Salimi v. Toronto Community Housing Corporation, 2013 HRTO 66

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Reza Salimi Applicant

-and-

Toronto Community Housing Corporation Respondent

DECISION

Adjudicator: Naomi Overend Date: January 11, 2013 Citation: 2013 HRTO 66 Indexed as: Salimi v. Toronto Community Housing Corporation

APPEARANCES

Ali Reza Salimi, Applicant Self-represented

Toronto Community Housing Corporation, Respondent W. Gordon Steinberg, Representative

INTRODUCTION

1On May 18, 2011, the applicant, Ali Reza Salimi, reached a settlement of a previous Application with this Tribunal against the respondent, Toronto Community Housing Corporation. In this settlement, the respondent agreed to a number of conditions which would facilitate the applicant’s participation in the recreational programs, in particular the pottery program, taking place within the building at which he lives.

2The applicant alleges, and I find, that the respondent did not fulfill these conditions despite repeated efforts by the applicant to get the respondent to engage with him. On September 16, 2011, he filed an Application for Contravention of a Settlement pursuant to s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging a breach of the May 18, 2011 settlement.

3This Application and the Response filed by the respondent contained no particulars other than the bare assertion that the settlement terms had been breached and a corresponding denial from the respondent. Accordingly, the parties were directed to file more detailed allegations, which they did on December 23 and 28, 2011 respectively.

4A hearing was scheduled for April 23, 2012, but was adjourned on that date and three others for a variety of reasons. The matter was finally heard on November 28, 2012.

EVIDENCE

5The applicant entered a number of documents, consisting largely of emails sent between him and respondent’s representatives in the period after the May 18, 2011 Minutes of Settlement (“Minutes” or “Minutes of Settlement”). These documents were disclosed to the respondent in a timely fashion after the first Notice of Hearing was issued. The respondent did not disclose any documents prior to the hearing, in part, because its representative was not sent the Notice of Hearing and the contact person at the respondent, Barry Thomas, did not forward this information to the representative.

6On the first hearing date, the respondent’s representative agreed to produce his client’s arguably relevant documents by May 9, 2012, five days prior to the second scheduled hearing date. No documents were sent on that day or subsequently, despite the fact that the hearing did not take place in May or June, 2012, but was adjourned to November 28, 2012, more than six months after the initial deadline for the documents.

7The respondent’s sole witness, Barry Thomas, intimated that there were additional documents that may have refuted some of the applicant’s allegations of inaction, but in light of the complete failure of the respondent to produce documents at any stage of this proceeding, I have not given any weight to this intimation.

BACKGROUND

8The applicant lives at 220 Oak Street, which is a building operated by the respondent. From all reports he is, or was, a highly engaged tenant. He participated on the tenant council, was an active member of the pottery club and was also instrumental in organizing the community garden.

9He is an immigrant from Iran and speaks English with an Iranian accent. He believes this and his Muslim name (although he goes by the name Rey Hoon) make him a target for a portion of the tenants he describes as racist, whom he asserts harbour anti-immigrant and anti-Muslim sentiments.

10The applicant joined the pottery club in January 2008. The club operated on a weekly basis on Wednesdays. The applicant testified that the club consisted of five tenants plus an instructor. It apparently receives money from the respondent to purchase supplies. The club has a studio space on the ground floor of 220 Oak Street, with storage and a kiln.

11At some point in early 2009, the applicant was removed from the advisory committee of the pottery club and told that he could only return to the club once he improved his behaviour. Around this time he alleged that many of his works of art, which were stored in the studio space, were destroyed.

12The applicant filed a complaint with the respondent’s Human Rights and Equity Unit, which in turn conducted an investigation. On December 15, 2009, it issued its Investigation Report, which concluded that the applicant had been discriminated against on the basis of his race and ethnic background. It also noted that some racialized tenants expressed the view that the pottery club had created an “unwelcome culture” which discouraged them from participating in the club.

13The report contained three proposed “actions,” which the applicant stated were not followed. Although I was not provided with a copy of the applicant’s first Application, it would appear from the Minutes of Settlement, as well as the applicant’s testimony, that the conduct of the pottery club and the failure of the respondent to take action continued to be unresolved at the time the parties attended the mediation on the first Application.

SPECIFIC PROVISIONS IN THE MINUTES OF SETTLEMENT

14The Minutes of Settlement consist of eight separate paragraphs, the first five of which set out commitments to be fulfilled by the respondent.

Pottery Club

15Paragraphs 1, 2 and 4 of the Minutes contain specific provisions concerning the pottery club and read as follows:

1. The Respondent will, within 30 days, issue a letter of apology to the Applicant, which will acknowledge his leadership role in the pottery group at 220 Oak Street during the instructor’s absence, will acknowledge the failure of the Respondent to act on the findings of the investigation report dated December 15, 2009 and will commit to taking action on the report’s recommendations.

2. The Respondent will offer the pottery club space at 220 Oak Street to the Applicant as of four weeks from the signing of these minutes, times to be arranged through Barry Thomas. The Applicant and Mr. Thomas will communicate prior to the four-week deadline with regard to announcing publicly the opening of the space to the Applicant.

3. The Respondent will create and disseminate rules to the other pottery club regarding the requirement to share the space with the Applicant.

16The respondent acknowledges that it did not issue a letter of apology of any description. Barry Thomas, the Operating Unit Manager who was tasked with preparing this letter, testified that he prepared four separate drafts (which were not disclosed), none of which he shared with the applicant.

17With respect to the obligation set out in paragraph 2, the applicant testified that the first time he heard from Mr. Thomas concerning the opening of the space to him was on June 7, 2011 via email. The primary purpose of that email was to deal with a draft plan for the garden at 220 Oak Street. However, in that email Mr. Thomas also asks “when do you want to start the Pottery Club?” The applicant responds by email that he wants to meet with Mr. Thomas in person (although it is not clear whether this is about the proposed garden plan, the pottery club or both). Mr. Thomas, in turn, responds by suggesting they meet the following day (i.e., June 8, 2011).

18The applicant states that nothing further was, in fact, discussed about the pottery club and it was not until Mr. Thomas heard from the existing pottery club members that the applicant had attended the studio on July 20 and 27, 2011, that he contacted the applicant via email on July 28, 2012. In this email, Mr. Thomas tells the applicant that the key is ready to be picked up from Ken McAllister, the building superintendent. He also offers the following advice: “It is my strong recommendation that you limit interaction with that group because of the animosity that remains for [sic] the last conflict.”

19The applicant testified that when he subsequently went to see Mr. McAllister, he did not have a key for the applicant and, indeed, did not seem to know he was supposed to have a key to give to the applicant. A few days later, the applicant spoke with Mr. McAllister, who gave him a copy of the key and told the applicant that he had been instructed by Mr. Thomas to tell the applicant that he was to run his pottery club on Thursday.

20For a number of reasons, the applicant testified he felt that Thursday was an inappropriate day for him to run a pottery program. In particular, he noted that if the kiln had been fired up by the Wednesday group, it would be unusable the following day. When Mr. McAllister relayed Mr. Thomas’ instruction, the applicant walked over to Mr. Thomas’ office (a short walk away from his building) and suggested Monday as a meeting day instead. He also asked Mr. Thomas to address security issues, since the two groups would be sharing the same space and he wanted to ensure that any pottery created by his group was not damaged.

21The applicant testified that Mr. Thomas did not get back to him regarding his proposal and his security concerns. For his part, Mr. Thomas did not dispute the applicant’s assertion that he did not get back to him, but suggested that he was waiting for the applicant to talk to him, and that he interpreted the requirement in paragraph 2 of the Minutes, that they communicate with respect to the public announcement of the opening of the space to the applicant, as something the applicant was to initiate.

22Mr. Thomas acknowledged that he did not create and disseminate rules to the existing pottery club regarding the requirement that it share the studio space with the applicant, as required by paragraph 4 of the Minutes of Settlement.

Dental Referral

23Paragraph 5 of the Minutes of Settlement states:

The Respondent will as soon as practicable provide information to the Applicant about where he may be able to obtain dental services at low or no cost.

24The applicant testified that this term was included in the Minutes because he had been grinding his teeth in reaction to the stress he had been under from the conditions at his building, which had led to them breaking. Mr. Thomas was responsible for getting this information to him.

25The applicant testified that he did not hear from Mr. Thomas until after Mr. Thomas had obtained a copy of a security report on an assault involving the applicant and another tenant (discussed in greater detail below). The report had mentioned the fact that the applicant had left bite marks on the other individual, and Mr. Thomas makes a light-hearted remark in a June 6, 2011 email to the applicant that his teeth seemed to be “working fine.” In that same email, he indicates that he had spoken to his dentist who had told him he was willing to see the applicant and suggests that the applicant call the dentist to “see if there is anything he can do.”

26The applicant responded to Mr. Thomas on June 21, 2011, saying that he had called the dentist’s office and was given a list of routine costs for procedures they carry out. Mr. Thomas responded to this email that day, saying he was busy that day, but that he would call his dentist “tomorrow.”

27The applicant testified that he heard nothing further about this until a meeting on July 20, 2011 between three of the respondent’s employees (Karima Hasmani, Maurice Brenner and Barry Thomas) and the applicant. At that meeting Ms. Hasmani agreed to provide the applicant with the number for the dental clinic operated by the University of Toronto. It is not clear whether she did this or whether the applicant eventually contacted the clinic himself, but he did testify that he got work done there.

28Mr. Thomas testified that he thought that his dentist would be a useful resource as he was associated with the dental school at the University of Toronto. He further testified that he was not aware of the information provided by his dentist’s office to the applicant. He said he did eventually speak with the applicant on the telephone about this, at which time the applicant stated he did not want to go to the University of Toronto clinic.

Lines of Communication

29In addition to the above specific conditions agreed to, the respondent also agreed to the following more general condition about maintaining open communication:

3. Barry Thomas commits to keeping open lines of communication with the Applicant about the pottery club and other issues.

30As well as the issues described above, the applicant communicated with Barry Thomas about a number of other issues relating to his engagement as a tenant and his concerns about his personal safety. These concerns are summarized below.

31In the period immediately after the settlement, the applicant made the decision to relinquish his role in the community garden. Shortly thereafter he became distressed with what he – rightly or wrongly – perceived as the respondent’s decision to hand over control to persons associated with the people with whom he had the dispute at the pottery club, as well as other decisions being made about the garden. By late June he was alleging that he had been expelled from the garden.

32On May 24, 2011 (six days after the Minutes were signed), the applicant testified he was seriously assaulted in the community garden by someone he alleged was a crack addict. He wrote a series of emails to the respondent’s officials, including Mr. Thomas, about the incident, about the danger he felt he was in, and about his belief that the respondent’s security guards had failed to properly investigate the altercation.

33Many of the emails to Mr. Thomas and the others about the issues arising from the assault and the garden appear to go unanswered. However, as noted above, the applicant did have a meeting on July 20, 2011 with three of the respondent’s officials (including Mr. Thomas) to discuss his concerns.

34The applicant said that there were promises of further action made at this meeting, but that nothing happened. On August 31, 2011, the applicant wrote an email to Mr. Brenner (the Managing Director of the Human Rights and Equity Unit) in which he states:

It has been six weeks since our last meeting on July /20th and I haven’t been contacted by anyone of you. Mr Thomas and Ms Hashmani don’t have time even to respond to the emails I send to them, i assume they are busy with Yoga which is good for them.

I would like to be informed if there is any progress on the issues we discussed.

35Mr. Brenner wrote him back to say that Ms. Hashmani was on a leave, but that he would “follow up with Mr. Thomas in regards to the items we discussed and the commitments that were made and will get back to you no later than next week.” The applicant testified that he never heard anything further.

36In September through November, 2011, the applicant continued to write emails about issues that concerned him (largely the agenda for the tenant council meeting and access to the security report about the assault). Although Mr. Thomas was included on these emails, there is no further communication from him. In cross-examination, Mr. Thomas testified that once he became aware that the applicant had filed the instant Application with the “Ontario Human Rights Commission” in September 2011 he stopped communicating with him.

DECISION AND ANALYSIS

37The respondent acknowledges breaching terms 1 and 4 of the Minutes of Settlement. That is, it acknowledges that it never sent the applicant the promised letter of apology or created or disseminated rules to the other pottery club with respect to sharing space with the applicant.

38Although the respondent argues that it could not act on the requirement in paragraph 2 to publicly announce the opening of the space to the applicant until the applicant contacted Mr. Thomas, the documentary record shows that it was not the applicant’s availability or willingness to communicate that prevented the respondent from fulfilling this term. Moreover, the first sentence of paragraph 2 makes it clear that it is the respondent which is to offer the space to the applicant, and that it is Barry Thomas who is to arrange the times. I find that the respondent breached this term of the settlement.

39Even though the respondent’s obligation with respect to assisting the applicant to find low or no cost dental work (found in paragraph 5 of the Minutes) is relatively small, it failed to even live up to this minimal expectation. The applicant communicated to Mr. Thomas that the contact information he provided for his personal dentist did not yield a low cost option, and yet the applicant’s evidence (which the respondent failed to refute) is that Mr. Thomas did not get back to him or discuss it until the issue was raised again at the July 20, 2011 meeting, some six weeks after he wrote his email (and approximately two months after the Minutes were signed).

40Mr. Thomas’ failure to fulfill the terms of the Minutes relating to the pottery club and the applicant’s need for low-cost dental work is indicative of his overall failure to maintain open lines of communication with the applicant. This requirement to maintain open lines of communication, set out in paragraph 3 of the Minutes, was also clearly breached.

41In the six months following the execution of the Minutes, the applicant testified that he experienced a number of issues that greatly distressed him – from the assault, to the problems with the community garden, to the exclusion from the agenda of the tenant council meeting. There is no indication that Mr. Thomas meaningfully attempted to understand or address these issues with the applicant.

42Indeed, the documentary record shows that by July 2011, Mr. Thomas had stopped communicating with the applicant via email. And on his own admission, by September 2011, he was of the view that he no longer had any obligation to communicate with the applicant. Not only did he stop responding to any of the applicant’s communications, but he also testified that he stopped working on the outstanding letter of apology.

43It is not clear to me why Mr. Thomas felt that the filing of this instant Application released him from any obligation to maintain an open line of communication with the applicant or fulfill the other terms of the Minutes. If anything, the receipt of the Application should have had the opposite effect; that is, it should have served as a reminder to the respondent that it needed to live up to the terms of a formal legal promise it had made only four months earlier.

44Mr. Thomas did testify that, while he personally liked the applicant, sometimes the applicant’s temper got the better of him. This is probably a fair observation of the applicant, whom I found to be easily inflamed and often suspicious of the motivations of the respondent. However, that does not excuse Mr. Thomas from fulfilling the terms of the Minutes on behalf of the respondent. Indeed, by ignoring the clear obligations in the Minutes (as well as the applicant’s obvious distress), he only served to exacerbate the applicant’s anger and suspicion.

REMEDY

45Subsections 45.9(1), (3) (8) of the Code provide:

(1) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8).

(8) If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

46With respect to the remedial provision in subsection 45.9(8), previous cases have held that the Tribunal has the authority to award both specific performance of the outstanding terms and other orders, including an award of monetary compensation. See Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 (“Saunders”), Schenk v. Nixon, 2011 HRTO 1312 and Weitzmann v. Burns, 2011 HRTO 818.

47In Saunders, the Tribunal enumerated a number of considerations one might take into account in determining what remedy is appropriate, including whether the breach was fundamental (or, alternatively, de minimus), what terms remained outstanding and what, if any loss was experienced by the applicant as a result of the breach.

48With respect to these considerations, the respondent’s breach was fundamental – it failed to fulfill any one of the five promises it made to the applicant in exchange for him agreeing to not pursue his previous Application. While the evidence does not suggest that the breach was intentional or an expression of malevolence, it does reflect a remarkably nonchalant attitude on the part of the respondent. The remedy must reflect the fact that the promises made were not optional, but mandatory.

49Technically, all five of the terms the respondent agreed to remain outstanding, but it no longer makes sense for me to order Barry Thomas (or anyone else in the respondent organization) to provide information to the applicant about low cost dental options. The applicant has since attended to his teeth, and while he may not have been happy with the service he received, that was not part of the respondent’s commitment.

50Moreover, the term in paragraph 3, in which Barry Thomas commits to keeping open lines of communication with the Applicant about the pottery club and other issues, really only makes sense for as long as the applicant resides at 220 Oak Street, or uses its facilities. This term also would fail to make sense if Mr. Thomas left the employ of the respondent or was no longer assigned to the particular area that the applicant lives in. This term must be refined to reflect these contingencies.

51Finally, with respect to the impact on the applicant, he has been deprived of the use of the pottery club for more than a year and a half. Because of the respondent’s slowness in responding in some instances, and non-response in others, the issues bothering the applicant have been allowed to fester. It is not possible to know whether a quick response would have resulted in a resolution to the applicant’s liking, but at a very minimum, the sting he felt about these issues would not have been compounded by his (accurate) perception that his concerns were being ignored.

52The Tribunal has held that there is both an objective and a subjective component to awards of compensations for losses arising from the infringement. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 53-54.

53While on its face, the violation of the Code might be seen as objectively on the less serious end of the spectrum, the breach of the settlement must be understood in its proper context. In particular, the respondent’s own equity unit had already identified a racially charged environment in existence at the pottery club. The respondent failed to act on the recommendations arising from the internal investigation, which led to the filing of the first Application. Moreover, the receipt of this breach Application, which one might have expected would have, at minimum, resulted in belated action on the part of the respondent, had the opposite effect. That is, the respondent seemed to feel it was released from its obligations to fulfill any of the terms of the settlement.

54Subjectively, while the applicant is, by all appearances, a strong and independent individual, he was in a highly vulnerable position having been assaulted shortly after the settlement was reached. After experiencing this assault the applicant had a very real concern for his safety, and in his mind, the perpetrator was linked to the individuals in the pottery club (and community garden), which he articulated to the respondent’s representatives, including Mr. Thomas. Their failure to respond to his legitimate feeling, he was at risk, seems to have compounded his distress and his alienation from the place that was not only his home, but his community.

55In light of the above, I award $4,000.00 in compensation for the injury to the applicant’s dignity, feelings and self-respect.

ORDER

56I make the following orders:

1. The respondent will, within 14 days of the date of this Decision, issue an apology to the applicant, which will acknowledge his leadership role in the pottery group at 220 Oak Street during the instructor’s absence, will acknowledge the failure of the respondent to act on the findings of the investigation report dated December 15, 2009, and will commit to take action on the report’s recommendation;

2. The respondent will, within 28 days of the date of this Decision, offer the pottery club space at 220 Oak Street to the applicant on a weekly basis, at a time to be mutually agreed upon by the respondent’s representative and the applicant. The applicant and Barry Thomas, or the respondent’s designate, will communicate prior to the four-week deadline with regard to announcing publicly the opening of the space to the applicant;

3. The respondent will create and disseminate rules to the other pottery club members regarding the requirement to share the space with the applicant and will make specific provisions to ensure the protection of the property of the individuals who use the pottery club;

4. The respondent, through its representative, Barry Thomas or his replacement, will keep open lines of communication with the applicant about the pottery club and other issues for the period that the applicant resides at the building at 220 Oak Street;

5. The respondent shall pay to the applicant $4,000.00 as compensation for injury to his dignity, feelings and self-respect, inclusive of pre-judgment interest; and

6. In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay postjudgment interest calculated at 3% in accordance with the Courts of Justice Act.