T.G. v. Toronto Community Housing Corporation, 2012 HRTO 155

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.G.

Applicant

-and-

Toronto Community Housing Corporation and Theresa Gibbs

Respondents

DECISION

Adjudicator: Eric Whist

Date: January 19, 2012

Citation: 2012 HRTO 155

Indexed as: T.G. v. Toronto Community Housing Corporation

APPEARANCES

T.G., Applicant ) Self-represented

Toronto Community Housing Corporation, ) Gordon Steinberg,

Institutional Respondent ) Representative

Theresa Gibbs, Personal Respondent ) Did Not Appear

1This Application was filed on January 29, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination in accommodation on the basis of sex, pursuant to section 2 of the Code.

2The applicant is a tenant of the institutional respondent, the Toronto Community Housing Corporation (“TCHC”). The personal respondent, Theresa Gibbs, is a tenant who lives in the same building as the applicant.

3The Application alleges that on September 8, 2008 the applicant was sexually assaulted by Anthony Gibbs, Theresa Gibbs’ brother, while in the elevator of her building. Mr. Gibbs did not live in the building and was not a tenant of TCHC. The Application alleges that the applicant has seen Mr. Gibbs on several occasions in the building since September 2008 notwithstanding a court order prohibiting from him being there. The Application further alleges Ms. Gibbs has verbally harassed and threatened the applicant on several occasions in retaliation for the applicant having complained to the police and TCHC about her brother. The applicant alleges that TCHC has not done enough to protect her after the incident in which she was allegedly assaulted.

4Ms. Gibbs has not filed a response to the Application. On April 11, 2011 the Tribunal issued an Interim Decision, 2011 HRTO 692, directing Ms. Gibbs to file a response and indicating that an application starts a legal proceeding and that failing to file a response or participate in a Tribunal proceeding may lead to orders against a respondent without their participation.

5On July 4, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the application, or part of the application, will succeed.

6The summary hearing was held on December 2, 2011. During the summary hearing, I heard from the applicant and Mr. Steinberg, representing TCHC. The personal respondent, Ms. Gibbs, did not appear.

7Ms. Gibbs was provided with notice of the December 2, 2011 summary hearing. At the outset of the hearing I determined that the hearing would proceed in Ms. Gibbs’ absence.

BACKGROUND

8The applicant alleges Mr. Gibbs made unwanted sexual comments to her and physically touched her while they were in an elevator in her building on September 8, 2008. It appears Mr. Gibbs was charged with sexual assault but was subsequently assessed as being unfit to stand trial. In June 2009 he was made subject to a court ordered Peace Bond for a period of one year. Two of the conditions of the Peace Bond were that Mr. Gibbs was to have no contact with the applicant and was not to enter the applicant’s place of residence.

9At the hearing the applicant stated that Mr. Gibbs returned to her building on two or three occasions after September 8, 2008. There was no suggestion that there was any interaction between the applicant and Mr. Gibbs on these occasions only that the applicant saw him in the building. The applicant stated that his presence made her fearful and that she reported his presence to TCHC.

10The applicant stated that on several occasions after the September 2008 incident she encountered Ms. Gibbs in the building and that Ms. Gibbs verbally harassed the applicant by calling her “bitch” and by telling the applicant that she was causing problems. The applicant was of the view that Ms. Gibbs did not believe that her brother assaulted the applicant and that she was angry that the applicant had complained about Mr. Gibbs to the police and TCHC. The applicant described a further incident during which Ms. Gibbs tried to block her from exiting an elevator in the building and accused a friend of the applicant who was present of secretly recording the conversation between Ms Gibbs and the applicant. The applicant stated that she was fearful of what Ms. Gibbs might do to her and/or her father with whom the applicant lives.

11The applicant stated that she repeatedly complained to the TCHC about Ms. Gibbs, and that she was not satisfied with the responses she received to these complaints. The applicant stated that she continues to remain fearful of encountering Ms. Gibbs in her building.

12The TCHC took the position that it did appropriately respond to the applicant’s complaints about the September 8, 2008 incident as well as the alleged returns of Mr. Gibbs and Ms. Gibbs’s conduct. The particulars of these responses were outlined in the institutional respondent’s Response. For the purposes of this Decision it is not necessary to detail these actions or to determine or assess what the institutional respondent did or did not do.

DECISION

13The Application is dismissed on the basis that it does not have a reasonable prospect of success. The applicant does not have a reasonable prospect of proving that the actions of Mr. Gibbs, Ms. Gibbs or TCHC could constitute violations of the Code. I am of the view that none of these alleged actions, even if assumed to be true, would involve a violation the Code.

ANALYSIS AND DECISION

14The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

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.

This is a case in which even if all of the applicant’s allegations are accepted as true there is no reasonable prospect of finding that here rights under the Code have been violated.

15It is helpful to consider the actions of Mr. Gibbs, Ms. Gibbs and TCHC separately. Mr. Gibbs’ actions on September 8, 2009 for which he was charged with sexual assault could well appear to constitute a form of harassment in that they allegedly involved sexual comments and physical touching of a sexual nature that was known or reasonably ought to have been known to be unwanted. However, the prohibition against harassment under section 2 of the Code does not extend to persons, like Mr. Gibbs, who are not residents. Section 2(2) of the Code states:

Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.

16Consequently, there is no reasonable prospect that the alleged September 8, 2008 incident or Mr. Gibbs further appearances in the applicant’s building, even if accepted as true, can be found to be incidents of harassment under the Code.

17The Application alleges that Ms. Gibbs harassed the applicant on the basis of sex. However, it is clear from the information that the applicant provided in her Application and at her hearing that she is not alleging that Ms. Gibbs harassed her because of her gender or that the nature of Ms Gibbs’ comments constitute a form of sexual harassment. The applicant explicitly stated that she believed that she was harassed by Ms Gibbs for having complained to the police and TCHC about the conduct of Ms. Gibbs’ brother. In other words she was alleging that Ms Gibbs’ actions were in retaliation or reprisal for the applicant’s complaints. The issue then is whether harassing the applicant because of her complaints rather than her sex can constitute a violation of the Code.

18The Code does offer protection to persons who believe that they have been reprised against for enforcing their rights under the Code. Section 8 of the Code states that:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

19I am prepared to consider the applicant’s allegations about Ms. Gibbs as allegations of reprisal under section 8 of the Code even though the applicant did not specifically identify them as such.

20In Noble v. York University, 2010 HRTO 878, the Tribunal summarized the key elements in reviewing what must be established to justify a finding of reprisal:

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

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

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

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

21The issue here is that I do not find that Ms Gibb’s alleged actions, even if accepted as true, can be said to be in reprisal for the applicant trying to claim or enforce her rights under the Code. They are in reprisal for the applicant attempting to enforce her rights in relation to Mr. Gibbs’ alleged harassment. However, Mr. Gibbs as a non- resident, could not have violated the applicant’s rights under the Code. Therefore any action taken by the applicant in relation to Mr. Gibbs does not involve an attempt to enforce her rights under the Code.

22While the applicant may well feel that the way she has allegedly been treated by Ms. Gibbs is a kind of reprisal, it is not a reprisal as defined by Code. I therefore find that the applicant’s allegations of reprisal have no reasonable prospect of success.

23The applicant is of the view that the institutional respondent’s responses to her situation have been inadequate. The applicant stated the institutional respondent has not met its responsibility to ensure her safety and freedom from Ms. Gibbs’ harassment. Even if I accept this to be true this would not lead to a finding that the institutional respondent has violated the applicant’s rights under the Code. There has been no possible violation of the applicant’s rights under the Code by either Mr. Gibbs or Ms. Gibbs. Therefore the institutional respondent’s response to the applicant’s complaints about Mr. Gibbs and Ms. Gibbs’ actions do not constitute a potential act of discrimination. Put another way, any obligation a housing provider has to provide a harassment free environment under the Code requires that the harassment in question is related to a ground under the Code. I do not find that to be the case here. The applicant’s allegations against the institutional respondent have no reasonable prospect of success.

24For all of these reasons the Application is dismissed in its entirety.