Funk v. Edmonds, 2012 HRTO 2159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelley Funk

Applicant

-and-

Barbara Edmonds and Merrill Edmonds

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: November 16, 2012

Citation: 2012 HRTO 2159

Indexed as: Funk v. Edmonds

APPEARANCES

Shelley Funk, Applicant

Self-represented

Barbara and Merrill Edmonds, Respondents

Self-represented

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 sex, family status and marital status. Specifically, the applicant alleges that the respondents refused to rent a house to her because she is a woman and the sole custodial parent of four children. The respondents deny the allegations and seek dismissal of the Application.

2The applicant had named an organizational respondent in her Application, Century 21 First Canadian (“Century 21”). Several weeks in advance of the hearing, she sought leave to withdraw the Application against Century 21, which consented. The respondents Barbara and Merrill Edmonds objected and a conference call hearing was held on November 5, 2012, in advance of the full hearing on the merits to hear the parties’ submissions on the issue of the applicant’s request to withdraw as against Century 21.

3Having heard the submissions, I ruled orally that the applicant’s request was granted, Century 21 would be removed as a respondent and that the style of cause would be amended accordingly.

4A hearing took place on November 7, 2012, in London, Ontario. I heard from the applicant, who also called evidence from Kathy Menden Meathrel, a local real estate agent who had acted for the applicant in her search for rental accommodation in July 2011. On behalf of the respondents, I heard from Merrill Edmonds and Larry Guidolin, a real estate agent who acted for the respondents during the material time.

5Both the applicant and the respondents sought to enter into evidence recordings and written documents, respectively, that had not previously been disclosed to each other or filed with the Tribunal. Given that the parties were unrepresented, the relevance of the documents and recordings in question and the narrow scope of the facts and issues in dispute, the Tribunal permitted the documents to be entered into evidence and allowed for the recording to be played during the course of the hearing.

6For the reasons that follow, this Application is dismissed.

THE LAW

7The relevant sections 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 identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

10(1) In Part I and in this Part,

“family status” means the status of being in a parent and child relationship; (“état familial”)

“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage; (“état matrimonial”)

THE FACTS

8Many of the background facts in this matter are not in dispute. The applicant is a mother of four children. At the material time, she was the sole custodial parent of these children and looking for rental housing for herself and the children, having just sold her home through her real estate agent, Kathy Menden Meathrel.

9The respondents are married to each other. Merrill Edmonds owns a house that he had put on the market to rent. He was represented in this transaction by Larry Guidolin, a real estate agent.

10The applicant and respondents did not deal directly with each other, but conducted all business relating to the rental property through their respective agents.

11In early July 2011, the applicant’s agent contacted Mr. Edmonds’ agent and arranged for her client to view the premises. There is some confusion as to when the initial contact took place and when the viewing occurred.

12In her Application documents, the applicant indicates that she went to view the house on July 8, 2011. In evidence given at the hearing, her agent indicated that the viewing took place on July 14, 2011. The applicant initially gave evidence consistent with her agent’s and when asked about the discrepancy between the evidence and her Application, suggested that July 8 would probably be a more accurate date given that she had filed the Application a month after the events in question and her memory would have been more accurate then.

13At any rate, after viewing the premises, the applicant, through her agent, made an offer to rent the premises for $1000.00 per month with some conditions attached to the offer to rent, such as appliances in good working order, etc. Again, there is some confusion about when this offer was made. The applicant testified that it was made the same day that she viewed the house. Given her evidence above, that would mean the offer was made on July 8, 2011. However, the date on the faxes sending the offers to the agent for Mr. Edmonds entered into evidence indicate that this offer as well as a subsequent one were made on the July 14, 2011.

14The respondent Merrill Edmonds, through his agent, refused the offer. His evidence is that the listing had indicated that he expected to receive $1200.00 per month in rent and the listing was also clear that appliances were not included as part of the package.

15Although the Application documents indicate that the applicant alleged that she offered to pay full rent, during the hearing she confirmed that her initial offer to rent had, in fact, been made for $200.00 less than the listed rental amount. She also confirmed that she had added conditions to the offer to rent, such as appliances in good working order.

16The applicant’s agent gave evidence that Mr. Guidolin phoned her on July 15 and told her that because the applicant did not have a man in her life, the respondents would not rent to her. She said she told him this was a violation of the applicant’s rights and continued to negotiate with him.

17Mr. Guidolin denies having made the comment attributed to him by Ms. Menden Meathrel. He points instead to the fact that the offer to rent did not meet the conditions set by his client as the reason for the first offer to rent no being accepted.

18Ms. Menden Meathrel gave evidence that she then submitted an amended offer to rent for the full amount of rent specified in the listing, with some of the conditions from the original offer removed, but with the condition regarding appliances in good working order being included as part of the agreement remaining in place.

19When questioned, Ms. Menden Meathrel could not explain why the second amended offer, also submitted in evidence, was dated July 14, 2011 if it had been made, as she suggested, after the conversation with her fellow agent on the 15^th^.

20The agents then had a further conversation, during which they agree that Mr. Guidolin mentioned that a sinkhole had developed on the property and that the owner of the property wanted it fixed before he rented the house to anyone. The applicant’s agent testified that although her fellow agent asked her to come and view the sinkhole, she refused. She explained the reason for the refusal by saying that she had not seen a sinkhole during her visit and, furthermore, if there was a sinkhole, she says that she felt afraid that she “might be pushed into the sinkhole” by Mr. Guidolin.

21Mr. Guidolin indicates that he had been told by the personal respondents that a sinkhole had developed on the driveway area on July 12, 2011, and that until the problem was fixed, he was to hold off on his attempts to find a tenant to rent the house.

22The personal respondent, Merrill Edmonds, also gave evidence that the sinkhole had been discovered on July 12, 2011, because a guest to his home next door had gotten stuck in it. He gave evidence that the sinkhole was fixed on July 20, 2011, and submitted an invoice dated July 21, 2011 for the repair work into evidence.

23Mr. Guidolin said that he felt that Ms. Menden Meathrel appeared to be upset with him because her client’s attempt to rent the premises had been unsuccessful and so he offered to show her the sinkhole. He did not understand why she would be afraid that he would physically harm her.

24The applicant’s agent then indicated that she had several more conversations with Mr. Guidolin, during which she described his behaviour as harassing. She says Mr. Guidolin tried to meet with her, with her broker present, and that she ultimately refused to have such a meeting with him.

25Mr. Guidolin’s evidence on this point is that he wanted to sort things out with Ms. Menden Meathrel, and that when she refused to meet with him, he suggested that they meet in the presence of her broker so that she would not be uncomfortable.

26Ultimately, the evidence of the respondents is that they rented the house to another tenant who approached them through her agent just as the sinkhole repair was completed, specifically on July 20, 2011. This tenant, they testified, was also a mother with sole custody of three children. They provided letters from that tenant and her real estate agent confirming her family status, the circumstances surrounding the rental agreement entered into by her and the respondent Merrill Edmonds and the timing of the application and rental agreement.

27Both the respondent Merrill Edmonds and his agent confirmed that the application to rent was made by the female tenant who indicated that she had three dependent children and when the lease agreement was being signed, her boyfriend indicated that he wanted to sign the document as well. This is borne out by the letters from the tenant’s real estate agent as well as the tenant herself.

28The evidence of the respondents is also that the tenant to whom the house was rented submitted an offer to lease at the full rental amount asked for and attached no conditions. She asked that the washing machine that was in the premises that did not work at the time be left there in “as is” condition so she could try and fix and use it but did not make the presence of appliances in good working order a condition to be met. That is borne out by the documents submitted into evidence by the respondents.

29The evidence of the respondents’ witnesses is that the applicant was not considered as a tenant because of the initially lower rental amount offered, the conditions attached to the offers to rent and because during the time the second offer was made, the respondents were also dealing with the repair to the property.

DECISION

30Having reviewed the evidence, I find that the applicant has not met her burden in establishing a breach of the Code.

31The parties had no contact with each other, dealing with this matter, instead, through their respective agents. The agents themselves offer two very different accounts of what transpired in their conversations with each other.

32A resolution of the factual differences in this matter is central to my decision and requires a credibility assessment. In that exercise, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

33The burden lies initially with the applicant. The evidence of Ms. Menden Meathrel is in conflict with that of the applicant’s in respect of the dates that the applicant viewed the property and when the offers to rent were made. In addition, Ms. Menden Meathrel’s account is internally inconsistent in that she cannot explain why both offers are dated July 14, 2011 when she indicates one of them was made after a conversation she says took place on July 15, 2011.

34There is also her inexplicably extreme reaction to a suggestion by a fellow real estate agent, with whom she had no apparent history of violence, to inspect a sinkhole on a property her client was seeking to rent and the somewhat bizarre explanation for her refusal to attend at the premises to view a potential safety hazard that could well have affected her client’s decision to rent the house.

35For the reasons outlined above, I am unable, therefore, to accept the evidence of Ms. Menden Meathrel as reliable or credible. As the applicant relies solely on the evidence of her agent to establish that a breach of the Code occurred, I find that she has not met that burden.

36While it is not necessary for me to turn to the reasons offered by the respondents for their refusal of the offers made by the applicant to rent the house in question, I find that the respondents have established that there were non-discriminatory reasons for their refusal of the offers made; specifically that the initial offer was for $200 less than the asked for amount of rent and contained conditions not acceptable to the landlord and the second offer, while agreeing to pay full rent, did not remove some of those same conditions.

37Accordingly, the Application is dismissed.