Tileubay v. Princess Management, 2012 HRTO 1871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janseyit Tileubay

Applicant

-and-

Princess Management

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 2, 2012

Citation: 2012 HRTO 1871

Indexed as: Tileubay v. Princess Management

APPEARANCES

Janseyit Tileubay, Applicant

Self-represented

Princess Management, Respondent

David Rubin, Representative

Introduction

1This is an Application filed on January 13, 2012, 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 accommodation (housing) because of race, age, and association with another person.

2The respondent filed a Response. The Tribunal issued a Case Assessment Direction, dated May 3, 2012 (“CAD”), in which it stated, on its own initiative, that a Summary Hearing would be scheduled to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success. The Tribunal directed that the applicant proceed first with his submissions.

3The Summary Hearing was held on September 11, 2012, and both parties participated. The Tribunal heard the parties’ submissions.

the applicant’s position

4The applicant alleges that on January 12, 2012, he and his wife arrived at the respondent’s building to look at rental apartments that had been advertised on the respondent’s website. They were let into the building by the concierge and the applicant’s wife said that they wanted to look at the available apartments. The concierge, the applicant claims, said that it was “absolutely not possible” unless they had an appointment and he gave them the rental agent’s business card to call for an appointment. He is also alleged to have said, “Just to let you know, the units here are very expensive. Not that you couldn’t afford it. But they start around 2500”. The website indicated that a unit was available for $2,300 per month.

5The applicant alleges that his wife called the rental agent’s number. They could hear the rental agent answer the telephone, as her office was located next to the lobby. The concierge went into the rental office and the person on the telephone hung up without speaking with the applicant’s wife. The concierge returned to the lobby. The applicant’s wife attempted several more times to telephone the rental agent, but no one picked up the telephone.

6The concierge confirmed that the rental agent was in her office, but that the applicant and his wife could not talk to her because they did not have an appointment. The concierge refused to tell the rental agent that the applicant and his wife wanted to speak with her although he went back into rental agent’s office and spoke with the rental agent several times.

7Despite trying to call the rental agent several more times, and after waiting approximately 30 minutes, the applicant and his wife left the building without being permitted to see the rental units. They did not call to book an appointment or pursue a rental application because they felt humiliated by the treatment they received. The applicant provided no information as to whether or not he or his wife left a voicemail message for the rental agent to telephone them back.

8The applicant alleges that the treatment to which he and his wife were subjected was because of their age and race. He also alleges discrimination for himself because he was associated with his wife who was trying to call the rental agent. He alleges that they were prejudged on these grounds. He asserts that they are young looking and not Caucasian. On his Application, the applicant self-identifies as Asian and provides his birth year as 1980.

the respondent’s position

9The respondent asserts that its protocol is to require individuals to book appointments to view rental units, which neither the applicant nor his wife arranged. The only contact the applicant and his wife had was with the concierge and not with the rental agent. While not in the Response, during the hearing, the respondent asserted that the rental agent had to leave the building that day for a medical treatment such that she did not have time to show the applicant and his wife the rental units. The respondent denies the allegations of discrimination.

Law and Analysis

10Rule 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.

11In 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.

12Based on the Application, the relevant provisions of the Code are as follows:

2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identify, gender expression, age, marital status, family status, disability or the receipt of public assistance.

3. (1) In Part I and in this Part,

“age” means an age that is 18 years or more;

13In 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.

14As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098, at para. 25, while discrimination based on grounds such as race 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 him, can show a link between the events alleged and a prohibited ground.

15The 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 Abdul v. York University, 2011 HRTO 1851, at para. 17, and Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

16At this stage, I make no findings on the facts or issues in this case. The applicant has pointed to proposed evidence of alleged comments made by the concierge to the applicant and his wife upon entering the building, combined with the subsequent behaviour of the concierge in leaving the lobby to speak with the rental agent who hangs up on the applicant’s wife and then does not answer her telephone despite further attempts by the applicant’s wife to call her. This is evidence which, if ultimately accepted by the Tribunal at a hearing, could arguably give rise to an inference of discrimination on the Code grounds cited by the applicant. I believe that this evidence and the respondent’s proposed evidence in response is best adjudicated at a hearing on the merits as it engages issues of credibility. I am not satisfied that there is no reasonable prospect of success and as such the Application will continue to proceed.

17Although the respondent has indicated on its Response that it is willing to participate in the Tribunal’s voluntary mediation services, the applicant has not indicated this on his Application. Accordingly, and unless the applicant communicates with the Tribunal, by email, by Tuesday, October 9, 2012, indicating that he is willing to participate in mediation, and copies the respondent’s representative, the Tribunal will schedule this matter for a one-day hearing.