HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilfrid Judge

Applicant

-and-

Baywood Homes, Simerra Property Management Inc. and Simcoe Standard Condominium Corporation No. 338

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 1, 2013

Citation: 2013 HRTO 727

Indexed as: Judge v. Baywood Homes

appearances

Wilfrid Judge, Applicant ) Self-represented

Baywood Homes, Respondent ) Michael A. Cohen, Counsel

Simerra Property Management Inc. and ) James B. Tausendfreund,

Simcoe Standard Condominium ) Counsel

Corporation No. 338, Respondents )

INTRODUCTION

1The purpose of this Decision is to decide whether the respondents discriminated against the applicant with respect to housing because of his disability.

BACKGROUND

2The applicant, who purchased and lives in a condominium unit, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges that the respondents discriminated against him with respect to housing because of his disability. Specifically, he alleges that the respondents, whom he identifies as the builder and the property manager, ignored his requests for a parking spot in front of the building to accommodate his disability-related needs.

3The respondents filed Responses, which deny the allegation of discrimination. Baywood Homes states that it did not become aware of the applicant’s disability-related request until it received his Application. Simerra Property Management Inc. and Simcoe Standard Condominium Corporation No. 338 state that the applicant agreed to purchase specific parking spots at the time of purchase, and that they have responded to his disability-related request by allowing him to use other available spots in front of the building.

4The hearing of the merits of the Application took place on March 23 and August 20, 2012. I heard the evidence of two witnesses: the applicant and his wife, Ethel Judge. I also admitted into evidence a number of documents that were tendered by the parties, including medical documents and the Agreement of Purchase and Sale.

WITHDRAWAL

5At the outset of the hearing day on August 20, 2012, the applicant requested, on consent, that his Application against Simerra Property Management Inc. and Simcoe Standard Condominium Corporation No. 338 be withdrawn. I granted the applicant’s request.

EVIDENCE

6The applicant, who is a senior citizen, testified that he has a number of disabilities. In support of his testimony he tendered into evidence several medical documents, including a letter from his doctor dated April 24, 2012, which states that he has severe chronic obstructive pulmonary disease (“COPD”), and had cardiac bypass surgery and a laminectomy for spinal stenosis of his lumbar spine. The letter also states that the applicant’s medical conditions significantly affect his stamina and strength, and then recommends that he have a parking spot next to an elevator in his condominium building.

7The applicant and his wife testified that in early 2009 they decided to move out of their house and into a condominium building because the applicant had back problems. They stated that they met with sales staff from Baywood Homes, who told them that if they purchased a condominium unit, they would be given one parking spot in front of the building and one further away. In cross-examination, when asked if he told the staff that he had a disability, the applicant stated that he told them that he had a bad back and that is why he and his wife wanted to move into a condominium.

8On March 8, 2009, the applicant and his wife signed an Agreement of Purchase and Sale to purchase a condominium unit and two parking spots. In cross-examination, the applicant admitted that he has purchased three or four properties in his life, that such an Agreement should contain everything that is important, and that he reviewed the Agreement in detail. He also admitted that he was aware that he could tailor the Agreement, and that he retained a lawyer for the closing.

9The Agreement specifically states that the parking spots would “be allocated by the Vendor in its sole discretion.” In cross-examination, the applicant admitted that he read this provision. However, he stated that he took the sales staff at their word that he would be given a spot in front of the building. When asked why she and the applicant did not add such a provision to the Agreement, the applicant’s wife stated: “Stupidity on our part, I guess.” Both the applicant and his wife also admitted that they did not tell their lawyer that they wanted a parking spot in front of the building. The applicant stated that he did not think it was necessary, and the applicant’s wife stated that it did not cross her mind to tell him.

10The applicant testified that he and his wife took possession of their unit on July 31, 2009. He stated that the specific parking spots had not been marked yet, so he parked anywhere he could. However, he stated that when the parking lot was completed and marked on September 24, 2009, he realized that neither of his two spots was in front of the building, and, that, in fact, both spots were in the parking lot of the neighbouring building.

11On September 25, 2009, the applicant’s counsel sent a letter to the vendor’s counsel, which requested parking spots “adjacent” to the building that the applicant and his wife lived in. The letter did not mention that the applicant had disabilities, and did not state that the applicant had told the sales staff that he needed a parking spot in front of the building to accommodate his disability-related needs. In cross-examination, when asked why the letter was silent on these matters, the applicant stated that he did not think it was necessary to include this information.

12On September 25, 2009, the applicant also personally sent an email to the property manager of his building, which stated that when he and his wife were considering purchasing a condominium unit, they were told that they would be allotted one parking spot in front of the building. He also stated he has a medical problem, and would not have purchased a condominium unit if he had known that he would not have been given a parking spot in front of his building. In cross-examination, the applicant agreed that the email did not state he had told Baywood Homes’ sales staff that he needed a parking spot in front of the building to accommodate his disability-related needs.

13The vendor’s counsel subsequently sent the applicant’s counsel a letter, which denied the request for parking spots adjacent to the building on the basis that the transaction was completed on July 31, 2009 and could not be amended.

14In cross-examination, the applicant admitted that the property manager of the condominium building has accommodated his disability-related needs by allowing him to park in the disability or visitor parking spots in front of the building. He also admitted that his wife can drop him off in front of the building if the disability and visitor parking spots are full.

15After the applicant closed his case, Baywood Homes decided not to call any evidence in response.

ANALYSIS

Applicable Law

16The Application relates to ss. 5, 9, 10, and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

(…)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) In Part I and in this Part... “disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(…)

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

17The applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

18The initial onus is on the applicant to establish, on a balance of probabilities, a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28. If the applicant establishes a prima facie case of discrimination, the respondent must establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment. If the respondent is able to rebut the applicant’s prima facie case of discrimination, the burden returns to the applicant to establish, on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext for discrimination. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at para. 52. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119.

Issue

Did the respondent discriminate against the applicant with respect to housing because of his disability by failing to allocate a parking spot in front of his condominium building to him?

19In order to establish a case of disability-related discrimination, the applicant must prove, on a balance of probabilities, that (1) he had, or was perceived to have, a disability, (2) he received adverse treatment, and (3) his disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

20With respect to the second and third parts of the test, s. 17 of the Code requires that an employer, union, service provider or housing provider accommodate a person’s disability-related needs up to the point of undue hardship. However, this does not mean that there is a reverse onus. The applicant must establish a prima facie case of discrimination before the evidentiary burden to rebut discrimination shifts to the respondent.

21This Tribunal and the courts have made it clear that the person seeking accommodation has a duty to make his or her Code ground-related needs known to respondent in order to trigger the respondent’s duty to accommodate the person’s needs up to the point of undue hardship. See, for example, MacDonald v. Cornwall Public Library, 2011 HRTO 1323; Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; and Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. In MacDonald, supra, where the applicant alleged that a library discriminated against him with respect to services because of his disability, the Tribunal explained at para. 42:

(…) The onus must be on the individual seeking accommodation to advise the library that he or she needs accommodation. Otherwise, the library would be in the very difficult position of having to accommodate persons whose needs it had no means of knowing or investigating. The duty to cooperate as set out in the Renaud case must include an obligation to advise the service provider of the need for accommodation. It is this notice which triggers the duty to accommodate.

22Once the duty to accommodate has been triggered, the respondent must establish, on a balance of probabilities, that it has met both its procedural and substantive obligations. Procedurally, the respondent has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required. The substantive duty requires the respondent to make the modifications or provide the accommodation necessary up to the point of undue hardship. See Baber v. York Region District School Board, 2011 HRTO 213 at para. 94.

23I find that the applicant has disabilities. I accept his evidence, which was not contradicted by the respondent, that he has COPD, a heart condition, and a back condition.

24However, I also find that the applicant failed to fulfill his duty to make his disability-related needs known to the respondent in order to trigger the respondent’s duty to accommodate his needs up to the point of undue hardship. The applicant testified that he told the respondent’s sales staff that he had a bad back and that is why he wanted to move into a condominium, and that the staff told him that if he purchased a condominium unit, he would be given one parking spot in front of the building. However, he did not testify, and there is no evidence, that he told the staff that he needed a spot in front of the building as an accommodation of his disability-related needs. His failure to do so is exemplified by the fact that he did not insert such a provision into the Agreement of Purchase and Sale, and after he discovered that he did not have a spot in front of the building, his counsel’s letter to the vendor’s counsel did not mention a previous request for accommodation of his disability-related needs. In these circumstances, the respondent’s duty to accommodate the applicant’s needs up to the point of undue hardship was not triggered.

25Furthermore, the applicant admitted that the property manager of his condominium building is accommodating his disability-related needs by allowing him to park in the disability or visitor parking spots in front of the building, and that his wife can drop him off in front of the building if the disability and visitor parking spots are full.

26The applicant obviously believes that the respondent failed to fulfill an oral promise to him, and that the re-sale value of his condominium unit will be adversely affected because he does not have a parking spot in front of the building. I empathize with the applicant and his wife, but the Tribunal has no jurisdiction over this issue.

27Accordingly, the applicant’s allegation that the respondent discriminated against him with respect to housing because of his disability by failing to allocate a parking spot in front of his condominium building to him is dismissed.

ORDER

28The Tribunal makes the following orders:

1. The applicant’s request to withdraw his Application against Simerra Property Management Inc. and Simcoe Standard Condominium Corporation No. 338 is granted.

2. The Application against Baywood Homes is dismissed.