Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walter Kostiuk

Applicant

• and-

Toronto Community Housing Corporation, Hellenic Home for the Aged Inc., Housing Connections and the City of Toronto

Respondents

DECISION

Adjudicator: Ian R. Mackenzie

Date: February 23, 2012

Citation: 2012 HRTO 388

Indexed as: Kostiuk v. Toronto Community Housing Corporation

APPEARANCES and WRITTEN SUBMISSIONS

Walter Kostiuk, Applicant ) Andrew Matthews and Alex Chang, ) Students-at-law

Hellenic Home for the Aged Inc., ) Respondent ) Chris Tzekas and Raj Anand, Counsels

City of Toronto, Respondent ) Andrea Denovan, Counsel

Toronto Community Housing ) Corporation And Housing ) Gordon Steinberg, representative Connections, Respondent )

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 in housing on the basis of ancestry, ethnic origin and place of origin.

2The applicant and his spouse applied for rent subsidized accommodation to the Toronto Community Housing Corporation (TCHC) through Housing Connections. The applicant and his spouse were placed on a waiting list for Hellenic Home for the Aged, Inc. ("Hellenic") in 2007. In 2009, the applicant was advised by Housing Connections that Hellenic intended to restrict access to housing to those of Greek origin.

3The request of the respondent, Hellenic Home for the Aged, Inc. ("Hellenic"), for a summary hearing of the Application was granted by the Tribunal in a Case Assessment Direction ("CAD"). The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, because there is no reasonable prospect of success. In particular, the summary hearing was to address whether there is a reasonable prospect of success in light of the defence under section 18 of the Code. Section 18 provides as follows:

The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

4The CAD also addressed the Notice of Constitutional Question filed on February 22, 2011 by the applicant, alleging a breach of subsection 15(1) of the Canadian Charter of Rights and Freedoms. The CAD stated:

…The Notice provides no basis on which the applicant asserts that the Tribunal has the jurisdiction to determine the alleged violation of the Charter. Administrative tribunals have the authority, in certain circumstances, to determine whether provisions of their enabling statute should be disregarded because of inconsistency with the Charter: see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54. This was the situation in Sicheri v. Ontario (Community and Social Services), 2007 HRTO 13, relied upon by the applicant. However, I am unaware of the basis on which the Tribunal could consider the more general Charter allegations raised by the applicant, as it is not a court of general jurisdiction.

5The applicant was directed to provide submissions explaining the basis of the Tribunal’s jurisdiction to address the constitutional question. Those submissions were provided to the Tribunal and the Tribunal directed that this issue be addressed at the summary hearing.

6The Attorneys General of Canada and Ontario were given the opportunity to intervene to make submissions on the constitutional argument. Neither sought to intervene.

BACKGROUND

7Hellenic is a non-profit charitable corporation that provides care and services in housing to aged persons of Greek origin and their families. Its corporate objectives, set out in its Letters Patent include owning and operating a home for aged persons of Greek origin and providing accommodation, care and other supportive services for the health and welfare of residents "in keeping with their special needs and wishes". The primary activity of Hellenic is the operation of a low-cost seniors’ housing complex in Toronto, Ontario. There are about 220 apartments in the complex. Approximately 80 percent of the occupants are of Greek origin. Services are provided to the seniors in the Greek language, including health services, grooming services, social activities and spiritual services. The applicant does not dispute these facts.

8The respondent, Toronto Community Housing Corporation has been delegated responsibility (by the respondent City of Toronto) under the Social Housing Reform Act, 2000, S.O. 2000, c. 27 for administering the centralized waiting list for social housing units. The respondent Housing Connections is a subsidiary of Toronto Community Housing Corporation and currently administers the waiting lists for social housing.

9The respondent City of Toronto is responsible for establishing procedures governing applications for rent-geared-to-income ("RGI"), under the SHRA.

10The City of Toronto Social Housing Unit Guideline for Mandates for Social Housing Providers (2003-1) provides as follows:

When social housing programs were transferred to the City of Toronto, the Ministry assigned mandates to some housing providers. The Ministry only approved mandates that it felt were acceptable under the Ontario Human Rights Code. These mandates were for seniors, frail seniors, aboriginal peoples, alternative housing (for homeless and hard-to-house), people with disabilities requiring attendant care, people recovering from substance abuse, and people living with AIDS.

The Social Housing Reform Act allows the City, as Service Manager, to amend, terminate, or replace a mandate with a written agreement between the City and the housing provider. This includes assigning a mandate to a provider who does not have a mandate assigned by the Ministry.

At its Meeting of November 26, 2002, Toronto City Council adopted recommendations that allow providers to request special mandates. A provider may approach the City if they do not have a mandate and would like to request one, or if they feel that their current mandate is not appropriate.

All housing providers, other than supportive or alternative housing providers, are required to select applicants in order from their Housing Connections’ subsidiary list. If the provider has a mandate, only applicants who qualify for the mandate will be placed on that provider’s Housing Connections subsidiary list. Some providers may have a mandate for only some of their units. If this is the case, that provider will have two separate subsidiary lists with Housing Connections.

11Hellenic applied for a so-called "ethnic mandate" in or about January of 2009 to restrict tenancy in the retirement home to "aged persons of Greek origin and their families". One of the requirements of the City of Toronto was the provision of a legal opinion to support the request and to confirm that the proposed mandate was in compliance with the Human Rights Code. An opinion was provided on January 12, 2009.

12The applicant was on the waiting list for RGI accommodation and Hellenic was one of his preferred locations. On or about September 25, 2009, he received a form letter from Housing Connections advising him that Hellenic was now restricted to seniors of Greek origin. Accordingly, he was advised that unless he could confirm his eligibility (as being of Greek origin) his name would be removed from the Hellenic waiting list.

13There are residents of Hellenic who are not of Greek origin. Hellenic states in a letter to the City of Toronto (October 15, 2009) that it is not its intention to affect any of the non-Greek tenants currently residing at Hellenic.

14The applicant is requesting the following remedies:

a. That he be placed back on the Hellenic waiting list at the same position as if he had not been discriminated against;

b. That the respondents cease providing housing subsidies in a discriminatory manner; and

c. That Hellenic cease discriminating against tenants that are of non-Greek origin

1. APPLICATION OF THE CHARTER OF RIGHTS AND FREEDOMS

15In the applicant’s Reply to the Responses of the respondents, he alleges that the actions of the respondents are in violation of his rights under subsection 15(1) of the Charter of Rights and Freedoms:

As parties directly implementing a government program pursuant to the Social Housing Reform Act (SHRA) the Charter applies. As such the Respondents cannot preclude access to any benefits granted under that Act on the basis of an individual’s race or ethnic origin in violation of s. 15 of the Charter. Nor can the respondents rely on the defence contained in s. 18 of the Code since no analogous defence exists for a Charter violation. …

16The applicant seeks the same remedies as outlined in the original Application.

17In his response to the Tribunal’s request for submissions on the jurisdiction of the Tribunal, the applicant stated that the Tribunal had jurisdiction to address the Charter allegations and relied on the decision of the Supreme Court of Canada in R. v. Conway, 2010 SCC 22. In Conway, the court stated that tribunals have the jurisdiction to resolve constitutional questions that are linked to matters properly before them (para. 78). The applicant submitted that the HRTO has the jurisdiction to determine questions of law (section 39 of the Code). As such, the tribunal is a court of competent jurisdiction and can consider and apply the Charter when resolving matters properly before it. The applicant also submitted that the HRTO clearly has the jurisdiction to grant the particular remedies being sought in the Application, including ceasing the provision of rent subsidies on the basis of ancestry, race or ethnic origin and ceasing the selection of tenants on the basis of ancestry, race or ethnic origin.

18Hellenic submitted that the applicant’s Charter argument does not challenge any provisions of the Code and is not connected to the Code. The HRTO does not have jurisdiction to consider a Charter challenge in the absence of a connection to the Code: Wilson v. Toronto Catholic School Board, 2011 HRTO 1040 and Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482. Conway does not expand the Tribunal’s jurisdiction. In Conway, the court states that tribunals only have the authority to resolve constitutional questions linked to matters "properly before them" and where the "essential factual character" is within the tribunal’s statutory jurisdiction. Hellenic submitted that the Charter challenge by the applicant did not meet these tests, as the challenge was not connected to the Code.

19The applicant argued that some of the jurisprudence relied on by Hellenic pre-dated Conway. In Wilson, the applicant dropped allegations of a breach of the Code. In the present case, the applicant has made both Code and Charter allegations. In Hendershott, there was no indication that Conway was considered by the Tribunal.

20Hellenic also argued that the Charter did not apply to it because it was not a government actor. This submission was beyond the scope of the issue identified in the CAD for the summary hearing, and I have not considered it.

Analysis And Decision

21For the reasons set out here, I find that the Tribunal does not have jurisdiction to hear the Charter arguments raised by the applicant.

22The applicant has correctly noted that the decision of the Supreme Court of Canada (SCC) in Conway has not been considered by the HRTO in its decisions on the ability of the Tribunal to consider Charter arguments. However, Conway is a consolidation and restatement of the court’s jurisprudence on administrative tribunals and Charter remedies and does not significantly alter the approach to determining if the Tribunal has jurisdiction.

23When a Charter remedy is sought from a tribunal, the following questions should be asked (Conway, para. 81):

1. Does the tribunal have the jurisdiction (explicit or implied) to decide questions of law?

2. If it does, has the legislature clearly demonstrated its intent to withdraw the Charter from the tribunal’s jurisdiction?

24The HRTO has the jurisdiction to decide questions of law (section 39 of the Code) and the legislature has not withdrawn the Charter from its jurisdiction. It therefore has the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate.

25However, the conclusion that a tribunal has the general authority to grant Charter remedies is not the end of the inquiry. The remaining question is whether the tribunal can grant the particular remedy sought by the applicant. The question has been expressed by the SCC as follows (Conway, para. 82): "whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal."

26In his submissions, the applicant stated that the kind of Charter remedies he was seeking were the same public interest remedies he was seeking under the Code. The applicant is not challenging the constitutional validity of section 18 of the Code. In fact, it appears that the Charter submission is raised to by-pass the exemption set out in section 18 of the Code. This argument is clearly a stand-alone Charter argument and not within the statutory framework of the Tribunal. As stated in Barber v. South East Community Care Access Centre, 2010 HRTO 581, the Tribunal does not have jurisdiction over a Charter application. The fact that, in this case, the matter before the Tribunal also includes allegations under the Code cannot confer this jurisdiction on the Tribunal.

27Accordingly, I find that the Tribunal has no jurisdiction over the Charter allegations raised by the applicant.

2. SECTION 18 AND THE REASONABLE PROSPECT OF SUCCESS

Submissions Of Respondents

28Hellenic submits that section 18 of the Code is a complete defence to the Application. Section 18 of the Code provides that the right to equal treatment in services and facilities (in this case, with accommodation) is not infringed when participation in an organization that is "primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination" is restricted to people identified by a prohibited ground of discrimination.

29In Martinie v. Italian Society of Port Arthur (1995), 1995 CanLII 18190 (ON HRT), 24 CHRR D/169, a three-part test was used to determine if an organization falls under the exemption of s. 18 of the Code:

a. The organization must be a fraternal or social institution;

b. It must be primarily engaged in serving its members;

c. Its membership is restricted to the persons identified as members.

30Hellenic submitted that it clearly meets the test.

31The City of Toronto, Toronto Community Housing and Housing Connections submit that Hellenic is an organization within the meaning of section 18 of the Code and as a result the rights of the applicant under the Code have not been breached. These respondents adopted the submissions of Hellenic.

Submissions Of Applicant

32The applicant submitted that it was not appropriate to consider the application of section 18 of the Code in a summary hearing because a weighing of facts is required.

33The applicant submits that the onus is on Hellenic to prove that it falls within the criteria for the exemption to the Code in section 18. An exemption for discriminatory conduct ought to be narrowly construed and the respondents bear a heavy burden in showing that Hellenic fits within the exemption.

34The applicant further submits that in order to fit within the exemption, Hellenic must be, according to section 18 of the Code, "primarily engaged" in serving the interests of persons identified by a prohibited ground of discrimination and membership or participation in the organization must be "restricted to persons who are similarly identified". Hellenic does not, the applicant says, restrict its rental units to persons who are similarly identified, as only 80 percent of residents are of Greek origin. The applicant submits that Hellenic provides accommodation and services for non-Greek residents and does not intend to evict these individuals. This, he says, is a double standard between current and prospective tenants and demonstrates that Hellenic does not have a policy that restricts residence to "persons similarly identified" as required under section 18 of the Code.

35In sum, the applicant submits that Hellenic is primarily a housing provider that is seeking to restrict renters by ethnic origin and is not a special interest organization within the meaning of the Code.

36The applicant further submits that the City of Toronto, Toronto Community Housing and Housing Connections do not fall under the exception set out in section 18 of the Code. Even if Hellenic does fall under section 18 of the Code, this does not entitle the other respondents to provide the benefits of the SHRA program in a discriminatory manner. He states that the SHRA is intended to provide for "efficient and effective administration of housing programs" (section 1). It is not intended to serve the interests of persons identified by a prohibited ground of discrimination under section 18 of the Code.

Reply Of Respondents

37In reply, the respondents submit that section 18 and other group rights provisions in the Code are complementary to its anti-discrimination provisions and should be interpreted in an expansive fashion: Caldwell v. Stewart (1984), 15 D.L.R. ((4th)1 (SCC) and Ontario (Human Rights Commission) v. Christian Horizons, (2010) 2010 ONSC 2105, 102 O.R. (3d) 267 (Ont. Div. Ct.). The organization, they argue, does not need to exclusively serve members of a group of persons identified by a prohibited ground in order to fall within section 18 of the Code. The organization must be "primarily engaged" in serving the interests of persons identified by a prohibited ground. It does not have to be "solely engaged" in serving those interests: Martinie v. Italian Society of Port Arthur (1995), 1995 CanLII 18190 (ON HRT), 24 C.H.R.R. D/169 at para. 48.

38The respondent City of Toronto submitted that the actions of the City in approving the mandate did fall under section 18 of the Code. The City of Toronto was acting pursuant to the SHRA in approving the mandate for Hellenic.

Analysis and Decision

39The general approach to analysis in a summary hearing was set out by the Tribunal in Dabic v. Windsor Police Service, 2010 HRTO 1994 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.

40The relevant sections of the Code for the purposes of this summary hearing are the following:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

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, age, marital status, family status, disability or the receipt of public assistance.

3. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

41If section 18 of the Code is applicable, in the circumstances of this case, it is a complete defence to the allegations of discrimination in the Application. Therefore, in order to demonstrate a reasonable prospect of success of the Application, the applicant must be able to show that there is a reasonable prospect that the defence set out in section 18 is not available to the respondents. For the reasons that follow, I have determined that the applicant has no reasonable prospect of demonstrating that the respondents do not fall within the exception set out in section 18 of the Code and that, consequently, the Application has no reasonable prospect of success.

42The applicant argued that it was not appropriate to determine the applicability of section 18 of the Code in a summary hearing. The applicant has not disputed the stated purposes and objectives of Hellenic. He only disputes whether the care of those of Greek origin and their families is the sole purpose of the organization. Hellenic concedes that some of its residents are not of Greek origin. The relevant facts to determine whether the defence of section 18 of the Code is available to the respondents are not in dispute. In light of this, a summary hearing is appropriate.

43Provisions in human rights legislation such as section 18 of the Code have been characterized by the courts as having a dual purpose (Caldwell at page 626 and Christian Horizons at para. 60). These provisions are meant to protect the right to associate and to promote certain types of association. As a result, provisions such as section 18 of the Code should not be interpreted narrowly.

44Section 18 of the Code establishes a three-part test that will allow an organization to provide a service or facility that would otherwise be regarded as discriminatory under the Code (also see Martinie at paras. 47-49):

a) Is the entity a philanthropic or social institution or organization?

b) Is the institution or organization "primarily engaged in serving the interests of persons identified by a prohibited ground"?

c) Is membership or participation in the institution or organization restricted to those identified by that prohibited ground?

45It is not disputed that Hellenic is a not-for-profit charitable organization. It therefore meets the requirement of the section that it be a philanthropic or social institution or organization.

46The Divisional Court examined a similar Code provision in Christian Horizons. Although the provision at issue in that case related to employment, the Court did examine the meaning of the words "primarily engaged in serving the interests of persons identified by a prohibited ground". The court concluded that the proper approach to the interpretation of the section is to focus on the subjective purpose of the organization (para. 56). It also stated (at para. 64):

the purpose of the special exemption provision [is] to confer a right to associate on certain groups so that they can join together to express their views and carry out their joint activities. It follows that in determining whether a particular group serves the interests of its members, defined by a characteristic such as creed in the present case, one must look to the purpose of the association.

47The subjective purpose of Hellenic is not disputed. That purpose is set out in its Letters Patent outlined above. In addition, Hellenic provides services in the Greek language and services that take into consideration Greek culture. These services are not disputed by the applicant. It is clear that looking at the subjective purpose of Hellenic, it is engaged in serving the interests of persons of Greek origin and their families.

48Section 18 of the Code does not require that an organization or institution provide its services solely to members of a group identified by a prohibited ground (Martinie at para. 48). The section states that providing such services must be its "primary" purpose. If the legislature had intended that organizations or institutions under this section be restricted to providing services solely to members of a group identified by a prohibited ground, it could easily have so specified through the use of a word such as "solely" or "exclusively". The primary purpose of Hellenic is to provide services to those of Greek-origin. The fact that approximately 20 percent of residents are not of Greek origin (a fact not in dispute) does not change Hellenic’s primary purpose.

49I have therefore concluded that the applicant does not have a reasonable prospect of demonstrating that section 18 of the Code is not available to Hellenic as a complete defence to the Application.

50The applicant's argument that section 18 does not provide an exemption for the respondents other than Hellenic is not relevant to this application. The SHRA allows for special mandates for housing providers based on otherwise prohibited grounds of discrimination under the Code. The applicant has not challenged the constitutionality of this mandate provision of the SHRA. If an organization has a mandate under the SHRA, then residents are eligible to be considered for RGI.

51In addition, the applicant's argument is not within the scope of his Application. The argument he is putting forward is that even if Hellenic does fall within the exception of section 18 of the Code, residents are not entitled to RGI. The issue in this application is whether or not the applicant can be denied access to the Hellenic retirement facility. The application is not about whether or not residents of Hellenic are eligible for RGI under the SHRA.

52I have concluded that section 18 of the Code is applicable to this Application. Since this section of the Code is a complete defence to what would otherwise be a discriminatory practice, the Application had no reasonable prospect of success.

53Accordingly, the Application is dismissed.