HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anne Lusthouse
Applicant
-and-
Shuk Ling (Connie) Chu Leung
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Lusthouse v. Shuk Ling Chu Leung
APPEARANCES
Anne Lusthouse, Applicant
Arie Gaertner, Counsel
Shuk Ling (Connie) Chu Leung, Respondent
Jennifer Valliere, Counsel
Introduction
1This is an Application filed on November 21, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of age. The applicant is currently 90 years of age and resides in one of the respondent’s rental units along with her caregiver. Her son is named as the tenant on the rental agreement (“the tenant”), but it is clear that he is renting the rental unit for his mother. The tenant does not reside with the applicant.
2In August 2011, the applicant alleges that the water tank on her toilet cracked causing water to leak out of the toilet. The respondent was contacted and the water tank was replaced along with a notice requiring the tenant to pay for the repair claiming that the damage was caused because of negligent usage. When the tenant failed to pay the repair bill, the respondent sent several notices addressed to the tenant, but delivered to the applicant’s caregiver at the rental unit, threatening to evict the applicant for the tenant’s failure to pay the repair bill. The first notice did not contain an eviction date. The second, dated October 11, 2011, included a termination date of October 31, 2011. The applicant alleges that the respondent’s delivery of the eviction notices directly to the rental unit rather than to the contact information of the tenant was discriminatory towards the applicant on the basis of age. She alleges the respondent used the applicant’s age to her advantage to extract money from the tenant to pay the repair bill as the method of delivery was designed to upset the applicant, fear for her home, cause her stress and worry about the possibility of finding alternative accommodation at her age.
3The tenant paid the repair bill and subsequently entered into a lease for a successive year. The applicant continues to reside in the rental unit.
4The respondent filed a Response denying the allegations, denying that her conduct violated the Code, and stating that she was entitled to seek payment for the repair work, as advised by the Landlord and Tenant Board, and further to the Residential Tenancies Act, 2006, S.O. 2006, c. 17. Further, she filed a Request for Summary Hearing (“the Request”) requesting that the Tribunal dismiss the Application for failing to show any reasonable prospect of success. During the hearing, the respondent confirmed that she knew the tenant did not live in the rental unit and that the Residential Tenancies Act 2006 does not require that notices be delivered specifically to the rental unit.
5The applicant filed a Response to a Request for Order During Proceedings (“RFOP”) stating that an inference of discrimination could be drawn from the circumstances surrounding the applicant’s allegations.
6The Tribunal issued a Case Assessment Direction (“CAD”) dated March 20, 2012, granting the respondent’s Request and stating that the Tribunal would schedule a summary hearing (“the hearing”) by teleconference. The Tribunal directed the applicant to proceed first and to make argument about why the Application should not be dismissed as having no reasonable prospect of success and responding to the arguments raised in the Request. The parties were directed to deliver to each other and file with the Tribunal copies of any further documents or cases they intended to rely upon no later than 14 days prior to the hearing.
7Pursuant to a Notice of Summary Hearing (“the Notice”) issued by the Tribunal on April 3, 2012, the hearing was scheduled to commence at 9:30 a.m. on September 10, 2012 by teleconference. The respondent had requested that a Cantonese interpreter translate the hearing for her and one was provided by the Tribunal. Neither party filed additional materials before the hearing.
Law and Analysis
8Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of 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.
9In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
10Based on the Application, the relevant provisions of the Code are as follows:
- (1) Every person has a right to equal treatment with respect to the occupancy of accommodation [housing] without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
(2) 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, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
- 10(1) In Part I and in this Part,
“age” means an age that is 18 years or more;
11In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.
12As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098, at para. 25, while discrimination based on various grounds can be subtle and hard to detect, an applicant must nevertheless provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and a prohibited ground. See also Peel Law Association v. Pieters, 2012 ONSC 1048 at para. 16.
13The 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. See Adbul v. York University, 2011 HRTO 1851 at para. 17 and Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
14In this case, while there may be unfairness in the method of delivering these notices, addressed to the tenant but left with the applicant’s caregiver, and which could have caused the applicant anxiety and concern about her living accommodations, the applicant has not pointed to any evidence or any prospective evidence that might assist her in establishing that her age was a factor in the respondent’s behaviour towards her. Her speculation that this method of delivery was used because of her age does not meet the summary hearing test and is not sufficient to allow the matter to proceed.
15In this case, I find that the Application has no reasonable prospect of success on the ground of age and cannot proceed.
Order
16The Application is dismissed.
Dated at Toronto, this 17th day of September, 2012.
”signed by”
Alison Renton
Vice-chair