to report a concern for the care that the applicant’s wife was providing to the child. Among other things, the particulars include a concern that the younger child is not receiving medical assistance for a condition and that the older child “is being home schooled but questions the effectiveness of this due to the noise from the home”.

33The applicant made no new submissions during the oral hearing but in subsequent submissions filed after the conference call, the applicant suggested that these references were also made in court documents (which I presume means the eviction proceeding) although he did not provide the material referenced. The applicant expanded on what offended him by stating that “stay at home mom, vegetarian, homeschooled, all the previous was referenc[ed] in the Court Affidavit put together by…(the most influential member of the board) that my child is a problem because he doesn’t go to day care, as well as our children were being anti-social as they were home schooled. Our belief is our religion”.

34In support of his position that creed is engaged the applicant relies on the Commission’s policy which he states defines “creed” subjectively (referring to the Commission’s statement that the Code protects personal religious beliefs, practices or observances, even if they are not essential elements of the creed provided they are sincerely held). In essence, the applicant alleges that his beliefs and lifestyle of being vegetarian and raising his children in the manner described (with a parent at home providing homeschooling) is a creed and that he has been disadvantaged in the Co-op’s treatment of him on this basis.

35I do not find that there is a reasonable prospect that the applicant can establish a link between any adverse treatment by the Co-op and the ground of creed.

36Even assuming without deciding that being vegetarian could be a component of creed, the applicant has not pointed to any particular allegation of how he was treated differently because he is vegetarian in either the report to the CAST and/or the eviction proceeding. I do not find the mere assertion of a reference to the applicant being vegetarian to be sufficient to establish a reasonable argument that his Code rights have been infringed on the basis of creed without production of such a document so that the context and import of the statement can be assessed.

37This leaves the reference to homeschooling and raising his children with a parent at home.

38Again, even assuming these practices are encompassed in creed, I do not find that the applicant has a reasonable chance of establishing a link between his belief in homeschooling and the adverse treatment described. In the report to the CAST, the concern expressed about the medical care being provided to the child is not linked to any ground including homeschooling. While there is a reference to homeschooling separately, as indicated in the description above, the focus of the report is the care of the children and the specific concern about homeschooling mentioned relates to the effectiveness due to noise; not a concern with the practice of homeschooling itself.

39I reach a similar conclusion about the allegation concerning the eviction proceeding. The applicant raised concerns about the eviction proceeding and the grounds of creed after the summary hearing. As such it is a new claim which raises an issue of delay. The claim is ambiguous insofar as it is not apparent as to how these allegations figured in the eviction proceeding (which I assume is the disadvantage experienced by him). I note that the applicant himself states that the eviction was for noise and threatening other members, but eventually decided on the basis that he was in arrears; he has not shown how these comments were connected to that. Based on the material filed and submissions made, which has limited context and particulars, I do not find that the applicant has a reasonable prospect of establishing that the Co-op’s treatment of him in taking steps to evict him was linked to his creed.

Allegations based on Family Status

40The applicant also alleges that he was discriminated against based on his family status.

41The applicant describes his family status as a “working father, a stay at home mother, and a home-schooled teen with a happy, polite energetic four year old, who does not go to daycare”. In the Application, the applicant submits that he was discriminated against because of how “we parent our children and our lifestyle” without providing any particulars. In his submissions, the applicant made specific reference to the Co-op coordinator’s report to the CAST referred to in paragraph 32 above and the eviction proceeding. With respect to the latter, the applicant has filed a 26-page document setting out a diarized account of alleged disturbances caused by the applicant and his family, which he states was relied on by the Co-op as proof that he was harassing this neighbour. Many of the complaints in this document are about noise and refer to the applicant’s then three-year-old son making the noise (the noise is characterized as screaming and the author expresses worry about the child’s well-being, suggesting that the noise is atypical).

42In his written submissions, the applicant has relied on extracts from the Policy and Guidelines on Discrimination because of Family Status and referred to a reference that “a certain amount of noise is to be expected from families with young children.” The applicant does not directly respond to the particulars in the 26-page document, although it is apparent that he disputes the characterization of the noise.

43In the Code, family status means the “status of being in a parent and child relationship”.

44I do not find that the applicant has a reasonable prospect of establishing that the report to the CAST relied on was discriminatory for the same reasons as those set out above. Even accepting that his parenting approach (homeschooling, stay at home parent) engages family status, I do not find that the report to the CAST treats him differently and disadvantages him because of family status. Taken at face value, I view the interpretation of the alleged offending comment not about the fact of home-schooling but about the effectiveness of it because of noise.

45I reach a different conclusion about the eviction allegation. The applicant alleges that he was evicted for, among other things, noise disturbances. With respect to the noise, the applicant alleges that the Co-op relied on a complaint of a member who alleges that the applicant’s son was making excessive noise. While on its face that complaint reflects that the noise is viewed as atypical and raises an issue of potential child abuse or inappropriate care, the applicant disputes that characterization and suggests that a certain amount of noise is to be expected given the age of his son. At this stage, based on the material filed and submissions made, I have not made any findings. Thus, in the absence of evidence, I cannot conclude that there is no reasonable prospect that the applicant can establish that there is a link between his family status and the eviction.

46However, as noted above, there is an outstanding issue related to the impact of the civil proceeding on this Application. The Application will therefore continue with respect to the eviction allegation as outlined in the paragraph above, but subject to the directions below regarding the issue of section 45.1 and section 34(11).

Allegations based on Pregnancy

47The applicant did not check off pregnancy as a ground of discrimination. However, in the Form 1A the applicant alleged that he was discriminated against based on pregnancy when the Co-op did not consider the health and safety of his wife and unborn child during her pregnancy as, he put it, “no consideration was given to our complaint of air quality issues in the home and no proper physical investigation was done…”. In the written submissions filed after the summary hearing, the applicant states that “during our initial complaint my wife…was PREGNANT and gave birth on August 08, 2008”. The applicant suggests that the board did nothing to ensure a safe pregnancy, delivery or fulfill their mandate to prioritize his family’s health.

48I find that there is no reasonable prospect of the applicant being able to establish this part of his claim.

49It would appear that the applicant is suggesting that the respondent was under an obligation to accommodate his wife’s pregnancy by taking steps to address alleged odour issues. I find there is no reasonable prospect that the applicant can personally advance a claim of what is, in essence, a claim of accommodation based on pregnancy given the nature of the claim and the fact that the applicant has not filed the Application on behalf of his spouse.

50Further and in any event, even assuming that the applicant could establish that the Code can be engaged by him in these circumstances, I cannot find that the applicant has a reasonable prospect of establishing this claim. The applicant has not pointed to any evidence that he could rely to support his claim beyond his assertion. The applicant has filed various letters that he and/or his spouse wrote to the Co-op about their odour concerns but none of the letters referenced (dated October 17, 2007, December 12, 2008, December 28, 2008, or April 7, 2009) raise the issue of pregnancy and any need for accommodation in this respect. The only reference to pregnancy is a letter from a doctor identifying that exposure to smoking is not advisable for pregnant women, which is dated March 2, 2009 – over six months after the birth of his son.

51For all of the above reasons I find that there is no reasonable prospect of establishing that the Co-op’s handling of the odours complaint discriminated against the applicant on the basis of sex.

Allegation of Reprisal

52The applicant’s reprisal claim stems from the odours complaint. The applicant alleges that he attempted to enforce his rights under the Code (by making a complaint about smoke and other odours) and the Co-op reprised against him for doing so by making “slanderous complaints” about his four-year-old son being out of control, against his wife for being mentally challenged and eventually against him for being violent, threatening and intimidating.

53In order to establish a reprisal within the meaning of section 8 of the Code the applicant must establish that he was seeking to claim or enforce his or another’s rights under the Code and that he suffered reprisal as a result.

54Given my conclusion above, I find there is no reasonable prospect that the applicant can establish a reprisal. Based on the material filed and submissions made, at the time of his wife’s pregnancy, the applicant did not frame the complaint about odours as being related to her pregnancy or any other ground of the Code. In the absence of this connection, I find there is no reasonable prospect that subsequent actions, while perhaps upsetting to the applicant, can be linked to an attempt to enforce a right under the Code.

Next Steps

55Having regard to my findings, the Application is dismissed on the grounds of ethnic origin, creed, sex (pregnancy) and reprisal. Subject to directions below, the Application will continue in respect of the allegation that the applicant was discriminated against on the basis of his family status in relation to his eviction by the Co-op .

56I note that the applicant has consistently raised concerns about the respondent’s failure to file a response in this matter. While initially the Registrar delivered the Application to the respondent and sought a response, once the issue of a related proceeding was raised and a summary hearing was scheduled, no response was required: see the Case Assessment Directions dated June 29, 2010 and November 10, 2010. At this time, I continue to find it unnecessary to require a response to the merits of the Application from the respondent other than what is outlined below.

57The respondent shall file a response to the Form 5 Request to Intervene filed April 18, 2012, within 21 days of the date of this Interim Decision.

58In light of the material filed by the applicant, there is an issue of whether or not the Application should be dismissed on the basis that there was a civil proceeding commenced regarding the eviction which resulted in a final determination of the eviction.

59In considering this issue, the respondent has relied on section 45.1 Section 45.1 provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

[60] In addition, having regard to the material filed (which includes an unsworn affidavit alleging, among other things, discrimination and seeking a remedy of damages for human rights), reference should be made to Section 34 (11) and section 46.1 which provide as follows:

s. 34 (11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

61In order to determine whether or not the Application should be dismissed because of either section 45.1 and/or section 34(11), the Registrar will schedule a two hour conference call for the purpose of hearing submissions on the issue of whether the Application should be dismissed on the basis of section 45.1 and/or section 34(11) .

[62] The following directions apply to the conference call:

i. The applicant shall deliver to the Tribunal with a copy to the respondent a copy of the affidavit referenced in paragraph 12 and 60 in its sworn form if it exists and if it does not, advise the Registrar in writing as to the reasons why there is not a sworn form of the affidavit within 14 days of the date of this decision;

ii. The hearing will address only the question of whether or not the Application should be dismissed on the basis of section 34(11) and/or section 45.1 of the Code;

iii. The respondent should be prepared to proceed first at the hearing and make any submissions it relies on based on either section 45.1 and/or section 34(11);

iv. Any party wishing to rely on any facts and/or case law not already provided must set out such facts in writing and provide a copy of any case law to the other party and file them with the Registrar within 21 days of the date of this Interim Decision.

Dated at Toronto, this 7th day of June, 2012.