Weigl v. Windsor Essex Community Housing Corporation, 2012 HRTO 214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ben Weigl

Applicant

-and-

Windsor Essex Community Housing Corporation, Jim Mellor and Jim Steele

Respondents

DECISION

Adjudicator: Alison Renton

Date: January 30, 2012

Citation: 2012 HRTO 214

Indexed as: Weigl v. Windsor Essex Community Housing Corporation

APPEARANCES

Ben Weigl, Applicant ) Self-represented )

Windsor Essex Community Housing )

Corporation, Jim Mellor and ) David McNevin, Counsel

Jim Steele, Respondents )

1The purpose of this Decision is to decide whether the Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed in accordance with Rule 19A.1 of the Tribunal’s Rules of Procedure.

2The applicant filed two Applications with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In file 2010-05865-I, the applicant alleges discrimination in housing on the grounds of disability and receipt of public assistance against the respondent Windsor Essex Community Housing Corporation (“the corporate respondent”). In file 2011-08527-I, the applicant alleges discrimination in housing on the ground of reprisal against the corporate respondent and the personal respondents Jim Mellor and Jim Steele.

3A Response in file 2010-05865-I was filed by the respondent on September 13, 2010, to which the applicant filed a Reply on September 27, 2010. A joint Response in file 2011-08527-I was filed by the respondents on June 6, 2011, to which the applicant filed a Reply dated July 12, 2011.

4The Tribunal issued a Case Assessment Direction (“CAD”), dated August 11, 2011, for both files, in which it stated that, on its own initiative, the Tribunal would schedule a summary hearing by teleconference to determine whether either or both of the Applications should be dismissed in whole or in part on the basis that there is no reasonable prospect that they will succeed.

5The Tribunal directed the applicant to make submissions about why the Applications should not be dismissed as having no reasonable prospect of success and to point to the evidence on which the applicant would prove a link between the respondents’ actions and the grounds cited. No evidence or witnesses would be called during the summary hearing. The parties were directed to deliver to each other and file with the Tribunal copies of any further documents or case they intend to rely upon no later than 14 days prior to the teleconference.

6The Summary Hearing was held on January 18, 2012. The applicant filed a document with the Tribunal in advance of the hearing, but the respondents did not file additional material. At the hearing, and over the opposition of the respondents, the Tribunal permitted the applicant to record the hearing on the condition, as stated in the Tribunal’s Practice Direction on Recording Hearings, that if the applicant wanted to rely upon the recording he would have to provide transcribed copies to the respondents and the Tribunal. The applicant consented to these terms.

The Applicant’s Position

7In file 2010-05865-I, the applicant alleges that the corporate respondent, his landlord, discriminated against him on the basis of disability by arbitrarily changing the date when rent payments are due. While his lease agreement required rent payment at the beginning of each month, the applicant explained that for many years the corporate respondent “accommodated [the applicant] to the point of undue hardship” by requiring payment of his rent at the end of the month, the same time that he received his ODSP benefits. Further, the lease agreement was with another corporate entity.

8However, in May 2010, the applicant alleges, the corporate respondent advised him that effective August 2010 and for the administrative convenience of the respondent, his rent would be due at the beginning of the month. The removal of the accommodation previously in place for all disabled tenants forced the applicant into rent arrears through no fault of his own. The applicant alleges that he was coerced by the threat of eviction into signing an agreement to pay the arrears in four instalments for which he obtained additional financial assistance. The corporate respondent’s actions, he claims, exacerbated his disability and caused him financial hardship. The corporate respondent, he submits, at no time has shown that its administrative convenience amounted to undue hardship.

9The applicant commenced a proceeding before the Landlord and Tenant Board (“LTB”) raising these same allegations, but subsequently withdrew it.

10As remedies in file 2010-05865, the applicant requests that the Tribunal order the corporate respondent to: pay the applicant monetary compensation in the amount of $6,000, which equates to his yearly rental payments; “deter the organization from making arbitrary decisions without taking time to think of how this affects the disabled”; “ensure that board of directors read policy changes thoroughly and carefully that the corporate respondents put before them before they sign them”; and issue an apology, signed by the CFO, Board of Directors and all property managers, to all people on disability in all properties that the corporate respondent owns.

11In file 2011-08527-I, the applicant alleges reprisal in housing by the corporate respondent and two personal respondents, Mr. Steele, who is the CEO of the corporate respondent, and Mr. Mellor, who is the property manager.

12The applicant is a former co-director of the tenants’ association, but had resigned from that position. He alleges that on November 18, 2010, two OPP officers, Mr. Mellor and a property custodian were sent by the respondents to the applicant’s residence to return a bulletin board that the applicant had posted on the premises for the tenants association in relation to tenants’ rights. The applicant had complained during the day to housing officials both within the corporate respondent and to other third parties about the posting and removal of information on his bulletin board. In returning the applicant’s bulletin board, he was told that the corporate respondent was going to post its own bulletin board on which tenants could post information. The applicant alleges that by going to the applicant’s residence in person, the respondents violated the “accommodation process” they had with the applicant and specifically the agreement that they communicate with the applicant in writing rather than in person.

13The applicant alleges that the information in the Response, and particularly the information pertaining to the custodian, is a “total fabrication”. The applicant speculated, during the hearing, that the respondents believed him to be a threat to his fellow tenants by educating them about their rights as tenants.

14The use of the OPP officers, the applicant alleges, was used to intimidate him, “censor information” as he was educating tenants about their rights, and interfered with the reasonable enjoyment of his apartment. It was also, he submits, an indirect violation of other tenants’ rights. The applicant asserts that the respondents’ actions amount to reprisal under the Code because the first Application was still outstanding. The police occurrence summary, the applicant alleges, shows that they were involved in trying to prevent a “breach of peace”. During the hearing, the applicant admitted that there were no specific allegations against Mr. Steele and that he was named because he, as CEO, is responsible for the actions of the corporate respondent’s employees.

The respondents’ positions

15With respect to file 2010-05865-I, the corporate respondent submits that tenants are required to pay their rent at the beginning of the month as reflected on their lease agreements. However, for a number of years, and contrary to the lease agreement, payments on a day other than the beginning of the month were made directly by ODSP on behalf of tenants who were in receipt of ODSP benefits, including the applicant. The corporate respondent submits that this arrangement created difficulties for it in terms of managing the accumulation of rental arrears as well as receiving payment in a timely fashion to meet its obligations as they became due. Accordingly, on May 18, 2010, the corporate respondent advised all tenants who participated in the direct payment program through ODSP that effective August 1, 2010, all ODSP residents would be required to also pay their monthly rent on the first of the month.

16The corporate respondent provided the applicant and other tenants in receipt of ODSP benefits with advance notice of the change in the date of their rent payments and permitted residents affected by this change with the opportunity to pay any arrears through a four equal payments payment plan paid directly through ODSP, failing which the corporate respondent “may” issue a letter to evict. The applicant elected this option and signed a form authorizing ODSP to make the arrears payments on his behalf with his rent being in good standing as of August 1, 2010.

17The corporate respondent submits that the first Application should be dismissed because the applicant filed a complaint with the LTB a day before the Application was filed pertaining to the same issues as in file 2010-05865-I. The LTB complaint was withdrawn by an order the LTB following discussions between legal representatives. To allow the Application to proceed would amount to an abuse of process.

18With respect to file 2011-08527-I, the respondents submit that there are no reprisal allegations properly pleaded, the Application fails to identify any enumerated Code grounds that have been breached and the Application should be dismissed.

19In file 2011-08527-I, the respondents state that the applicant is a former president of the tenants’ association and he had his own personal bulletin board for the use of the tenants’ association. From time to time, other tenants would post items on the applicant’s bulletin board and the applicant objected to these postings. Some residents complained that their postings were being removed and requested that the corporate respondent post a bulletin board, which it did.

20On November 18, 2010, a custodian working for the corporate respondent spoke with the applicant and told him that the corporate respondent would be providing a bulletin board for the use of the tenant association and it would be returning the applicant’s personal bulletin board to him. The respondents allege that the applicant became very agitated, swore and opposed the removal of his bulletin board. The custodian was concerned with the applicant’s behaviour and told his manager, Mr. Mellor. Mr. Mellor contacted the local police to obtain their advice about the situation. The police advised Mr. Mellor to have officers present when the applicant’s bulletin board was handed back to him to prevent any difficulties. Therefore, it was arranged that two OPP officers attend the corporate respondent’s premises along with Mr. Mellor and the custodian, and return the applicant’s bulletin board to him. The return of the bulletin board was done without incident.

Analysis and Findings

21Rule 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.

22Furthermore, in 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

23In 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 the recent decision in Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.

24It is also important to keep in mind, as the Tribunal pointed out in Abdul v. York University, 2011 HRTO 1851, at para. 17:

The 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.

In other words, the Code is concerned with remedying discrimination in certain social areas on the basis of proscribed grounds. It does not deal with general allegations of unfairness or other social ills.

25Although I note that there are some factual disputes between the parties, such as the reasons why the respondent changed its policy in file 2010-05865-I and the applicant’s interactions with the custodian in file 2011-08527-I, I am mindful that the Tribunal’s role in a summary hearing is not to make findings of credibility, but rather to accept an applicant’s allegations as being true. So while I note these factual disagreements, which would require the Tribunal at a hearing on the merits on these Applications to make determinations about credibility, I am not making any such findings at this stage and am accepting as true the applicant’s allegations for the purposes of deciding whether there is a reasonable possibility of success of the either Application.

File 2010-05865-I

26In file 2010-05865-I, the applicant states that he and other recipients of ODSP benefits were treated differently from other tenants because of the respondent’s change in the payment schedule. Because of these changes, the applicant was temporarily in rent arrears. He also states that if he continued to be in arrears, the respondent may have commenced eviction proceedings as it threatened to do.

27I recognize that the change in payment dates caused the applicant to be in arrears, through no fault of his own, about which he was upset or embarrassed. However, to the extent that the applicant was affected by the change in the payment schedule, it is not contested by the applicant that the corporate respondent took steps to minimize that impact and to facilitate the ODSP recipients’ ability to pay, including the applicant’s, over a period of time. The applicant recognizes that the corporate respondent provided him with notice of the change in the schedule and allowed for payment of the arrears over time, which the applicant reluctantly accepted. I also note the applicant’s recognition that the corporate respondent did not take steps to evict him and, pursuant to section 13 of the Legislation Act, 2006, S.O. 2006, c. 21, take judicial notice that under section 59 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, a landlord may issue an eviction notice if a tenant fails to pay rent.

28In my view, these circumstances do not equate to either direct or constructive discrimination under the Code. Accordingly, I do not find that there is a reasonable prospect of success and this Application is dismissed. In light of this finding, I do not have to address the issue of the applicant’s LTB complaint which was withdrawn.

File 2011-8527-I

29Section 8 of the Code states as follows:

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.

30The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondents intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878, at paras. 33-34 as follows:

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.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

31During the hearing the Tribunal asked the applicant whether he was alleging reprisal because his Application in file 2010-05865-I was outstanding or because he had raised his concerns with housing officials about information posted on his bulletin board, to which the applicant responded “both”. He explained that he had posted information on his bulletin board to educate other tenants about their rights, his information was removed, he raised concerns about the removals, his concerns were not responded to by the corporate respondent or others, and then the respondents and the OPP officers showed up at his door, contrary to the respondents agreement to communicate with him in writing rather that in person. All the while, his Application in file 2010-05865-I remained outstanding. The respondents’ actions were designed to intimidate him and to prevent him from educating other tenants about their rights.

32Other than the applicant’s bald assertion that the events of November 18, 2010, occurred while the Application in file 2010-08527-I remained outstanding, the applicant cannot establish a link between its filing, the removal of his bulletin board and individuals from the respondent and the OPP showing up at his door. While the OPP officers attended the applicant’s premises on November 18, 2010, as the Tribunal held in Bruce v. Greater Essex County District School Board, 2012 HRTO 66, the use of a police officer to deliver a letter to the applicant in that case, amongst other allegations, was not sufficient to constitute a reasonable chance of success. Applied to the facts of file 2011-08527-I, I find that there is not a reasonable chance of success pertaining to the applicant’s reprisal allegations and accordingly, the Application in file 2011-08527-I is dismissed.