Williams v. Melucci, 2013 HRTO 547

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Williams

Applicant

-and-

Antoinette Melucci

Respondent

DECISION

Adjudicator: Mark Hart

Date: April 3, 2013

Citation: 2013 HRTO 547

Indexed as: Williams v. Melucci

APPEARANCES

Sandra Williams, Applicant

Self-represented

Antoinette Melucci, Respondent

Judy Cayford, Representative and Student-at-Law

1This is an Application dated July 27, 2011, and 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 disability and receipt of public assistance.

2The applicant is a woman who is in receipt of ODSP benefits. The Application arises from a lease agreement entered into by the parties on March 12, 2011, whereby the respondent agreed to lease a rental home in Tillsonburg to the applicant and her husband, which required that the rent be paid by direct deposit by ODSP. When direct deposit by ODSP could not be arranged, the applicant alleges that this became the reason for the respondent to terminate the lease agreement.

3The hearing in this matter was held on November 15, 2012, in London, Ontario in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure that hearings proceed in a fair, just and expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, her husband and her daughter, and from the respondent, her daughter and the applicant’s previous landlord. The parties were afforded the opportunity to conduct further questioning of their own witnesses following my questioning, and to cross-examine witnesses called by the opposing party.

Review of evidence

4The facts underlying this case are fairly straightforward. The applicant and her husband needed to find a new rental home by April 1, 2011, and saw an advertisement for a home for rent by the respondent in Tillsonburg. Arrangements were made to view the home on March 5, 2011.

5There is no dispute that, when she and her husband were viewing the home, the applicant informed the respondent that she was on ODSP. There also is no dispute that the applicant advised the respondent that she had a direct payment arrangement with her existing landlord, whereby ODSP sent the rent directly to the landlord each month, and that she believed she would be able to make this same arrangement with the respondent. There further is no dispute that, either at this time or in the advertisement, the respondent asked for references, although there is a dispute as to whether any references actually were provided by the applicant at this time.

6The respondent’s evidence is that the rental home was viewed on March 5, 2011 by one or two other couples. Her evidence is that she informed the applicant that she would think things over during the weekend, and contact the applicant the following week.

7The respondent called the applicant on March 7, 2011. What occurred during this call is in dispute. The applicant’s evidence is that the respondent said that she was going to rent the home to the applicant and her husband and not to worry about references because the rent was going to be paid by ODSP. The respondent’s evidence is that, by the time of this call, other potential tenants had been eliminated, such that the applicant and her husband were the only remaining tenants under consideration. However, the respondent states that she still needed to get references, which had not yet been provided.

8The applicant and her husband attended at the rental home on March 12, 2011, and signed a lease agreement with the respondent. This lease agreement provided for a security deposit of $1500, which was equal to first and last months’ rent, and stipulated that rent was to be paid by “direct deposit”. When asked about the purpose of signing the lease agreement at this time, the respondent and her daughter, who was present when the lease agreement was signed, stated that their intention was to further the rental process, but that they still needed to check the applicant’s references. This is disputed by the applicant. The evidence of the applicant’s husband, who also was present at the time the lease agreement was signed, is that he is “pretty sure” that the applicant provided their references at the time the lease was signed but the respondent did not say that the lease would only go ahead if their references checked out. The evidence of the respondent and her daughter is that no references were provided by the applicant or her husband at that time.

9In the meantime, the applicant had contacted her ODSP support worker to request funds for the security deposit and to make arrangements for direct payment of rent to the respondent. The applicant’s evidence is that on March 17, 2011, she was informed by her support worker that ODSP would not make arrangements for direct payment of rent, because it was a “hassle” and was not needed by the applicant.

10The respondent’s representative took issue with this in light of the legislative authority pursuant to s. 13 of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, which states that “a portion of income for support may be provided to a third party on behalf of a recipient if an amount is payable by a member of the benefit unit to the third party for costs relating to basic needs or shelter”. However, in the ODSP – Income Support Directives, the “Pay Direct” policy states that a portion of ODSP income support can be paid regularly to third parties, such as landlords and utility companies, “where a recipient identifies that he/she needs assistance for reasons related to his/her disability or where a recipient has demonstrated an inability to manage the payment of shelter and/or utility costs”. This policy, in my view, supports the applicant’s evidence as to why she was told by her support worker that a direct payment arrangement would not be made. There is no evidence before me to indicate that the applicant or her husband required direct payment for reasons related to their disabilities or that they had demonstrated an inability to manage the payment of their shelter or utility costs. Accordingly, I find that the applicant and her husband did not meet the requirements for direct payment of rent under the ODSP’s Pay Direct policy, and I accept her evidence that she was told by her support worker that ODSP would not make arrangements to pay rent directly to the respondent.

11The applicant and her husband received part of the funds for their security deposit from ODSP, and on March 19, 2011, drove to Tillsonburg to personally deliver these funds to the respondent. There is no dispute that the applicant and her husband provided the respondent with $750 in cash, which represented half of the security deposit. The applicant’s evidence is that they intended to pay the remaining $750 when they moved into the rental home on April 1, 2011. While the Response filed with the Tribunal characterizes this as being in breach of the lease agreement, I note that the lease agreement does not specify when the security deposit is to be paid and further states that the security deposit is not to exceed one month’s rent. In any event, the respondent in her evidence did not identify any issue regarding the payment of the security deposit as part of the reasons for not proceeding to rent the home to the applicant and her husband.

12When the parties spoke on March 19, 2011, the applicant advised the respondent that ODSP was not willing to make arrangements for direct payment of rent. The evidence clearly indicates that this was a source of concern to the respondent, which she characterized as a “red flag”. Her evidence is that she did not know the reason that ODSP would not agree to direct payment, as she had been told by the applicant that this arrangement had been in place with the previous landlord, and it concerned her that ODSP was no longer prepared to make direct payment of rent. The respondent states that she discussed the matter that evening with her husband, and they decided that they needed to have a further discussion with the applicant and her husband. The evidence of the respondent’s daughter is that, while her parents had not made a 100% decision at that time that they were not going to rent the home to the applicant and her husband, her parents’ primary concern was about not getting direct payment of rent from ODSP.

13The following day, on March 20, 2011, the respondent and her husband went to the then rental home of the applicant and her husband. The applicant’s evidence is that the respondent told her that she was no longer going to rent the home to the applicant and her husband because ODSP would not make direct payment of rent and because the applicant and her husband had not provided references. The applicant states that she replied by saying that the respondent had told them that they did not need to provide references, to which the respondent agreed but said this was because she was going to get direct payment of rent. I note here that this evidence is inconsistent with the evidence of the applicant and her husband that references previously had been provided to the respondent.

14The applicant initially stated in her evidence that the respondent “insisted” on speaking with their current landlord. When I asked why the respondent would insist on speaking with their current landlord if she already had informed the applicant that they were not going to rent to her and her husband, the applicant then stated that the respondent wanted to speak to their current landlord because the applicant was still trying to convince the respondent to rent them the home.

15The respondent’s evidence is that she informed the applicant that there were some issues, namely the lack of direct payment and no references, and that the respondent’s husband did not feel comfortable with this. The respondent states that it was the applicant who pointed out that her current landlord lived just across the street. There is no dispute that the respondent went and spoke to the current landlord, who testified before me. The evidence of the respondent and the landlord is that the applicant did not receive a good reference, as there had been issues about the number of people staying at the rental property, about the applicant’s grandchildren allegedly throwing stones at vehicles, and about tension between the applicant and the landlord’s husband. The respondent’s evidence is that she would not have rented to the applicant and her husband on the basis of this reference.

16The evidence of the applicant and her husband is that when the respondent returned from speaking with their current landlord, the respondent said that they had no worries and that their current landlord had given them a good reference, but that there were just a lot of people coming and going at their home. This was denied by the respondent, who says that she told the applicant that the current landlord had raised issues about the number of people who were at their home on a regular basis. On this point, I prefer the respondent’s evidence. It appears clear to me that the current landlord had not in fact given a good reference for the applicant and her husband, and it does not make sense to me that the respondent would have said they did at a time when the applicant’s evidence is that the respondent was also saying that they had decided not to rent the home to the applicant and her husband.

17I understand that the applicant disputes the way certain issues were characterized by her then landlord. Resolving that issue is not before me. The issue before me is whether I accept the evidence of the respondent and the landlord that the landlord and her husband did not provide a good reference for the applicant and her husband. As stated above, I do accept that the landlord did not provide a good reference. The applicant sought to undermine her then landlord’s evidence by introducing a letter dated February 17, 2011 from the landlord stating that the applicant and her husband had been asked to leave their current rental home for renovations but that the landlord had offered them another rental property at a reduced rate “because you have been good, long-term tenants”. The landlord’s evidence is that this letter had been written and typed up by the applicant, and that she signed it because she understood it was needed to get ODSP approval for the higher rent. Her evidence is that she agreed that they were good tenants in the sense that their rent was always paid, but that did not mean that she did not have issues with the applicant as a tenant.

18The respondent’s evidence is that after she returned from speaking with the applicant’s current landlord, the applicant provided her with a list of three references. This list is in evidence before me and the respondent wrote “received March 20, 2011” on the document. The applicant does not dispute that she provided this list to the respondent on March 20, 2011, but testified that she previously also had provided the respondent with a list of references. This evidence does not make sense to me. The applicant’s evidence is that she was told on March 7 that there was no need to provide references because the rent was to be paid directly by ODSP. So, if that is true, there would have been no need to provide references at any time after March 7. This prompted the applicant to testify that she was “pretty sure” that she had provided references when she and her husband viewed the property on March 5. This is inconsistent with the evidence of the applicant’s husband, who is “pretty sure” that the references were provided on March 12, when the lease was signed. It is unclear to me why references would be provided on March 12, if the applicant in fact had been told that they were not required.

19The applicant also asserted in her evidence that she is certain that she provided references to the respondent prior to March 20, 2011, because one of the references had told her that he had been contacted by the respondent. This is denied by the respondent, who states that she did not contact any of the applicant’s references. This individual was not called as a witness by the applicant, and I am not prepared to accept the applicant’s hearsay evidence that this individual was contacted as a reference given that this evidence is in dispute and is on a material point. Accordingly, I will have no regard to this hearsay evidence.

20The respondent’s evidence is that she was not provided with any references until March 20. She states that the list of references was provided by the applicant on March 20 in response to the respondent saying that the lack of references was one of the reasons they were reluctant to rent to the applicant and her husband. The respondent states that she returned the security deposit to the applicant that day, and decided not to call the references. She states that at 5 p.m. on March 20, she called the applicant to confirm the decision that she would not rent the home to the applicant and her husband. On the issue of when references were asked for by the respondent and provided by the applicant, I find that the respondent did request references at the first meeting on March 5, 2011 and that references were not provided by the applicant until March 20, 2011.

21This left the applicant and her husband with very little time to make alternate arrangements, and was a source of stress for both of them. They did manage to find an apartment to move into by April 1, 2011, at a lower rent, although it was a second floor apartment that posed difficulties due to the husband’s disabilities.

22The respondent, in consultation with her husband, decided not to rent the house at all, and listed it for sale in early June 2011.

Analysis and Decision

23The allegation here is that the applicant experienced discrimination with respect to the occupancy of accommodation because of disability and/or the receipt of public assistance, contrary to s. 2(1) of the Code.

24It was made clear at the hearing that the allegation is not that the respondent refused to rent to the applicant and her husband because of the nature of their disabilities or because they were in receipt of ODSP benefits. Rather, what is alleged is that the applicant experienced discrimination because of disability and/or the receipt of public assistance due to the requirement for direct payment of rent by ODSP in the lease agreement and the fact that ODSP’s unwillingness to make direct payment of rent was at least a factor in the respondent’s decision not to rent to the applicant and her husband.

25In this regard, I have considered the Ontario Human Rights Commission’s Policy on Human Rights and Rental Housing, which states (at section 4.2.8):

Housing providers are not allowed to require that a tenant have their rent paid directly by a third party simply because the tenant is a member of a group identified by the Code. Some housing providers ask prospective tenants to arrange to have their rent paid directly, either from social services if they are receiving social assistance, or from another source of income, regardless of the tenant’s demonstrated ability to pay their rent on time. An Ontario human rights tribunal found this practice, when applied to recipients of social assistance, to amount to a violation of the Code.

26The case referenced in the Commission’s policy is McEwen v. Warden Building Management Ltd., (1993) 1993 CanLII 16459 (ON HRT), 26 CHRR D/129. In that case, a prospective tenant who was in receipt of “mother’s allowance” was sent a letter by the respondent stating “we do not accept applications from persons on Mothers’ Allowance unless of course their case worker will ensure payment direct, payable to ourselves and on or before the first of each month”. As stated by the adjudicator in that case (at para. 8):

. . . it is a clear and intentional imposition of a burden on recipients of public assistance to require direct payment from their caseworker by reason of receipt of public assistance – this burden not applying to persons more favourably situated. Mothers’ Allowance is a well-known form of public assistance throughout Ontario. The direct payment requirement imposed on Ms. McEwen was a flagrant and wilful discrimination contrary to the Human Rights Code, s. 2(1) which prohibits various forms of unequal treatment including infringements of the public’s right to equal treatment in accommodation because persons are in receipt of public assistance.

27Obviously, there is a factual difference between the McEwen case and the case before me, in that, in McEwen, the direct payment requirement was imposed by the prospective landlord upon recipients of public assistance, whereas in the case before me, the possibility of direct payment by ODSP was raised by the applicant herself. While this is true, the matter of direct payment thereafter became an issue for the respondent when she inserted it into the lease agreement as a requirement and when ODSP’s unwillingness to make direct payment became an issue leading to the decision not to rent to the applicant and her husband. Unlike in McEwen, I do not find that the respondent’s actions in this regard were intentional or amount to flagrant or wilful discrimination, but rather were borne out of the respondent’s lack of experience and sophistication as a landlord and her ignorance of the law on this point. But, as has been stated many times in the case law, intent to discriminate is not required in order to find a violation of the Code; rather, it is the impact of a respondent’s actions on the applicant that is the central issue.

28While initially raised by the applicant, the requirement for “direct deposit” was inserted into the lease agreement by the respondent in order to provide, in her words, “assurance” that the rent would be paid. That is not an assurance that could or would be sought from a prospective tenant who was not in receipt of public assistance. Such a requirement was not posted as part of the rental advertisement, and would not normally be a part of a lease agreement. Indeed, the respondent’s daughter testified that she had never been asked for direct payment of rent when she rented accommodation while attending school. Accordingly, I find that the inclusion of a requirement for “direct deposit” of rent in the lease agreement amounts to discrimination against the applicant because of receipt of public assistance, in violation of s. 2(1) of the Code. I do not find that the applicant experienced discrimination because of disability, given that the issue of direct payment of rent was tied to receipt of public assistance and not the nature of the public assistance being received.

29Further, it is clear from the evidence that ODSP’s unwillingness to make direct payment of rent to the respondent was a factor in the decision not to rent to the applicant and her husband. The respondent in her evidence referred to this as a “red flag”, which caused her to discuss with her husband whether they should proceed to rent to the applicant and her husband. The evidence of the respondent’s daughter, who I found to be forthright in her testimony, was that the lack of direct payment was the primary reason that her parents were concerned about renting to the applicant and her husband. This too in my view is a violation of the applicant’s rights under s. 2(1) of the Code. The law is clear that discrimination because of a ground prohibited by the Code need only be one of the reasons for a decision in order to amount to a Code violation. So even if I accept the respondent’s evidence that she also was concerned about the lack of references and about the unsatisfactory reference given by the applicant’s current landlord, I nonetheless find that the lack of arrangements for direct payment of rent by ODSP was a material factor in the respondent’s decision.

30At the same time, I need to ask myself the question whether it is more likely than not that the respondent would have decided not to rent to the applicant and her husband, even if the issue of direct payment of rent were taken out of the equation. While the issue of references was not followed up by the respondent until March 20, after she had been informed that she would not be receiving direct payment of rent, it is not a discriminatory practice merely for a prospective landlord to ask for references. Even if, as the applicant contends, she was told not to worry about providing references because of the proposed direct payment arrangements, once these arrangements failed to materialize, it would not have been unreasonable for the respondent to request and check references. The evidence does not indicate that the respondent only checked references for the applicant and only because direct payment arrangements could not be made. Rather, the respondent’s evidence is that at least one other prospective tenant was eliminated from consideration because of his credit history. Accordingly, while I find that it was discriminatory for the respondent to include direct payment as a term of the lease agreement and to rely upon a lack of direct payment as a material reason for deciding not to rent to the applicant and her husband, I also find that it would not have been discriminatory for the respondent to require and check references after finding out that direct deposit arrangements could not be made.

31Further, no matter who initiated the idea of speaking with the applicant’s then landlord, the respondent nonetheless did speak with the landlord and, as I already have found above, was given an unsatisfactory reference. I accept the respondent’s evidence and find that the respondent would not have rented to the applicant and her husband in any event based upon this unsatisfactory reference, regardless of the issue around direct payment of rent.

32This, in my view, has an impact on the appropriate remedy to be awarded in this case. As the applicant and her husband were able to rent alternate accommodation at a lower monthly rate, they did not incur any special damages and none are claimed in the Application. Rather, in terms of monetary compensation, the primary claim is for compensation for injury to dignity, feelings and self-respect. While I heard evidence from the applicant regarding the impact of the events upon her, this evidence primarily was directed at the impact of not being able to rent the home from the respondent and the stress of having to find new accommodation in a very short time. For the reasons I have expressed above, I find that this impact on the applicant would have happened in any event, even apart from the discrimination, as the respondent still would not have rented to the applicant and her husband for non-discriminatory reasons based on the unsatisfactory reference.

33At the same time, I find that the dignity interests of the applicant are engaged here as a person in receipt of public assistance. While she was the one who initially raised the possibility of direct payment of rent, I find that expressing the lack of direct payment as a material reason for not renting to the applicant, when such a reason would not be expressed to someone not in receipt of public assistance, had the impact of communicating to the applicant the message that different and higher requirements could be imposed upon her and that she was in a different and lower class of persons because she requires public assistance. This is precisely the kind of dignitary impact that the Code seeks to remedy. In my view, an appropriate award in the circumstances of this case for this dignitary impact is an award of $1,500. In reaching this conclusion, I have considered the factors set out in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 52 to 54, regarding the assessment of compensation for injury to dignity, feelings and self-respect. I further have considered this Tribunal’s decisions in Martinez v. Garcia, 2012 HRTO 1239, where an award of $1,000 was made due to a potential landlord’s failure to consider an application due in part to the applicant’s receipt of social assistance, and in Janes v. Wright, 2012 HRTO 1621, where an award of $7,500 was made where it was found that a landlord discriminated against the applicant because of receipt of social assistance by terminating a tenancy after the applicant had moved into the premises.

34With regard to the non-monetary remedies sought by the applicant, I have considered them but do not believe they are necessary or appropriate in the circumstances. The applicant has asked that the respondent be required to undertake training regarding her obligations under the Code. While this would be a standard remedy in many cases, the evidence here is that the rental property has been sold and that the only other rental property maintained by the respondent is rented to her mother. So I do not see the remedial purpose in ordering training, although I encourage the respondent to update her knowledge of the Code if she decides to re-commence leasing property to the general public. The applicant has asked that this Decision be made public, which it already is. And the applicant has asked that the respondent be made to apologize for her actions, which is not a remedy granted by this Tribunal.

ORDER

35For all of the foregoing reasons, I hereby make the following order:

The respondent shall pay to the applicant the sum of $1,500 as compensation for injury to dignity, feelings and self-respect, with post-judgment interest at a rate of 3.0% per annum to run on any amount unpaid more than 30 days from the date of this Decision.