HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hamdi Khalif
Applicant
-and-
Young Women’s Christian Association of Niagara o/a YWCA Niagara Region
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Khalif v. YWCA Niagara Region
APPEARANCES
Hamdi Khalif, Applicant
Self-represented
Young Women’s Christian Association of Niagara, o/a YWCA Niagara Region, Respondent
Woodward McKaig, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities and housing because of race, colour, ancestry, place of origin, ethnic origin, disability, sex, sexual solicitation and family status. Although the applicant did not specifically check off the box in the Application for discrimination on the basis of creed, in her narrative, she makes allegations that engage that ground. By way of remedy, she seeks a monetary compensation award of one million dollars.
2Specifically, she alleges that she experienced differential treatment while staying at an emergency shelter operated by the respondent non-profit agency with her children, for reasons relating to Code grounds. She says she and her children required a kosher diet and during their stay at the shelter their need for accommodation based on their creed was not accommodated. She also says that she experienced harassment and sexual solicitation from shelter staff contrary to the Code. She alleges that she was reported to Family and Children Services by the shelter for discriminatory reasons. Finally, she alleges that her application for transitional housing was denied for discriminatory reasons.
3The respondent organization argues that it does not provide housing per se. It argues that it is an organization that provides a number of services to women and children in the community. In addition to operating emergency shelters for women and children, it acts as the head leasee in about 45 apartments in the community in which women transitioning from the shelter can live in the short term, while acquiring additional educational, employment and life skills. Attendance at a life skills program while living in transitional housing is a requirement.
4The respondent denies all the allegations of discrimination and harassment made by the applicant. It says that any dietary needs expressed by the applicant in respect of her family’s needs were met. While it acknowledges that there were some missteps in the first week of the shelter stay, following that period, there was always a kosher, halal or vegetarian option available for the applicant and her children as those were the categories of food she said they could ingest. The respondent organization denies any staff members harassed the applicant and says, instead, that the applicant was not compliant with shelter rules, did not properly supervise her children as required and was in conflict with a number of other shelter residents. Finally, it says that Code grounds did not enter into the decision not to have the applicant participate in the transitional housing program. The respondent says it was the history of the applicant’s conflict ridden shelter stay that formed the basis for that decision.
5During the hearing held in St. Catharines, Ontario, in support of the applicant’s case, I heard from the applicant, her two children, S.F. and H.F., and two people who had also been at the shelter during the material time, Kimberley Turmel and Chandelle Pinnock. Elizabeth Zimmerman, executive director of the respondent organization and Jackie Cirocco, employed by the respondent as operations manager for the Niagara Falls and Welland programs, gave evidence for the respondent.
6For the reasons that follow, the Application is denied.
THE LAW
7The relevant sections of the Code are as follows:
- Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression,
2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
2(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. age, marital status, family status or disability.
45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
THE EVIDENCE
Applicant’s Case
8The applicant and her two young children came from Peel Region to an emergency shelter operated by the respondent organization in March, 2011. They were admitted into the shelter by staff as they required emergency housing and stayed at the shelter for a few months.
9The applicant gave evidence that when she had her first meeting with a shelter worker, she was asked her religion and she told her that although her parents were Muslim, a rabbi in Toronto had explained to her that she was part of a lost tribe of Israel so she and her family required a kosher diet. She also said that if a kosher option was not available, she and her children were prepared to eat halal or vegetarian alternatives.
10She says these needs were not accommodated by the respondent and that she faced discrimination because she was Somali, did not eat pork, and the shelter workers did not like the way she was raising her kids. She felt they tried to damage her family, her ancestors and what she described as her history of honouring god.
11She says that for the first three weeks she had to take her children out every day to get them something to eat because either there was nothing being served during mealtimes that met their needs or because the staff was using the same spoon to serve everything. She says she complained to Jackie Cirocco almost every second day but nothing was done. By the end of their stay at the shelter, she had to pack her own kids’ lunches when everyone else’s children got theirs done by the shelter. She feels this was the shelter staff’s way of punishing her.
12Another issue was how they entered her room without prior notice on a couple of occasions. She felt this was improper and was being done because of who she was, and not, as the shelter workers written records indicate, because her children were making a lot of noise while she slept or because she was burning incense.
13She denies leaving her children unattended and being told that she should not be asking other people to look after her children. The applicant believes that reports of her being non-compliant with the rules of the shelter made by various shelter workers can be attributed to her being “Somali, dark and Jewish”.
14The applicant reports being subjected to what she calls “tremendous sexual harassment” because she says she is young and beautiful. She says that women who lived there and who worked there complimented her and she did not want women complimenting her. She believes that women who were bisexual or gay got subsidized housing and because she is heterosexual and refused to flirt with the shelter workers, she was not put into the transitional housing program.
15She characterizes a lot of things that happened to her during her stay as harassment. For example, she says that on one occasion, Jackie Cirocco came out of a door and the door hit her on the hand. She does not know if that was accidental or if it was done on purpose. She was also not given her Personal Needs Allowance (PNA) on time. When she went outside to smoke on one occasion, she said hello to Elizabeth Zimmerman, who ignored her. Her medications were removed from bottles and put in bags. Someone let the air out of her tires on two occasions and she had to call the police to report it.
16The applicant’s two children also gave evidence. Their accounts were largely limited to the food issue. S.F. said that the reason they could not eat the food being served was because it was touching other people’s food and sometimes the same spoon was used to serve different things. She says the food would make her brother vomit because he ate too many sweets. Her evidence was that they went out to eat once every two weeks when they were in the shelter.
17H.F., the applicant’s son, gave evidence that they are Muslims and don’t eat pork. He then said that one of his mother’s parents is Muslim and the other is Jewish, so they respect both religions. He said that they don’t eat pork and their food at the shelter had touched pork so they could not eat it. He testified that they did not go to restaurants to eat.
18Chandelle Pinnock was at the shelter from March until May 2011 when she left because she had found a place to live. She said that she had applied for the transitional housing program but missed the interview because by then she had found housing on her own.
19Kimberly Turmel was also at the shelter while the applicant was, having arrived just two days before her. She applied for and was accepted into the transitional housing program. She had helped the applicant to fill out the forms for the program. She confirms that she attended the life skills program associated with the program. While she was still at the shelter, she says she was told not to talk about the program with the applicant by shelter workers.
20Under cross examination, she admitted that she was discharged from the program ahead of the end date and acknowledged that there had been an allegation made by the landlord of disruptive behaviour.
Respondent’s Evidence
21Both Elizabeth Zimmerman and Jackie Cirocco testified. Ms. Zimmerman is the executive director of the organization and has been in that role for 6 years. Her evidence was of a more general nature. She provided details concerning the structure of the organization, her background and role in the organization and her limited contact with the applicant.
22She testified that because the transitional housing program is an initiative funded by the Region of Niagara, they have statistics relating to its participants. The reports presented shows that 17 percent of the participants in that program were women of colour. Ms. Zimmerman was unable to provide any comparison to the percentage of shelter users as the respondent does not keep any statistics of how many women of colour use the shelter.
23Jackie Cirocco testified that she is the operations manager of the Niagara Falls and Welland sites where she manages the shelter, onsite housing and offsite programs. She is responsible for managing all front line staff at the shelter, which includes all the full time advocates, relief advocates, off site transitional housing lead, support workers and cooking staff.
24She has a diploma in social service work and came to the respondent organization as a student RWA, or relief women’s advocate, and rose to her current position. While she has no formal management training or qualifications from an educational institution, she has had mentorship and training in house. Over the years she has worked with people with diverse backgrounds and is aware of the Code. She says she believes in giving people second chances and does not give up on people. She says that unless it is an overt threat or very severe behaviour, people can stay in the shelter.
25Jackie Cirocco gave evidence that she is not on the front line, but she manages the front line staff on a day to day basis. She is part of the leadership team and they, in turn, are responsible for reporting to Elizabeth Zimmerman, the respondent organization’s executive director.
26Jackie Cirocco provided a copy of the file maintained at the shelter during the applicant’s stay. She testified that she does not make the entries; that is the responsibility of front line staff. She is responsible for reviewing the file at the time that it is closed.
27Jackie Cirocco says she keeps in touch with staff at the shelter to get progress reports. Quite frequently, about two times per week, during the applicant’s stay, she received complaints about her with respect to her interactions with staff as well as other shelter guests. The progress notes in the file are reflective of the conversations that she was having about the applicant and the reports she received from the four full time and two part time women’s advocates working at the shelter.
28The decision to refuse the applicant’s application to enter the transitional housing program was, according to Jackie Cirocco, based on her behaviour while within the shelter system. The applicant’s interpersonal conflict with a variety of residents was part of the reason for not letting her in the program. The life skills course or program is mandatory unless someone has a good reason to miss a session. It is not a program for someone just interested in finding housing. There is no employment program offered as part of the program.
29She says that when making the decision, the applicant’s creed, race, colour, ancestry, ethnicity, any disabling conditions and her sexual orientation played no part at all in her evaluation of the application. Ms. Cirocco also says that the applicant’s suggestion that her family status, that of a single mother of two children, resulted in differential treatment is absurd, since the shelter caters to exactly that population. The people who get into the transitional housing program are either single women or single women with children.
30She agrees that she told the applicant that she could not get her a three bedroom apartment and that was why she was not in the transitional housing program. Jackie Cirocco says she was trying to avoid hurting the applicant’s feelings and agrees it would have been better to have been direct and clear about her reasons for denial at the time.
31Jackie Cirocco says that, as a non-profit agency, their food budget is limited. An attempt is made to put out a variety of food for the three meals the shelter residents eat every day such as pasta, salad, desserts, vegetables and gluten free bread. Breakfast consists of a self-serve buffet; while lunch and dinner, involving both hot and cold options, is served by scooping out the food for up to 32 women and their children. The food is put out in different warming plates with different scoops.
32In her view, it would be highly unusual if a single spoon would be used to serve the different food dishes. However, when she heard a complaint about cross contamination, she spoke to the kitchen supervisor immediately.
33Jackie Cirocco acknowledged that for the first week, there were some problems adjusting to the request for kosher or halal diet, but after that, when pork was served, fish or chicken options were also always made available.
34She understood that the issue underlying the applicant’s complaint about the children’s lunch was about not being happy with the choice and the amount of food available, rather than creed related dietary concerns. The organization offered to let the applicant make the food herself and use one of the fridges in the kitchen.
35She testified that she recalls that on June 30th, on her way out of the building the shelter is located in, she opened the door, which was made of solid steel and had no window, and completely by accident, ran into the applicant who was on the other side. She recalls that the door hit the applicant’s hand. She remembers apologizing and that the applicant said she was alright.
36She remembers that the applicant called the police several times during her stay and that, on one occasion, she recalls it being about the applicant thinking the air had been let out of the tires of her car.
37Jackie Cirocco denies having made sexual advances towards any shelter occupants including the applicant and has had no complaints about her staff members having done so.
DECISION
Accommodation of Dietary Restrictions based on Creed
38Although the evidence of the applicant and her children conflicted as to their creed, I am prepared to accept that the applicant expressed a request that her creed required that she abstain from eating pork and that she outlined a need for a kosher diet, but also said that she would be prepared to consider halal or vegetarian options in the alternative. The intake forms prepared at the time the applicant entered the shelter show that while no questions as to her religion were recorded as having been asked, it was clear she outlined the family’s dietary needs.
39The parties disagree about how this issue was dealt with during the applicant’s stay. The applicant says that the same spoon was being used to serve all the food, that she was not offered any of the dietary choices she had outlined, including a vegetarian option and that she and her children were forced to eat meals every day outside of the shelter. The respondent witnesses say that while there was a period in the first week during which time last minute adjustments had to be made, for the balance of the stay, the applicant’s needs were honored. They deny the same spoon would have been used to serve all the dishes as that is not their practice.
40Given the different accounts of what occurred, I must determine which of the two competing versions is in greater “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).
41Having considered all of the evidence, I prefer the evidence of the respondent witnesses. The applicant’s version is at times in conflict with the testimony of her own children on this issue on central points. While she testified that they were forced to eat meals outside the shelter every day, her daughter said they ate out once every two weeks and her son said they did not eat out at all.
42In addition, the respondent witnesses, while acknowledging that the request for kosher or halal diets caused some need for adjustment initially, also gave evidence that requests for vegetarian diets are not uncommon and that a vegetarian option was always made available during the applicant’s stay. While the applicant was clearly dissatisfied with the food prepared, I am satisfied that the respondent organization took steps to accommodate her creed based request.
43I also accept the respondent’s position on whether the same spoon was used to serve various different foods during lunch and dinner service at the shelter. Given the numbers of people being served and the dangers of cross contamination, it is unlikely that one spoon would have been used on several dishes by an organization that regularly cooks for and feeds the number of women and children that this shelter houses.
Allegations of Harassment and Differential Treatment during the Shelter Stay
44Having reviewed the evidence, I find that the applicant has not met her burden in establishing that she has experienced discrimination and harassment during her stay at the shelter. I find her account of ill treatment and harassment to be less than credible and occasionally based on misunderstanding and attribution of motives to others that are not supported by the surrounding facts.
45For example, the applicant attributes motives of a sexual nature to all people at the shelter who paid her a compliment, without any facts that would support that assumption. She makes other assumptions about the sexual orientation of workers at the shelter and people who were accepted into the transitional housing program, again without any concrete information or support for her beliefs.
46While the records reveal that a number of different shelter workers reported incidents of her children being left unsupervised and unattended, she rejects all such reports and insists that all such accounts have been fabricated for reasons relating to Code grounds. I would have to accept that the majority of the shelter staff bore the applicant animus and ill will for reasons relating to the Code grounds she has identified and that they engaged in a concerted effort to write negative status updates in her file to harm her. I cannot so find.
Transitional Housing Program
47While it would have been ideal had Jackie Cirocco not tried to sugar coat the reasons for denial of the application to enter the transitional housing program, I find that the evidence before me does not lead me to the conclusion that the applicant urges.
48The applicant has provided me with no evidence to conclude that reasons relating to her race, colour, ancestry, place of origin, ethnic origin, creed, disability, sex, or family status had any part in the decision to deny her entry into the transitional housing program.
49Nor has she persuaded me that she was subjected to sexual advances or solicitation, the rejection of which played any role in her failing to enter that program. While she asserts that people paid her compliments and suggests that is part of the sexual solicitation, I find the applicant’s credibility is undermined because of her highly improbable allegations, all made without factual support.
50On the other hand, the evidence is clear that not all applicants are accepted. There is also ample evidence that the applicant’s shelter stay was eventful, filled with misunderstandings between the applicant and others with whom she interacted during that short time, and often conflict ridden for reasons that I find were not related to the Code. The explanation offered by the respondent is that this history did not bode well for her chances of a successful experience in the transitional housing program and that is the reason she was not taken into the program.
51In sum, the applicant has not met her burden in establishing that she experienced discrimination or harassment in receipt of services during her interactions with the respondent organization.
52Accordingly, the Application is dismissed.
Dated at Toronto, this 29th day of April, 2013.
“Signed by”
Jay Sengupta
Vice-chair