Morris v. Wilson Blanchard Management Inc., 2013 HRTO 105

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Opal Morris

Applicant

-and-

Wilson Blanchard Management Inc. and Halton Condominium Corporation No. 34, Board of Directors

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: January 21, 2013

Citation: 2013 HRTO 105

Indexed as: Morris v. Wilson Blanchard Management Inc.

APPEARANCES

Opal Morris, Applicant

Self-represented

Wilson Blanchard Management Inc. and Halton Condominium Corporation No. 34, Board of Directors, Respondents

Eric Savas and Firdaus Walele, Counsel

Introduction

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 with respect to housing because of race and colour.

2Specifically, the applicant alleges that she experienced discrimination because she was told to remove a balcony enclosure erected by her and her then fiancé, Mr. Robert (Malachi) Male, shortly after buying their condominium unit. She feels she was singled out in this regard because of her race as there were other units in the condominium that had balcony enclosures.

3In addition, she alleges that racist graffiti on an outdoor wall of the condominium was ignored and left untouched by the respondents, despite a complaint being registered by Mr. Male about the graffiti and its potential harmful impact on the couple’s young son. During the course of the hearing, the applicant and her husband, Mr. Male, also alleged that they experienced discrimination because their laundry had been removed and taken or stolen from the common laundry area of the respondents condominium corporation building.

4The applicant seeks monetary compensation, to keep the balcony enclosure until all the enclosures have been removed from the condominium corporation building, an anti-racism program instituted within the respondent organizations and surveillance cameras installed in the alleyways surrounding the condominium corporation building to prevent future graffiti from being put on the walls.

5The respondents deny any discriminatory conduct.

6The respondents state that the applicant was told to cease work on the balcony enclosure project as the balcony is a common element and she had not sought or obtained approval from the Board of Directors of the condominium corporation for the work. The respondents point out that a status certificate that was part of the agreement of purchase and sale for the applicant’s unit clearly stated that because all balcony enclosures were being removed from the building as part of a large scale restoration project in the near future, erection of new balcony enclosures would not be permitted. In any event, they say that the applicant did not heed any requests or demands from the respondents to stop construction or remove the enclosure in question. The enclosure, erected without Board approval, was not taken down until the restoration project took place and was ultimately dismantled at the expense of the condominium corporation. The respondents deny that the interactions with the applicant relating to the balcony are connected in any way to the Code grounds of race and colour as identified by the applicant.

7The respondents deny that they ignored racist graffiti and indicate that when their employees were told about graffiti, they took appropriate steps to deal with it, even though the visible graffiti was on property belonging to a neighbouring strip mall next to the condominium and not on condominium property. In the following months, the respondents arranged to have the walls on both sides of the alleyway painted at the corporation’s expense. Finally, the respondents argue that there is no connection between the applicant’s laundry being stolen and the Code.

8During the course of the hearing into this Application, I heard from the applicant, Opal Morris, who also uses her married name, Opal Male, and her husband, Robert (Malachi) Male. On behalf of the respondents, I heard from Susan Hysert, an assistant superintendent employed by the respondents, and Rick Moran, the independent contractor hired to paint the walls of the alleyway in question.

9For the reasons that follow, this Application is dismissed.

THE LAW

10The relevant sections of the Code are the following:

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

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

THE FACTS

11The applicant bought her condominium unit in April 2010. She and her then fiancé, Robert Male, moved in with their son shortly thereafter. They noticed that more than half the units had balcony enclosures and so they decided to have their balcony enclosed as their son had some health issues and they felt that an enclosure would help.

12The applicant agrees that neither she nor Mr. Male spoke to the respondents in advance of the balcony enclosure work being commenced. There is also no indication that the applicant or her husband discussed their son’s health issues with the respondents during the course of their interactions concerning this issue and I note that it was not raised as a ground in the present Application.

13Mr. Male also admitted during cross-examination that they had not applied for, or obtained, a building permit, or consulted with, or sought permission from, the fire department prior to commencement of construction of the balcony enclosure and acknowledged that these were issues the Board might be concerned with, given the enclosure would be considered a common element.

14Shortly after the work on the balcony enclosure had started in May 2010, the applicant’s contractor came and told the applicant and Mr. Male that he was being harassed by the superintendent of the condominium building. Mr. Male then began speaking to the respondents to try and resolve the issue. Neither the applicant nor Mr. Male instructed their contractor to cease construction while these discussions went on.

15The applicant and Mr. Male say that at the time they began construction of the balcony enclosure, they were unaware that:

(a) the balcony was a common element;

(b) any alteration of a common element required prior board approval; and,

(c) part of the documents included in their agreement of purchase and sale included a “status certificate” stating that no new balcony enclosures would be permitted because of an imminent restoration project being contemplated by the condominium corporation.

16The applicant and Mr. Male do not deny that they were told to cease construction while the enclosure was being put up. They also admit that they were told about the above restrictions at that time the respondents directed that they stop construction of the balcony enclosure.

17It appears that despite a number of letters sent by both the respondents and counsel for the respondent condominium corporation to the applicant and Mr. Male to stop construction of the balcony enclosure, the enclosure was erected and ultimately did not get dismantled until the restoration project took place in the summer of 2011. At that time, all enclosures on the building were removed and none have been rebuilt, including the applicant’s. There is no dispute between the parties that despite repeated requests and demands, the respondents did not take any legal action against the applicant under the Condominium Act for the erection of the balcony enclosure.

18It is also undisputed that the applicant had not actually met any member of the Board of Directors of the condominium corporation prior to the request that she cease construction of the enclosure.

19At around the time that the discussions concerning the removal of the enclosure were taking place, in May, 2010, Mr. Male says that he saw racist graffiti in the alleyway between the condominium building and the strip mall located next door; specifically he says he saw the word “nigger” in large letters and “fuck off nigger” in smaller letters. He says that he told the applicant what he saw. Mr. Male presented a copy of photographs taken in May, 2010 of a wall on which the two pieces of graffiti appear, as described, written in what looks like chalk. During the course of hearing evidence on this issue, it became clear that the graffiti in the pictures presented into evidence was on the wall owned by the neighbouring strip mall rather than on condominium property.

20The applicant and Mr. Male also agreed that the applicant never went into the alley during the time that they allege the graffiti remained on the wall (i.e., between May and October 2010) and so, did not actually see the graffiti herself.

21The applicant and Mr. Male did not tell the respondents in May 2010 about the graffiti because they did not want to appear to be complainers.

22In July, 2010, Mr. Male stated that he mentioned the graffiti to employees of the respondents, specifically, Tobi Scott Conacher, the property manager, and Susan Hysert, an assistant superintendent. He also spoke to Glen Hysert, Susan Hysert’s husband, who he believed to be an employee of the respondents. However, during the course of the hearing, I heard evidence that Mr. Hysert is not employed by the respondents.

23Mr. Male testified that a discussion took place between him and Glen Hysert about what was on the wall and whether it was on the side of the alleyway owned by the respondent condominium corporation. According to Mr. Male, there was also a discussion about whose job it was to clean up any graffiti and whether or not the Board of Directors would have to authorize the expenditure for clean-up.

24The evidence from Susan Hysert, an employee of the respondents, was that when Mr. Male told her in July 2010 there was racist graffiti in the alleyway, she went out to see what he was talking about. She says she saw the word “nigger” written in what appeared to be ink on the strip mall or plaza side of the alleyway.

25She says she was offended by the word and concerned, as was Mr. Male, that children would see it, and she took a black marker out and scratched out the word even though it was on plaza property and was not owned or operated by her employers.

26At the time, Mr. Male and Ms. Hysert agree that he thanked her. It was not until a short time later that he told Ms. Hysert that, in his view, she had not addressed the problem. It is also not disputed that Mr. Male told Tobi Scott Conacher that the problem of the graffiti remained unresolved.

27Ms. Hysert returned to the area and testified that she took another look. She says that although there were faded out words that had been written in chalk on both walls she could not see any other racist graffiti.

28During the hearing, Mr. Male presented three pictures of the plaza owned wall taken in July 2010 and two pictures of the plaza owned wall taken in August, 2010. These pictures show faded and weathered markings made of chalk and a piece of racist graffiti written in black ink of some sort and then covered up with black marker.

29During the course of the hearing, the applicant indicated that there was also a video recorded by Mr. Male that showed the alleyway in question. As the video had never been disclosed, had not been exchanged as arguably relevant material to the respondents, or filed along with the other materials that the applicant intended to rely upon at the hearing, the video was not played at the hearing and was not entered into evidence.

30Although Mr. Male’s position was that there was graffiti on both walls, he acknowledged that the pictures he took, disclosed and filed with the Tribunal showed graffiti on the plaza side and not on the condominium wall.

31He also acknowledged that written transcripts prepared by either the applicant or him of conversations he recorded with a number of the employees appear to suggest that there was graffiti on the plaza wall alone. Finally, he also agreed that the narrative in the Application documents prepared by both him and the applicant suggests that only one wall was involved with two slurs appearing on it.

32Mr. Male acknowledges the action taken by Ms. Hysert immediately upon notification in July 2010, and that both sides of the alleyway were painted over in October 2010.

33Mr. Male also gave evidence that Rick Moran, the independent painting contractor, painted over all discolorations and graffiti on both walls in and around October, 2010. No further graffiti has come to his attention in that location since that time.

34There is no evidence that any other part of the respondent condominium corporation’s property contained any graffiti of a racist nature.

35Mr. Moran also gave evidence. He testified that he has no specific memory of the October 2010 occasion when he went to the respondent condominium property to seal and paint the walls in the alleyway between the two properties. He does not recall what, if anything, was written or was visible on either wall. He says he often goes to paint over areas that have been damaged by various types of graffiti. Although he is usually called in by the condominium corporation, he will often paint over the walls of the adjoining property, if necessary, as a courtesy.

36With respect to the issue of the stolen laundry, Mr. Male gave evidence that in May 2010, the family’s laundry went missing from one of the machines in the common laundry facilities shared by the residents of the condominium building. He and the applicant found the timing suspicious as they were having problems with the enclosure issue and he had seen the racist graffiti at the same time. When he ultimately raised his concerns about the graffiti in July 2010, he also told the respondents about the missing laundry and he is upset that nothing was done about it.

37The applicant testified that as a result of these events, specifically the disagreement about the balcony enclosure and the pressure to first cease construction and then to remove the enclosure, the failure of the respondents to address the graffiti problem and the missing laundry, she and her husband suffered both physical and mental problems.

38They could not enjoy their wedding, their relationship with their son was damaged, her second pregnancy was marred by depression and stress and there was a lot of strain on the marriage. Her husband had to quit his daytime job and take on nighttime work in order to be at home with her and their son.

39She testified that as she is not a very vocal person, she internalized her feelings of shock, anger, sadness and frustration and, as a consequence, had headaches and backaches as the physical side effects of her tension and upset. She also began grinding her teeth and had to purchase a mouthpiece to treat that problem.

40Despite the fact that she never saw the racist graffiti and knew that all graffiti was painted over by October 2010, she says she is fearful as she does not know who put up the graffiti and she has only used that alleyway once in all the time she has lived at that location.

DECISION

41The applicant self-identifies as black. She argues that she has been discriminated on the basis of race and colour contrary to the Code in connection with: the respondents’ actions taken to remove her balcony enclosure; the respondents’ lack of immediate action taken with respect to the removal of racist graffiti; and, the theft of the applicant’s laundry from the laundry area of the respondents condominium building. Each of these issues is dealt with below.

Balcony Enclosure

42I find that the applicant has not established any link, overt or otherwise, between her race and colour and the actions taken by the respondents in respect of the balcony enclosure issue.

43I accept the respondents’ evidence on this issue and find that the status certificate attached to the agreement of purchase and sale for the applicant’s condominium unit contained a clear provision that the Board of Directors of the condominium corporation would not approve the construction of any new balcony enclosures. Although the applicant and her husband testified that they did not know the rules relating to condominium living, were unaware of the restrictions related to common elements and did not get their closing documents from the lawyer representing them on the real estate transaction, this does not exempt the applicant from abiding by the rules and restrictions.

44There is no evidence that requests to erect new enclosures by people not of the applicant’s race or colour were treated differently and that any such applications were approved where the applicant’s was not. There is also no indication that following the eventual removal of the enclosure the following year, other residents in the condominium have been able to erect similar enclosures. It appears that the building is now enclosure free.

45In fact, the evidence shows that despite repeated requests and demands made by the respondents to stop the construction of the balcony enclosure, the applicant completed construction of the enclosure and had the use and enjoyment of the structure until the following summer when all such enclosures were dismantled by the condominium corporation.

46The evidence of the applicant and Mr. Male is that they had not met any of the members of the Board of Directors of the respondent condominium corporation before receiving the first direction to cease construction. I have no evidence on which to base a finding that the members of the Board were even aware of the applicant’s race or colour at the time it made its request that the applicant and her husband cease construction.

47The applicant has not met her onus of proving on a balance of probabilities that she experienced differential treatment as a result of her race and colour with respect to this allegation.

Laundry Issue

48Similarly, I find that the applicant has failed to establish any link between the Code grounds identified, the respondents’ conduct and laundry being stolen from machines in a common area of the condominium building by unidentified third parties.

Racist Graffiti

49The applicant’s argument with respect to this issue is that by being indifferent to the issue and not arranging for painting to be done for three months after being made aware of the racist graffiti, the respondents created a poisoned atmosphere that was tolerant of racist abuse within the condominium environment.

50I have no trouble accepting that the graffiti term used is a hateful one and the applicant confirmed that, to her, the term is synonymous with hatred and death.

51Although the applicant did not herself ever view the racist graffiti in person, she was informed of it by her husband and was aware of its existence because of photographs taken by him in May 2010 that he showed to her.

52At the time Mr. Male saw the graffiti first in May 2010, the applicant and her husband both appeared to think the condominium corporation was responsible for both walls in the alleyway, so I accept that the presence of the graffiti on what she believed was condominium property would be harmful to her. However, the applicant and her husband did not tell the respondents about the graffiti in May 2010, when it was discovered, and as such, the respondents did not have an opportunity to take any action at that time.

53When the applicant and her husband notified the respondents about the presence of the graffiti two months later in July 2010, the applicant’s evidence is that Ms. Hysert’s husband, who is not actually employed by the respondents, told them that only one of the two walls belongs to the corporation, with the other being separately owned by a neighbouring strip mall plaza.

54While the discussion about whether the corporation’s funds could be used to clean up neighbouring property without consulting the Board of Directors may have frustrated the applicant and her husband, I cannot agree that it amounts to discriminatory conduct and, in any event, Mr. Hysert is not employed by the respondents.

55The evidence is also clear that when Ms. Hysert was told about the racist graffiti in July 2010, she took immediate action and tried to cover up the only visible racist language that she could see and that was visible in the photographs entered into evidence by the applicant, even though that meant she was actually doing so on the wall of the neighbouring property.

56The evidence does not support the applicant’s position that Ms. Hysert’s actions did not cover up the only visible graffiti. Ms. Hysert’s testimony that she could not see any other graffiti of a racist nature when she went to view the walls is credible.

57I have viewed the photographs and, quite apart from the fact that the photographs are all of graffiti on property not owned or under the control of the respondents, I find that the pictures do not show visible graffiti other than that piece covered by Ms. Hysert. The balance of the wall is covered with weathered and faded items, originally rendered in chalk, and that are not clearly visible. I cannot see what other step she could or should have taken at that time.

58The photographs entered into evidence that show the walls after they have been painted also show no sign of visible graffiti of a racist nature. All graffiti on both walls, most of it apparently rendered in chalk, and already significantly faded and weathered was eventually covered over with paint by a person retained by the respondent condominium corporation. I find that the steps taken by the respondents to remove the graffiti were entirely reasonable in the circumstances.

59As such, the applicant has not met her burden in establishing that a violation of her rights under the Code took place. Accordingly, the Application is dismissed.