HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N :
John Clarence Harvey
Applicant
-and-
Killam Properties Inc.
Respondent
DECISION
Adjudicator: Michael Lerner
Indexed As: Harvey v. Killam Properties Inc.
Introduction
1This is an Application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990. c.H.19 as amended (the Code). The applicant is an individual, who with his family, was an occasional camper over a number of years at the campground premises of the respondent. The applicant applied for status as a seasonal camper which application was denied. Over several weeks, the applicant made repeated attempts to obtain from the respondent an explanation satisfactory to him for the denial. As his frustration increased over his in ability to obtain the explanation he sought, the applicant made threats as to the action he would pursue if he did not receive the explanation he sought. One of his threats was to refer the matter to the Tribunal. In response, the respondent issued an absolute ban from the applicant attending at the respondent’s campground.
2The applicant was self-represented and was the only one who gave evidence on his behalf. The respondent was represented by counsel and called two witnesses including the respondent’s representative who made the decision that forms the subject matter of this Application. Much of the evidence was undisputed. The facts upon which the parties did not agree was of little consequence to the decision.
3John Clarence Harvey (“Harvey”), the Applicant, and his family were regular occasional and weekend campers at the Family Paradise Campground owned by Killam Properties (“Killam”), the Respondent.
4Over the period that Harvey had frequented the campground, he hoped that circumstances would permit him to purchase an existing trailer unit permanently located on a specific site. On those occasions when Harvey camped at the Respondent’s property, his family was accommodated in a trailer unit or camper towed to the site.
5On July 27, 2009 while camping at the Respondent’s property, Harvey determined that a trailer was being offered for sale and approached the owner to negotiate the purchase of the unit. As part of the purchase process, Harvey was required to submit an application to Killam that was subject to approval for seasonal status. Approval would have permitted him to keep the unit permanently on the specified site and would allow the Harvey family to come and go as they might choose during the camping season.
6As Harvey was preparing to leave the campground on Monday, August 4, 2009, he was advised by him that his application for seasonal status had been denied. Upon further inquiry, the only explanation that was provided is that he was “not suitable” with a suggestion that he would not abide by park rules.
7After returning home, Harvey contacted the head office of Killam Properties and left a voice message requesting someone contact him with a more detailed explanation as to why the application had been denied.
8Harvey received a return call from Peter Majewsky, who agreed to look into the matter. Majewsky subsequently contacted Harvey and advised him that the application had been denied because Killam was concerned that Harvey was “not suitable” or “not compatible” and his family would not abide by the rules and regulations of the campground.
9Harvey persisted and continued to contact Majewsky, who repeated the explanation without expansion. As Harvey was not satisfied with that explanation, he continued to pursue the matter with Majewsky and others by telephone and by e-mail.
10In early September, Harvey advised Killam that absent a satisfactory explanation, he would be filing a Human Rights complaint. On September 9, 2009, Harvey received a responding e-mail from Lana Tonge, the Manager of Family Paradise Campground, notifying him that he was no longer permitted to attend at the campground at any time in the future.
11Harvey submitted an Application to the Tribunal dated September 21, 2009 alleging discrimination based upon reprisal or threat of reprisal with respect to goods, services and facilities. It is important to clearly identify the issue that is alleged to be an act of reprisal. The applicant accepts the initial decision of Killam to deny his application for seasonal status. He contends, however, that the decision to impose an absolute ban that prevents him from returning to the campground is an act of reprisal.
Evidence
12The parties agree that while vacationing at the Family Paradise Campground owned by the Respondent, Killam Properties Inc., in late July and early August 2009, the Applicant learned that there was a trailer unit owned by a seasonal camper being offered for sale. The Applicant dealt directly with the vendor and successfully negotiated the purchase price.
13In order for the unit to remain on the Respondent’s property, the Applicant was obliged to apply for and be accepted as a seasonal camper. Mr. Harvey approached the Respondent’s representative, Lana Tonge, and submitted the aforementioned application. The application process included, amongst other things, a credit check.
14The applicant was subsequently advised that even though he had cleared the credit check, his application had been denied. When he questioned Ms. Tonge, the Respondent’s representative, as to why that had happened, she advised that she had no personal knowledge as it was a head office decision.
15When Mr. Harvey returned home, he contacted the head office of the Respondent and left a voice message. His call was returned by Peter Majewsky, who denied having any knowledge of the application or why it might have been denied. Majewsky requested time, estimated at one week, to make further inquiries and to report back to the Applicant.
16As he had promised, Mr. Majewsky contacted the Applicant and advised him that his application had been denied because he was considered to be “not compatible” or “not suitable” with the other seasonal campers. Harvey asked for greater detail and specific particulars to support the reason he had been given.
17Unwilling or unable to provide greater detail, Majewsky suggested to the Applicant that he continue to camp on weekends and for other periods as he had in the past to allow him to “prove himself”. The Applicant was not happy with the explanation he had been given or the suggestion that he continue to camp as he had previously done and questioned why he could be acceptable as a weekend camper but not as a seasonal camper. He requested further clarification.
18After some initial telephone conversations, the primary mode of contact between Harvey and Killam was by e-mail. The Applicant admitted he became increasingly assertive in requesting a “straight answer”. Mr. Majewsky similarly acknowledged that he became obviously frustrated with Mr. Harvey’s persistence.
19An e-mail dated August 22, 2009 from Mr. Harvey to Colleen McCarville who was employed in the Killam office was entered as an exhibit. In the corner of that e-mail that was introduced as an exhibit is a cartoon-like character brandishing a firearm. The importance of this particular e-mail and the cartoon-like character will become apparent and relevant to the decision in this matter.
20As his level of frustration rose, the Applicant threatened to write a letter to the editor publicizing his issue and eventually advised Mr. Majewsky that he intended to lodge a formal complaint with the Human Rights Tribunal. The Respondent then advised that the Applicant that he was no longer welcome on the premises at any time and that he was being given notice pursuant to the Trespass to Property Act.
21Mr. Harvey subsequently applied to the Tribunal alleging reprisal for his threat to go to Human Rights. Mr. Harvey acknowledged that because of his inability to get what he considered to be a straight answer from the Respondent as to why his application for a seasonal permit had been denied, he became increasingly frustrated in the days and weeks following the actual denial. Harvey acknowledged that his threat to write a letter to the editor and to go to the Human Rights Tribunal were attempts to pressure or force the Respondent to give him the explanation that he desired.
22The Respondent called Lana Tonge as a witness. Ms. Tonge was the on-site campground manager. She co-manages Paradise Family Campground with her husband. Her employment with the Respondent commenced April 2008. She was acquainted with the Applicant, John Harvey. She knew him as a weekend or occasional camper.
23Ms. Tonge was the Killam representative that accepted Harvey’s application for seasonal camper status. She described the difference between the terms and conditions of occupancy between weekend or occasional campers and seasonal campers. While the weekend or occasional camper pays upfront on each occasion prior to admission to the campground, the seasonal camper pays an annual fee for unrestricted access to the campground.
24It is essential for any prospective purchaser of a trailer unit currently located on the campground to apply for and be approved as a seasonal camper. Without approval, the purchaser could be compelled to move the unit from the property.
25Ms. Tonge accepted Harvey’s application and did the usual, perfunctory checks. Ultimately, she is the one who is required to make the decision as to whether or not an applicant will be granted seasonal status. If an applicant is credit approved, she then bases her decision primarily on her view as to whether or not the applicant will “fit in” with the other seasonal campers. She bases her decision on her own knowledge and observations of the Applicant and frequently approaches other seasonal campers for an opinion.
26It was her opinion that Mr. Harvey and his family were not compatible with the existing seasonal campers. In fact, one long-time seasonal camper indicated to her that he would leave the park should the Applicant be accepted as a seasonal camper. She also discussed the Harvey application with her husband although there was no evidence as to the part he played in her decision.
27Ms. Tongedecided to deny the application and shortly before Mr. Harvey left the campground at the end of his scheduled stay, advised him that his application had been denied. Prior to advising Mr. Harvey that his application was denied, Ms. Tonge testified that she spoke directly with Peter Majewsky to whom she was required to report. She advised Mr. Majewsky of her decision.
28Once informed that his application had been denied, Mr. Harvey asked Ms. Tonge for an explanation or reason. Ms. Tonge advised Mr. Harvey that he was not considered to be a “suitable fit” and she was concerned that he might not comply with the rules and regulations of the campground.
29Mr. Harvey did not accept that explanation and insisted upon additional details. Not having received an explanation that satisfied him, the Applicant advised Ms. Tonge that he intended to contact the head office of Killam Properties upon his return home.
30Ms. Tonge acknowledged that Mr. Harvey was persistent in his demand for a better explanation and that she received a number of e-mail communications from him after he had returned home demanding particulars. As he persisted, she grew increasingly impatient and frustrated with the amount of her time Harvey was taking as it prevented her from fulfilling her duties and responsibilities as campground co-manager. She further acknowledged that, at that time, she was prepared to allow Mr. Harvey to continue as a weekend or occasional camper.
31After Harvey returned home, he directed the majority of his inquiries regarding the denial to the Killam head office and Peter Majewsky.
32I previously referred to the e-mail communication of August 22, 2009 forwarded by Mr. Harvey and addressed to Colleen McCarville. Although not called to give evidence, according to Mr. Majewsky, she was alarmed by the image of the cartoon-like character brandishing the gun in the e-mail and thought that Mr. Harvey, in a not too subtle manner, was threatening her because of the refusal of Killam to comply with his request for additional information as to why his application for seasonal status had been denied. Because of her concern for her own safety and that of others, McCarville and Peter Majewsky discussed the significance of the image.
33Majewsky followed up directly with Harvey expressing his and Ms. McCarville’s perception that the cartoon-like image was interpreted as a threat. In the days following August 22, 2009, in further e-mails, Harvey threatened to write a letter to the editor and ultimately to take his complaint to the Tribunal.
34Ms. Tonge and Mr. Majewsky continued to dialogue and finally on September 9, 2009, after receiving the e-mail when the Applicant threatened to go to the Tribunal, Ms. Tonge advised Harvey also by e-mail that he was no longer welcome in the park. She noted that her decision to reject the application had already been made in early August well before Mr. Harvey threatened either course of action or receipt of the e-mail of August 22nd.
35Ms. Tonge maintains that the decision to absolutely ban Mr. Harvey from any access to the campground was based solely upon his own conduct and primarily upon the perceived threat that related to the cartoon character.
36Ms. Tonge acknowledged that the possibility of losing a “solid, long-term seasonal camper” strongly influenced her initial decision to deny seasonal status. She agreed that she refused to advise Mr. Harvey as to the identity of the seasonal campers she had approached when considering the Harvey application. Her view is that the correctness of her decision was confirmed by Mr. Harvey’s conduct after he was advised that his application had been denied.
37She denied that the threat to take the matter to the Human Rights Tribunal had any influence on her decision
38Peter Majewsky is the Director of Seasonal Resorts for Killam Properties. He has been employed by Killam in that capacity since July 2007. As the Director of Seasonal Resorts, he hires on-site managers to oversee the day-to-day operation of each campground. Although he had communicated with Mr. Harvey, the first time that he had actually seen him was at the hearing. He confirmed that he had been contacted by Lana Tonge with regard to the Harvey application for seasonal status during the time that it was being considered or immediately after Ms. Tonge had decided to deny it.
39Ms. Tonge testified that she had expressed to him her concern that if Harvey’s application was approved that at least one long-term seasonal camper would leave. Mr. Majewsky was not involved in the decision-making process and assumed that Ms. Tonge had contacted him for support for the decision she had made.
40Mr. Majewsky acknowledged that the Applicant contacted him directly asking for a detailed explanation as to why his application had been denied.
41He undertook to make inquiries and to get back to him in due course. He subsequently got back to the Applicant and more or less repeated what he believed the Applicant had previously been told. He communicated with Harvey both by telephone and e-mail. He conceded that he was frustrated with Mr. Harvey’s persistence for an explanation. He acknowledged that he had been curt or abrupt in his dealings with the Applicant and that he was becoming increasingly impatient.
42Majewsky conceded that he had no specifics as to why Ms. Tonge decided to deny the application other than her opinion that Harvey was not compatible with the other seasonal campers.
43Majewsky referred specifically to the image of the cartoon-like character that appeared on the e-mail of August 22, 2009 and confirmed that he spoke directly to the Applicant about the character and that he and/or Ms. McCarville thought they were being threatened. He noted that following that conversation the offending cartoon character was replaced by a different image.
44He maintained that from his perspective the decision to ban the Applicant absolutely from the campground was based solely upon the Applicant’s conduct and the perceived threat relating to the cartoon-like character with the gun on the e-mail. He testified that the threat to bring the matter before the Tribunal was of no concern to him just as he was not worried about the possibility of the applicant taking the matter to the editor of the newspaper. He considered the threat to be another event in the applicant’s course of conduct to force the explanation he desired. In his view, the success of each campground depends upon positive relationships amongst seasonal campers and Ms. Tonge’s expressed concern was a satisfactory reason denying Mr. Harvey’s application
ANALYSIS
45The Applicant acknowledged that the decision of Killam’s representative not to approve his application for seasonal status is not the basis of this application. He concedes that the decision was not based upon an enumerated ground and, if not for the failure of the respondent to provide a reason, he would not have pursued the matter. When asked why he thought he had been denied, he said, “she (Ms. Tonge) didn’t like me”
46He confines his application to the decision made to absolutely prohibit him from returning to the campground which he maintains is reprisal for his threat to file a complaint with the Tribunal. Killam responds that the decision to ban Harvey from the campground was soundly based on Harvey’s own conduct and was unrelated to his threat to apply to the Tribunal.
47Harvey acknowledges that over the course of his dealings with the Killam representatives after he learned his application had been denied, his conduct was aggressive and persistent and that he was committed to receiving an explanation that satisfied him.
48Both Ms. Tonge and Mr. Majewsky readily admit that they were less than forthcoming in providing Harvey with an explanation for the refusal. Ms. Tonge acknowledged that she did not want to provide Harvey with the particulars as to how or why she arrived at her decision. Majewsky, for his part, admitted that he had been abrupt and curt with Harvey and was not inclined to spend time appeasing the Applicant.
49As I have noted, there was virtually no difference between the parties as to the facts as to what had occurred. Any difference between the parties related to the manner in which each side interpreted those facts. The best example of that type of difference relates to the cartoon-like character that appeared on the e-mail of August 22, 2009. Mr. Harvey denies the image was intended in any way to represent a threat to Ms. McCarville and was simply one of a series of rotating images that randomly appeared on all of his e-mails. Killam takes a dramatically different view and, in fact, bases its ultimate decision to absolutely ban Harvey from the campground, at least in part, on the appearance of the image in the e-mail.
50Mr. Harvey maintains that his threats to take his dispute to the newspaper and then to the Tribunal are the reasons for the total ban that he considers reprisal. Killam argues those threats had nothing to do with nor formed any part in the decision.
51I believe that each attempted to give evidence honestly and without embellishment to any attempt to couch the evidence in a manner that would advance his or her position.
52It is likely that if either Ms. Tonge or Mr. Majewsky took sufficient time to explain the reason for the denial to Mr. Harvey, this proceeding could have been avoided. In retrospect both parties acknowledge they did not handle the matter in a manner now apparent in hindsight.
DECISION
53In the matter of Jones v. Amway of Canada, Ltd and Art Knott, 2001 CanLII 26217 / 01-009 at page 44;
Unlike enumerated prohibited grounds of discrimination, inherently, reprisal denotes an intention by the respondent to cause injury. Reprisal is an act of retaliation, which is, to repay an injury or insult in kind: (see The Concise Oxford Dictionary). Reprisal is an intentional act. It is a separate head of protection under the Code intended to encourage complainants to pursue their rights without fear of retaliation. …In other words, the complainant must adduce evidence to show that, on the balance, the respondent intended to retaliate. Similarly, any inference of intention or linkage must be based on evidence, which on the balance of probabilities, proves intention. Thus, the respondent must have a consciousness of mind to retaliate.
The Commission and Jones argue that Amway terminated Jones because she complained to human resources that Knott sexually harassed her. They entreated the Board to find that the ‘termination script’ itself is evidence of Amway’s intention to retaliate against Jones because she sought to enforce her rights.
Jones’ uncompromising demeanour was management’s best indicator of her future behaviour. On the totality of the evidence, the Board concludes that Amway’s decision to dismiss Jones was not intended to retaliate against her because she lodged a sexual harassment complaint: Nor was reprisal a motive in its decision to dismiss her.
54And in Miller v. Prudential Lifestyles Real Estate and David Nicholls, 2009 HRTO 1241 at paragraph 35;
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.
The Tribunal has accepted that the words “claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act” do not require that an applicant has actually filed an application under the Code before a reprisal can be found. Individuals may “claim” rights under the Code in a variety of ways, whether through a grievance under a collective agreement, through an employer’s internal human rights policy or, in some cases, by simply raising an objection to alleged discriminatory or harassing conduct. A reprisal may be found even though a human rights application was not filed at the point the alleged reprisal occurred.
However, I am not prepared to accept that the words in the November 20, 2008 email, which must be understood as part of the applicant’s ongoing attempt to force the respondents to accept a settlement of the small claims court proceedings, can form the basis of a reprisal claim.”
The November 20, 2008 email came 17 months after the applicant alleges the respondents infringed his rights under the Code. He was in the midst of a civil action with the respondents, involving competing contractual claims. In the 24 hours prior to the email in question, the applicant had sent numerous emails to the respondents, attempting to convince them to accept his offer to settle, having given them a self-imposed deadline of November 20, 2008. The respondents were unwilling to settle on the terms the applicant was proposing, and were refusing to respond to the e-mails. In an obvious sense of frustration at the respondents’ refusal to negotiate, the applicant sent this email, threatening to go to the Ontario Human Rights Commission (which at that time no longer had jurisdiction to receive individual complaints) if the respondents did not accept his offer.
55And in Noble v. York University 2010 HRTO 878 at paragraph 32,
Intention may be proved by inference, drawn from the whole of the evidence.
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:
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.
56I conclude that the apparent threat by the Applicant to take the matter to the Tribunal, even though he eventually did so, at the time, was not a serious expression of his intention, just as he pointed out, he threatened to write a letter to the editor but never did. These words were written at a time that the Applicant was frustrated that he was unable to get a satisfactory answer from the Respondent and was a threat upon which he never intended to act. He himself acknowledged that he wasn’t sure what action he would ultimately take.
57By the same token, I do not believe that Killam seriously thought that Harvey would either write a letter to an editor or file an application with the Tribunal. They accepted his threat as a further escalation of his conduct and nothing more than puffery in his continuing effort to get a satisfactory answer.
58I accept that Killam was not concerned with either threat and placed no weight upon the possibility that Harvey might complain to the Tribunal in deciding to ban him. In the respondent’s mind, the applicants “threat” was, to them, the “last straw” in a matter that they wanted to end.
59I do not find the decision to ban Harvey from the campground to be an act of reprisal. It was a decision by an owner to ban an individual who they did not believe was compatible with existing seasonal campers from their property based upon his conduct and persistence. As he himself stated, “they (she) didn’t like me”. I cannot find that decision related to the possibility that they might eventually find themselves in this forum.
60Accordingly, the Application is dismissed.
Dated at Toronto, this 19th day of March, 2012.
”Signed by”
Michael Lerner
Member