Marlene Allgood v. Elwood Dawes, 2012 HRTO 916

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlene Allgood Applicant

-and-

Elwood Dawes Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: May 7, 2012 Citation: 2012 HRTO 916 Indexed as: Allgood v. Elwood Dawes

APPEARANCES

Margaret Allgood ) Self-represented Applicant ) )

Elwood Dawes ) Dennis Tousenard, Counsel Respondent )

INTRODUCTION

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination on the basis of disability, family status, and reprisal in relation to housing.

2By Case Assessment Direction dated August 10, 2011 the Tribunal granted the respondent's Request to schedule this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. The hearing took place by telephone on May 1, 2012.

3The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure. The issue in a summary hearing is whether the 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.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably support the finding of a Code violation. In other cases, the focus will be on the applicant's ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant's allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent's witnesses.

5In considering the applicant's allegations, I have also taken into consideration the Tribunal's comments 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.

ANALYSIS

6The applicant was assisted in the hearing by her daughter Terry Norman. The respondent was represented by counsel. The applicant and respondent are brother and sister. The applicant resides in a property owned by the respondent; a property which was previously owned by their mother, Gertrude Bastien. By her last Will and Testament (the "Will"), Ms. Bastien transferred her sole interest in the property to the respondent, subject to a life interest in favour of the applicant and her spouse permitting them to reside in the upstairs apartment, rent-free, for the rest of their lives.

7The applicant alleges discrimination in relation to disability and family status in the area of housing. She alleges that she and her husband have a number of health issues which restrict their mobility and as a result they require accommodation to live safely in the apartment. She alleges that her health has been affected by a number of issues which she has attempted to address with the respondent including the need for a chair-lift, the location of her parking spot, interruptions to hot water service, the removal of her washer and dryer, a threat to remove the fireplace which is a source of heat in the unit, and the refusal of the respondent to speak to the applicant or her family members.

8There is no dispute that there have been difficulties between the applicant and respondent and their respective family members. The parties acknowledge that it is not the role of the Tribunal to attempt to resolve matters or family dynamics associated with the interpretation of the Will.

9The respondent argues that he is not subject to the accommodation provisions of the Code because he is not the applicant's landlord and that the circumstances he and the applicant find themselves in are not comparable to the kinds of housing-related relationships which are contemplated Code. He argues that the life interest was imposed upon him and he owes no duty to the applicant other than as set out in the Will.

10The respondent disputes the fact that the applicant has a disability and therefore needs accommodation of any kind. He also argues that in any event, the chair-lift which the applicant installed has been in place since 2010 and the respondent pays the ongoing hydro expenses for operating the chair.

11The respondent argues that the legal issue engaged by this application is whether the respondent owes a duty to accommodate the applicant in the unique circumstances of this case and that this issue can be disposed of on the basis of the "no reasonable prospect of success" test applied at the summary hearing stage. This issue does not appear to have been the subject of adjudication by this Tribunal and I agree with the respondent that the novelty of an argument does not necessarily ensure that it will proceed beyond the summary hearing stage.

12However, the language of section 2(1) of the Code, which provides the right to equal treatment "with respect to the occupancy of accommodation", does not explicitly limit the application of the Code to conventional landlord-tenant relationships. When that is combined with the liberal, purposive approach applied to the interpretation of the Code, I find that I am unable to conclude that the applicant's allegation that her circumstances come with the housing provisions of the Code has no reasonable prospect of success.

13The respondent raised two other issues. The first is that there is no connection between a number of the issues raised by the applicant and the prohibited grounds under the Code. The second is that there is no live issue between the parties to adjudicate given that the chair-lift, arguably the only issue connected to the prohibited ground of disability, has been in place since 2010.

14The applicant alleges however, that she requires accommodation beyond the chair-lift including a parking spot closer to her unit. She also alleges that some of the other issues cited in her application, including the allegation that the respondent obstructed the installation of the chair-lift, are examples of harassment which have affected her health and safety. Since the resolution of these issues may depend on findings of credibility, I am not prepared to dispose of these issues without hearing evidence from the parties.

15Accordingly, the matter will proceed to hearing. The Registrar will set 1 day for the hearing of this matter. The Notice of Hearing will set out the obligations of the parties as they relate to the exchange of documents and witness statements. In addition, the parties will ensure that any written submissions or case law they intend to refer to in relation to the argument that the relationship between the applicant and the respondent not governed by the Code, is served and filed no later than 14 days before the hearing.