Devoe v. Haran, 2012 HRTO 1507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Devoe

Applicant

-and-

Prabha Haran

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: August 1, 2012

Citation: 2012 HRTO 1507

Indexed as: Devoe v. Haran

appearances

Susan Devoe, Applicant ) Self-represented

Prabha Haran, Respondent ) Samantha Thornton,

) Representative

INTRODUCTION

1The applicant, who identifies as a disabled senior, lives alone in an apartment building which is owned by the respondent. On April 17, 2012, she filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to housing because of her disability, family status, marital status, age, and receipt of public assistance, and subjected her to reprisal. Specifically, the applicant alleged that she requested that the respondent allow her to transfer from her second floor apartment to a vacant main floor apartment to accommodate her mobility issues related to her disabilities, but he refused and began showing the apartment to other prospective tenants.

2On May 16, 2012, the respondent filed a Response, which admitted that he refused to allow the applicant to transfer to the vacant main floor apartment and that he wanted to rent the apartment to other prospective tenants. However, he denied that the refusal was discriminatory. He stated that he refused to rent the apartment to her because the building is not suitable for someone with her physical and mental health needs, she is an obsessive hoarder whose current apartment is a health and safety risk, and she has failed to pay her full rent on time on at least three occasions.

BACKGROUND

3The Tribunal held a preliminary hearing on May 8, 2012, and issued an Interim Decision, 2012 HRTO 938, on May 9, 2012, which, among other things, prohibited the respondent from renting the vacant main floor apartment until he receives further orders or directions from the Tribunal, and directed the parties to attend an expedited hearing of the merits of the Application on May 28, 2012.

4The merits hearing took place as scheduled. At the outset of the hearing, the applicant indicated that she had not received a copy of the Response. I provided her with a copy, and gave her time to read it. She then indicated that she was ready to proceed with the hearing.

5I heard the evidence of three witnesses: the applicant, her community support worker, and the caretaker of the building. The respondent’s representative stated that the respondent was unable to appear as a witness because he works full-time, but that his position was set out in the Response and a letter that he filed with the Tribunal on May 8, 2012. I also admitted into evidence a number of documents that were tendered by the parties, including letters, medical documents, and a Toronto Fire Services Notice of Violation.

6After the parties had closed their cases, I noted that the applicant had mainly presented evidence with respect to her allegation of discrimination based on disability, and had presented little or no evidence with respect to her allegations of discrimination based on family status, marital status, age, and receipt of public assistance and her allegation of reprisal. Upon my suggestion, the applicant agreed to withdraw these latter allegations. Accordingly, I issued an order striking the grounds of family status, marital status, age, receipt of public assistance, and reprisal from the Application.

7At the end of the hearing, I notified the parties that my order prohibiting the respondent from renting the vacant main floor apartment would remain in effect until the Tribunal issued its final Decision.

8Following the hearing, the applicant filed “final submissions”, which I understand to be a Reply to the Response. I have some difficulty accepting a Reply to the Response after the case has been heard. I appreciate that the applicant did not receive the Response until the hearing, but she did not request an adjournment of the hearing, and essentially provided her Reply in her evidence. Accordingly, I will not consider the applicant’s “final submissions” in making my Decision.

EVIDENCE

9The respondent’s building has six apartments: one in the basement, two on the main floor, two on the second floor, and one on the third floor. There are four or five steps on the stoop of the building leading up to the main floor, a staircase with approximately 18 steps leading up to the second floor, and a staircase with approximately 10 steps leading down to the basement where the washer and dryer are located.

10The applicant was 63 years old when she began renting an apartment on the second floor in September 2010. She testified that when she first moved in she did not have any disability-related problems. However, she stated that she was subsequently diagnosed with fibromyalgia and osteoarthritis, and that in the winter or spring of 2011, she began to experience back pain which was diagnosed as sciatica. She stated the back pain worsened over time and limited her mobility. As a result, she stated that she had great difficulty walking up the stairs to the second floor apartment, maintaining her apartment, and working and earning income. She stated that during the spring and summer of 2011 she visited the hospital five times because of health issues related directly or indirectly to her back. On or about August 7, 2011, the applicant delivered a letter to the landlord via the caretaker, which set out these circumstances.

11There is no dispute between the parties that the applicant failed to pay her full rent on time on approximately three occasions. The applicant testified that her failure to pay her full rent on time was related to either her loss of income as a result of being hospitalized or the respondent’s refusal to deal with maintenance issues, and that she always paid in full within a week or two of the first of the month. The respondent did not dispute the applicant’s evidence on these points.

12In September 2011, the applicant turned 65 years old. She testified that she began receiving Canada Pension Plan (“C.P.P.”) and Old Age Security (“O.A.S.”) payments, but that her other circumstances remained the same. As a result, she stated that in March or April 2012, her doctor referred her to a community agency to assist her with her housing needs. A community support worker from the agency testified that she met with the applicant in early April 2012. She stated that her agency has a program to support older adults and seniors with home management issues, and that the applicant was cooperative in developing a plan to clean and maintain her apartment.

13In early April 2012, the applicant also found out that one of the main floor apartments in her building would be vacant and available at the end of the month. She testified that she called the landlord, told him about her disabilities and her difficulty climbing the stairs to her second floor apartment, and asked him if she could transfer to the vacant main floor apartment. She stated that he did not provide her with an immediate response, but that when she called him back a second time, he told her that he would not consider her for the main floor apartment.

14The applicant testified that she then conducted research on the Code, and based on what she found, decided to provide the landlord with a written request for a transfer to the main floor apartment. On or about April 12, 2012, she delivered two letters to the landlord via the caretaker. In his testimony, the caretaker admitted that he received both letters and delivered them to the landlord. The first letter dated April 9, 2012, was written by the applicant and had a heading which stated: “Re Request for Disability Accommodation”. The letter went on the state the following:

Following my verbal request to you over the telephone this past week… I am also submitting a written notice to you of my desire to move into apartment 1. I am at the same time requesting an accommodation of you re. my housing requirements as a person with disabilities and also a current tenant in the building, presently living in an apartment that has become unsuitable for my needs, whereas apt. 1 will accommodate my needs.

My reasons for desiring to move into apartment 1, as described to you over the phone, once again, are mainly that I would not have 18 stairs to climb to the 2^nd floor, as I have to deal with now while living in apartment 3 at this address, and as well I would have a ground floor walk out fire exit to the back yard, as opposed to jumping out of a second floor window, as your caretaker has actually instructed me to do, in case of fire.

As I have made both of you aware, also in previous letters, I have several disabilities, including a severe Sciatica condition, Osteo-arthritis, and severe Fibromyalgia. The Sciatica kicked in last summer, after suffering backaches throughout the winter and spring…. My housing situation at present is severely stressing me, including your refusal to allow me to move into apt. 1, which would suit my present needs re. my disabilities and also not cause you any “undue hardship” of any kind whatsoever.

I understand apt. 1 is still not rented out, as you are still showing the apartment – indeed, there is another “viewing” tomorrow at 3:00, even though you are aware that I still wish to move into this apartment, and the present tenants of apt. 1 will be moving out the end of April…. I will also be presenting you with a letter from my main doctor, Dr. V. Schiralli (the leader of my medical team), who will be advising you therein of my various disabilities and need for accommodation in housing from you, as required under the Human Rights Code….

15The second letter dated April 12, 2012, was written by the applicant’s doctor at St. Michael’s Hospital’s Health Centre, and stated:

This is to confirm that Susan Devoe is currently under my care. She has severe osteoarthritis causing joint pain, degenerative disc disease with sciatica causing marked back and leg pain, and fibromyalgia resulting in generalized muscle pain.

All of these medical problems result in challenges with her mobility, and are a significant disability for her. It is therefore imperative that her apartment be accessible without stairs.

I trust that this is the information that you require. Please do not hesitate to contact me should you require any further details.

16The applicant’s community support worker testified that in late April 2012, she delivered a letter to the landlord via the caretaker. In his testimony, the caretaker admitted that he received the letter and delivered it to the landlord. The letter is dated April 25, 2012, and stated:

I am part of a team of outreach workers within the area assisting vulnerable older adults and seniors. Our focus is to provide assistance for these individuals to remain safely living in their homes….

I met with one of your tenants, Sue Devoe…. Sue struggles to use the stairs to her unit on a daily basis due to chronic and acute pain. Climbing and going down a long and steep set of stairs daily is a falling hazard for a senior individual like Sue… We hope you will consider, in good faith, an expedited transfer to accommodate the said safety concerns. As a landlord, the onus is on you to make the right decision and accommodate a person with a disability.

17The caretaker testified that shortly before May 1, 2012, the landlord told him that the applicant would not be getting the main floor apartment. The community support worker also testified that a few days after she delivered her letter, she received several voicemail messages from the respondent which did not address her request, and merely stated that he hoped that she could help the applicant find a suitable living environment.

18On May 1, 2012, the applicant attempted to move into the vacant main floor apartment without the landlord’s permission. She called a locksmith who started changing the locks, but the caretaker discovered what was happening and called the police. The police spoke to the applicant, inspected her second floor apartment, and brought her to a hospital emergency room. A doctor discharged her 2½ hours after her admission. The Emergency Room report stated that the applicant was brought in by the police because of “bizarre behaviour”, including hoarding, but then stated that the diagnosis was “social problems” and that she was discharged because there were no acute medical or safety issues. The damage to the main floor apartment door was $67.47, which was the cost of replacing the three locks that the locksmith had installed.

19In her testimony, the applicant stated that she attempted to move into the vacant main floor apartment because she felt that she was being discriminated against, and if she did not occupy it, the respondent would have rented it to someone else. However, she also admitted that what she did was “stupid” and “wrong”, and stated that it would not be unreasonable for the Tribunal to reduce any award to her for monetary compensation accordingly.

20On May 7, 2012, a municipal fire safety inspector who was called in by the respondent conducted an inspection of the applicant’s second floor apartment and the common areas of the building. The inspector then issued a Fire Services Notice of Violation which cited four contraventions of fire safety legislation and codes: (1) the basement laundry/hot water tank room had damaged fire separations, (2) the applicant’s apartment and the basement laundry room were missing self-closing devices, (3) the second floor corridor was obstructed by a large wooden cabinet and the basement corridor was obstructed by paint pails, cushions, and fluorescent light bulb tubes, and (4) the applicant’s apartment was missing a carbon monoxide detector. Although not mentioned in the Notice, the parties agree that the inspector also raised issues about the accumulation of combustible materials, such as newspapers, and the lack of clear pathways in the applicant’s apartment.

21In her testimony, the applicant’s community safety worker admitted that the applicant’s apartment had clutter and was disorganized, and she stated that she did not dispute the fire safety inspector’s findings. However, she stated that in response to the findings, her organization assigned two personal support workers to assist the applicant. She stated that the workers spend six hours per week cleaning up, de-cluttering and organizing the applicant’s apartment, and doing her laundry for her. She stated that eight hours of work has already been done, and significant progress has been made. She also stated that the assistance will continue for nine months, and after that, there are other organizations that can provide long-term assistance to the applicant. The respondent did not dispute any of this evidence.

22In responding to the applicant’s evidence, the respondent also did not dispute that the applicant has disabilities, that she has disability-related needs with respect her housing, that he refused to consider her for the vacant main floor apartment, and that he is trying to find someone else to rent the apartment to. In his letter to the Tribunal dated May 8, 2012, the respondent stated:

There is no discrimination but our concern for Ms. Susan Devoe’s need to find appropriate supported living arrangement with no stairs to climb, e.g. an apartment building set up.

In addition, her upkeep of her current apartment is a huge concern in terms of general health and hygiene and fire safety. Also, on May 1^st, Susan Devoe illegally attempted to occupy unit 1 with the help of a locksmith. She was stopped in good time with the help of Toronto Police. She was taken by the police in their cruiser to the hospital on their concern about her physical state of mind.

Also, at least in three occasions she has found it difficult to pay the current monthly rent of $850 in full and on time. The monthly rent for unit 1 is $900.

Enclosed, please find a letter dated August 7, 2011 from Susan Devoe which in our opinion clearly demonstrates that this small old building is not suitable for a person of her physical and mental needs.

We wish her well in her continued search for a suitable long term care accommodation. [Emphasis added]

23In his Response dated May 16, 2012, the respondent also stated:

(…) she was not considered for the Unit 1, as summarized below, in the best and safe interest of Ms. Devoe, other tenants and the landlord:

1. The old rental house building is not suitable for Ms. Devoe as she has numerous medical conditions that require a rental or care facility that is without stairs, as stated in writing by her care physician. The unit 1 has 4-5 stairs to climb from the ground up.

2. Unit 1 is about 10% bigger than her rental apartment unit 3, and will not suit her overall needs.

3. Ms. Devoe has shown to be an obsessive hoarder and her present apartment is a health and safety hazard. Recent visits by the Police, Fire, Health and Standards raised their concern for the safety of all tenants, particularly that of Ms. Devoe. Their reports will be obtained as soon as possible, as and when available, and provided to the tribunal.

4. Ms. Devoe has in at least three occasions been unable to pay rent on time and in full.

5. Given that Ms. Devoe has physical and mental needs that we as an ordinary landlord cannot and is not expected to provide appropriate and adequate rental accommodation under the Landlord and Tenant Board.

The above facts have been misconstrued by Ms. Devoe as Discrimination.

6. It appears from her statements that she is reluctant to find appropriate accommodation elsewhere to meet her needs either because of her reluctance to move from familiar settings or cost of moving or both. [Emphasis added]

24In reply to these points, the applicant testified that her main difficulty is climbing the narrow 18-step staircase leading up to the second floor, not the four or five steps on the stoop in front of the building. She also denied that she has a mental disability or that she can only live in a care facility. She also stated that the respondent never made an issue about her past late rent payments until she filed her human rights Application, and that, in any case, her C.P.P. and O.A.S. payments now total approximately $2,000 per month, which is more than enough to pay the $900 monthly rent for the main floor apartment, and the respondent is aware of that.

25The applicant testified that the respondent’s refusal to allow her to rent the vacant main floor apartment and her awareness that he was showing the vacant apartment to other prospective tenants caused her horrible emotional distress and anxiety. She stated that she also had ongoing anxiety about falling down the inside stairs and hurting herself, or being trapped in her second floor apartment during a fire.

ANALYSIS

Applicable Law and Issues

Human Rights Code

26The Application relates to sections 2, 9, 10, and 17 of the Code, which provide:

2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because… of disability….

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) In Part I and in this Part... “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

(…)

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Onus

27The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.

28The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. If the applicant establishes a prima facie case of discrimination, the respondent must establish defences and exemptions on a balance of probabilities. Although an evidentiary burden to rebut discrimination may shift to the responding party, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at paras. 112 and 119.

Issues

29In this case, the two main issues that I am required to determine are as follows:

1. Did the applicant establish a prima facie case of discrimination by proving that the respondent refused to consider her for the vacant main floor apartment because of her disability?

2. If so, did the respondent establish that his actions were non-discriminatory by proving that he was unable to accommodate the applicant’s needs related her disability up to the point of undue hardship?

Did the applicant establish a prima facie case of discrimination by proving that the respondent refused to consider her for the vacant main floor apartment because of her disability?

30In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52, at para. 36.

31With respect to the first part of the test, the applicant proved that she had a disability within the meaning of the Code. She provided medical evidence and oral testimony that showed that she has severe osteoarthritis causing joint pain, degenerative disc disease with sciatica causing marked back and leg pain, and fibromyalgia resulting in generalized muscle pain, and that these medical conditions limit her mobility, including her ability to climb up and down stairs and to clean and maintain her apartment.

32With respect to the second part of the test, the applicant proved that she received adverse treatment. She provided oral testimony and documentary evidence that in early to mid-April 2012 the respondent refused her request for a transfer from her second floor apartment to the vacant main floor apartment, and then began showing the vacant apartment to other prospective tenants.

33With respect to the third part of the test, the applicant proved that her disability was a factor in the adverse treatment. She provided oral testimony and documentary evidence that showed that the respondent refused her transfer request after she informed him that she had a disability and needed the vacant main floor apartment as an accommodation of her disability-related needs. The respondent’s refusal to accommodate the applicant’s disability-related needs falls within the definition of discrimination that was set out by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 174-75:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

34Furthermore, in his Response and at the hearing, the respondent did not dispute that the applicant had established a prima facie case of discrimination. Specifically, he did not dispute the fact that the applicant had a disability and mobility issues related to her disability, and admitted that he refused to rent her the vacant main floor apartment because of her “physical and mental needs”. The applicant is not required to prove that disability was the sole factor in the decision to deny her the vacant main floor apartment; it is sufficient that she prove that disability was one factor. See, for example, Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 D.L.R. (4^th) 575 (ON C.A.), at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3^d) 290 (Div. Ct.), at para. 11.

35Accordingly, I find that the applicant established a prima facie case of discrimination by proving that the respondent refused to consider her for the vacant main floor apartment because of her disability, and that is sufficient to shift the evidentiary burden to the respondent to establish that his actions were non-discriminatory.

Did the respondent establish that his actions were non-discriminatory by proving that he was unable to accommodate the applicant’s needs related her disability up to the point of undue hardship?

36The respondent’s position is that he cannot rent the vacant main floor apartment to the applicant mainly because she has physical and mental needs that cannot be accommodated in the apartment building. Under the Code, the respondent has both procedural and substantive duties to accommodate the applicant’s disability-related needs up to the point of undue hardship, and the onus is on the respondent to establish that he has met these duties. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3^d) 649, at para. 103. More than a mere negligible effort is required to satisfy the duty to accommodate. See Central Okanagan School District No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4^th) 577 (S.C.C.), at p. 585.

37The procedural duty to accommodate involves obtaining all relevant information about the applicant’s disability, at least where it is readily available. The term “undue hardship” requires that the respondent seriously consider how the applicant could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the procedural duty to accommodate. In assessing whether the respondent has met the duty, the respondent’s efforts will be assessed at the time of the alleged discrimination. The respondent may not use after-acquired evidence to support its view that the applicant could not be accommodated. See ADGA, supra, at paras. 106-107.

38The substantive duty to accommodate requires the respondent to show that it could not have accommodated the applicant’s disability-related needs short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of every case. The use of the term undue infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, supra, at paras. 112 and 116-117. The respondent has to present cogent evidence to support its position that it cannot accommodate the applicant’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at paras. 78-79.

39I find that the respondent did not establish that he fulfilled his procedural and substantive duties to accommodate the applicant’s disability-related needs up to the point of undue hardship. As will be set out below, the respondent’s procedural efforts to accommodate the applicant’s disability-related needs were non-existent, and the substantive reasons that he provided for being unable to accommodate her needs fall short of meeting his onus. I will address the respondent’s points one-by-one.

40First, the respondent stated that he cannot accommodate the applicant’s physical needs because she needs an apartment that is accessible without stairs, but the vacant main floor apartment that she was asking to transfer to can only be reached by climbing four or five stairs. In my view, this is a misrepresentation of the applicant’s accommodation request. The applicant never stated, and there is no evidence, that she is totally incapable of climbing up and down stairs. Rather, she stated, and the evidence shows, that she has difficulty climbing up and down stairs, and that the 18-step climb up and down to her second floor apartment poses a particular safety risk for her because of its height. There is no evidence that the respondent asked the applicant or her doctor whether she could climb the 4-5 steps at the front of the building safely, or that he thought or considered how he could modify the front of the building so that she could access it safely. Rather, he simply assumed that the building was not appropriate for her because of her disability, and that she should live in a building with an elevator or in a long-term care home. This assumption is what the Supreme Court of Canada has referred to as the “the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks.” See Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 34.

41Second, the respondent stated that he cannot accommodate the applicant’s mental needs because she presents a health and safety risk to herself and the other tenants in the building. In support of his position, he presented evidence that the applicant attempted to illegally occupy the vacant main floor on May 1, 2012; that the police who stopped her brought her to the hospital for a mental health assessment; and that on May 7, 2012, a municipal fire safety inspector inspected the applicant’s second floor apartment and issued a Fire Services Notice of Violation. I have a number of difficulties accepting this particular justification.

42The main difficulty that I have with this justification is that this is an after-the-fact justification which relies on after-acquired evidence to support the respondent’s view that the applicant could not be accommodated. The applicant and the respondent’s caretaker both provided oral testimony, which I accept, that the respondent decided to deny the applicant’s request to transfer to the vacant main floor apartment before May 1, 2012. The respondent did not present any evidence that this was a justification that he had prior to May 1, 2012.

43A further difficulty that I have with this justification is that, even if it was not after-the fact, the respondent did not present any evidence that he thought or considered how he could accommodate the applicant’s presumed needs related to her mental health. He did not ask the applicant directly, or ask for permission to speak to her doctor, about what steps could be taken to ensure that her behaviour was appropriate and that her apartment was consistently cleaned and maintained. Rather, he simply assumed that the building was not appropriate for her because of her mental needs, and that she should live in a long-term care home.

44A further difficulty that I have with this justification is that, even if it was not after-the-fact, the evidence that that the respondent presented does not support his position that the applicant presented a health and safety risk to herself and the other tenants in the building. The applicant’s attempt to forcibly occupy the vacant main floor apartment was ill-advised, by her own admission, but I cannot see how it presented a health and safety risk. The Fire Services Notice of Violation identifies fire safety violations in the applicant’s second floor apartment, but does not identify an immediate and irreversible health and safety risk to her and others tenants in the building. Furthermore, the applicant presented evidence, which was not rebutted by the respondent and which I accept, that she now has two personal care workers who are assisting her with cleaning up, de-cluttering and organizing her apartment and eliminating any health and safety risks. I would also note that the Notice identified several fire safety violations by the landlord in the common areas of the building, but the respondent has not suggested that these violations represent a health and safety risk to tenants in the building.

45As an aside, I would also note that the respondent did not prove that the applicant has a mental disability. The applicant denies that she has such a disability. I agree that the applicant’s behaviour on May 1, 2012, and the lack of cleanliness and maintenance in her apartment indicated that she may have mental health issues, and that is why the police brought her for a mental health assessment at the hospital, but the emergency room doctor diagnosed her as having “social problems”, not mental health issues, and discharged her because there were no acute medical or safety issues. Furthermore, the applicant presented evidence, which was not rebutted by the respondent and which I accept, that it was, in fact, her physical disability that limited her ability to clean and maintain her apartment. The respondent’s assumptions about the applicant’s mental health represent a further instance where he imposed a “socially constructed” disability on the applicant. In any case, even if the applicant’s behavioural and cleaning and maintenance issues are due to a mental disability, the respondent has a legal duty to accommodate her disability-related needs up to the point of undue hardship, and cannot simply take the position, without any further inquiry, that she should move to a long-term care home.

46The respondent’s final justification is that he refused to rent the vacant main floor apartment to the applicant because the monthly rent is $900 per month, but that she failed to pay her monthly rent of $850 in full and on time on three occasions for her current apartment. I do not find this evidence to be sufficient to justify the defence of undue hardship. The respondent did not provide any details about when the late payments occurred, or tender any evidence as to how these late payments affected him. He also did not dispute the applicant’s evidence on this matter. The applicant’s evidence, which I accept, was that her failure to pay her full rent on time was related to either her loss of income as a result of being hospitalized or the respondent’s refusal to deal with maintenance issues; that she always paid in full within a week or two of the first of the month; that her C.P.P. and O.A.S. payments now total approximately $2,000 per month which is more than enough to pay the $900 monthly rent for the main floor apartment; and that the respondent never made an issue about her past late rent payments until she filed her human rights Application.

47Accordingly, I find that the respondent did not rebut the applicant’s prima facie case of discrimination because he failed to establish that he accommodated her disability-related needs up to the point of undue hardship. The Application is therefore upheld.

48I believe that it is important to address one additional issue that was raised repeatedly by the respondent’s representative during the hearing. During her questioning of the applicant and in her submissions, she argued that, according to the Landlord and Tenant Board, a landlord does not have a legal duty to accommodate a tenant’s disability-related needs unless the building is designated as a long-term care home. For example, she stated that the Board would not require the respondent to put hand grips on a bathtub for a tenant who has a disability. The respondent’s representative did not cite any cases to support this position. In fact, the Landlord and Tenant Board is empowered to interpret and apply the Code, and recognizes that, in housing cases such as this one, landlords have a legal duty to accommodate the disability-related needs of tenants up to the point of undue hardship. See, for example, the Landlord and Tenant Board’s Interpretation Guideline #17 on Human Rights.

REMEDY

Applicable Law and Issues

49The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

50Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation and non-monetary restitution, and whether the Tribunal should order the respondent to do anything further to promote compliance with the Code.

Non-Monetary Restitution

51The applicant seeks an award granting her the vacant main floor apartment as non-monetary restitution. The respondent opposes the applicant’s request on the basis that he has the right to choose the tenant whom he prefers for the vacant main floor apartment.

52It is well established that the object of the Code is remedial. Where the Tribunal finds that a respondent has discriminated against an applicant, it has a broad authority to fashion a remedy that not only provides monetary compensation, but may also include non-monetary restitution that will put the applicant back in the position that she would have been in, but for the discrimination. See, for example, TA v. 60 Montclair, 2009 HRTO 369, at para. 20.

53I find, based on the evidence before me, that that the most appropriate way to put the applicant back in the position that she would have been in, but for the discrimination, is to order the respondent to rent the vacant main floor apartment to her. In my view, if the respondent had undertaken his legal duty to accommodate the applicant’s disability-related needs up to the point of undue hardship, he would have allowed her to rent the main floor apartment and then rented her vacant second floor apartment to the tenant of his choosing.

54Accordingly, the Tribunal orders that, within one week of this Decision, the respondent and the applicant shall sign a standard rental agreement with respect to the vacant main floor apartment of the building that allows the applicant to move in to it immediately, and with the rent set at $900 per month. The applicant is required to move all her belongings and possessions out of the second floor apartment within one week of signing the rental agreement. The rent amount for the main floor apartment shall be prorated for the first month, and the respondent is not permitted to double charge the applicant for rent for her second floor apartment and the main floor apartment.

Monetary Compensation

55The applicant seeks an award of $20,000 compensation for injury to dignity, feelings and self-respect, and as punitive damages. This Tribunal is not empowered to award punitive damages. See Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37, at para. 38. As such, I will only consider the applicant’s claim for compensation for injury to dignity, feelings and self-respect. Such an award includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Ontario Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA, supra, at para. 152.

56The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA, supra, at para. 153.

57In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:

(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

58I find that the respondent’s discriminatory treatment of the applicant was moderate on the spectrum of seriousness. On the one hand, a landlord’s decision to refuse to rent an apartment to a person because of her disability is, objectively, a serious incident, and the applicant, who is elderly, has multiple disabilities, and mainly lives on a fixed government income is, objectively, vulnerable. I also accept the applicant’s evidence that she experienced serious emotional stress and anxiety as a result of the respondent’s discriminatory act. On the other hand, the seriousness of the incident is mitigated by the fact that the applicant continued to live in an apartment in the respondent’s building, the discrimination was not prolonged, and the respondent has agreed to abide by the Tribunal’s interim order not to rent the vacant main floor apartment until the Tribunal issues its final Decision.

59Two recent Tribunal decisions that have considered disability-related discrimination in the context of landlords refusing to rent apartments to individuals have awarded $5,000 (Taranco v. Michedes, 2010 HRTO 128, reconsidered on other grounds, Taranco v. Michedes (a.k.a. Michaelides), 2011 HRTO 1188) and $10,000 (Dixon v. 930187 Ontario, 2010 HRTO 256). However, in both those cases, the impact of the discrimination on the applicant was assessed to be more acute because there was also discrimination based another Code ground, and in neither case, did the Tribunal immediately order the respondent to rent a vacant apartment to the applicant.

60I find after considering the applicant’s individual circumstances and similar cases that $4,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. The applicant has voluntarily agreed to have the amount offset by $67.47, which is the amount of damage that she caused to the door of main floor apartment on May 1, 2012, when she tried to move in and have the locks changed.

61Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect not paid within 30 days of the date of this Decision. The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp

Compliance Remedies

62Based on the evidence, I am not satisfied that the respondent is aware of his obligations under the Code. I therefore find it appropriate to order that the respondent read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Ontario Human Rights Commission’s online training module on human rights and provide a copy of the certificate of completion to the applicant. The Policy and the online training module can be found at: http://www.ohrc.on.ca/en

ORDERS

63Accordingly, the Tribunal orders as follows:

1. Within one week of the date of this Decision, the respondent and the applicant shall sign a standard rental agreement with respect to the vacant main floor apartment of the building that allows the applicant to move in to it immediately, and with the rent set at $900 per month. The applicant is required to move all her belongings and possessions out of the second floor apartment within one week of signing the rental agreement. The rent amount for the main floor apartment shall be prorated for the first month from the date the applicant moves in, and the respondent is not permitted to double charge the applicant for rent for her second floor apartment and the main floor apartment.

2. Within 30 days of the date of this Decision the respondent shall pay the applicant $4,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. The amount shall be offset by $67.47 for the damage that the applicant caused to the door of the apartment.

3. Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect not paid within 30 days of the date of this Decision.

4. Within 30 days of the date of this Decision, the respondent’s shall read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, and complete the Commission’s online training module on human rights and provide a copy of the certificate of completion to the applicant.

64I shall remain seized to deal with issues arising out of implementation of these orders for a period of 45 days.