Martinez v. Garcia, 2012 HRTO 1239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Martinez

Applicant

-and-

Maria Garcia

Respondent

decision

Adjudicator: Naomi Overend

Date: June 25, 2012

Citation: 2012 HRTO 1239

Indexed as: Martinez v. Garcia

APPEARANCES

Elizabeth Martinez, Applicant ) Beth Walden, Counsel

Maria Garcia, Respondent ) Self-represented

INTRODUCTION

1The applicant, Elizabeth Martinez, attempted to rent an apartment on the upper floor of the respondent’s home. She alleges that in the course of filling out the application to rent, the respondent, Maria Garcia, made a discriminatory remark about the type of work she and her boyfriend should engage in based on their ethnicity. She also alleges that the respondent ultimately refused to rent to them because they were not employed, but instead receiving social assistance.

2The respondent denies making the comment. She also denies that the source of income was a factor, but rather states that her decision to not rent to the applicant and her boyfriend was based on the fact that the boyfriend smoked.

3For the reasons set out below, I accept that the applicant has demonstrated on a balance of probabilities that she was subject to discrimination in housing on the basis of her place of origin and/or ancestry, and her receipt of social assistance.

EVIDENCE

4Although there are areas of stark disagreement between the parties, many of the facts are not in dispute. It is common ground between the parties that on March 21, 2009, the applicant and her then boyfriend, Antonio Miranda, went to view a one-bedroom (self-contained) apartment on the second floor of the respondent’s house at 86 Ashburnham Road. They were shown the apartment by the respondent.

5Both the respondent and Mr. Miranda are from Brazil and speak Portuguese. While on the brief tour of the apartment, they spoke to one another in Portuguese. The applicant, who is originally from Mexico, testified that she speaks Spanish and English, but understands Portuguese as it is a similar language to Spanish. She understood but did not participate in the conversation between the respondent and Mr. Miranda.

6At the end of the tour, the applicant and Mr. Miranda indicated their interest in renting the apartment and were given and filled out an application. Although nothing much turns on this, the applicant filled out the bulk of the application form. This application asked them who they were employed by. Under Mr. Miranda’s name, the applicant left that answer blank, but filled in his ‘occupation’ as student. Under her name, she filled in OW (short for Ontario Works) for ‘employed by’ and student under ‘occupation.’

7While they were filling out the application, they were joined by the respondent’s husband, who spoke English, but not Portuguese. In her Application to the Tribunal, the applicant alleged that the respondent asked them questions about their occupation. The respondent and her husband, Said Shahim, both testified that he, not the respondent, asked them in English who they worked for. Nothing much turns on this discrepancy. The applicant testified she and Mr. Miranda answered that they were students and on Ontario Works.

8At this point, the applicant said that the respondent said in Portuguese that because Mr. Miranda was Brazilian, he should work in construction, and because the applicant was Mexican, she should work as a cleaner. It is not clear how the respondent knew the applicant’s country of birth.

9Both the respondent and her husband testified that she did not make those remarks, but that when Mr. Shahim asked them where they worked, Mr. Miranda answered (in English) that he was a student because he did not want to work in construction and the applicant answered she was a student because she did not want to work as a cleaner. It was pointed out to Mr. Shahim and the respondent in cross-examination that, although the applicant’s version of events appears in her Application, the respondent’s version of this conversation is not in her Response or any subsequent document submitted to the Tribunal.

10Shortly after this conversation, the applicant testified that she and Mr. Miranda left. The applicant testified that they felt concerned about the way the conversation had turned after they started discussing the fact that both were on Ontario Works. She said that Mr. Miranda phoned the respondent later that same day to ask about the apartment and the respondent answered that she would have to discuss the matter with her husband.

11Mr. Miranda called the respondent back the next day (i.e., March 22, 2009). The applicant said that they were suspicious about the respondent’s remarks and she had Mr. Miranda put his phone on speaker so she could listen in on the conversation, which was again in Portuguese. The applicant said that the respondent told them that she did not want to rent them the apartment because they were on Ontario Works, and that “people who work are very important.”

12The applicant further testified that Mr. Miranda was very upset at this point and told the respondent that that was against the law, to which the respondent replied that it was her house and she could do whatever she wanted. The applicant further testified that Mr. Miranda said they could sue the respondent, to which the respondent said they could do whatever they wanted.

13The respondent agrees that she rejected their application to rent, but that the decision was based on the fact that Mr. Miranda was a smoker. On the application form, the applicant had checked “yes” in answer to the question “do you smoke”, but added the caveat that the smoking took place “outside.” The applicant explained that she was asthmatic and so out of respect for that Mr. Miranda did not smoke inside their apartment.

14The respondent testified that she advised the applicant and Mr. Miranda, in person, of the fact that she was rejecting their application on the basis that he smoked. When Mr. Miranda said he smoked outside and the applicant said she was asthmatic, the respondent testified she responded that it did not matter because she had respiratory problems and could not tolerate second-hand smoke.

15At this point, the respondent testified, Mr. Miranda’s tone became very aggressive. He accused her both in person, and later on the phone that afternoon, of not wanting to rent to them because they are on social assistance. He also said that he would sue her. She testified that to get Mr. Miranda to leave, she said she would speak to her husband and get back to him tomorrow.

16That afternoon, she testified, Mr. Miranda called back. He was screaming at her that what she was doing was against the law. She testified that she did respond to him, “Do whatever you want, I did nothing wrong” and then hung up the phone. She agreed there was a second call the following day, which went in much the same manner as the first call.

17The applicant called two further witnesses. The first witness is a friend, Armando Santangelo, whom she testified she had lost contact with after her and Mr. Miranda’s relationship ended. Mr. Santangelo testified that Mr. Miranda asked him to phone about renting the respondent’s apartment. He said he was reluctant to do this at first, but his parents were immigrants and he realized how difficult it was for people first coming to this country, and so he agreed to do this.

18Mr. Santangelo said that the respondent answered the phone when he called in late March or early April. She was friendly at first, but her attitude changed after she asked him what he did for a living and he answered that he was on EI (Employment Insurance). He testified that the respondent advised him that he needed to work. He said he had first and last month’s rent, to which she responded that he had to have a job.

19Although the applicant filed her Application on April 21, 2009, just weeks after the incidents in question, she did not describe this conversation or list Mr. Santangelo as a prospective witness. The respondent did not remember this conversation.

20In addition, Linden Dales, then a caseworker with the Centre for Equality Rights in Accommodation (“CERA”) testified. This conversation is in the Application and the respondent does recall it. Mr. Dales testified that he was contacted by the applicant shortly after the events described above. He called the respondent on April 7, 2009, at approximately 11:00 a.m.

21Mr. Dales testified that he does not have an independent recollection of this call, as he made many such calls during his tenure with CERA, but his practise was to make notes. He wrote a letter to the applicant approximately a week later, which he said would have been based on his notes.

22The letter states that during this call, he asked the respondent if she had an apartment for rent at 86 Ashburnham Road, to which she replied in the affirmative. He then asked if she had a problem renting to persons on Ontario Works. She asked if this was a form of welfare. When he said yes, he noted she responded “Sorry, you have to prove you are working in Toronto.”

23The respondent does not deny that this conversation took place, but said when she heard the question about renting to persons on Ontario Works, and found out it was a form of welfare, she thought that Mr. Dales must be calling for “them” – that the applicant and Mr. Miranda were continuing to bother her – and that is why she answered as she did.

24Mr. Miranda had seen the apartment advertised in the Portuguese language newspaper, “Sol Portugues.” The respondent produced a copy of the advertisement, which showed the apartment was available on April 18, 2009. Mr. Miranda and the applicant, however, required an apartment on April 1, 2009. As Mr. Miranda did not testify, it is not clear why he chose to see an apartment that was apparently not available when he needed one.

25In any event, the applicant and Mr. Miranda moved to another apartment for April 1, 2009. Their relationship broke down within months of moving in, and the applicant moved to another apartment.

DECISION AND ANALYSIS

26In order to make a finding of discrimination with respect to ground of “receipt of social assistance,” I would have to conclude that the respondent based her refusal to rent the apartment, in part or in whole, on the basis of that the applicant and her then boyfriend were in receipt of social assistance. Although there was extensive testimony and cross-examination concerning whether the respondent knew what “Ontario Works” was, it is unnecessary for me to make a specific finding on that fact. It is sufficient that the respondent knew that the applicant and Mr. Miranda were not working and that their income was derived from some form of government assistance. This fact was not disputed.

27The respondent testified that she based her decision to not rent to the applicant and Mr. Miranda solely on the basis that Mr. Miranda smoked. She denies stating that she advised Mr. Miranda that she had a problem renting to persons on Ontario Works (or social assistance) – that it was Mr. Miranda who raised this as an issue when he accused her that this was the real reason for not wanting to rent to them.

28In order to resolve this issue, it is necessary for me to make findings of credibility. The task that falls to me is to determine which version of events to which the parties testified was in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” See: Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A). In preferring the applicant’s version of events, I have relied on the following factors.

29The most significant factor is the evidence of Mr. Dales, the caseworker form CERA who called to enquire about renting the apartment. The respondent agreed that she told Mr. Dales that she had a problem with renting to persons on social assistance because she thought that he was somehow associated with the applicant and Mr. Miranda. If that were the case, however, it is not clear to me why she simply did not deny that she had a problem. By this point, the respondent acknowledges she had already had the confrontation with Mr. Miranda and that he had told her that she was breaking the law and could be sued for not renting to them. If she thought that Mr. Dales were associated with Mr. Miranda and the applicant, it defies logic that she would admit to a fact that Mr. Miranda had told her would lead to a lawsuit.

30In addition, there is the version of events presented by Mr. Santangelo. While I am troubled by the late disclosure of this critical allegation (one month before the hearing), the respondent curiously did not deny that the conversation took place, simply that she did not remember it. Mr. Santangelo presented his evidence in a straightforward and internally consistent manner. He appeared to have no interest in the outcome of the proceedings other than assisting someone with whom he had a friendly relationship.

31The respondent testified that upon telling Mr. Miranda that she would not rent to him because of the smoking, at the end of the in-person meeting, he started yelling at her that it was because he was on social assistance. She testified that she told him that she would discuss the matter further with her husband and speak to him later on the telephone. The problem with this evidence is that, on everyone’s testimony, the respondent’s husband was present at the end of the meeting between the parties. Telling Mr. Miranda that she would speak to her husband implies that he was not there.

32The respondent attempted to discredit the applicant by cross-examining her about her reasons for missing the two mediations arranged by the Tribunal. Although apparently of great concern to the respondent, the applicant’s reasons for missing the mediations were not in any way relevant to the issues before me. I attempted to explain to the respondent that the Tribunal’s administrative staff had accepted the applicant’s reasons for not attending the mediations and the Application had proceeded to the hearing before me. Despite my explanation, the respondent felt these issues would expose the applicant’s lack of credibility. I further explained that I would not permit the respondent to spend more time on this or other collateral issues relating solely to the applicant’s credibility.

33The respondent also attempted to lead evidence on her good works in the community. I ruled that this evidence was irrelevant. It is not entirely clear to me the purpose of this evidence, but it cannot go to bolstering the respondent’s credibility in this proceeding.

34The other area where the applicant and the respondent’s respective testimony diverged was with respect to whether the respondent advised the applicant that she should obtain work as a cleaner because she is Hispanic (and Mr. Miranda should work in construction because he is from Brazil). I am prepared to accept, on a balance of probabilities, that this was said.

35In reaching this conclusion, I am relying, in part, on the fact that the respondent did not deny saying this in her Response or any subsequent written submission and/or document filed with the Tribunal. I am also relaying, in part, on my above findings on credibility with respect to the issue relating to the ground of receipt of social assistance.

36On the basis of the evidence before me, I find that the applicant’s application to rent the apartment in the respondent’s home was not given consideration because the applicant (and her boyfriend) was in receipt of social assistance. I also find that in the process of making that rental application, she was subject to a discriminatory remark.

REMEDY

37The applicant sought $10,000.00 for injury to her dignity, feelings and self-respect. Other than denying that she engaged in discriminatory conduct (and so the applicant was entitled to no damages), the respondent made no submissions on what might be an appropriate amount should I find a violation of the Code. It was common ground that there were no specific damages for tangible losses arising from the infringement.

38The applicant testified that she was very distressed when her and her boyfriend’s rental application was rejected on the basis that they were in receipt of social assistance. She testified that they had to find an apartment very quickly and wound up renting a particularly unsuitable place for April 1, 2009, that she said led to their break-up as a couple.

39It is not necessary for me to assess the applicant’s evidence about the quality of the apartment she wound up renting, or whether it led to the end of her relationship with Mr. Miranda because the applicant did not challenge the respondent’s evidence that the respondent’s apartment was not available at the time she needed it. What the applicant lost was the right to have her rental application considered on the basis of non-discriminatory criteria. She also was subject to what she understood to be an insulting ethnic stereotype during the application process.

40The difficulty with assessing the subjective impact of this conduct on the applicant was that in her mind, not being considered for the apartment and not getting it were entwined and her testimony reflected this conflation of consequences. Objectively speaking, there would be an intangible harm to the applicant’s dignity, feelings and self-respect from being told that her status of being in receipt of social assistance was preventing her rental application from being given further consideration.

41For the applicant, this harm would have been somewhat mitigated by the fact that her status as an Ontario Works recipient was only temporary while she upgraded her education. From an objective perspective, the ethnic stereotype, while inappropriate, does not represent a major breach of the Code and would not itself attract high damages.

42Taking into consideration all of the above, an amount of $1,000.00 for the applicant’s intangible losses seems reasonable.

ORDER

43The respondent, Maria Garcia, is ordered to pay to Elizabeth Martinez $1,000.00 as compensation for injury to her dignity, feelings and self-respect within 30 days of this Order. In the event that the respondent fails to make this payment, the respondent shall pay post-judgment interest in accordance with the Courts of Justice Act.