HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bryan Hawley Applicant
-and-
Fairlea Park Housing Co-operative Inc. Respondent
A N D B E T W E E N:
Bryan Hawley on behalf of Bette Hawley Applicant
-and-
Fairlea Park Housing Co-operative Inc. Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: March 22, 2013 Citation: 2013 HRTO 490 Indexed as: Hawley v. Fairlea Park Housing Co-operative Inc.
APPEARANCES
Brian Hawley and Bette Hawley, Applicants Self-represented
Fairlea Park Housing Co-operative Inc., Respondent Shawn O’Connor, Counsel
Introduction
1Application 2011-08351-I was filed by the applicant, Brian Hawley, on March 16, 2011, under section 34(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application alleges discrimination on the basis of disability, age, and receipt of public assistance in housing. For the reasons given below, I have determined that the applicant’s Request for an Order During Proceedings (“Request”) to add his spouse as a “co-applicant” should be treated as a new Application filed on her behalf under section 34(5) of the Code, on December 19, 2011. This new Application has been assigned file number 2013-13964-I.
2This Interim Decision follows a summary hearing.
The Original Application
3The Application filed by Brian Hawley was completed on June 20, 2011, and includes the following allegations:
a. The applicant, Brian Hawley, and his wife, Bette Hawley, requested subsidy information from the respondent as they believed the respondent’s subsidy calculations were incorrect. Requests were made over many months in 2008 and 2009, but they have not received any of the information sought for the past three years.
b. The respondent demanded their Ontario Disability Support Program (“ODSP”) drug card to support their subsidy application, and they refused, noting that the drug card does not provide any relevant information to the application process.
c. The respondent informed them in December 2009 that a particular unit was being offered to them as an internal move. Two of their three children had left home and they were in a four-bedroom unit. They were prepared to move to a smaller unit.
d. Between December 2009 and January 2010, they had several opportunities to view the new unit, noting a number of things they thought should reasonably be the respondent’s responsibility to repair, including unsafe deck railing, unsafe steps, damaged flooring, and a damp basement with standing water. Some of the repairs were completed and others were not. The wet basement floor was painted. They photographed many of the problems and wrote to the respondent with the photographs. They did not hear back from the respondent until March 2010.
e. On March 15, 2010, they received written notice from the respondent that they were to be moved. Two families, both seniors with disabilities and limited income, received virtually the same notice. The notices were unnecessarily harsh and intimidating. The respondent ignored and/or rejected all of their concerns regarding disability, health, safety, or property damage, arising from the condition and suitability of the unit to which they were to be moved.
f. The respondent’s March 15, 2010 notice stated that they had three days to either accept the new unit or give notice of their intention to move out of the co-op. They had nowhere else to go as they have relied on a modest rent subsidy from the respondent for the past 20 years, without which they could not afford to live in the co-op, and there is a very long waiting list for subsidized housing in their community. They were, in effect, given a choice to accept the respondent’s terms, or be evicted. This happened because the applicant was in receipt of ODSP and they were receiving a subsidy.
g. The applicant wrote a letter to the respondent objecting to its tactics, and the respondent apologized, but delivered virtually the same letter to them on two or three later occasions.
h. Between April and May 2010, Mr. Hawley and Ms. Hawley notified the respondent that they had surgeries coming up in the spring and summer, including major surgery for Mr. Hawley in August 2010. The respondent was provided with notes from their family doctor indicating that she did not want them to move at that time.
i. In May 2010, Mr. Hawley turned 65 years of age and transitioned from ODSP to Canada Pension Plan.
j. Between April and June 2010, the respondent sent a second notice, similar to the March 15, 2010 notice, again with three days to respond.
k. They continued to try to get the respondent to address their concerns, especially the cracked basement floor and water issues.
l. On June 17, 2010, they attended a meeting of the respondent’s board of directors to discuss issues and they agreed to the respondent’s suggestion of an outside consultant to investigate the basement issues. The meeting deteriorated and the respondent was not open to further negotiations, and resorted to ridicule and rude and insulting behaviour.
m. The consultant’s report was unacceptable to them, and they wrote to the respondent but their issues were ignored.
n. On June 6, 2010, Mr. Hawley had surgery, followed by six weeks of convalescence. He was also advised by his doctor in June 2010 to reduce stress prior to major surgery in August.
o. In August 2010, they had no choice but to accept the new unit due to the pressure of Mr. Hawley’s approaching surgery, and in October 2010 they moved to the new unit.
p. In or around November 2010, the respondent circulated a notice to members regarding the respondent having moved co-op members. They were the only family that was moved, and most members knew that.
q. Between October 2010 and June 2011, they requested that the respondent repair various items in the unit. A few items were repaired in their first couple of months in the unit, but since then virtually nothing has been done.
4Mr. Hawley submits in his Application that many of their requests for repair relate to his disability in terms of health and safety. He submits that the respondent has repeatedly refused or ignored requests to repair the unit to which they were forced to move to reduce risks to his health and safety, referring to wet and damp basement issues, mould issues identified in a 2007 report, and a front entrance step and grab bar. He indicates elsewhere in his Application that he requires a safe mobility environment to accommodate low vision, referring to unsecured linoleum and a wet basement floor, and a safe indoor environment to minimize risk to his respiratory tract, referring to dampness and mould. He also alleges that the respondent has denied him copies of documents in digital format which would allow him to use the technologies he has to read them and participate more fully in co-op life.
5Mr. Hawley also submits that he believes what has happened is a result of the fact that he and his family receive a subsidy from the respondent, which they receive because their sole income is his “ODSP pension”. He submits that what has happened would not have happened had they not been in receipt of social assistance, including the rent subsidy. He also submits that he received ODSP until 2010 because of his disabilities.
6Mr. Hawley submits in his Application that it is hard to conclude that the respondent’s actions are not due to age, disability, or source of income.
The respondent’s Response
7In its Response to the Application filed November 10, 2011, the respondent submits that events referred to in the Application that occurred on or before March 15, 2010 should be dismissed as time-barred, pursuant to section 34 of the Code. The respondent also submits that parts of the Application relate to the level of repair of the unit and are not within the jurisdiction of the Tribunal. The respondent submits that it has fully accommodated Mr. Hawley’s disability issues, and that the essence of the Application is that he does not believe he should have been asked to relocate in 2009, which is not a complaint about discrimination on a prohibited ground within the meaning of the Code.
8The respondent also asserts that it is partially funded by the Canada Mortgage and Housing Corporation (“CMHC”), and is directly involved in housing programs administered by the Province of Ontario, and that its members agree to comply with the housing subsidy programs. The respondent also submits that the CMHC and the Province of Ontario are involved to provide housing assistance for disadvantaged persons, and that this is a program within the meaning of section 14 of the Code.
Request for an Order During Proceedings
9On December 19, 2011, Mr. Hawley filed a Request to add a party. He requests that Ms. Hawley be added as a co-applicant to the Application. Mr. Hawley submits that Ms. Hawley has a disability, and that both he and Ms. Hawley have been subjected to the same discrimination. He submits that Ms. Hawley should have been named in the Application and that she consents to being added as a party.
10On December 29, 2011, the respondent filed submissions opposing the Request. The respondent submits, among other things, that there have been no acts alleged against the respondent in the 12 months prior to the Request to add Ms. Hawley as a party, and that, therefore, the Request is time-barred under section 34 of the Code.
11On January 4, 2012, Mr. Hawley filed a lengthy Reply to both the respondent’s Response to the Application and the respondent’s submissions in response to his Request to add Ms. Hawley as a party. The Reply is approximately 61 pages, without attachments, and includes further particulars of the allegations set out in the Application, as well as new allegations that post-date the completion of the Application on June 20, 2011. The new allegations consist primarily of ongoing communications with the respondent regarding repair issues, many of which were already identified in the Application. A new issue regarding a faulty oven thermostat is alleged to have been raised with the respondent on or about August 23, 2011, and it is also alleged that on or about October 30, 2011, Ms. Hawley asked the respondent to provide her with a stair lift in advance of foot surgery.
12While there was no formal request to amend the Application to include any new allegations, in the circumstances of this case, I am prepared to also consider the new allegations in the Reply, without prejudice to the respondent’s ability to raise prejudice in relation to any of these new allegations. The new allegations concern ongoing matters occurring within six months of the allegations set out in Mr. Hawley’s Application, and within six months prior to the filing of Ms. Hawley’s Application. These new allegations in the Reply were also raised at an early stage, approximately 9.5 months after Mr. Hawley’s Application was filed and approximately three weeks after Ms. Hawley’s Application was filed. The respondent has not objected to the inclusion of these new allegations in the Reply since receiving it, and at the summary hearing the respondent did not argue that they were prejudiced in any way by the inclusion of these new allegations. I also note that Mr. Hawley submitted that he tried, but was not able, to obtain legal representation, and that he had difficulty completing the Application because of disability-related issues. As noted below, the respondent will have the opportunity to respond to any new allegations by filing an amended Response to the Application.
SUMMARY HEARING
13In a Case Assessment Direction dated April 19, 2012, the Tribunal directed that a summary hearing be held, and indicated that the Request to add Ms. Hawley as a co-applicant, and the delay issues raised by the respondent, would also be addressed at the summary hearing.
14The Tribunal indicated in the Case Assessment Direction that it is not clear if an individual can be added as a co-applicant to an Application, particularly an Application that was previously filed, or if it would be more appropriate to consider the applicant’s Request to add Ms. Hawley as a request to file a separate Application on behalf of Ms. Hawley, based on the same allegations. See Denesuik v. Lennox and Addington Family and Children’s Services, 2010 HRTO 373, and S. L.-M. v. York Region District School Board, 2010 HRTO 2361.
15The Tribunal indicated that the following issues would be addressed at the summary hearing:
Should Ms. Hawley be added as a co-applicant to the Application?
Should the applicant’s Request to add Ms. Hawley as a co-applicant be considered a request to file a separate Application on behalf of Ms. Hawley and should such a request be granted?
Should the Application(s) be dismissed, in whole or in part, on the basis of delay?
Should the Application(s) be dismissed, in whole or in part, on the basis that the Application(s) have no reasonable prospect of success?
Request
16While Mr. Hawley submits in his Request that both he and Ms. Hawley have been subjected to the same discrimination, some of the allegations in the Application appear to pertain only to Mr. Hawley. Also, the Request to add Ms. Hawley as a co-applicant was filed on December 19, 2011, approximately nine months after the Application was filed, and six months after it was completed. The respondent submits that the Request is time-barred under section 34 of the Code.
17Section 34(1) of the Code essentially provides that a person may file an application with the Tribunal within one year after the incident, or the last incident in a series of incidents, to which the application relates, unless the Tribunal is satisfied that any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, within the meaning of section 34(2) of the Code. I also note that section 34(5) of the Code provides that a person may apply to the Tribunal, on behalf of another person, if the other person would have been entitled to bring an application under section 34(1), and consents to the application.
18Without determining whether a single application can be filed on behalf of more than one person, in the particular circumstances of this case, I find that it is appropriate to treat the Request to add Ms. Hawley as a co-applicant as, in effect, a request to file a separate application on behalf of Ms. Hawley under section 34(5) of the Code. See Denesuik, supra, at paras. 4-5, S. L.-M., supra, at paras. 14-16, and J.C. v. Canadian Hockey Association, 2011 HRTO 385 at paras. 15-17.
19I also note that Ms. Hawley provided her independent consent to being added as a party to the proceedings. In the circumstances, a request to file a separate Application on behalf of Ms. Hawley is granted, subject to considerations of timeliness, and whether or not the Application has a reasonable prospect of success, as addressed below. The Tribunal has assigned file number 2013-13964-I to Ms. Hawley’s section 34(5) Application and the applicant and Ms. Hawley (the “claimant”) are also directed to complete and file with the Tribunal a Form 4 (Part C) within 20 days of the date of this Interim Decision.
20I also have determined that it is appropriate to consolidate these two Applications so that they may be heard together.
Delay
21At the summary hearing, the respondent submitted that issues related to the request that the applicants move, and, in particular, that they move to the new unit, were fully crystallized in December 2009 and January 2010, but Mr. Hawley’s Application was not brought for another 14 months. The respondent also submitted that the Request to add Ms. Hawley is out of time.
22The applicant submits that the issues are ongoing and the incidents are connected. He submits that there is no break of more than one year between the events, and the events show a pattern of conduct. The applicant submits that events prior to March 16, 2010, are an integral part of what happened after, and the ongoing maintenance issues in the new unit involve a failure to accommodate Mr. Hawley’s concerns about his health and well-being.
23Section 34 of the Code states as follows:
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 relates; 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.
24In considering the meaning of the term “series of incidents” under section 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457. As noted in Savage v. Toronto Transit Commission, 2010 HRTO 1360, a gap of more than one year between incidents in a series would, in most cases, interrupt the series.
25The applicant’s allegations include that he and the claimant were informed in December 2009 that the new unit was being offered to them as an internal move, and between December 2009 and January 2010 they had several opportunities to view the unit, noting a number of things they thought the respondent should repair. Some of the repairs were completed and others were not. They wrote to the respondent, and did not hear back until March 2010. In particular, on March 15, 2010, they received notice from the respondent that they were to be moved. They allege that the respondent ignored and/or rejected all of their concerns regarding disability, arising from the condition and suitability of the unit, and that the notice stated that they had three days to either accept the unit or give notice of their intention to move out of the co-op. Mr. Hawley wrote a letter to the respondent objecting to its tactics, and the respondent apologized, but delivered virtually the same letter to them on two or three later occasions.
26The applicant and claimant allege that, between April and May 2010, they notified the respondent that they had surgeries coming up in the spring and summer, including major surgery for the applicant in August 2010. The respondent was provided with notes from their family doctor indicating that she did not want them to move at that time. They also allege that, between April and June 2010, the respondent sent a second notice, similar to the March 15, 2010 notice, and they continued to try to get the respondent to address their concerns, especially the basement floor and water issues, and attended a meeting of the respondent’s board of directors on June 17, 2010 to discuss the issues.
27Mr. Hawley’s Application was filed on March 16, 2011. In my view, the allegations in his Application commencing with being informed of a move to a different unit in December 2009, and subsequently raising concerns with the respondent about the condition of the unit and the timing of the move, are sufficiently similar and temporally connected to allegations in the Application filed within the one-year time limit to constitute a “series of incidents” within the meaning of the Code.
28With respect to Ms. Hawley’s Application, I find that it is appropriate to consider the Application filed on December 19, 2011, which is the date that the Request to add Ms. Hawley as a co-applicant was filed. In my view, the allegations as they pertain to Ms. Hawley’s Application, commencing with being informed of a move in December 2009, and subsequently raising concerns with the respondent about the condition of the unit and the timing of the move, are sufficiently similar and temporally connected to allegations filed within one year of December 19, 2011 so as to constitute a “series of incidents” within the meaning of the Code. In particular, there are ongoing allegations in the Application during the December 2009 to June 2011 time period, with respect raising concerns with the respondent about the condition of the unit that the applicants moved to in October 2010. While I note that the allegations concerning the condition of the unit include allegations of a failure to accommodate Mr. Hawley’s disability-related needs, both Applications also allege the respondent ignored their requests for repairs and that this constitutes discrimination on the basis of receipt of public assistance, age, and disability.
29With respect to the allegation that subsidy information requested from the respondent was not received, the Applications indicate that requests were made over many months in 2008 and 2009, and, although it is not entirely clear from the Applications, it appears that this occurred prior to mid-2009. Although the Applications state that this allegation is ongoing, no further particulars are provided, other than stating that the information has not been received. In addition, at the summary hearing, Mr. Hawley referred to the subsidy issue occurring in 2008.
30In my view, the allegation regarding not receiving subsidy information is not sufficiently similar, or of the same class, so as to constitute a “series of incidents” with the other timely allegations in the Applications. In addition, based on the applicant’s materials and submissions, it appears that this allegation relates to events in 2008 and prior to mid-2009. As such, it also appears that this allegation is not sufficiently temporally connected to the timely allegations in the Applications. I find therefore that the allegation regarding not receiving subsidy information from the respondent is untimely, and I turn to whether the delay in raising this allegation was made in good faith, as required by section 34(2) of the Code.
31In order to satisfy the Tribunal that delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay, while recognizing that there will be legitimate circumstances that justify exercising discretion under section 34(2). See S. L.-M., supra, at para. 22, and Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
32With respect to filing Mr. Hawley’s Application, the applicant submitted at the summary hearing that Mr. Hawley was recuperating from surgery in August 2010, and then experienced a life-threatening complication in September 2010. They moved in October 2010, and then there were the Christmas holidays. They submit that any delay was incurred in good faith.
33While I accept that Mr. Hawley’s medical condition provides a reasonable explanation for some of the delay in filing his Application, I am not satisfied that his medical condition provides a reasonable explanation for all of the delay in bringing forward the allegation of not being provided with subsidy information, which appears to relate to the 2008 to mid-2009 time period, more than 20 months before Mr. Hawley’s Application was filed. I also note that Mr. Hawley indicated in his Application that events began in 2008, but he did not consider a human rights complaint until a serious event in 2010.
34With respect to Ms. Hawley, the allegation of not being provided with subsidy information appears to relate to a time period of more than 29 months prior to her Application being filed. The applicant did not provide any reasons for the delay in seeking to add Ms. Hawley to the proceedings. In the circumstances, I am not satisfied that the applicant and the claimant have established good faith with respect to the delay in bringing forward the allegation concerning not receiving subsidy information from the respondent. This allegation is therefore dismissed on the basis of delay.
35With respect to the allegation that the respondent demanded, and the applicant and claimant refused to provide, their ODSP drug card, although it is not entirely clear, it appears from the Applications that this occurred prior to mid-2009. In the event that this allegation is timely, I have nevertheless determined below that it has no reasonable prospect of success and this allegation is dismissed on that basis.
Reasonable prospect of success
36Rules 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.
37In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-10:
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.
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 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.
38With respect to the allegation that the respondent demanded and the applicant and claimant refused to provide their ODSP drug card, as noted above, although it is not entirely clear, it appears from the Applications that this occurred prior to mid-2009. It also appears from the parties’ materials that the respondent originally requested this information to confirm household composition for subsidy verification purposes, and that this issue was ultimately resolved through a privacy complaint filed by the applicant and the claimant.
39At the summary hearing, and in their materials, the applicants did not explain how the request to provide an ODSP drug card could reasonably be considered to amount to a Code violation on any of the grounds alleged, nor how any evidence reasonably available to them could establish a link to the grounds alleged. In the circumstances, I find that this allegation has no reasonable prospect of success and it is dismissed.
40With respect to Mr. Hawley’s allegation that the respondent denied him copies of documents in digital format, the applicant provided no further particulars with respect to this allegation in either his Application or his submissions at the summary hearing. The applicant did submit in his Reply, however, that on May 18, 2010, he asked the respondent for copies of minutes in either hard copy or electronic format. He explains in his Reply that he uses a magnifying glass to read hard copies. He did not refer to any potential evidence that he actually asked the respondent for copies of documents in digital format in order to accommodate a disability-related need. Aside from baldly asserting that he was denied copies of digital documents, and despite submitting numerous documents, the applicant did not refer to any evidence reasonably available to him concerning requests for, or denials of, copies of documents in digital format that would support a finding of discrimination on the basis of the grounds alleged. In the circumstances, I also find that this allegation has no reasonable prospect of success and it is dismissed.
41With respect to the remaining allegations that are timely, the applicant and claimant allege generally in their Applications that what happened would not have happened had they not been in receipt of social assistance, including a rent subsidy. While it is not entirely clear, it appears that they are not alleging in their Applications that the original request to downsize was discriminatory. They allege that there were just three of them living in a four-bedroom unit, and they had long been prepared to move to a smaller unit, believing in the principle that the limited resources of the co-op ought to be put to the best use. They also submitted more than once at the summary hearing that when they were told to move in December 2009, they were willing to move because they were over-housed. They submitted that moving to the other unit only became an issue once they saw the condition of it.
42I also note, however, that the applicant and the claimant allege in the Applications that when they received written notice from the respondent on March 15, 2010 that they were to be moved, another family, also seniors with disabilities and limited income, received virtually the same notice, which was unnecessarily harsh and intimidating. On the other hand, the applicants also submitted at the summary hearing that not all over-housed members received notices to downsize, and that they were the only over-housed people receiving a subsidy to downsize. They referred to another over-housed family in receipt of social assistance who were not asked to move at the time.
43To the extent that the applicant may be alleging that the request to downsize was discriminatory, in the particular circumstances of this case, I find that the applicants have not established how the request to downsize could reasonably be considered to amount to a Code violation. In addition, the applicants have not pointed to any evidence reasonably available to them that could establish that the request to downsize was a violation of the Code on the grounds alleged. To the extent that the applicants pointed to evidence of other families in the co-op, I do not find that this supports their allegations, as it appears that other over-housed families who were also in receipt of public assistance were not moved. I find that to the extent that the applicants may be alleging that the request to downsize was discriminatory, the applicants have not established that this allegation has a reasonable prospect of success and it is dismissed on that basis. I also find in the circumstances that the applicants have not established how the respondent’s circulation of a notice to other members that it had moved members could reasonably amount to a violation under the Code on the grounds alleged, and this allegation is also dismissed as having no reasonable prospect of success. Given this conclusion it is not necessary for me to address the respondent’s argument on section 14 of the Code.
44The remaining allegations appear to relate to the condition of the applicant’s unit, including their requests for repairs, and the timing of their move to the unit.
45With respect to repair issues, further to the allegations in the Applications, the applicant submitted at the summary hearing that Mr. Hawley’s doctor did not want him to move into a unit with a high humidity problem because of his medical condition, and the respondent steadfastly refused to accommodate his disability-related needs. They also referred to unsecured wooden steps that would wobble and flip over, the absence of a safety grab bar next to the steps, problems with the thermostat on their stove, raised linoleum seams, and a roof leak in the bathroom, which were all a danger to Mr. Hawley because of his medical conditions. The applicant acknowledges in the Applications that a few items were repaired in their first couple of months in their unit, but submit that their repeated requests for repairs were then ignored.
46The allegations concerning the timing of the applicant’s and claimant’s move to the new unit appear to be related solely to the issue of accommodating disability-related needs, and the Code ground of disability. Further to the allegations in the Applications, the applicant submitted at the summary hearing that they notified the respondent that Mr. Hawley’s doctor did not want him to move for a year, but the respondent ignored the severity of his medical condition and required them to move or lose their subsidy.
47With respect to evidence that the applicant and claimant have, or that is reasonably available to them, they submitted numerous documents concerning their communications with the respondent, including communications regarding the timing of their move and repairs to the new unit. They also referred to letters from their doctors.
48I note, however, that to the extent the applicant and claimant are alleging a failure to accommodate disability-related needs with respect to repair issues in their unit, there do not appear to be any actual allegations in the Applications concerning a failure to accommodate any disability-related needs of Ms. Hawley. There is, however, an allegation in the Reply that Ms. Hawley requested accommodation in relation to foot surgery on October 30, 2011, and that she raised concerns regarding the humidity in the unit in relation to both her and the applicant’s medical conditions on August 23, 2011.
49Particular to the allegations regarding the timing of their move, there is an allegation in the Application that the respondent was advised in or around April to May of 2010 that both the applicant and the claimant had upcoming surgery, and they did not want to move at that time.
50With respect to repair issues in particular, to be clear, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code, and to show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. In addition to the repair issues identified above, the applicant alleges numerous other repair issues in the Applications and Reply for which they have not explained any connection to the Code ground of disability. Allegations in the Applications concerning these other repair issues are dismissed as having no reasonable prospect of success.
51I also find that the applicant and claimant have not established that there is a reasonable prospect that evidence they have, or that is reasonably available to them, can show a link between the respondent’s actions and the grounds of age and/or receipt of public assistance as alleged. They baldly asserted at the summary hearing that their requests for repairs were ignored, while other co-op members had work done in their units, but provided no particulars. They have not explained how they could establish that the alleged failures to respond to their repair requests are linked to the grounds of age and/or receipt of public assistance. For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that discrimination on the basis of a Code could be shown. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17. To the extent that the applicant and claimant are alleging that the respondent subjected them to discrimination on the basis of age and/or receipt of public assistance by not responding to their repair requests, these allegations are dismissed as having no reasonable prospect of success.
52Although it is not entirely clear, it appears that the applicant may be alleging, more generally, that they were subjected to discrimination on the alleged grounds when they were effectively provided with no choice but to move to a unit that was in a state of disrepair. Again, the applicant does not appear to dispute that it was appropriate for them to downsize in light of their family situation. While the Reply baldly asserts that there were other vacant units, the applicant and the claimant have not referred to any potential evidence available to them, that any other appropriate smaller unit in a better state of repair could have been made available to them. In the circumstances, I am not satisfied that the applicant and claimant have established a reasonable prospect of success with respect to any allegation that they were subjected to discrimination on the grounds alleged in terms of being required to move to the smaller unit in question.
53At this stage of the proceeding, prior to having actually heard any evidence, it is not appropriate to make findings with respect to the applicant and claimant’s remaining allegations or the respondent’s defence. With respect to the remaining allegations of discrimination concerning the timing of their move to the new unit and the repair issues identified above, I am satisfied that they may be able to establish a link between the alleged events and the Code ground of disability.
Conclusion
54The Request to add Ms. Hawley as a co-applicant is considered a request to file a new Application on behalf of Ms. Hawley on December 19, 2011, and the request is granted. The Tribunal has assigned a separate file number to Ms. Hawley’s Application.
55The allegations of discrimination in the Applications related to the condition of the co-op unit that the applicant and claimant moved to in October 2010, including their requests for repairs regarding the repair issues identified above, and the timing of their move to the new unit, are not dismissed and may proceed. The remaining allegations in the Applications are dismissed.
NEXT STEPS
56The applicant and the claimant are directed to complete and file with the Tribunal a Form 4 (Part C) within 20 days of the date of this Interim Decision. The respondent may file a Response to Ms. Hawley’s Application and an Amended Response to Mr. Hawley’s Application, including any new allegations raised in the Applicants’ Reply, within 35 days of the date of this Interim Decision.
57I am not seized.
Dated at Toronto, this 22nd day of March, 2013.
“Signed by”
__________________________________
Brian Eyolfson
Vice-chair