Munroe v. Ottawa (City), 2012 HRTO 511

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kirk Munroe Applicant

-and-

City of Ottawa, Ottawa Community Housing Corporation, Social Housing Registry of Ottawa, Valerie Jean Louis, Lori Tinsley, Melissa Presseault, Monique Cook and Marc Provost Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 12, 2012 Citation: 2012 HRTO 511 Indexed as: Munroe v. Ottawa (City)

APPEARANCES

Kirk Andrew Munroe, Applicant ) Self-represented

City of Ottawa, Lori Tinsley, ) Melissa Presseault, ) David Patacairk, Monique Cook and Marc Provost ) Counsel Respondents )

Ontario Community Housing, ) Gabriel Cormier, Valerie Jean Louis, Respondents ) Counsel

Social Housing Registry ) Andrew Tremayne, of Ottawa ) Counsel

1This Application was filed on August 26, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application alleges discrimination in accommodation and in the provision of services on the basis of race, colour, disability the receipt of public assistance and reprisal.

2The Application names four institutional respondents, the City of Ottawa (the "City"), Carling Family Shelter, Ottawa Community Housing and Housing Registry of Ottawa. On November 24, 2011 the City wrote to the Tribunal to indicate that it operates the Carling Family Shelter and, as a consequence, requested that the Carling Family Centre be removed as a named respondent. This request is allowed. It also appears that Ottawa Community Housing is properly named the Ottawa Community Housing Corporation ("OCHC") and the Housing Registry of Ottawa is properly named the Social Housing Registry of Ottawa ("SHRO"). The style of cause is amended to reflect these three changes.

3The applicant names five personal respondents. Four of the personal respondents, Lori Tinsley, Melissa Presseault, Monique Cook and Marc Provost, are staff at the Carling Family Centre. The fifth personal respondent, Valerie Jean Louis, is the Tenant Service Manager at OCHC.

4On November 10, 2011, the Tribunal issued a Case Assessment Direction ("CAD") directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. Rule 19A.1 reads as follows:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

6The summary hearing was held on February 22, 2011. During the summary hearing, I heard from the applicant and the respondents' counsels.

BACKGROUND

7The applicant self identifies as a white Canadian with a disability. He has a spouse and two young children. In 2011 he was living with his spouse and two children in the Carling Family Shelter during which time he submitted an application to the SHRO for the purposes of obtaining a social housing unit for his family.

8The Application makes two principal allegations. It alleges that the applicant was unable to obtain a social housing unit through the SHRO or with the OCHC because priority for social housing units is given to immigrants over Canadians and because due consideration was not given to the applicant's disability and the conditions he and his family had to cope with in the shelter. The applicant alleges that this constitutes discrimination in accommodation on the basis of race, colour and disability.

9The Application further alleges that Carling Family Centre staff did not appropriately consider the applicant and his disability and the health of his family while they were living in the shelter. The Application alleges that the applicant was subject to reprisal by Carling Family Centre staff after he complained to the City about having been required to leave the Centre for alleged aggressive behaviour (the applicant returned after five days). The Application alleges that this constitutes discrimination in the provision of services on the basis of disability and reprisal. The Application has also identified receipt of public assistance as a ground of discrimination.

ALLEGATIONS CONCERNING SHRO, OCHC AND VALERIE JEAN LOUIS

10At the hearing the applicant submitted that SHRO and OCHC give priority to immigrants over Canadians when considering applications for social housing and that is why the applicant's application for social housing took so long. The applicant submitted that he knows this to be the case because Valerie Jean Louis, the Tenant Service Manager at OCHC, said to him that priority is given to beaten and battered people and non-Canadian citizens. In his Application he also quotes Ms. Jean Louis as also telling him that "whites have less chance of getting a home and they have to stay in shelters longer than immigrants new to Canada." The applicant submitted that he has observed immigrants in the Carleton Family Shelter who arrived and who were offered social housing units often in a matter of weeks after applying for social housing. He submitted that this was in distinct contrast to the experience of white Canadian families in the Carleton Family Shelter, including his own, who were in the shelter for months waiting to obtain social housing.

11The applicant submitted that he also provided the SHRO with information about his chronic back condition and the further medical difficulties that he and his family had from being obliged to live in a single, small room in the Carleton Family Shelter. The applicant was of the opinion that SHRO should have considered him to be a priority based on this medical information.

12Both the SHRO and the OCHC denied that priority is given in the application process for the social housing that they administer to immigrants or on the basis of race or colour (the grounds of discrimination cited in the Application). OCHC submitted that Valerie Jean Louis would deny that she indicated to the applicant that immigrants are given such a priority. Both SHRO and OCHC stated that priority is given to three groups of persons who apply for social housing. These are victims of domestic violence, persons who have a life threatening or terminal illness and the homeless. It was also noted that how quickly an applicant obtains a social housing unit depends not only whether they are considered as a priority but on such variables as the size of the unit they have requested and the number of social housing sites they have indicated that they would be prepared to consider.

13The City submitted that the applicant's claim that immigrants are given priority for social housing, based on his experiences at the Carleton Family Shelter, is not a reliable one. The City indicated the Carling Family Shelter is a shelter specifically for families and that approximately 27% of those sheltered are victims of domestic violence. It was submitted that the persons the applicant described as immigrants may be victims of domestic violence which would account for why they were offered social housing in a relatively short time. It was also submitted that these persons might be housed more quickly than others because of the social housing they applied for (e.g. the size of unit they requested and/or the specific social housing sites or providers they requested). It was also submitted that it was possible that the persons the applicant saw leaving the shelter after a relatively brief period of time were being moved to other emergency accommodation (e.g. in a hotel or motel used by the City) while they continued to wait for a social housing unit.

14SHRO also drew my attention to two documents that were submitted by the applicant with his Application. One was a "Request for Urgent Medical Status" dated June 28, 2011 that the applicant submitted to the SHRO. The request includes information from the applicant and his physician about his medical condition and the applicant's current living conditions. The applicant's physician provides a diagnosis and prognosis for the applicant and refers to the applicant's living conditions in the shelter. The application directs the applicant's physician to describe the applicant's medical status from a choice of four options and the physician records the applicant's medicals status as "Chronic but not life threatening" rather than the other choices of "Terminal", "Life threatening", or "Short term Duration".

15The second document was a letter from SHRO to the applicant dated June 30, 2011 denying the applicant's request to be considered as a priority on the basis of his medical status. The letter explains that the applicant had not provided information to indicate that his medical condition was life threatening or terminal and as such he did not meet the criteria for consideration as a medical priority for a social housing unit.

16Based on these submissions and the information before me I find that the applicant's allegations of discrimination in relation to SHRO, OCHC and Valerie Jean Louis do not have a reasonable prospect of succeeding. I do not find that the applicant has a reasonable prospect of establishing that the reason he was not offered a social housing unit was because SHRO and/or OCHC give priority to immigrant applicants over Canadian applicants.

17I do not find that the applicant's anecdotal information that he observed some persons who he identified as immigrants being housed quicker than he and some other white Canadians was information that will assist him in proving that the SHRC and/or the OCHC discriminated against him because of his race and colour. The applicant has made a number of assumptions about who these other people in the shelter were, what their situation was, what happened to them and on what basis they may have been considered by SHRO and/or OCHC. I agree with the City that there are many non- discriminatory reasons for why these persons may have been provided with social housing or may have left the shelter. I do not see that the applicant's conclusions about what he observed can be considered to be reliable or that he has a reasonable prospect of showing that this is evidence of differential treatment based on race and colour. In my view the applicant will not be able to establish a link between what he may have observed at the Carleton Family Shelter and his allegations that was subject to discriminatory treatment.

18The applicant did state that that Ms. Jean Louis, an employee of OCHC, told him that OCHC gives priority to beaten and battered persons and non-Canadian citizens and quotes her as also saying that "whites have less chance of getting a home and they have to stay in shelters longer than immigrants new to Canada". These comments were denied.

19In my view these alleged comments are improbable. I accept that there are three formal priorities used in the social housing application process administered by the SHRO and which the OCHC relies on. These are victims of domestic abuse, persons who are terminally ill or who have life threatening diseases and the homeless. I do not see how, under the circumstances, the applicant has a reasonable prospect of establishing that a housing official would characterize the priorities as victims of domestic abuse and non-Canadian citizens.

20I similarly question the probability or reliability of the alleged further statement "whites have less chance of getting a home and they have to stay in shelters longer than immigrants new to Canada". This statement, characterized as an exact quote, appears to be more of a paraphrase and one from a longer conversation. It is also not evident that this quote, even if accepted as generally accurate, indicates that Ms. Jean Louis was communicating that the reason why whites stay in shelters longer than immigrants was because the policy of OCHC or others was to give priority to immigrants over Canadian citizens.

21The applicant has not pointed to further evidence (other than his observations at the shelter) that he would rely on to prove his allegations. Under the circumstances, I do not think the applicant has a reasonable prospect of succeeding with this allegation.

22I am of the further view that applicant's contention that he was discriminated on the basis of disability does not have a reasonable prospect of success. In this instance the information before me was essentially not in dispute. It was not disputed that the application for social housing process in Ottawa gives priority to persons who are terminally ill or who have life threatening illnesses. The SHRO's June 30, 2011 letter also makes this clear. It was also not disputed that the applicant's disability was not life threatening or terminal. The applicant's contention as I understand it, is that his disability, even if not life threatening or terminal, should have led to the applicant receiving priority status given its debilitating nature and that SHRO's failure to extend the benefit of priority status to the applicant constitutes discrimination based on disability.

23I have considered the applicant's contention in two ways. One is whether the applicant can be said to be disadvantaged or treated differently because of his disability. I find that he was not. The reason the applicant was not given priority status was not because of his disability it was because he did not meet the required criteria, to be terminally ill or to have a life threatening disease. The determination that he did not meet these criteria is not related to an inappropriate or discriminatory consideration of his disability.

24I have also considered whether it was discriminatory not to treat a non-life threatening disability such as the applicant's as a priority. In other words was the decision to give priority to persons with only life threatening or terminal illnesses a form of discrimination in that it favoured individuals with certain disabilities over others with different disabilities.

25I do not find this to be the case. The clearly stated intent of the priority policy is to give priority to persons with only life threatening or terminal illnesses. There may be an issue of discrimination if this benefit is being provided for some terminal illnesses or disabilities and not others. However, in my view, the decision to limit this priority to persons who are dying or at risk of dying and not to extend it to persons who may face other challenges, such as on ongoing disability, is not discriminatory. Consequently, the applicant does not have a reasonable prospect of establishing that he was discriminated against on the basis of disability.

ALLEGATIONS CONCERNING THE CITY, LORI TINSLEY, MELISSA PRESSEAULT, MONIQUE COOK AND MARC PROVOST

26At the hearing the applicant submitted that he was subject to discriminatory treatment while living at the Carling Family Shelter. He described a number of his experiences at the shelter. The applicant contended that his family was moved from a large room that provided some supports for the applicant (grab bars etc.) to the smallest room in the shelter that was inadequate for a family of four and a person with the applicant's medical condition. The applicant stated that he repeatedly brought to the shelter's attention that the small room was having a negative effect on his family's health and that no actions were taken, for example returning the family to a larger room. The applicant alleged that the decision to expel him from the shelter was discriminatory in that the decision did not appropriately consider that the applicant had mental health issues that contributed to the behaviours that led to his being asked to leave.

27The applicant alleges reprisal. He alleges that being moved to the smaller room was in some measure in reprisal for having made a complaint to the City about being required to leave the shelter for five days. The applicant alleges that he was similarly subject to poorer treatment in the shelter after it became known that he filed his Application with the Tribunal.

28The City submitted that issues around the adequacy of rooms in shelters is an issue for almost everyone given that shelters are intended to be emergency housing and not intended to provide ongoing housing. The City submitted that the applicant did not make clear how many of his allegations about the treatment he received while at the Carleton Family Shelter were related to the Code. It submitted that many of the tensions between the applicant and staff were better characterized as personal disputes and did not arise from a Code related ground. The City submitted that the shelter has a zero tolerance policy for aggressive behaviour and that explains why the applicant was asked to leave. The City submitted that the allegation that staff did not consider the applicant's mental health issues when he was required to leave was a new allegation not raised in the Application.

29I am of the view that the applicant has a reasonable prospect of showing that one or more of these allegations could constitute a violation of the Code. The applicant has identified specific incidents of alleged discrimination and reprisal. While the applicant did not provide many particulars or consistently link his allegations of generally receiving poor treatment or service to the Code I am of the view that this does not mean that he has no reasonable prospect of proving at least some of his allegations.

30The Application, therefore, proceeds in part. The Application proceeds against the City and Lori Tinsley, Melissa Presseault, Monique Cook and Marc Provost. The Application against SHRO, OCHC and Valerie Jean Louis is dismissed.

31However, in order to ensure that this matter proceeds in a fair, just and expeditious manner the applicant is directed to file an amended Application. The applicant is directed to set out his allegations in more detail, specifically clarifying what actions on part of the remaining respondents constitute discrimination on the basis of disability, receipt of public assistance and reprisal. He must deliver his amended Application to counsel for the remaining respondents and file it with the Tribunal by no later than March 30, 2012. The remaining respondents may deliver to the applicant and file with the Tribunal a Response by no later than April 12, 2012.

32I would note for the applicant that in order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, that was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate. See Noble v. York University, 2010 HRTO 878.

33The applicant is also directed to indicate why he is of the view that the remaining personal respondents are necessary parties to the Application. I would note for the applicant that the Tribunal, in its decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, determined that

(...) the unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

34I am not seized of this matter.