Moyal v. Walmer Flats Property Management, 2013 HRTO 1792

Human Rights Tribunal of Ontario

Between: David Moyal, Applicant -and- Walmer Flats Property Management, Respondent

Decision

Adjudicator: Alison Renton Date: October 24, 2013 Citation: 2013 HRTO 1792 Indexed as: Moyal v. Walmer Flats Property Management

Appearances

David Moyal, Applicant Self-represented

Walmer Flats Property Management, Respondent Aaron Schwartz, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to housing because of ethnic origin, creed, and reprisal. The applicant self-identifies as being Jewish and identifies the property manager as being Muslim.

2The Application is fairly brief and contains eight paragraphs. In response to the question, "What Happened?", the applicant makes allegations pertaining to the following dates: June 2011; the end of September 2011; October 27, 2011; November 2, 2011; December 5, 2011; December 11, 2011; and January 1, 2012. He numbered his paragraphs, with the most recent allegation being para. 1 and the oldest allegation being para. 8. The applicant sent his Application to the Tribunal by email on January 1, 2013, at 5:02 p.m. The Tribunal has indicated that it was filed on January 2, 2013.

3The Tribunal issued a Case Assessment Direction dated February 15, 2013 ("CAD") in which the Tribunal determined, on its own initiative, that a summary hearing would be held to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success and to determine whether or not the allegations were timely. The Tribunal did not require the respondent to file a Response.

4The summary hearing was scheduled for June 3, 2013, pursuant to a Notice of Summary Hearing dated May 3, 2013. The parties participated in the summary hearing, with the applicant participating by Voice Over IP (Skype) as he was located in a different country. Neither party submitted additional documentation or submissions prior to the summary hearing, such that the only documentation before the Tribunal is the Application.

5Subsequent to the summary hearing, and in light of the position of the parties during the summary hearing, the Tribunal issued a Case Assessment Direction on August 27, 2013 ("the CAD"). The CAD was sent to the parties by both regular mail and email and was not returned to the Tribunal as being undeliverable.

6In the CAD, the Tribunal directed the applicant to provide a copy of the minutes of settlement into which he entered with the respondent in 2008 and to file submissions addressing sections 45.9 and 54 of the Code and the settlement documentation. The applicant was directed to file his submissions by September 6, 2013, but as of the date of this Decision, has not complied with this direction. The respondent was given until September 13, 2013 to file submissions about the same issues, and it filed submissions on September 12, 2013, including a copy of a recent decision involving the applicant in Moyal v. Toronto (City), 2013 HRTO 1497.

7The materials filed and the submissions made during the summary hearing by the parties have all been considered by the Tribunal.

The Applicant's Position

8The applicant provided some background to this Application. Some time ago, he filed a human rights complaint about his housing provider's failure to provide religious accommodation to him, specifically the storage of his sukkah. The complaint resulted in a mediated settlement. The applicant did not file a copy of the mediated settlement with the Tribunal in relation to this Application.

9Since the mediated settlement, the applicant has filed additional applications with the Tribunal, including the Application that is the subject of the summary hearing. The applicant had requested that his outstanding Applications be heard together; however, the Tribunal ordered the summary hearing for this Application. The applicant suggested that I review his outstanding Applications in order to understand the background between the parties and to understand the context of his allegations in this Application.

10The applicant stated, during the summary hearing, that the allegations in the Application are either amendments to allegations contained in other applications, or alleged breaches of the mediated settlement. He submits that there is no way for him to amend his previous applications and he confirmed that the Application is not a breach of settlement application pursuant to section 45.9 of the Code.

11The applicant submits that the allegations in the Application are all timely. The Application was filed within a year of the last incident of January 1, 2012, and that on January 1, 2013, the Tribunal's offices were closed. The applicant submits that the allegations that pre-date January 1, 2012 were all raised with the respondent and that he was hoping that he would not have to file another application, particularly one alleging just several breaches of the mediated settlement. In October 2011 he did not want to file a new Application given that he, his wife, and their family were leaving Ontario to go to another country, where they are still located. However, when he failed to receive a response from the respondent, its superintendent or property manager, and the harassment continued into November and December 2011 and January 2012, the applicant decided he would file a new Application.

12The good faith explanation offered by the applicant is that he gave the respondent an opportunity to come to an agreement which settled any of the issues that arose. However, the respondent did not respond to these opportunities.

13With respect to whether or not the allegations in the Application demonstrate a reasonable prospect of success, and in response to the Tribunal questioning the applicant about each paragraph in the Application about the Code ground raised in the paragraphs and how the allegations allege that the Code was violated, the applicant identified that paragraphs 1, 2, 3, 4, 5, 7 and 8 all pertain to reprisal given the respondent's ongoing harassment towards him as a result of him filing his other Applications. Paragraphs 2, 3, and 4 are harassment or discrimination on the basis of ethnic origin or creed. Paragraphs 6 and 7 are alleged breaches of the mediated settlement. He has a recording of the property manager swearing at him, which he asserts is reprisal. He submitted that he would testify about the superintendent telling him and his family to hurry up and vacate their premises every 20 minutes when they were moving out of their residence on January 1, 2012. This constitutes reprisal, he submits, because several months earlier, and as described in para. 6 of the Application, he wrote to the property manager about the conduct of the superintendent's husband and this was the superintendent's way of getting back at him.

14The applicant requests that his Application proceed.

The Respondent's Position

15The respondent requests that the Tribunal dismiss the Application. It concedes that the Application was filed within one year of the date identified as being the last date, however, it submits that the events described on January 1, 2012, and the other dates, do not amount to a violation of the Code and the applicant does not have any evidence to establish that a violation of the Code occurred. It submits that the incidents relied upon by the applicant are untimely.

16Further, the respondent submits that the allegations do not constitute a violation of, or differential treatment under, the Code. Since the time of filing his initial human rights complaint, the applicant has, the respondent submits, attempted to reintroduce the same allegations in his different applications and has been consistently late in raising the same allegations. The applicant has been stretching the Tribunal's timeliness rules to create uncertainty and unfairness to the respondent such that the applicant is attempting to string out, for as long as he can, his allegations to a never-ending series of rolling allegations. The respondent opposes the Tribunal considering the allegations in the applicant's other applications, submitting that this is a free-standing Application and should be determined based upon the allegations contained within it.

17In its submissions filed subsequent to the summary hearing, the respondent noted that the applicant had again failed to comply with the Tribunal's directions, as it did in Moyal, above. It takes the position that the applicant filed this Application to vex the owner of the respondent and that the applicant does not, and perhaps never did, intend to see this Application through to its fair conclusion. Further, the respondent submits that the allegations in the Application are untimely, particularly those in paras. 6 and 7 given the applicant's assertions that they pertain to the mediated settlement.

The Law and Legal Principles

The Law

18The relevant sections of the Code are sections 8 (the definition of reprisal), 34(1) and (2), 45.9(1), (3), (4) and (6), and 54. They state:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application related; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

45.9(1) If a settlement of an application made under section 35 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

(6) Subject to the Tribunal rules, the parties to an application under subsection (3) are the following:

1. The parties to the settlement;

2. Any other person or the Commission, if they are added as a party by the Tribunal.

3. Section 45.9 of the new Part IV applies to the enforcement of a settlement that,

(a) was effected by the Commission under the old Part IV before the effective date or during the six-month period referred to in subsection 53(2)); and

(b) was agreed to in writing, signed by the parties and approved by the Commission.

19Section 89(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F ("Legislation Act"), addresses the time limits that would otherwise expire on a holiday. It states:

Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.

20"Holiday" is defined to include New Year's Day pursuant to section 88(1) of the Legislation Act.

Reasonable Prospect of Success

21Rule 19A of the Tribunal's Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

22The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 to 10:

In some cases, the issue at the summary hearing may be whether assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

23In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Reprisal

24In Noble v. York University, 2010 HRTO 878 at paras. 33 to 35, the Tribunal described the requisite elements of reprisal as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant's substantive rights to be free from discrimination.

In assessing the claim in this case, several of the above principles are particularly apposite. First, a claim of reprisal must be in respect of an action or threat. Establishing only that a respondent was upset or angry that a complainant filed a complaint, or claimed a Code right, is not sufficient. Neither is it a reprisal to show simply that a respondent considered taking an action against a complainant. Evidence of anger or upset, or of an animus, may be relevant in establishing an inference that an action was taken with intent to reprise. However, in order for there to be a reprisal, there must be an actual action taken against the complainant, or threat made to the complainant.

Analysis

Was the Application filed in a timely manner?

25The last incident in the Application is identified as occurring on January 1, 2012 and the applicant sent his Application to the Tribunal on January 1, 2013 by email at 5:02 p.m. The Tribunal has accepted it as being filed on January 2, 2013.

26As January 1, 2013, New Year's Day, is a holiday within the meaning of section 88(1) of the Legislation Act, such that the Tribunal's offices were closed, by operation of section 89(1) of the Legislation Act, the time limit for the applicant to file his Application, based upon the last incident being January 1, 2012, was January 2, 2013. Accordingly, the Application was filed in a timely manner based upon the identification of the last incident. The respondent conceded that the last incident is timely. Whether the other allegations are timely is addressed below.

Can paragraphs 6 and 7, alleged breaches of the mediated settlement, continue to proceed in a section 34 Application?

27Notwithstanding the applicant confirming that his Application was not filed under section 45.9 of the Code (the breach of settlement sections), he alleged that paras. 6 and 7 were alleged breaches of the mediated settlement. Despite being directed to do so by the Tribunal in the CAD, the applicant did not produce a copy of the mediated settlement and did not file any submissions addressing sections 45.9 and 54 of the Code.

28Section 45.9 requires that a breach of settlement application be filed within six months of the contravention unless there is a good faith explanation for the delay in filing beyond the six-month limitation period.

29The applicant filed his Application as a section 34 application rather than as a breach of settlement application under section 45.9 of the Code. The fact that he submits that para. 6 is only about a breach of the mediated settlement means that it cannot be considered in a section 34 application and it is dismissed. It should, instead, have been filed as a section 45.9 application. See Robinson v. Ontario (Community Safety and Correctional Services), 2013 HRTO 287 at para. 39. As for para. 7, for this same reason, it also cannot continue to proceed in a section 34 application as an alleged breach of the mediated settlement. As for whether or not para. 7 constitutes reprisal within the meaning of the Code, that issue is considered below.

Reasonable prospect of success

30Having found that para. 6 cannot proceed, I turn to whether or not the remaining paragraphs in the Application have a reasonable prospect of success. After considering them, I find that they do not have a reasonable prospect of success and the Application is dismissed on that basis.

Ethnic Origin and Creed – paragraphs 2, 3 and 4

31The applicant self-identifies as Jewish and submits that paras. 2, 3, and 4 of his Application constitute a violation of the grounds of ethnic origin and/or creed. Neither origin nor creed are defined in the Code; however, I accept that being Jewish would fall within either ethnic origin and/or creed. See Casey v. Anishnawbe Health Toronto, 2013 HRTO 1244 at para. 23.

32In para. 4, the oldest of the three allegations, the applicant alleges that on November 2, 2011, he sent a letter terminating his family's residency due to the continued harassment over the past seven years and despite living at the location for over 18 years. The applicant did not produce a copy of this letter and did not further elaborate upon its contents during the summary hearing. In para. 3, the applicant claims that his family was delivered an eviction notice on December 5, 2011 and received idle threats about filing a claim with a credit bureau to ruin their name.

33In para. 2, the applicant alleges that an identified individual, whom the applicant was expecting to help move the applicant and his family out of their apartment, became "fearful for his life" because he was being marked "in the Persian and Turkish communities for helping a Jew against a Muslim", although he agreed to "help out at the other end of the drop offs". This individual is the friend of the respondent's property manager, whom the applicant identified as being Muslim. As a result, the applicant was forced to hire professional movers to move his family's belongings from their residence.

34In the context of these three paragraphs, I do not find that they have a reasonable prospect of success. Para. 4 is about the applicant's own actions along with a justification about why he decided to terminate his tenancy with the respondent. This may provide context for the applicant's feelings, but it does not demonstrate, by itself, a violation of the Code on the basis of ethnic origin or creed.

35Para. 3 is a bald assertion that his family received an eviction notice in December 2011, presumably by the respondent as the applicant did not identify who issued the notice, as is the "idle threats" to which the applicant was subjected. However, there is no link between these assertions and the Code grounds of ethnic origin or creed, particularly so as the applicant claimed to have already delivered his notice terminating his residency.

36With respect to the named individual being "fearful of his life" and "being marked in the Persian and Turkish communities for helping a Jew against a Muslim", the applicant has not provided any information or identified any evidence as to how the respondent is involved in this assertion except that the individual and the respondent's property manager are friends. There is no information that the individual himself is an employee or agent of the respondent. Again, there is a bald assertion that does not demonstrate a violation of the Code on the basis of ethnic origin or creed.

37Accordingly, I find that there is no reasonable prospect of success with respect to paras. 2, 3 and 4 with respect to the grounds of ethnic origin or creed.

Reprisal – paragraphs 1, 2, 3, 4, 5, 7, and 8

38I find that paras. 1, 2, 3, 4, 5, 7 and 8 do not meet the definition of reprisal, as set out in section 8 of the Code, and do not fall within the parameters articulated in Noble, above. Accordingly, they have no reasonable prospect of success and they are dismissed.

39The Tribunal has stated in a number of decisions that it cannot adjudicate claims of unfairness, but only violations of the Code. See, for example, Forde v. Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17.

40In para. 1, the applicant alleges that the superintendent continuously harassed and "badgered" the applicant and his family while they were moving out of their apartment. The applicant's family was told that students from Asia were arriving "imminently from the airport" and needed the apartment. This, the applicant learned from other tenants, was not accurate as renovations to the apartment took place over the month without new tenants living there.

41While this experience may have been unpleasant for the applicant and his family, or unfair, it does not fall within the meaning of reprisal. There is no information before me to suggest that there was actual action taken, or a threat made, to the applicant because he had filed previous Code applications or complaints against the respondent.

42In para. 2, and with respect to the individual and the situation described in the heading above, this also does not meet the definition of reprisal. There is no information before me that the individual's refusal to move the applicant's belongings was as a result of the respondent's actions, and even if there was, there is no information before me, apart from the applicant's assertion, that it was a reprisal for the application's previous applications. Instead, the focus of the paragraph is on the individual himself not providing services to the applicant and his family.

43In para. 3, while the applicant asserts that the respondent made "idle threats about filing a claim with credit bureaus to ruin [his family's] name", I find that this too does not constitute reprisal within the meaning of the Code. Significantly, there is no connection made between the applicant's filing his previous Code applications and the respondent's "idle threats" about going to the credit bureau.

44Para. 4 is about the applicant's own action of terminating his tenancy and it cannot constitute reprisal under the Code.

45Para. 5 is about the applicant's attempts to speak with the superintendent as the entranceway to the underground garage was blocked because of repaving on the respondent's property such that the cars parked there could not be moved out. The superintendent's husband, who was the maintenance manager, refused to let the superintendent speak and swore at the applicant by mouthing foul language. Again, this may have been a very uncomfortable encounter for the applicant, but it does not constitute reprisal within the meaning of the Code as there is no connection between the respondent's alleged conduct and the applicant's previous complaints. I also note that the applicant does not allege that he was the only tenant affected by the blocked entrance, which undermines his assertion that the respondent's conduct was reprisal against him.

46In addition to asserting that para. 7 was an alleged breach of the mediated settlement, the applicant asserted that para. 7 also was reprisal within the meaning of the Code. Specifically, he alleges that the maintenance manager yelled from his apartment balcony to the applicant, in the presence of the applicant's young daughter, who started to cry. The applicant recorded the incident and informed the property manager who refused to acknowledge any wrongdoing and refused to listen to the recording in breach of the mediated settlement. Again, this may have been an unpleasant experience for the applicant, but the Tribunal cannot adjudicate it unless it falls within the Code and I find that it does not fall within the meaning of reprisal as set out in Noble, above.

47In para. 8, the applicant describes a conversation that he had with an inspector from Toronto Fire Safety. The inspector told him that during a recent inspection of the respondent's premises, the maintenance manager made no reference to a provincial court order dismissing the allegations that the applicant violated the Fire Code "nor any religious accommodation" and the property manager did not address this either. The applicant alleges that he was served with a Notice of Violation for storing his Sukkah, which was a matter already adjudicated in May 2009 and asserts that this constitutes reprisal because "they" did not tell the fire inspector that the incident had already been resolved in a provincial decision.

48I find that the scenario described in para. 8 also does not fall within the Code's definition of reprisal. It is unclear when the applicant was issued the notice of violation and whether that was before or after his discussion with the fire inspector. In either situation, merely asserting that an individual or two failed to advise the inspector about the court action does not fall within the parameters of reprisal by itself.

49Based upon the above, I do not need to determine whether the allegations contained at paras. 2 to 8 are timely pursuant to section 34(1).

50The Application is dismissed.