Weigl v. 109 Brien Tenants Association, 2013 HRTO 2087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ben Weigl

Applicant

-and-

109 Brien Tenants Association

Respondent

DECISION

Adjudicator: Brian Eyolfson
Date: December 17, 2013
Citation: 2013 HRTO 2087
Indexed as: Weigl v. 109 Brien Tenants Association

APPEARANCES

Ben Weigl, Applicant
Self-represented

109 Brien Tenants Association, Respondent
James H. Cooke, Counsel

INTRODUCTION

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 13, 2012, and alleges discrimination on the basis of disability, and reprisal, in the area of housing.

2The applicant alleges that the respondent, 109 Brien Tenants Association (the "Tenants Association"), removed his bicycle from a "smoking post" that it was secured to, without his permission. The applicant alleges in his Application that this exasperated his disability and further contributed to a poisoned environment. Under the heading, "Explain why you believe you were discriminated against based on your disability or a perceived disability", the applicant states that, because he educates his fellow tenants on their rights by posting "numbers" to various government agencies, in his opinion, it is more of a reprisal for exercising his rights under the Code.

3The applicant also alleges that "all parties" know that he is a human rights advocate, and knew that taking down information he posted educating tenants on their rights, and moving his bicycle, would aggravate and annoy him. He alleges that moving his bicycle was a reprisal for posting material to educate fellow tenants on their rights. He also alleges that moving his bicycle was a reprisal, since there is a "closeness" between the co-chair of the respondent Tenants Association and the property manager of his housing provider, which he has previously filed applications against with the Tribunal. He also alleges that he complained to his housing provider when his postings were taken down.

4In its Response to the Application, the respondent submits that the allegations do not disclose any breach of the applicant's rights under the Code, and that the entire complaint relates to the removal of the applicant's bicycle from a prohibited area to another area nearby. The respondent explains that the applicant's bicycle, which was not capable of use, was moved a short distance away as it was parked in an area where bicycles were not supposed to be parked. The respondent submits that there was no harassment of the applicant by reason of a disability, the nature of which the respondent is entirely unaware of.

5In a Case Assessment Direction ("CAD") dated June 14, 2013, the Tribunal granted the respondent's Request for Summary Hearing, and 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 the Application, or part of the Application, will succeed.

REASONABLE PROSPECT OF SUCCESS

6Rule 19A.1 of the Tribunal's Rules of Procedure states as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-9:

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.

8In its CAD directing that a summary hearing be held in this matter, the Tribunal indicated that the issue would be whether, assuming the allegations to be true, the applicant's allegations may be reasonably considered to amount to a Code violation. The CAD directed the applicant to make argument about why the Application should not be dismissed as having no reasonable prospect of success, and to argue why the allegations constitute discrimination within the meaning of the Code.

9With respect to the allegation of discrimination on the basis of disability, the applicant explains in his Application that he is a former board member of the respondent Tenants Association. He alleges that the entire board knew of his disability, and that a co-chair of the Tenants Association admits to moving his bicycle twice.

10In his response to the respondent's Request for Summary Hearing, the applicant explains that he acknowledged at a Canadian Mental Health Association event on March 17, 2010, which members of the respondent attended, that he has a disability. He also submits that members of the respondent knew that he received Ontario Disability Support Plan benefits. He alleges that members of the respondent decided to move his bicycle, without his permission, knowing that their conduct and actions would be unwelcome by him, as a member of the disabled community. He also provided a copy of a handwritten note, dated September 27, 2010, and signed by the co-chair of the Tenants Association who, it does not appear to be disputed, moved his bicycle. In the note, the co-chair indicates that the applicant was very upset and had extreme anxiety as a result of a letter he received from his housing provider.

11At the summary hearing, the applicant essentially argued that his disability was not accommodated. In particular, he argued that the respondent did not inform him, in writing, about moving his bicycle, resulting in a failure to accommodate his disability within the meaning of the Code. He also submitted that the respondent did not follow an "accommodation agreement" that he has with his housing provider.

12The respondent submitted that the applicant's bicycle was moved because there was a barbecue taking place in the area where the bicycle was, and the bicycle appeared to be in the way of the event. The respondent also submitted that moving a bicycle from one area to another is trivial, and that it was unaware of any accommodation agreement. The applicant did not dispute that a barbecue took place in the area where his bicycle had been secured.

13Assuming the allegations in the Application to be true, in my view, the applicant's allegations cannot reasonably establish that the respondent violated the applicant's rights under the Code on the basis of disability. Assuming the respondent's co-chair moved the applicant's bicycle, and was aware that the applicant has a disability within the meaning of the Code, there is no indication that the applicant communicated any actual disability-related needs to the respondent. The applicant baldly asserts that the respondent knew that moving his bicycle, without his permission, would be unwelcome by him, as a person with a disability. The applicant, however, has not explained in either his materials or his submissions how the respondent would have known that moving his bicycle, including without first communicating with him, would have resulted in any disadvantage on the basis of disability, or would have required any accommodation of disability-related needs. In the circumstances, the allegation that the applicant was subjected to discrimination on the basis of disability is dismissed as having no reasonable prospect of success.

14With respect to reprisal, section 8 of the Code provides as follows:

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 doing so.

15The Tribunal's CAD directing that a summary hearing be held in this matter referred to the Tribunal's decision in Noble v. York University, 2010 HRTO 878, which explained that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. The Tribunal indicated that there must be a reasonable basis to believe that the applicant could establish such an intention and a link to the respondent's alleged actions.

16In the present case, the applicant alleges that the respondent knows that he is a human rights advocate, and that the respondent knew that taking down information he posted to educate fellow tenants on their rights, and moving his bicycle, would aggravate and annoy him. As I understand the applicant's allegations, however, he is not alleging that the respondent removed his postings. Rather, he alleges that he was subjected to reprisal by the respondent when his bicycle was moved for posting material to educate his fellow tenants on their rights, and that his housing provider removed information that he posted. He also alleges that moving his bicycle was a reprisal by the respondent, since there is a "closeness" between a co-chair of the respondent and the property manager of his housing provider, and he previously filed applications with the Tribunal against his housing provider. He also alleges that he complained to his housing provider when his postings were taken down. The applicant did not specifically address reprisal at the summary hearing.

17As I understand the applicant's allegations, he alleges that the respondent reprised against him by moving his bicycle because he engaged in the following activities: (i) posting information to educate his fellow tenants about their rights; (ii) complaining to his housing provider when his postings were removed by the housing provider; and, (iii) previously filing applications with the Tribunal against his housing provider.

18First, it is not clear to me that in posting information to educate fellow tenants about their rights the applicant was claiming or enforcing his rights under the Code, instituting or participating in proceedings under the Code, or refusing to infringe a right of another person under the Code, within the meaning of section 8 of the Code. In addition, and in any event, the applicant's assertion that the respondent moved his bicycle as retaliation for posting information to educate fellow tenants about their rights, complaining to his housing provider when it removed his postings, and/or filing previous applications with the Tribunal against his housing provider is highly speculative. The applicant merely asserts that his housing provider's property manager and a co-chair of the respondent are close. As the Tribunal noted in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17:

... For an application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one's Code rights.

19In my view, assuming the applicant's allegations are true, the allegations are insufficient to establish that the respondent engaged in reprisal when it moved his bicycle. I find that the applicant has not established that the respondent moving his bicycle could reasonably be considered as an intended retaliation for engaging in the activities the applicant refers to above as forming the basis of his reprisal allegation. In the circumstances, the allegation that the applicant was subjected to reprisal is dismissed as having no reasonable prospect of success.

Conclusion

20As there do not appear to be any remaining allegations in the Application, the Application, as a whole, is dismissed on the basis that it has no reasonable prospect of success.

21The Tribunal notes that the applicant filed both a Request for an Order During Proceedings ("RFOP") for production of documents, and a Request for a Tribunal Ordered Inquiry in this matter. The Tribunal's CAD directing that a summary hearing be held indicated that these requests would be dealt with following the summary hearing if the Application proceeded. As the Application is dismissed, it is not necessary for the Tribunal to address these requests.

22The Tribunal also notes that, at the summary hearing, the applicant referred to his response to the respondent's Request for Summary Hearing, wherein he submitted that his housing provider and its property manager should be added as respondents to the Application. The applicant, however, did not deliver and file an RFOP to add additional respondents in this matter, and only the applicant and the respondent Tenants Association had notice of and participated in the summary hearing. As the Application against the named respondent is dismissed as having no reasonable prospect of success, there is no longer any Application to which parties could be added.

ORDER

23The Application is dismissed.