Charles Senchire v. Beredan Management & Consulting Inc. and Comfort Property Management Inc., 2013 HRTO 451

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles Senchire Applicant

-and-

Beredan Management & Consulting Inc. and Comfort Property Management Inc. Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: March 15, 2013 Citation: 2013 HRTO 451 Indexed as: Senchire v. Beredan Management & Consulting Inc. and Comfort Property Management Inc.

APPEARANCES

Charles Senchire, Applicant Self-represented

Beredan Management & Consulting Inc. and Comfort Property Management Inc., Respondents Carol Dirks, Counsel

Introduction

1This is an Interim Decision in respect of 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 the occupancy of accommodation because of race, color, creed and gender expression. What was the applicant claims that he has been harassed and intimidated, and that respondent condominium corporation has dealt with his arrears of payment of common expenses in a way that is not in accord with the policy of the condominium corporation.

2This Interim Decision deals with three Requests for an Order During Proceedings; the applicant's Request that counsel for the respondents be ordered not to represent the respondents because of alleged conflict of interest, and the respondents’ Requests that the Application be dismissed “in whole, or alternatively, dismissed in part” and for a summary hearing.

3For the reasons set out below, the respondents’ Request that the Application be dismissed is also denied, without prejudice to the respondents’ right to raise this issue again later in these proceedings. However, the respondents’ request for a summary hearing is granted.

ANALYSIS

4To deal first with the applicant's Request for an order that counsel for the respondents be removed, I can see in the materials filed by the applicant nothing that would indicate that counsel for the respondent is in any way in a conflict of interest. The applicant’s Request is therefore dismissed.

5The Tribunal is specifically tasked in the Code with adopting “the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications” (s.40). This must be done within a context in which, as in this case, the vast majority of applicants are not represented by counsel.

6Unrepresented parties may lack understanding of the Tribunal’s jurisdiction. An unrepresented applicant may file an Application in a situation in which the respondent’s alleged actions or omissions, even if proven, could not possibly infringe the Code. However, it is only in very rare cases, in which the facts and issues are plain and obvious, and clearly outside the Tribunal’s jurisdiction to decide, that the Tribunal may dismiss on the ground that an Application fails to disclose a breach of the Code, without giving an opportunity to make oral submissions. This cautious approach is closely related to the purpose of the Code and to the factual context relevant to the Code. The fact is that members of groups who suffer discrimination on the basis of grounds set out in the Code are often disadvantaged in a number of ways that affect their ability to communicate (including drafting an Application) and to deal efficiently with a legal proceeding. Obvious examples of persons who may have difficulty in this regard include individuals who, because of their place of origin, do not have English or French as a first language, persons living with mental disabilities, and those whose education has been adversely affected because of marginalization for reasons connected with the Code. In this case, it appears that English may not be the applicant’s first language.

7Having said the above, it is also clear that the Tribunal does not have a general power to inquire into claims of unfairness outside the areas and grounds listed in the Code.

8The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119). In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. More recently, in Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court stated:

…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the [area]; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. (at para. 33)

9In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal set out the approach it uses where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, 2006 HRTO 22, at paras. 21-22). (above, at para 6)

10Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination (see Moore, above; Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386).

11In materials filed to respond to the respondents’ Requests, the applicant clarifies the lien allegation. He indicates that he was treated differently from other condominium owners in respect of the procedure employed by the corporation to deal with non-payment of common element fees. According to the applicant, and to a document entitled “common expense collection” he filed with his materials, the respondent corporation customarily deals with non-payment of common element fees by issuing two notices (one for each of the first two months overdue) that payment has not been made and is due. If payment is not made by the third month, the corporation sends a notice of intent to file a lien against the condominium unit, and registers a lien at the end of that month, charging unit owner on amount for collection and legal fees. The applicant indicates that he failed to pay his fees in September, October, and November of 2012. According to the applicant, the corporation would have sent notice letters in September and October and notice of intent to file the lien in November. Instead, it filed a lien on October 11, 2012. The applicant states that this was done because “I have been an outspoken against some unlawful and unjust practices being adopted by management towards certain groups of unit owners and origins in my condominium community”. He submits that a lien was filed prematurely against another condominium owner, but does not indicate any further information that might link that allegation to a ground of discrimination under the Code.

12In their response, the respondents state that they sent the applicant a notice of lien on or about October 11, 2012. They take the position that they were entitled to register a certificate of lien immediately (allegedly because the applicant had been “regularly in arrears of common expenses”). The respondents indicate that they actively pursue common expense arrears from all owners, with no discrimination. They state that in the applicant's case no certificate of lien was registered on title because the applicant brought his account into good standing. The respondents also indicate that they waved the collection fee.

13The respondents state that the applicant's actual disagreement relates to the payment of monthly common expenses and is not properly the subject of an application under the Code. The respondents state that even if the applicant allegations are true, which they do not knit, the applicant alleges that the cause of the alleged harassment, intimidation or discrimination is his outspoken position as a named respondent in Superior Court of Justice proceedings in which the applicant and other condominium owners group opposed the reappointment of an administrator for the condominium corporation.

14The applicant claims that he has been harassed and intimidated. Harassment is defined in the Code as “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Subsection 2 (2) of the Code prohibits 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”. The Application does not outline what actions or omissions of the respondents are considered by him to be harassment; the only actions or omissions alleged in the Application to have an impact on the applicant are related to the procedures around registering a lien against his unit.

15To apply the facts and allegations that are evident at this point against the test set out in Moore, the applicant has stated that he has a characteristic protected from discrimination under the Code; he describes himself as a black man of African descent, which has obvious connection to the Code grounds of race and color. He does not allege facts that would indicate that the grounds of creed and sexual expression are at issue; in the part of the Application that asks him to explain why he believes he was discriminated against based on creed, he wrote “I was discriminated based on what I stand for and believe. I believe everyone should be treated equal in society and stand for what is right in society and fight against injustice”. The Application question that asks him to explain why he believes he was discriminated against based on gender expression is left blank and I can see no information that appears to me to be relevant to this ground of discrimination in the Application. The applicant appears to allege that he experienced two adverse impacts with respect to a social area covered by the Code; the registration of a lien, which the respondents dispute, and a deviation from policy as to when a notice of intent to file a lien is issued. However, it is not clear from the applicant's written material whether he alleges that his race or colour was a factor in the alleged registration of a lien or the alleged deviation from policy as to when a notice of intent to file a lien is issued.

16The respondents have requested a summary hearing. Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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 or witness statements.

17Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 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.

18It appears to me that the main issue in this case is whether the applicant does in fact claim that there is a link between an adverse effect resulting from an action or omission of the respondents and a ground of discrimination under the Code. If the applicant maintains that he has suffered discrimination in respect of creed, he should be prepared to argue why his beliefs as identified in the Application meet the definition of “creed” for Code purposes: the parties are referred to Syndicat Northcrest v. Amselem, 2004 SCC 47, 2004 2 SCR 551, Heintz v. Christian Horizons, 2008 HRTO 22, Chaudhry v. Choice Taxi of Cornwall Inc. 2012 HRTO 391, and Sauve v. Ontario (Training, Colleges and Universities), 2009 HRTO 296. If the applicant alleges that his race or colour was a factor in the alleged registration of a lien or the alleged deviation from policy as to when a notice of intent to file a lien is issued, he must be prepared to state why he believes this.

19If the applicant maintains that he was harassed within the meaning of the Code, and that the harassment was linked to a ground of discrimination, he must be prepared to identify what actions by the respondents constitute harassment, and why he believes that they are linked to a ground of discrimination under the Code.

20Obviously, determinations that cannot be made without hearing evidence will not be made through a summary hearing; in those situations the application is sent on hearing in the ordinary process. (See for example Loiselle v. Workplace Safety and Insurance Board, 2012 HRTO 2310, Francisco v. Toronto District School Board, 2011 HRTO 2257).

21The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. 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 respondents’ actions and the grounds of discrimination cited.

22If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed, in whole or in part. If the Tribunal does not find that the Application or part of it should be dismissed under Rule 19A, all or part of the Application will continue in the Tribunal process.

23I am not seized.