Alex Ade-Ajayi v. Peel Access to Housing (P.A.T.H.) and Region of Peel, 2012 HRTO 613

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alex Ade-Ajayi

Applicant

-and-

Peel Access to Housing (P.A.T.H.) and Region of Peel

Respondents

RECONSIDERATION DECISION

Adjudicator: Sherry Liang

Date: March 23, 2012

Citation: 2012 HRTO 613

Indexed as: Ajayi v. Peel Access to Housing

APPEARANCES

Alex Ade-Ajayi, Applicant ) Self-represented

Peel Access to Housing (P.A.T.H.) and )

Region of Peel, Respondents ) Ann Dinnert, Counsel

1This is an Application filed on March 29, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2By Decision dated January 18, 2011, 2011 HRTO 131, the Tribunal dismissed the Application as abandoned, based on the applicant's failure to appear at a conference call hearing in this matter. The applicant filed a Request for Reconsideration of the decision. By Case Assessment Direction of May 16, 2011, I directed a conference call hearing to receive the parties' submissions on the following issues:

• Whether the applicant has shown a basis for reconsideration of the Decision of January 18, 2011 and whether the Decision should be revoked;
• Whether the Application is untimely in any event;
• Whether the Application has a reasonable prospect of success in any event. In this respect, the parties are directed to Rule 19A of the Tribunal's Rules of Procedure (Summary Hearings). The applicant will be expected to explain to the Tribunal how the Application has a reasonable prospect of success and could reasonably lead to a finding of a violation of the Code against the respondents. He will be expected to explain how he can prove, on a balance of probabilities, that he experienced discrimination on the basis of his race, colour, ancestry, ethnic origin or sex.

3For the reasons that follow, I find that the Application has no reasonable prospect of success. I therefore deny the request to reconsider the decision of January 18, 2011 dismissing the Application. Because of my conclusion, it is unnecessary to determine whether the Application would have been untimely in any event.

BACKGROUND

4The applicant claims discrimination in housing on the grounds of race, colour, ancestry, ethnic origin and sex, arising out of the respondents' (collectively referred to herein as "the Region") denial of his request for Special Priority Status for housing. He self-identifies as a black man of African origin, new to Canada.

5In the Application materials, the applicant states that he was living with his wife in an apartment building owned by Peel Living (the Region). He states that due to domestic violence on the part of his wife, for which she was charged, he left the family home.

6The applicant states that when he left due to domestic violence, he spent some weeks in a Salvation Army Shelter. He states that during his time in the shelter he was told by an employee of the Region that as a victim of domestic violence he should qualify for priority housing status, although it was uncommon to have a male victim of domestic violence and being black makes it most unusual. He states that the worker stated that all the individuals she was aware of who had received such assistance were women. During oral submissions before me, the applicant stated that the individual who made these comments was from the Salvation Army.

7The applicant decided to make an application for priority housing status. In a letter dated February 18, 2009, he was advised that he was not eligible as his proof of cohabitation "is not supported by the tenancy record provided by the Social Housing Provider Peel Living..." He was advised of his option to appeal the denial, and the applicant submitted a letter on February 27, 2009 with his submissions in support of his appeal. In the letter, he explained that he and his wife were married with two children and that after a long period of separation, he and his wife reconciled and decided to live together again. He acknowledged that his name was not on the tenancy record, but explained that he left it up to his wife to update the records to include him. He explained that he paid rent on the apartment. The applicant also stated that he is a landed immigrant who was under the sponsorship of his wife.

8The applicant submitted other proof of cohabitation with his appeal letter. He concluded the letter by stating that "the only reason why the proof of cohabitation was not supported by tenancy records of Peel Living was ultimately a failure of my wife to do so, as is required of her by the housing provider. This should be her fault and I should not be made to suffer any consequences for action or inaction...In conclusion I submit that it will be unfair, unjust and a duplication of the pain of abuse already suffered if the decision of PATH regarding my eligibility for Special Priority Status is allowed."

9In a letter dated March 19, 2009, the Region denied his appeal stating that "[i]t is PATH's policy to use the confirmation of the social housing provider to verify cohabitation in these cases and Peel Living has confirmed that they have no record of you ever living in that unit." On March 29, 2010, the applicant filed this Application.

RECONSIDERATION REQUEST

10The Tribunal convened a conference call on January 17, 2011 to receive submissions of the parties on whether the Application should be dismissed for delay. The applicant did not appear on the conference call and the Application was dismissed as abandoned.

11The applicant filed a Request for Reconsideration. Rule 26.5 of the Tribunal's Rules of Procedure states that such a Request will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

12In his Request for Reconsideration, the applicant relied on the criteria in (b) above. He states that his telephone service provider disconnected his phone service on the day of the teleconference hearing, at a time which coincided with the hearing. He states that he waited in anticipation of the hearing but "the call never came through". He states he only became aware of the service disruption much later in the day.

13During his oral submissions, the applicant repeated the submissions in his Request. He also stated that he had evidence establishing the service disruption. I pointed out to him that the Tribunal's notice of the hearing required him to call into the conference call. I inquired why he was under the impression that the Tribunal was to call him on his cell phone.

14The applicant states that it was an honest mistake, and that he believed that he was to wait for a call from the Tribunal.

15The reason for the applicant's non-attendance was not through lack of notice. He does not deny having received notice of the hearing. Nor was it the service disruption. Rather, the reason was the applicant's mistaken impression, despite the information in the notice, that the Tribunal would call him at the time set for the conference call.

16I find that these circumstances do not support granting reconsideration under the criteria in (b) above, as there is no doubt that the applicant received notice of the conference call hearing and it was his own mistake, not lack of notice, that caused him to miss the hearing. The applicant's mistake might in some circumstances support reconsideration under criteria (d) (other factors that outweigh the public interest in the finality of Tribunal decisions). But in any event, given that I find the Application has no reasonable prospect of success, I see no basis for re-opening the Application.

REASONABLE PROSPECT OF SUCCESS

17In his submissions, the applicant submitted that the denial of his application for priority status must have been based on discriminatory factors. He submits that it is clear from the letters of February 19 and March 19 that the Region simply wanted to find a way to reject his application. They completely disregarded his submissions and his documentation. As well, he submits, based on Regulation 298/01 under the Social Housing Reform Act 2000, that the Region wrongfully ignored the fact that he met one of the criteria for eligibility, in that he was under sponsorship. He states that in his appeal, he provided a great deal of information and documentation that the Region should have taken into account. The fact that they apparently did not consider it at all caused him to conclude that their decision must be based on prejudice.

18The applicant stated that he believes women are treated more favourably than men in such applications based on the comment made by the Salvation Army worker at the shelter in the fall of 2008. Also, he has seen posters produced by the Region to bring attention to domestic violence, and the posters are all based on an assumption that victims of domestic violence are women and children.

19The applicant asserts that a woman in his position would have been treated more favourably, and that the Region would have "gone the extra mile" to assist her, but did not make any efforts to assist him.

20The Tribunal's approach on a summary hearing was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, 2010 HRTO 1994 at paras. 7-10:

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.

21The question before me is whether there is any reasonable prospect the applicant can establish that his race, colour, ancestry, ethnic origin or sex were factors in the denial of priority housing status to him. In this case, it is a question of whether there is a reasonable prospect that evidence the applicant has or is reasonably available to him can show a link between the denial and the prohibited grounds.

22This is not a case where the respondents have provided no explanation for their decision. Here, the Region explained the basis of the denial in their letters of February 18 and March 19, 2009. The applicant found the letters cursory and takes from that that the Region was looking for a way to deny his application, based on prejudice. The first letter is certainly a form letter, and simply informs the applicant through check marks the area in which his application was lacking. But that in itself does not provide evidence of discrimination. The second letter, the appeal letter, is also brief. It does not address all the reasons the applicant provided in support of his request. In essence, it confirms the original decision, based on the same reason as previously given. But again, that in itself also does not provide evidence of discrimination.

23The Tribunal does not have the power to deal with claims of unfairness, or even wrongdoing, in the administration of a service or benefit scheme. As stated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, 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 or the intention by a respondent to commit a reprisal for asserting one's Code rights.

24In Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, the Tribunal stated that "there must be more than a simple allegation that a program was misapplied to establish discrimination, and I do not agree that even a clearly wrong application of a program in an individual case establishes discrimination."

25It is not the Tribunal's task to determine whether the applicant was wrongfully denied priority housing status, or whether the information and evidence he provided to the Region was sufficient to meet the criteria for such status. The Tribunal's authority is based in the Code, which prohibits unequal treatment on the grounds specified. Here, there is no direct evidence that the decision to deny the applicant the benefit he sought was based in any part on a prohibited ground of discrimination. Further, even accepting the applicant's description of the poster produced by the Region, his account of a conversation with one individual in the fall of 2008, and all the circumstances which the applicant believes support his conclusion that prejudice lay at the root of the Region's decision, I do not find any reasonable basis for an inference that such was the case.

26The Region provided a reason for its rejection of the applicant's request. The reason, that he had no proof of cohabitation based on the tenancy record of Peel Living, is consistent with the information on priority housing on the Region's website and its description of the documentation required as proof of cohabitation. Whether the reason was right or wrong, fair or unfair, the circumstances the applicant refers do not provide any reasonable basis for a conclusion that the reason was merely a pretext for discrimination, and that the rejection was because of the applicant's race, colour, ancestry, ethnic origin or sex.

27In the result, I find the Application has no reasonable prospect of success.

28Even if I accept the applicant's explanation for why he did not attend the conference call hearing on January 17, 2011, there are no factors that support reconsideration of the decision of January 18, 2011 and the Request for Reconsideration is dismissed.