Brown v. Margoma Holdings Ltd. c/o Briarlane Rental Property Management Inc., 2013 HRTO 1220

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Brown Applicant

-and-

Margoma Holdings Ltd. c/o Briarlane Rental Property Management Inc. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 11, 2013 Citation: 2013 HRTO 1220 Indexed as: Brown v. Margoma Holdings Ltd. c/o Briarlane Rental Property Management Inc.

APPEARANCES

Janet Brown, Applicant Solomon Osezua, Representative

Margoma Holdings Ltd. c/o Briarlane Rental Property Management Inc., Respondent David Rubin, Representative

Introduction

1The applicant alleges that the respondent discriminated against her because of race, marital status and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant identifies as a black woman from Jamaica who lives alone. She alleges that the respondent singled her out for harassment and sought to evict her because of her race, sex and marital status. She also alleges that her superintendent vandalized her apartment and entered her apartment without notice, also because of her race, sex and marital status.

2By Case Assessment Direction dated March 27, 2013, the Tribunal, on its own initiative, directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The Tribunal directed the parties to address two issues in the summary hearing: (1) whether another proceeding has appropriately dealt with all or part of the Application and (2) whether there is reasonable prospect that the applicant will be able to prove a link between the respondent’s alleged actions and the grounds alleged in the Application.

3For the reasons that follow, I find that this Application should proceed to a hearing on the merits.

Section 45.1

4The respondent submitted that the Application should be dismissed under s. 45. 1 of the Code. It submitted that the October 12, 2012 decision of the Landlord Tenant Board (“LTB” or “Board”) has appropriately dealt with the substance of the Application.

5Section 45.1 states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application.”

7A hearing before the LTB is a proceeding for the purposes of s. 45.1. See Legault v. Whitewater Seniors Residence, 2010 HRTO 1542. Therefore, the real issue in this case is whether the LTB’s October 12, 2012 decision appropriately dealt with the substance of all or part of the Application.

8Each of the parties filed applications with the LTB in the past. The respondent filed a number of applications to evict the applicant. The applicant filed applications challenging certain alleged actions by the respondent. The only application that raises issues similar to the human rights allegations in the Application before the Tribunal is an application filed by the applicant (File number TNT-33289-12). In that application, she alleged, among other things, that her landlord had harassed her and altered the lock on her door.

9The LTB addressed that application among others in its October 12, 2012 decision. The LTB dismissed the application on the basis that it did not have the jurisdiction to grant the remedy requested by the applicant. The LTB noted that the only remedy requested by the applicant was that her tenancy be reinstated. The LTB held that it not have jurisdiction to order this remedy as the unit had already been rented to another tenant. The Board found that, given the fact that it was not the first time that the applicant had appeared before the LTB, it would not be fair to allow her to amend the application to seek another remedy. Therefore, the LTB upheld the applicant’s eviction which had already taken place several months earlier.

10Based on the above, it is evident that the LTB did not deal with the applicant’s human rights claims. It dismissed her application without considering it on the basis that it did not have the jurisdiction to grant the remedy she had requested. Although the respondent submitted at the summary hearing that the applicant could have sought to amend her application to request a different remedy, the LTB specifically found that it would not be fair to allow her to do so in the circumstances before it.

11This is not a situation like that in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422 where an applicant obtains an unfavourable judgment on the merits and attempts what could be seen as a collateral attack on that decision by filing a human rights application. Instead, in this case the LTB found it did not have jurisdiction to consider the applicant’s harassment allegations in light of the surrounding circumstances. It simply did not deal with these harassment allegations. Therefore, it is not a collateral attack on the LTB’s decision for the applicant to file an application with the Tribunal which does have jurisdiction over her human rights allegations.

12For the reasons set out above, I deny the respondent’s request to dismiss the Application under s. 45.1 of the Code.

Reasonable Prospect of success

Summary hearing process

13The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

14The Tribunal cannot address general allegations of unfairness unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of unfair treatment because of one or more of the grounds listed in the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

15The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

16The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with the applicant’s personal characteristics. Support for that connection may come in a variety of forms: comments alleged to have been made by the respondent, the timing of certain events, or comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to an application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or beliefs, the application may be found to have no reasonable prospect of success.

17In a summary hearing, the parties are given an opportunity to make submissions, usually on a telephone conference call. These submissions are often helpful in clarifying the nature of the allegations and the evidence that the parties intend to bring forward if the application were to proceed to a hearing on the merits.

18The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

19Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

20The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically, I asked the applicant to explain the connection between the respondent’s alleged actions and her race, sex and/or marital status. The respondent also made submissions in support of dismissing the Application.

21In her Application, the applicant alleged that the respondent scapegoated her and embarked on a mission to evict her. As discussed below, the parties each filed applications with the LTB. These mostly centered on whether the applicant had fully paid her rent. The applicant believes that she had paid her rent in full and in fact overpaid by one month but the respondent continued to seek her eviction. In her Application, the applicant alleged that the respondent sought to evict her due to her race, sex and marital status. The applicant also alleged that the superintendent of her building broke into and vandalized her apartment. According to the applicant, the building superintendent often entered her apartment unannounced, including one day when she was unclothed after having taken a bath. She alleges that he did so because she was a woman living alone.

22The respondent denies all of the applicant’s allegations.

23At the summary hearing, I asked the applicant what evidence she intended to advance to connect the unfair treatment she allegedly experienced with her race, sex or marital status. The applicant replied that both her superintendent and the property manager of her building told her that they wanted to get rid of her because she is a black woman and they said they do not like black people. I note that the applicant did not make any reference to these comments either in her Application or her Reply. In response to the question on the Application form that asks why she believes she was discriminated against because of her race, the applicant stated “[t]he landlord treated me differently because I am a black woman and am from Jamaica.” In response to the questions that ask why she believes she was discriminated against because of her sex and marital status, she listed a number of allegations, but made no mention of the alleged discriminatory comments she referred to at the summary hearing.

24I asked the applicant if she had any witnesses who were present when the superintendent and property manager allegedly made the discriminatory comments referred to in the summary hearing. She indicated that she did have witnesses and that she believed the witnesses would be prepared to testify if this Application were to proceed to a hearing on the merits. The applicant indicated that the pastor or her church was present when one of the comments was made. She also indicated that a deacon and a reverend from another church also witnessed the superintendent and/or property manager make the alleged discriminatory comments.

Findings

25It is important to note that the test in a summary hearing is whether there is no reasonable prospect that the Application will succeed. A decision by the Tribunal to allow an Application to proceed after a summary hearing, does not mean that the Application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement.

26In my view, if proven, the applicant’s allegations could result in a finding that the applicant’s Code-protected rights were infringed. In particular, if proven, the applicant’s allegations regarding the discriminatory comments made by the superintendent and property manager would result in a breach of the Code.

27The respondent stated that it had no knowledge of the comments being made. It submitted that the applicant’s position is not credible, in particular because there is no mention of the alleged comments either in her Application or her Reply. I do find this argument compelling. One would have expected the applicant, who has paralegal representation, to have referred to the alleged discriminatory comments either in her Application or the Reply. However, it is not appropriate for the Tribunal to make credibility findings in the context of a summary hearing. Such findings are most appropriately made in the context of a hearing on the merits where the Vice-chair will have the benefit of in-person testimony and cross-examination.

28It should be left to the Vice-chair hearing the Application to decide how best to structure the hearing of the evidence in this case. In particular, it should be left to the Vice-chair hearing the case to decide whether it is appropriate to revisit the question of reasonable prospect of success at any point in the hearing after certain evidence has been heard.

29For the above reasons, I find that the Application should not be dismissed on the grounds that it has no reasonable prospect of success.

Orders

30The Tribunal orders as follows:

a. The Registrar shall schedule a one-day in-person hearing in this matter.

b. Within 14 days of the date of this Interim Decision, the applicant shall file with the Tribunal and deliver to the respondent a letter setting out in detail her allegations regarding the discriminatory comments referred to in the summary hearing and particulars regarding when the comments were made and by whom.

c. Within 14 days of receiving the applicant’s letter referred to in paragraph b., the respondent shall file with the Tribunal and deliver to the applicant a letter responding to the applicant’s allegations regarding the discriminatory comments.