Janseyit Tileubay v. Princess Management, 2013 HRTO 1414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janseyit Tileubay

Applicant

-and-

Princess Management

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: August 16, 2013

Citation: 2013 HRTO 1414

Indexed as: Tileubay v. Princess Management

APPEARANCES

Janseyit Tileubay, Applicant Self-represented

Princess Management, Respondent David Rubin, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation (housing) because of race, age and association with a person identified by a Code-protected ground.

2The applicant seeks monetary compensation in the amount of $10,000. He also seeks an order that the respondent develop policies and implement training for staff. In the Application, he alleges that he was denied housing and was harassed contrary to the Code. He indicates that he believes he was discriminated against as “there was nothing other than race and age immediately obvious about me”. He identifies himself as “Asian”.

3The applicant alleges that on January 12, 2012, he and his wife made inquiries at an apartment building owned by the respondent, but he was not shown an apartment due to discrimination due to his race, age and association with a person identified by a Code protected ground.

4The respondent asserts that the applicant and his wife arrived at the apartment building and asked to see a rental apartment. It states that the security guard advised them that he does not handle rentals and provided them with contact information for the Rental Agent. It asserts the Rental Agent was not able to see them that day and denies any discrimination.

5A summary hearing was held into this Application, following which on October 2, 2012, the Tribunal issued an Interim Decision, Tileubay v. Princess Management, 2012 HRTO 1871. In that Interim Decision, the Tribunal noted that the applicant asserted that he and his wife are “young looking”. The Tribunal made no findings on the facts or issues in the case, but stated that there was evidence, which if ultimately accepted by the Tribunal, could arguably give rise to an inference of discrimination on the Code grounds cited by the applicant. It stated that the evidence and the respondent’s proposed evidence in response was best adjudicated at a hearing on the merits and permitted the matter to proceed.

6A hearing into the merits of this Application was convened at which the parties presented their evidence and made submissions.

7For the reasons which follow, this Application is dismissed.

BACKGROUND

8The applicant and his wife attended at the premises of an apartment building owned by the respondent on January 12, 2012, as they wished to view an apartment.

9The parties entered into evidence a “screenshot” of the respondent’s website regarding apartments at that building. It indicates the office hours as being 10:00 a.m. to 5:00 p.m. Monday to Thursday, 11:00 a.m. to 5:00 p.m. Saturday, and closed on Friday, Sunday and holidays. It describes the apartment types and states that rent for 2 bedroom apartments runs from $2300 to $2500 per month, and 2 bedroom units with dens are $2900 per month. Beneath the word “Availabilities”, it states “Please Call”. It also provides a link to make an online inquiry.

10It is not disputed that when the applicant and his wife attended at the building on January 12, 2012, the security guard stationed in the lobby of the building “buzzed them in” and the applicant’s wife told the security guard they wanted to see an apartment. The parties agree that the couple did not have an appointment to see the Rental Agent. There does not appear to be any dispute that this occurred at approximately 12:45 pm and that the couple left the building at approximately 1:15 pm.

11Both parties agree that the security guard advised them that they required an appointment with the Rental Agent in order to see an apartment and that he handed them the Rental Agent’s business card. The applicant alleges that the security guard then said “Just to let you know, the units here are very expensive – not that you couldn’t afford it, but they start at around $2500 per month”. The security guard disputes having said this.

12The parties agree that the applicant’s wife then announced she would call the Rental Agent there and then, took out her cell phone and proceeded to place a call.

13The parties agree that at some point while she dialled the phone the security guard went to the rental office to speak with the Rental Agent.

14In her testimony, the applicant’s wife stated that she heard the phone ringing on the other side of the lobby wall and that she heard a woman say “hello”, both through the phone and through the wall. She said the woman then hung up. She and the applicant asserted that this occurred as the security guard went into the rental office, which they say was behind a door from the lobby. She said she kept trying to call the number again and the phone rang but that nobody ever picked up the phone. She agreed that she did not leave any messages.

15The applicant and his wife testified that when the security guard came out from the rental office, his wife told the security guard that she had tried calling the Rental Agent, but that no one was answering. They testified that the security guard indicated that he did not know what was happening. They testified that the applicant’s wife then asked if the Rental Agent was in her office at that moment, and the security guard indicated that she was. He testified that his wife asked if they could go in to the office to speak with the Rental Agent and that the security guard said “absolutely not”. The applicant’s wife testified that she asked the security guard if he could let the Rental Agent know that they were in the lobby and wanting to speak with her. The applicant’s wife testified that it was in response to that request that the security guard said “absolutely not”. They testified that after that, they remained in the lobby for about 30 minutes longer and that the applicant’s wife tried to call the number several more times, but that no one picked up the phone. The applicant testified that during that time, the security guard went into the office three or four more times and he heard the security guard talking to the person in the office. The applicant testified that he was unable to make out what was being said. The applicant’s wife testified that during the 30 minutes they were in the lobby, the security guard went into the office two more times, once during the first 15 minutes, once in the second 15 minutes. The applicant’s wife testified that she heard “voices” in the area, but she could not hear what was being said.

16The applicant and his wife also testified that while they were in the lobby, a woman came into the lobby with a heavy buggy and that the security guard was very helpful to her, was holding doors open for her, and was very warm and friendly with her. The applicant testified that this was in contrast to the way he behaved to the applicant and his wife, which the applicant characterized as “cold and uninformative”. He testified that he believed she was a resident of the building. The applicant’s wife testified that she believed the woman could have been a tenant who the security guard recognized.

17The applicant testified that after this incident, he felt humiliated and not worthy to rent a unit in that apartment building. He testified that he never did call afterward to attempt to make an appointment to see a unit, as he felt too humiliated. He said after this, he and his wife stopped their search for a new apartment, as they were afraid they would face something “like this” again.

18In cross-examination, the applicant agreed that he had not called in advance to see if there were any vacancies at the building. He stated that his wife “might have” called, but that she did not leave a message.

19In cross-examination, the applicant’s wife agreed that she was not very happy that she was not able to see the Rental Agent, as she had taken time out of her lunch hour to go to the apartment building. She testified that she had called in advance of going, but had not been able to reach the Rental Agent. She testified that she did not leave a message and decided to go to the building in any event. She testified that subsequent to the time in the lobby, she made no attempt to call anyone at the building again, and that her husband decided to contact the Human Rights Tribunal of Ontario (HRTO).

20In cross-examination, the applicant testified that the lobby was “average size”. He testified that past the lobby sitting area, there was a “little walkway” and that there was a frosted glass wall separating the rental office from the lobby. He testified that he never went “inside” and that he did not know how many offices there were there, but that he only saw one office.

21In cross-examination, the applicant’s wife testified that the lobby was large. She testified that she could see into the office from the lobby area, but that she concluded that it was the rental office that the security guard had walked into when someone picked up the phone and said “hello” when she rang the Rental Agent’s number. She testified that she did not believe the call had been “dropped” as she did not hear the Rental Agent ask if anyone was on the other end of the line. She also testified that the security guard may have advised her to leave a message and to “be patient”.

22In their testimony, the security guard and Rental Agent said that there was a door off the lobby, which the security guard said was a fire door, and that on the other side of the door was a washroom, a lunchroom/changeroom for staff, a storage closet, and at the end of the hall, around a corner, was the rental office.

23The security guard testified that it is his job to meet and greet people who enter the building, and to assist residents, guests and visitors. He testified that he has no connection to renting apartments, and that he simply gives interested individuals the Rental Agent’s card and tells them to make an appointment. He testified that he never makes appointments for prospective tenants with the Rental Agent.

24He testified that he recalled letting a couple into the building on January 12, 2012 and that when they asked to see an apartment, he gave them a card and said please call the Rental Agent for an appointment. He denied having stated that the units are expensive. He testified that the couple was insistent, and so he went into the Rental Agent’s office once to tell her that there was a couple there to see her. He testified that he gave her no other information about the applicant and his wife. He testified that he could see she was very busy and that she told him she had no time to see them at that moment. He testified that he returned to the lobby and told them as much, and resumed his post. He testified that the rest of his recollection was unclear, but that they may have asked if there was someone there to answer their telephone calls, but that he indicated he had no answer to that. He also testified that they may have asked once or twice again if they could see the Rental Agent, but that he told them she did not have the time.

25The security guard also testified that if he left the lobby and went down the passageway more than one time, the other times were to go to the storage room, washroom or changeroom, as they are all very close to each other.

26In cross-examination, the security guard did not recall the applicant’s wife asking him to let the Rental Agent know they were there, and responding “absolutely not”. He testified that it is policy not to let prospective tenants speak to the Rental Agent without an appointment.

27The security guard identified a January 30, 2012 written report of the encounter which he had made after the building management advised him of this Application filed at the HRTO, claiming discrimination and harassment. It indicates that the couple came inquiring about rentals, he told them he had no information regarding rentals and gave them a business card with a number for them to call for an appointment. It states that it took “several attempts to convince them that this was the only avenue I could offer them” and that they insisted on waiting to be seen, but that they were “finally convinced to leave”.

28The security guard also identified an “Occurrence Report” he wrote which was dated January 31, 2012. He states that on January 12, 2012, a “young couple, who appeared to be Asian, came to the security desk asking to see a rental apartment”. He states that he advised them that he did not handle rentals and provided them with the Rental Agent’s business card, instructing them to call her and make an appointment. He states that when the couple insisted on seeing the Rental Agent right away, he went to her office to seek confirmation of the policy that an appointment is required. It also indicates that the couple refused to accept confirmation of the policy and asked why their phone calls were not being answered or returned, to which he replied that he did not have that information and suggested that they leave a message and have some patience.

29The Rental Agent testified that it is her job to rent apartments, deal with tenants, collect rental cheques and deal with various administrative duties. She identified the screen shot of the building’s website, indicating information about the apartments in the building and advising potential tenants to “please call”. She testified that normally, prospective tenants call her after seeing information on the website or on a sign posted outside the building. She testified that people call to see if there is a vacancy, and she lets them know if there are, and arranges a showing of any available unit. She testified that this communication is normally done by telephone or email. She testified that there are usually no vacancies, as there is little turn-over and that most tenants are long-term tenants. She testified that she arranges her own appointments with prospective tenants, and she likes to spend a lot of time with people talking to them about the building and showing them its amenities. She testified that an appointment usually takes 30 to 45 minutes, depending on how many questions the prospective tenants have. She testified that when a unit is occupied, she requires permission of the current tenants to show the apartment to prospective tenants. She testified that the population of the building is diverse. She testified that if there is an apartment available, people apply with her, she forwards the application to “head office” and it is approved there. She testified that even with 100% occupancy, she makes appointments, as she maintains a long waiting list of prospective tenants.

30She testified that on January 12, 2012, she was in her office, and at the time when the applicant and his wife arrived, she was clearing things away as she had to leave the office for an appointment related to her cancer treatment at the hospital. She testified that she recalled the security guard coming in to her telling her that a couple was there asking to see her, and that she told him that she could not see them and that he should simply give them her card. She testified that he simply asked if she could see the couple. She testified that this took only a few seconds, and that she never saw or talked to the couple, nor did she know anything about them. She said that before going to the hospital, she had to go upstairs in the apartment building to make lunch for and give medication to her elderly father, a process which normally takes her 15-20 minutes. After seeing to her father’s needs, she then had to get to the hospital in time for a blood test. She testified that if she did not make it to the hospital in time for her blood test, she would not be permitted to have her cancer treatment the next day. She testified that she does not drive on the highway and that to get to the hospital where she was to have her blood test, it normally took her about 45 minutes. She testified that she recalled the phone in the office ringing, and that she answered, but that there was silence on the other end of the phone and she hung up. She testified that she did not hear the applicant or his wife talking at the other end.

31In cross-examination, the applicant drew her attention to a written statement she had provided earlier, indicating that they arrived as she was “clearing things in the office and ready to close” in order to leave for her blood tests and she was “already late”. He asked her why she could not see him and his wife as she managed to get to the hospital for 2:50 pm. She testified that she had to be there before 3 pm in order to be seen for her blood test. She testified that she did not realize the applicant and his wife wanted to see her to set up an appointment, but rather, thought that they were asking to see an apartment then and there. She testified that her mind was focused on getting to the hospital on time, and that she was clearing up a few things and returning tenants’ phone calls. She testified that she had things to do and that when they arrived it was not a good time. In cross-examining her, the applicant confirmed that she had not been late for her appointment and asked again why she did not have time to come out to see what he and his wife wanted. She testified that she was “running late” and that she was not sure how long it would take her to get through traffic to the hospital. She testified that she did not feel that she had time to speak to them and that she had things to get done before she could leave. In any event, she testified that it is always her practice to have people make an appointment before she sees them.

32The Rental Agent recounted one encounter with the security guard only that day. This was not challenged in cross-examination.

SUBMISSIONS

33The applicant submitted that there were inconsistencies in the respondents’ witnesses’ testimony. He submitted that according to the Rental Agent’s above-noted written statement, she indicated that she was clearing things up in her office when they were there, from 12:45 to 1:15, but that in fact she had until 3 pm to get to her appointment at the hospital and that this was an inconsistency. He also submitted that the respondent’s website indicates what the office hours are, but does not say that viewings are “by appointment only”. He also submitted that the security guard did not have an independent recollection of the events of January 12, 2012 and that he had to rely upon his notes. He submitted that the security guard’s notes said that he went to the Rental Agent to “confirm the policy”, but that the Rental Agent said he did not confirm the policy with her. Further, he submitted that the fact that the security guard’s written report described him and his wife as a “young couple, who appeared to be Asian”, indicates that the security guard categorized them in his mind.

34He also submitted that according to the Interim Decision, there was evidence, which if accepted by the Tribunal at a hearing, could arguably give rise to an inference of discrimination on the Code grounds alleged by the applicant. He submitted that the issues of credibility should be decided in his favour and that on a balance of probabilities, an inference of discrimination should be drawn. He submitted that he was not able to view the apartment based on “pre-selection criteria” used by building management. He submitted that he and his wife were not able to view the apartment units or apply to rent an apartment, based on discrimination, contrary to the Code.

35The respondent’s representative noted that the applicant and his wife had not called ahead, and made an appointment, but rather, had simply dropped by the apartment building in hope that they would be able to see an apartment. He submitted that this was not possible due to the fact that the Rental Agent had numerous professional and personal obligations to tend to at the time. He submitted that the security guard made an inquiry of her on behalf of the applicant and his wife, but she declined to see them without an appointment. He submitted that while it is understandable that they were not happy with the fact that she was busy, this does not equate to discrimination. He submitted that the applicant has not met the burden of establishing differential treatment or discrimination. He submitted that the applicant’s claim is founded on mere speculation, and that this is not sufficient. He submitted that the Application should be dismissed.

DECISION AND ANALYSIS

36Section 2 of the Code provides as follows:

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

37Section 10 of the Code provides definitions, and with regard to harassment provides as follows:

‘Harassment’ means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

38I am not persuaded, on a balance of probabilities, that the respondent discriminated against or harassed the applicant contrary to the Code, and this Application is dismissed for the reasons below.

39To the extent that this case requires me to assess the credibility of the witnesses who have testified before me, I have been guided by the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

40I am also guided by factors considered by the Tribunal in assessing credibility in the case of Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

41A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence incredible or unreliable. See McDougall and Shah v. George Brown College, 2009 HRTO 920. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence.

42The applicant alleges that he was not able to view the apartment and ultimately be considered as a tenant due to discrimination. In essence, he alleges that the security guard pre-judged him, based on his age and race and association with a person identified by a Code protected ground, and would not facilitate an opportunity for him to view an apartment. He points to the comment he says the security guard made about the expense of the units, as proof that the security guard was pre-judging him. He also points to the fact that in his written report, the security guard referred to him as “Asian” and “young looking” as proof that he was categorized and pre-judged by the security guard. He then points to the fact that the security guard went to speak to the Rental Agent, and the Rental Agent subsequently hung up the phone and did not answer any more calls. He invites the Tribunal to draw an inference from these facts, presumably asking for a conclusion that the security guard said something to the Rental Agent about he and his wife being “Asian” and “young looking”, and a conclusion that that was the reason the Rental Agent did not answer the phone to them or see them that day.

43The security guard and the applicant and his wife provided conflicting evidence about whether the security guard made a comment to them about the price of the apartments. The security guard placed a fair bit of reliance upon his notes for his recollection of the events. Though his notes did not indicate that he made such a comment, the notes appear to focus on the couple’s attempts to see the Rental Agent and his role in that dynamic, and I do not find it inconsistent with the nature of those notes for him to have left this comment out. On the other hand, the applicant and his wife both testified that this comment was made, and it was recounted essentially verbatim in the Application. The applicant and his wife both testified that they were upset by this comment. I find that it is the sort of comment which would have been remembered by the applicant and his wife, as they were upset as they felt that they were being judged unable to afford the rent. In contrast, it is the sort of comment which the security guard may have made without a great deal of thought, and is likely the kind of comment he would have forgotten making just as easily. In these circumstances, I find that the evidence of the applicant and his wife on this point was more reliable than that of the security guard, and I find, on a balance of probabilities, that the security guard said words to the effect of “Just to let you know, the units here are very expensive – not that you couldn’t afford it, but they start at around $2500 per month”.

44The applicant relies upon the fact that in a subsequent written report, the security guard described him and his wife as “Asian” and “young looking”, as proof that the security guard was categorizing them on the basis of Code-protected grounds when he made the comment about the rent. I am not persuaded, however, that the report which was written after the security guard learned of this Application, provides such support for the applicant’s conclusion. The fact that the security guard described him and his wife as “Asian” and “young looking couple” after he became aware of this Application is not at all surprising, as it is an Application alleging discrimination on the basis of age, race and association with a person identified by a Code protected ground. The security guard’s written report was essentially provided as a response to the allegations of discrimination and harassment and I do not find that it is possible to rely upon such a document for insight into the security guard’s frame of mind on January 12, 2012.

45The applicant also testified that the security guard was pleasant and helpful with a woman entering the building with a heavy load. The applicant testified that she appeared to be a tenant. He sought to rely upon the fact that the security guard’s demeanor with him and his wife was not as friendly or helpful, as proof that the security guard was discriminating against him. This allegation appeared nowhere in the Application or in the applicant’s summary of his expected evidence prior to the hearing, and the applicant asked the security guard no questions about his interaction with the woman. In any event, I am not persuaded that it assists the applicant. If the security guard assisted a woman with a heavy load into the building, it does not establish discriminatory treatment. The security guard would have been familiar with the tenants in the building and the fact of a friendly encounter, including providing assistance to this woman with a heavy load, when contrasted with a more formal, less outgoing encounter with people entering the building asking to see an apartment, is not remarkable.

46The applicant points to the fact that the security guard’s written account indicates that he went into the rental office to confirm the policy that appointments are required, but that the Rental Agent indicated that “policy” was not discussed, and he submits that this is an inconsistency which undermines the security guard’s credibility. While the Rental Agent testified that she did not discuss “policy” with the security guard, she testified that he asked if she could see a couple who was there asking to see her, and that she told him she could not see them and that he should simply give them her card. Though they do not appear to have spoken of “policy”, the Rental Agent has in essence indicated that she advised the security guard she would be acting in accordance with the policy of only seeing people who have an appointment. I do not find that the fact that the word “policy” may not have been mentioned between them, to establish a suspicious inconsistency between the security guard’s written account and the Rental Agent’s testimony.

47The applicant also sought to rely upon the fact that the website did not indicate that an appointment was required, as proof that the lack of an appointment was not the real reason he and his wife did not have the opportunity to view an apartment. As noted above, the information contained on the website is no more than a description of apartments and an indication of the rent. While it does not say that an appointment is necessary, it directs those interested in availability to “Please Call” and provides an alternative for those who prefer to make inquiries on line. Though it provides office hours, this would be important information for anyone seeking to make an inquiry as it establishes when the building management can be reached and when to expect an answer back to any message left for building management. There was no evidence to contradict the Rental Agent’s assertion that most tenants are long term and that there are not usually any vacancies. Indeed, if no apartment is vacant, it is to be expected that the Rental Agent would have to make prior arrangements with a current tenant in order to be able to show a unit to a prospective tenant. There is no evidence before me that other people were given the opportunity to view an apartment without first having made an appointment. In all these circumstances, I am persuaded that prospective tenants would require an appointment to see a unit.

48The Rental Agent provided her evidence in a straightforward fashion, was not evasive, and did not appear to be prone to embellish her evidence. When the applicant asked her why she did not come out to see him just to make an appointment, she explained that she did not understand that that was what he was seeking, and that she had believed him to be asking to see a unit. I accept her testimony that she knew nothing about the applicant and his wife, other than the fact that they were there asking to see her and that they had no appointment. Though the applicant challenged the Rental Agent’s credibility by stating that she said in her written statement that she was finishing things in her office when he and his wife were at the building and that she was “already late”, but did not have to be at the hospital until 3 pm, I find nothing inconsistent with the fact that she felt worried and pressed for time as she had several tasks to complete, including phone calls, before leaving the office to tend to her father’s needs, all before leaving for her blood test at the hospital. I find it entirely believable that she felt too rushed to see the applicant and his wife, in view of the many tasks ahead of her and the uncertainties of traffic and especially in view of the significance of being on time for an extremely important medical appointment related to a very serious health issue. I do not find that the applicant has established that it was more probable that the Rental Agent did not see him and his wife that day was due to his race, age or association with a person identified by a Code-protected ground, than her explanation of professional and pressing personal obligations.

49I accept the Rental Agent’s evidence that she picked up the phone when it rang but could hear no one at the other end and hung up. Again, I have accepted that she was rushing to complete several tasks, including returning phone calls to tenants, and in these circumstances, it is not surprising that she would neglect to pick up the phone each time it rang, especially having answered it when there appeared to be no one on the other end.

50The applicant testified that the security guard left the lobby area to go to the area where the rental office was located an additional three or four times in the half hour they were there, and his wife testified that the security guard went into that area an additional two times in the half hour they were there. The applicant also testified that he could hear the security guard talking to someone in the area, and his wife testified that she heard “voices” in the area. The security guard testified that he went to speak to the Rental Agent once only and the Rental Agent testified about one encounter with the security guard only. Both the security guard and the Rental Agent testified that there were other rooms in the area of the rental office, and neither the applicant nor his wife was able to dispute that assertion. The Rental Agent testified, and I have accepted, that part of the work she had to complete before leaving was to make return telephone calls to tenants. In these circumstances, I am not persuaded on a balance of probabilities that the security guard went to see the Rental Agent more than once or that the security guard and the Rental Agent spoke again after the security guard’s initial inquiry on behalf of the applicant and his wife, though I accept that the security guard may have gone into the general area beyond the fire door more than once, and I accept that the applicant and his wife may have heard voices from the general area beyond the fire door off the lobby.

51Mindful of the guidance recently provided by the Court of Appeal of Ontario in Peel Law Association v. Pieters, 2013 ONCA 396, I have considered the evidence given by both parties, as a whole, in concluding that the applicant has failed to establish discrimination on a balance of probabilities. I am satisfied that the respondent has established, on a balance of probabilities, a credible and rational non-discriminatory explanation for its actions. While I understand that the applicant was frustrated at not being able to see an apartment during his lunch hour, I do not find that the inference of discrimination is more probable than the explanations provided by the respondent.

52Though generally the applicant’s submissions centered on an allegation that the respondent discriminated against him by not facilitating an opportunity for him to view an apartment, and he did not specify what he alleges was harassment by the respondent, the security guard’s comment regarding the price of the apartment units will also be considered below in the context of his allegation of harassment.

53With respect to the applicant’s claim of harassment, according to the definition found at s. 10 of the Code, a finding of harassment requires a course of vexatious comment to be “known or ought reasonably to be know to be unwelcome”. In this case, I do not find it necessary to make a finding as to whether the security guard’s comment regarding the price of the unit was known or ought reasonably to be known to be unwelcome, as even if it was, I do not find that this single comment would amount to a breach of the Code. This Tribunal has found that a single comment, may, in certain circumstances, amount to a breach of the Code. In Way v. Coalition Against Psychiatric Assault, 2010 HRTO 1234 (“Way”) the Tribunal stated:

Courts and tribunals have recognized that a single comment can amount to a breach of the Code, but only in limited circumstances. In Hazdic v. Pizza Hut Canada (c.o.b. Pizza Hut), [1999] B.C.H.R.T.D. No 44, the British Columbia Human Rights Tribunal (“BCHRT”) stated at para 33:

The context within which the racial/religious harassment occurs is important. Usually repeated conduct is required to establish racial/religious harassment. However, if the conduct is considered extreme, there is less need to establish a pattern of behaviour and a singelact may be sufficient evidence: Bell v. Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont.Bd.Inq.).

54In Way, the Tribunal dismissed the Application following a summary hearing, stating at paragraph 39:

In my view, a single comment that implies that all Christians are homophobic is inappropriate, but is not sufficiently extreme, egregious or virulent as to constitute discrimination, particularly when it is followed by an immediate apology.

55In the circumstances of this case, I do not find the comment regarding the fact that the apartment units are expensive, to be sufficiently egregious or virulent as to constitute discrimination. While there was no apology issued here, in the context of this brief exchange, I do not find that this comment can be said to have poisoned the environment for the applicant had he and his wife become tenants and I do not find “harassment by the landlord or agent of the landlord or by an occupant of the same building”.

56For all these reasons this Application is dismissed.