Kuffuor v. Kam, 2013 HRTO 1264

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nana Kow Kuffuor

Applicant

-and-

Michael Wan Kam

Respondent

DECISION

Adjudicator: Ena Chadha

Date: July 19, 2013

Citation: 2013 HRTO 1264

Indexed as: Kuffuor v. Kam

WRITTEN SUBMISSIONS

Nana Kow Kuffuor, Applicant

Self-represented

Michael Wan Kam, Respondent

Self-represented

INTRODUCTION

1This Application was filed on February 2, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal in the area of housing on the grounds of race, colour and disability.

2The applicant self-identifies as a Black man living with mental and physical disabilities. In January 2012, the applicant rented a room in a townhouse shared with other tenants. The applicant alleges that he was in a vulnerable state as a result of his disabilities and that the respondent landlord took advantage of this by charging him a higher rent. The applicant claims that he was promised a clean environment, but the respondent landlord allowed the co-tenants to keep the kitchen and bathroom in filthy conditions. The applicant alleges that he was discriminatorily evicted in February 2012 for voicing his concerns. The applicant alleges that respondent landlord described him as a “scary Black man” when contacting the police to have him evicted.

3The respondent filed a Response on March 22, 2012 denying the allegations. The respondent alleges that the applicant was informed prior to moving into the townhouse that he was renting a room in shared accommodations, which involved a team effort to clean the house. The respondent alleges that the house was sufficiently tidy and that he attempted to address the applicant’s concerns. The respondent alleges that the applicant’s tenancy was terminated for nonpayment of the initial deposit and for nonpayment of February's rent, as well as threatening other tenants both verbally and by text messages. The respondent also asserted that he is exempt under section 21(1) of the Code as the owner of a shared accommodation dwelling.

4In addition, the respondent requests that the Application be dismissed, under section 45.1 of the Code, as appropriately dealt with by the Landlord and Tenant Board (“LTB”). A LTB hearing took place on February 22, 2012 and only the respondent attended the hearing. Consequently, the LTB determined that the applicant had abandoned the case and ordered the applicant to pay the respondent $100 for failing to attend the hearing, as well as any outstanding monies. The respondent submits that the LTB appropriately dealt with the substance of the Application.

5In his Reply submissions, the applicant contends that the respondent’s claim to have lived in the house is false and, therefore, section 21(1) is not applicable. The applicant alleges he withdrew the LTB application because he believed that, since the respondent was claiming the house was a shared accommodation, his case was not covered by the Residential Tenancies Act, S.O. 2006, c.17, as amended. The applicant alleges that the faxed letter withdrawing his case was not received in advance of the LTB hearing. The applicant contends that this is not a circumstance where the Tribunal can find that his human rights issues have been properly heard and, as such, the Application should not be dismissed under section 45.1.

PROCEDURAL BACKGROUND

6By way of Case Assessment Direction dated June 8, 2012, the Tribunal determined that the parties should be given an opportunity to make submissions with respect to the issues of section 45.1 and section 21(1) of the Code, as well as the merits of the Application.

7On July 27, 2012, the applicant filed a Request for an Order During Proceedings asking that the hearing process take place in writing to accommodate his disabilities. The applicant referenced medical documentation that he had previously provided. The respondent did not file submissions in response to the applicant’s request for a written hearing.

8In light of the applicant’s request for a written hearing due to his health and the respondent’s lack of response to this request, the Tribunal converted the oral hearing into a written hearing. The Tribunal directed the parties to provide their evidence and submissions with respect to the preliminary issues and the merits of the Application in written format by way of any submissions, affidavits, signed declarations and documentary materials.

9The applicant filed numerous documents, including, amongst other things, voluminous written submissions, transcripts of cellular phone text messages exchanged by the parties, a copy of the rental lease and medical notes confirming his health conditions. The respondent also submitted written submissions and various supporting documentary materials. The respondent provided two signed written statements from his co-tenants and a signed statement from the neighbour with the adjoining property. The respondent also provided two Notices of Assessment from the Canada Revenue Agency for 2010 and 2011 and a copy of his driver's license.

10Although the Application did not cite the ground of age, the applicant’s written submissions raised concerns with respect to age discrimination. As such, I also considered the ground of age as part of the applicant’s allegations of discrimination and harassment.

DECISION

Discrimination and the Shared Accommodation Exemption

11The applicant alleges that he experienced discrimination on the basis of colour because the respondent described him to the police as “a big, scary Black guy”. It appears the applicant is alleging that the respondent discriminated against him when the respondent stereotyped him as violent and sought the assistance of the police in having him evicted. In addition, the applicant alleges that he was discriminated against based on age and disability because of “the “state of affairs at the home that [the respondent] expected that [the applicant] should be satisfied with”. It appears the applicant is asserting that, because he was about ten years senior to the other twenty-something age tenants and because of his physical and mental disabilities, he should not have been subjected to the grubby and unkempt state of the premises.

12The Code provides that everyone has the right to equal treatment with respect to housing in Ontario. The Code applies to most residential tenancies and landlords are responsible to ensure that the accommodation is provided free of discrimination and harassment. The relevant Code provisions are:

Accommodation

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.

Harassment in accommodation

2.(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.

13The Code also creates an exception to the right to equality in residential accommodation for owner occupier shared facilities. The relevant provision is:

Residential accommodation

Shared accommodation

21.(1) The right under section 2 to equal treatment with respect to the occupancy of residential accommodation without discrimination is not infringed by discrimination where the residential accommodation is in a dwelling in which the owner or his or her family reside if the occupant or occupants of the residential accommodation are required to share a bathroom or kitchen facility with the owner or family of the owner.

14In summary, the prohibition against discrimination in housing is not applicable to a residential dwelling involving certain types of shared occupancy with the owner or the family of the owner of the dwelling. Pursuant to section 21(1), section 2 of the Code does not apply if a tenant shares a bathroom or kitchen with the owner or the owner’s family. As such, if the respondent is an owner landlord (or the owner’s family) who resides in the dwelling and shares either a washroom or a kitchen with a tenant, the respondent is exempt from the Code’s right to equal treatment. The anti-discrimination exemption for such shared facility residences means that an owner, or the family of the owner, can chose with whom they wish to co-habitate and the terms of the tenancy.

15The applicant disputes that the respondent was a resident of the townhouse and argues that the respondent cannot rely on section 21(1). The applicant claims that the respondent was rarely present in the house. The applicant notes that, in one of the respondent’s text messages to the applicant, the respondent referenced the home as his “business”.

16The respondent agrees that he was absent for some periods of time during the month when the applicant resided in the townhouse. The respondent explains that in January 2012 he was house-sitting for his mother who was overseas; however, he maintains that he did occasionally return to the townhouse to sleep. The respondent acknowledged that in one of his texts he described the house as a “business” because he always reports the rent as a source of income.

17As previously noted, the respondent provided two signed witness statements from the co-tenants, both of who confirm that they resided with the respondent in the townhouse since 2010. Each tenant states that the respondent has always lived in the house during the years that they rented rooms from him. One tenant indicates having knowledge that the respondent was travelling back and forth from his mother’s home and the townhouse during January 2012. The respondent also provided a signed statement from his neighbour who refers to the respondent as “an exemplary neighbor, with whom I have shared many meals and chores around our adjoining properties.”

18The respondent provided documentary evidence in the form of two Notice of Assessments from the Canada Revenue Agency and a driver’s license, all of which confirm his residential address as that of the townhouse. The respondent also provided a copy of the rental advertisement posted to advertise the applicant’s room around the time of the applicant’s eviction. The advertisement states that the “there’s three of us super easy-going males” residing in the townhouse seeking another roommate.

19I have carefully reviewed the lengthy transcripts of the parties’ text messages furnished by the applicant in support of his case. I see nothing in the messages that counter the respondent’s claim and establish that the respondent did not reside in the townhouse. Rather, the messages suggest that the respondent was present in the townhouse for cleaning the kitchen, collecting mail, and other chores. In fact, in one message, the applicant states that he observed the respondent’s room was cleaner in comparison to the two tenants. In another text message from the applicant to the respondent in which the applicant is critical of the co-tenants’ failure to supply their share of the toilet paper, the applicant questions the respondent as to whether he routinely cleaned up after the other tenants.

20One of the respondent’s texts to the applicant clearly speaks to the fact that the respondent has shared the house with a number of tenants. In replying to the applicant’s complaints of uncleanliness, the respondent writes in his text message that, “I’ve lived with over 15 people these past few years and Ive (sic) never had anyone say this house is a dirty house to live in, ever, guys and girls that I lived with”.

21Based on the materials filed by the parties, I determine that there is sufficient evidence, in particular the witness statements, upon which to conclude that the respondent shared the dwelling and facilities with the other tenants, including the applicant. The respondent’s government-issued documentation establishes that that the townhouse was the respondent’s primary residence. I accept the respondent’s explanation that in January 2012 he was away from the townhouse for some periods of time to house-sit for his mother, but that he did on occasion return to his premises. The applicant’s evidence failed to substantiate his assertion that the respondent did not reside at the townhouse.

22Thus, as a shared owner occupied residence, the respondent is entitled to rely on section 21(1) of the Code. Since the respondent has established that this tenancy is covered by the exemption, the respondent is discharged from the application of the rights and responsibilities with respect to equal treatment in housing and, accordingly, the applicant’s allegations of discrimination must be dismissed.

23Given my decision that the section 21(1) exemption applies to the facts of this case, it is not necessary for me to consider the merits of the applicant’s allegations of section 2(1) discrimination with respect to race, disability and age.

Harassment

24Section 10 of the Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. In order to prove harassment, the evidentiary burden on an applicant is to demonstrate that a respondent directly or indirectly perpetuated vexatious actions or made offensive remarks that were unwelcome or ought to have been known to be unwelcome in relation to a Code-protected ground.

25The applicant alleges that he was harassed by the respondent and the co-tenants as a result of being forced to reside in unreasonable living conditions. It is evident from the Application narrative and the applicant’s documentary evidence, specifically the transcripts of the cellular phone text messages, that the applicant’s chief complaint was his belief that the respondent deliberately misled him regarding the cleanliness of the house and because he was required to supply toilet paper for the shared washroom.

26The applicant repeatedly emphasizes that he experienced a “poisoned and oppressive environment” because of the griminess of the kitchen and washroom. Except for referencing these unsanitary living conditions, the applicant did not highlight any evidence of objectionable comments or conduct to which he was subjected in connection to his Code-related characteristics.

27I appreciate that the applicant was dissatisfied with tenancy arrangements because of the alleged unclean premises; however, in the circumstances of this case, I find that the concern of unclean shared facilities does not constitute harassment or a poisoned environment on the basis of any protected ground under the Code.

28While I have considered the applicant’s claim of the right to be free from harassment and concluded that the applicant has failed to make out a prima facie case, I note the issue of whether section 21(1) exempts harassment protection in the situation of an owner occupied shared residence remains unsettled: see, Hill-LeClair v. Booth, 2009 HRTO 1629. As was held in Hill-LeClair, given my findings above, it is not necessary to decide on the relationship between section 21(1) and the section 2 anti-harassment provision because the applicant has failed to satisfy the factual and evidentiary threshold for Code-related harassment. In particular, I find that no evidence was tendered to suggest that the applicant was subjected to any offensive comment or conduct in relation to a Code-ground.

Reprisal

29Section 8 of the Code provides to an applicant the right to claim and enforce human rights without reprisal. Tribunal jurisprudence has long held that the prohibition against retaliation is a separate head of protection, which like other Code rights, is to be interpreted purposively: Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Div. Ct.). The right to be free from Code-related reprisal has been explained by this Tribunal as follows:

Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal. Reprisal has been held to be a separate ground of liability distinct from the discrimination and harassment protections of the Code. The test for reprisal includes a requirement that there be some evidence of the respondent’s intention to reprise or evidence of a link between the complainant’s invocation of rights and the respondent’s subsequent conduct that is considered to be retaliatory. The respondent’s intention may be inferred based on the complainant's reasonable perception that the respondent's action served as retaliation because of the complainant’s assertion of rights: see Jones supra at paras. 107-115 and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON C.A.). Damages can be awarded separately for a violation of section 8: see Ketola v. Value Propane Inc. 44 C.H.R.R. 20, 2002 CanLII 46510 (ON H.R.T.) and Curling v. Victoria Tea Co Ltd., 38 C.H.R.R. 216, 2000 CanLII 20870 (ON H.R.T.).

Smith v. Menzies Chrysler, 2009 HRTO 1936 at para. 162. See also, Noble v. York University, 2010 HRTO 878.

30In summary, reprisal can be any act of retaliation and an applicant does not need to prove discrimination or harassment to engage section 8 protections. As such, I conclude that, notwithstanding the section 21(1) exemption in relation to section 2, the applicant may claim a right to be free from reprisal. For a finding that section 8 was contravened, the applicant must establish an intention on the part of the respondent to intimidate or punish, or threaten to penalize, the applicant for having claimed, or attempted to enforce, a right under the Code. The requisite intention to retaliate can be inferred from the overall evidence.

31The applicant stated that he believes he was reprised against because the respondent took steps to evict him after he complained that the grimy premises were a form of harassment and a violation of his human rights. The applicant points to the various cellular text messages wherein he told the respondent that he was prepared to seek arbitration for the respondent’s “breach of contract” in failing to satisfy hygiene standards.

32The respondent denies that his decision to evict the applicant was retaliation for the applicant’s claims to seek legal recourse. The respondent alleges that he was forced to evict the applicant because of the applicant’s verbal and written threats towards the other tenants, as well as the applicant’s failure to pay rent. The respondent points to a threatening text message where, because the co-tenants did not reciprocate in purchasing their share of the house’s toilet paper, the applicant states the co-tenants are “simply stupid piece of shit kids that I would backhand into a wall and stomp their ribs until they snapped under a state of permanence.”

33I agree with the respondent that the content and tenor of the above-cited text message is disturbing and cause for concern. In these circumstances, I do not accept that the respondent reprised against the applicant by seeking police assistance and evicting the applicant.

34I also find that the applicant failed to establish any evidentiary link between the invocation of his rights and the alleged retaliatory eviction. Putting aside the significant concern regarding the threats of violence, there is no evidence that the applicant raised the Code or attempted to claim his protests of uncleanliness were related to his human rights prior to the respondent’s efforts to have the applicant vacate the house. All of the applicant’s statements, before the respondent gave notice of eviction, expressed an intention to seek legal redress related to a “breach of contract” in relation to the respondent’s alleged assurance that the house was clean.

35Having carefully reviewed the cellular text messages, it is clear that the applicant did not assert a Code right in advance of the respondent’s requests that the applicant move out, but rather the applicant was claiming a breach of contract for perceived sanitary violations. I do not find that this is constitutes claiming or enforcing a human right within the meaning of reprisal under the Code. Lastly, I also find that, applying the test of reprisal, the applicant has not established that the respondent intended to retaliate.

36In conclusion, there is insufficient evidence to support the applicant’s allegation that reprisal was a factor in the termination of his tenancy.

Conclusion

37In light of my decision, I do not need to address the issue of section 45.1 of the Code.

38The application of section 21(1) exempts the respondent’s shared occupancy residence and, consequently, there is no violation of the Code with respect to the applicant’s allegations of discrimination.

39There are no allegations of harassment that relate to any specific Code grounds. Given my conclusion that the applicant did not make out a prima facie case of harassment, it is not necessary for me to decide whether section 21(1) precludes the applicant’s allegations with respect to harassment.

40In view of the evidence establishing the concerns of potential violence, the respondent’s decision to evict the applicant does not constitute a reprisal or threat of reprisal within the meaning of the Code.

41Accordingly, the Application is dismissed.