George v. Peel Condominium Corporation No. 490 et al, 2013 HRTO 2114

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna George

Applicant

-and-

Peel Condominium Corporation No. 490, Sameeha Khan, Imelda Hartt and Zia Khan

Respondents

DECISION

Adjudicator: Kevin Cleghorn

Date: December 20, 2013

Citation: 2013 HRTO 2114

Indexed as: George v. Peel Condominium Corporation No. 490 et al

APPEARANCES

)

Donna George, Applicant ) Jeremy Richler, Counsel

)

)

Peel Condominium Corporation No. 490,) Christian Paquette, Counsel

Sameeha Khan, ) Self-represented

Zia Khan, ) Self-represented

Imelda Hartt, Respondents ) Self-represented

)

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in goods, services and facilities on the basis of race and/or sex.

2By Case Assessment Direction dated August 23, 2013, the Tribunal directed that a summary hearing be held in this matter by teleconference. It stated as follows at paragraphs 1 and 5 (in part):

Having reviewed the Application, the Tribunal directs, on its own initiative, that a telephone hearing be held on whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

. . . . . . . . . .

The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited.

ANALYSIS

Summary Hearings

3Rule 19A of the Tribunal’s Rules of Procedure reads 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of winess statements.

4The test is whether there is a reasonable prospect of success. If, after considering the arguments made by the applicant, there is a basis to believe that there is a reasonable prospect of success, the Application shall be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

5In Dabic v. Windsor Police Service 2010 HRTO 199 at paragraphs (paras.) 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In 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 the 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.

Arguments of the Applicant

6The applicant occupies a condominium unit of the respondent, Peel Condominium Corporation No. 490. It is unclear whether she is a tenant or an owner of her unit. The crux of the applicant’s position is that she experienced differential treatment from the respondent, Peel Condominium Corporation No. 490, in response to various complaints. She suggests that she has been subjected to a general pattern of harassment by the individual respondents. Such harassment has affected her use and enjoyment of her condominium premises.

7The applicant maintains that she has had debris thrown on to, or placed on, her balcony by other occupants of the condominium building. Complaints made in that regard have been dealt with in a perfunctory manner. In addition, she claims that a different, sub-standard material was utilized in the repair of her balcony compared to the superior material provided to other occupants. She believes that the decision to use the sub-standard material was race-based. The applicant further states that other occupants were permitted to install satellite dishes on the building.

8The applicant mentions in her Application other issues such as persistent noise that never abates, the creation of a playground type setting below her unit, vandalism to her partner’s vehicle and anti-freeze remnants left on her parking spot. All requests for action on these issues have been ignored by the respondent, Peel Condominium Corporation No. 490. The individual respondents who have created the issues have declined to change their behaviours or prevent their children from continuing their disruptive activities.

9The applicant wants an assurance that the pattern of malfeasance will cease. She wishes to have quiet and peaceful enjoyment of her own premises, for the sake of herself and her family.

Arguments of the Respondents

10The respondents, who made effectively a joint submission, argue that there is no link to the allegations made by the applicant and the ground of race. They suggest that the Code does not deal with general allegations of unfair treatment or harassment and that the Application consists of nothing more than bald assertions. There is no link to the Code in this instance and as such the Application should be dismissed.

11In terms of the issue raised about the different quality of material used to repair the applicant’s balcony, it is submitted that the same material was used to repair other balconies in the condominium building. The individual respondents assert that all allegations against them are groundless.

Reply of the Applicant

12The applicant replies that the nexus was made in argument between the allegations made by the applicant and her race. There is a concern that the disruptive behaviour being endured by the applicant will continue once this process is over and that there may be possible reprisals against her for bringing this Application.

The Law

13The Application itself and the submissions of the applicant are devoid of particulars of any differential treatment or reprisals per se. The argument of the applicant is essentially that there can be no other basis for the lack of an appropriate response to her complaints but her race (gender or sex were not raised in argument). Similarly, her view is that any treatment that she received from the respondents, or any of them, must be discriminatory because it did not meet her expectations in terms of the service that she should be afforded.

14It is not sufficient to make bald assertions to establish discrimination or differential treatment: see Sosoo v. Winners Merchants 2010 HRTO 1367; Jagait v. IN TECH Risk Management 2009 HRTO 779; and Howard v. 407 ETR Concesssion 2011 HRTO 1511. Despite the belief of the applicant, the intial onus is on her to establish that there is evidence to support her allegations of discrimination in the absence of any such link in her Application: see Sosoo v. Winner’s Merchants at paras. 66-67 and Howard v. 407 ETR Concession at para. 13. The threshold for establishing a reasonable prospect of success at the summary hearing stage may be a low one but, ultimately, there must be some foundation upon which the Tribunal can find that the applicant was discriminated against, and that the discrimination is linked to a prohibited ground under the Code: see Sosoo v. Winner’s Merchants at para. 71 and Howard v. 407 ETR Concession at para. 17.

15In the instant case, it would have been sufficient for the applicant to raise allegations that, if accepted to be true, would be enough to establish a Code violation: see Capocci v. York Catholic District School Board 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep) 2006 HRTO 22 at paras. 21-22; and Arias v. Centre for Spanish Speaking Peoples 2009 HRTO 1025 at para. 7. As opposed to merely insufficient or ambiguous evidence being offered in this matter by the applicant, there is, in fact, an absence of any evidence whatsoever. There were literally no allegations that could form any basis for establishing a Code violation, beyond mere conjecture or speculation on the part of the applicant.

16As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. 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.

The Tribunal also does not have the general power to decide whether the respondents treated the applicant fairly and appropriately: see Tubquabo v. University of Ottawa 2010 HRTO 477 at para. 6. There is no evidence in any event which establishes a nexus with a proscribed ground of discrimination under the Code. There is no evidence whatsoever to suggest that the actions of any of the respondents have amounted, to date, to any form of reprisal against the applicant at any time.

17If I accept the facts as alleged in the Application, I am unable to conclude that there is a link between those facts and discrimination on the grounds of race and/or sex. As opposed to pointing me to any evidence in the Application or that she could obtain that would support the conclusion that her race and/or sex was a factor in the respondents’ treatment of her, counsel for the applicant suggested that that was the only conclusion that I could draw from the facts. I respectfully disagree.

DECISION

18For all the foregoing reasons, I have concluded that there is no reasonable prospect that this Application can succeed. Therefore, the Application is dismissed.