Marisha Nedd v. Kenfinch Co-operative Housing Inc., 2012 HRTO 1747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marisha Nedd

Applicant

-and-

Kenfinch Co-operative Housing Inc.

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: September 17, 2012

Citation: 2012 HRTO 1747

Indexed as: Nedd v. Kenfinch Co-operative Housing Inc.

APPEARANCES

Marisha Nedd, Applicant

Self-represented

Kenfinch Co-operative Housing Inc., Respondent

Bruce Cameron, Counsel

Introduction

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"), alleging discrimination with respect to housing because of race, colour, creed, receipt of public assistance, association with a person identified by a ground protected by the Code and reprisal or threat of reprisal.

2Following a review of the Application, a Case Assessment Direction (CAD) was issued on May 14, 2012, directing that a Summary Hearing take place. The respondent ("housing cooperative") was not required to file a Response.

3The Summary Hearing was held by conference call on September 5, 2012. Both parties participated.

DECISION

4For the reasons that follow I find that this matter has no reasonable prospect of success.

ANALYSIS

Summary Hearings

5In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal's Rules of Procedure:

19A.1 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.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

7In her Application, the applicant alleged that in 2003 she went to the office at the respondent and the general manager asked her to cook things for him in exchange for repairing deficiencies. At the summary hearing, she alleged that she refused him and that this lead to "harassment letters", though she gave no particulars of these letters.

8The applicant alleged that in 2003 there was a dispute regarding a broken thermostat and she and her husband received a notice of arrears for an outstanding amount related to the broken thermostat. She alleged that the general manager sent letters of harassment regarding the broken thermostat and that he did not follow the housing cooperative's proper procedures. At the summary hearing, she stated that at a meeting she eventually was able to have the notice of arrears "squashed". She maintained, however, that from this time forward the general manager of the housing cooperative held a grudge against her and her husband.

9She alleged that one year later when she and her husband began to receive a housing subsidy at the cooperative, an amount roughly the equivalent to the amount related to the thermostat, was included in their housing charge. Generally, she alleged that the monthly housing charge she and her husband are required to pay is excessive as it should be geared to their income, but is not properly calculated. She also maintained that they are being charged for a four bedroom unit, though they only occupy a three bedroom unit. She alleged that she could not obtain a satisfactory explanation from the general manager of the housing cooperative regarding the calculation of their housing charge.

10The applicant also alleged that she and her husband have been contending with a mould problem in their bathroom since 2005 and that it has made her children ill. She alleged that contractors have torn walls out in an effort to repair it on several occasions, but they have not got to the root of the problem, which she and her husband believe is a leaky roof. She also alleged that on one occasion when contractors were in her unit and she and her family were to remain out of the unit temporarily, the other unit offered to them by the housing cooperative had no carpet and was not suitable. She stated that the roof was finally repaired when she obtained assistance from her Member of Parliament.

11She alleged that an individual came to the housing cooperative from the cooperative housing federation and that members of the housing cooperative were to present any concerns they had to her, though she has not indicated when this happened. She alleged that initially she was not permitted to speak to the representative regarding her complaints about poor maintenance, the mould, her housing charges and the "attitude" and "prejudicial behaviour" of personnel in the housing cooperative's office. She alleged that she did in fact participate and that when she was at the meeting with the representative from the cooperative housing federation, members of the respondent's Board of Directors walked out, saying that they did not have to listen.

12The applicant alleged that it is black residents who have problems getting repairs done in their units and that white residents' units are kept in good repair. She indicated that the evidence she has to establish this is that the majority of people she sees coming out of the general manager's office and complaining about the state of repair of their units and their inability to obtain satisfaction, are black. She alleged that these people come to her and her husband for information regarding how to get their repairs done. She alleged that she does not see white people angry or arguing with the general manager or with the members of the Board of Directors. She alleged that she does not see white people coming out of the general manager's office nor does she hear white people complaining, and submitted that this is proof that their units are in a good state of repair. She alleged that people complaining are told that they are "not a priority".

13She also alleged that her husband spoke with an "older gentleman" who reported once having heard the general manager say that black people were giving him trouble. She was unable to provide a timeframe for this allegation and she provided no further particulars regarding it.

14She alleged that on one occasion, the general manager sent repair workers to the unit next door to hers when in fact they should have been sent to her unit. She alleged that when they came back the next day, they said maybe they should have been at her address and she let them in to make repairs.

15The applicant also alleged that one day, workers were at her unit making repairs, but did not finish. She alleged that the next day they were working at a unit occupied by a white couple and when she asked them why, they told her that the general manager had sent them there. She stated that she told them that the work in her unit was not yet finished and they came to her unit the next day to finish.

16The applicant also alleged that she and her spouse have received a notice of eviction for non-payment of housing charges and that this is further discrimination. She also indicated that it is true that they have not paid their housing charges, but submitted that she had advised the respondent in February that they would no longer be paying their housing charges, due to the concerns they had with regard to how it was being calculated. She also alleged that the decision to evict them was not made in accordance with the respondent's rules.

17She alleged that she saw two black women looking for the general manager in order to obtain applications for housing, but he was not in his office. She alleged that he often does this. She also alleged that one woman who made an application for housing told her that she returned to the office the next day and found her application form shredded in the garbage.

18She alleged that members of the Board of Directors of the housing cooperative drive badly near her car and do not stop at stop signs. She alleged that they are "terrorizing" her and that they have called the police on her on three occasions.

19She alleged that other members of the Board of Directors are ill-mannered and that they fail to greet her when she passes them. She alleged that she has told these Board members that she does not wish to communicate with the general manager of the housing cooperative, but that he finds excuses to call her home in any event, including wrong numbers. She alleged that he harasses her and her husband by sending them notices, such as arrears notices. She alleged that the members of the Board of Directors and the general manager are "in cahoots".

20Generally, she alleged that the respondent is not following its own codes and by-laws and that it is not following its own due process. She complained that her unit is not habitable and asserted that she has the right to live in a unit where she can breathe. She alleged that the housing cooperative has money to effect repairs on units, but that repairs are not being done for black members. She also alleged that the respondent is squandering the money, rather than making repairs.

21The respondent submitted that it is an unfortunate reality that the social housing stock is aging and it cannot keep up with repairs. The respondent submitted that the housing is "falling apart" and it is clear that a lot of people have maintenance issues they want addressed. The respondent allowed that many day-to-day issues are going unattended, but submitted that this is not for discriminatory reasons and is not a violation of the Code. Accordingly, the respondent submitted, the Tribunal does not have jurisdiction over these issues and this Application should be dismissed.

DECISION

22In her Application, the applicant alleged discrimination on the basis of race, colour, creed, receipt of public assistance, association with a person identified by a ground protected by the Code and reprisal or threat of reprisal.

23The applicant did not make particularized allegations regarding discrimination on the basis of creed, receipt of public assistance, association with a person identified by a ground protected by the Code, or reprisal or threat of reprisal. Accordingly, the allegation of discrimination on those grounds is dismissed as having no reasonable prospect of success.

24The applicant has alleged that her housing charges are excessive and that she has not been able to obtain a satisfactory explanation of those charges, but has not provided an indication of any evidence upon which she would rely to link the respondent's alleged actions in this regard with discrimination contrary to the Code. This is an allegation of unfairness, but as stated in the CAD, this Tribunal does not have the general power to deal with allegations of unfairness. The Application as it relates to these allegations is dismissed as having no reasonable prospect of success.

25The applicant alleged that the respondent has given her a notice of eviction due to the fact that she and her husband have outstanding unpaid housing charges. She has not provided an indication of any evidence upon which she would rely to link this action with discrimination contrary to the Code. In fact, she has indicated that the notice was given with respect to a non-discriminatory reason (non-payment of housing charges) and she has not disputed that fact. As the applicant has not pointed to any evidence establishing a link between the notice of eviction and a violation of any of the grounds of discrimination she has cited, this allegation has no reasonable chance of success and it too is dismissed on that basis.

26The applicant has also alleged that the respondent acts in violation of its own rules and by-laws, but she has not provided an indication of any evidence upon which she would rely to link alleged actions of the respondent with discrimination contrary to the Code. This too is an allegation of unfairness, and the Tribunal does not have the general power to deal with such allegations. The Application as it relates to these allegations is dismissed as having no reasonable prospect of success.

27The applicant alleged that the general manager sent letters of "harassment" when she refused to cook things for him, though no particulars were provided. The applicant also alleged that members of the respondent's Board of Directors left a meeting where complaints were being presented to a representative of the cooperative housing federation, saying that they did not have to listen. She also alleged that members of the Board of Directors drive badly near her and have called the police on her on three occasions. Further, she alleged that they are ill-mannered and do not greet her when she passes. Additionally, she alleged that the general manager continues to contact her and her husband despite the fact that they have advised members of the Board of Directors that they do not wish to speak to him. While these events may have been frustrating for the applicant, she has not pointed to evidence to suggest a link between the respondent's actions and discrimination on the grounds cited. Without such a link, there is no reasonable prospect that the Application as it relates to these allegations would succeed, and the Application as it relates to these allegations is dismissed on that basis.

28The applicant has made numerous allegations regarding the poor state of repair of her unit and though she submits the general manager holds a grudge against her relating to a dispute in 2003, she has attributed her difficulty in obtaining satisfaction to discrimination against her as a black person. The evidence she proposes to rely upon is her observation of other black people having difficulty obtaining satisfaction when they seek repairs on their unit. Her evidence with respect to white people is essentially that she has not seen them complaining, leading her to conclude that there are no problems regarding repairs in their units. I am not persuaded that the evidence the applicant proposes to rely upon would be a sufficient basis on which the Tribunal could draw an inference that her difficulties in obtaining repairs to her unit are based upon her race or colour. While she may be able to establish that she has spoken to a number of black people who have had difficulty obtaining repairs, I am not satisfied that the fact that she has not seen white people make complaints would establish that they have not made complaints, nor that their units are in good repair and nor would it establish that they do not experience difficulties in this regard.

29Similarly, I am not satisfied that the fact that one day workers left her repairs unfinished and tended to the repairs in a white couple's unit is evidence which would be a sufficient basis on which the Tribunal could draw an inference establishing discrimination on the basis of colour or race. There are other possible reasons for the workers to attend at the other couple's unit to effect repairs rather than return to hers until the following day. For example, the repairs required in the other unit may have been of a more urgent nature, but the applicant has not provided any information regarding the nature of any of the repairs involved.

30Her allegation regarding workers showing up at the unit next door rather than to her unit to effect repairs is another event which may have numerous non-discriminatory explanations and is not evidence which would be a sufficient basis on which the Tribunal could draw an inference establishing discrimination contrary to the Code. For example, this could have been a simple error on the part of the workers.

31She has also alleged that when the black people she speaks to are inquiring about repairs, they are told that those repairs are not a priority. She does not indicate that she has evidence that other groups seeking similar repairs are told anything different. The respondent is free to set its priorities, so long as it does not do so in a way which discriminates contrary to the Code. While the applicant submits that the housing cooperative has the money to effect necessary repairs, she has not pointed to evidence to establish that repairs in units occupied by black members receive lower priority because the members are black. Without establishing such a link, there is no reasonable prospect that her Application can succeed.

32The fact that the applicant is aware of examples of the general manager not being in the office when black women have wanted to apply for housing is not evidence which would establish that she has been subject to discrimination. Even if it were evidence which were tendered in an attempt to establish that the general manager has a discriminatory attitude, it is not evidence which could be relied upon by the Tribunal to draw such an inference. There are a myriad of reasons why the general manager may be away from the office, and there is no indication that the applicant would be able to establish that the manager was always or even usually in attendance when people other than black people sought to make application for housing. Similarly, the applicant's allegation that she is aware of a woman who returned to find her application for housing shredded is not evidence which would establish that the applicant has been discriminated against. Further, and in any event, even if the evidence were tendered in an attempt to establish that the general manager has a discriminatory attitude, it is not evidence which could be relied upon by the Tribunal to draw such an inference. There are numerous reasons why an application for housing form may be discarded. For example, the housing cooperative may not have had a suitable unit available, and may have had no room remaining on its waiting list, or the applicant may have been ineligible for some non-discriminatory reason. In any event, it is not evidence of discrimination against the applicant.

33Finally, the applicant has indicated that an older gentleman told her spouse that the general manager said that black people were causing him trouble. The applicant provided no particulars with respect to this allegation. The lack of particulars render this allegation so vague as to make it of little use to the Tribunal in determining whether the respondent's actions were due to the applicant's race or colour and I do not find that it is evidence upon which the Tribunal could rely to draw such an inference.

34The applicant has not pointed to evidence which would prove a link between the respondent's alleged actions and the grounds of discrimination she has cited. Given the nature of her allegations and the evidence she has indicated she would rely upon, I find that there is no reasonable prospect that she would be able to establish on a balance of probabilities that the respondent's alleged actions are related to her race or colour or any of the other grounds of discrimination she has cited. Accordingly, this Application is dismissed as having no reasonable prospect of success.