Shabana Asmal v. YCC 139, Nelda Lozinski and Heorhig (George) Nerubenko, 2013 HRTO 76

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shabana Asmal

Applicant

-and-

YCC 139, Nelda Lozinski and Heorhig (George) Nerubenko

Respondents

DECISION

Adjudicator: David Muir

Date: January 15, 2013

Citation: 2013 HRTO 76

Indexed as: Asmal v. YCC 139

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 housing because of race, colour, ancestry, ethnic origin and sex.

2In a Case Assessment Direction issued on July 23, 2012 I directed that a summary hearing be held to determine whether all or part of the Application should be dismissed because all or part of it had no reasonable prospect of success.

3A summary hearing was held on November 14, 2012. The applicant participated as did all respondents. Subsequent to the hearing both parties filed further written submissions which have been considered by me in making this decision.

4In her Application the applicant makes no allegations of direct discrimination but argues that that an inference can be drawn from the following allegations set out in the Application:

a. Three board of directors including the two individual respondents distributed a leaflet on March 15, 2012 to all the unit owners in the building stating that the applicant had inappropriately had her washroom renovated at the Condominium's expense. The applicant alleges that the three directors who did this knew that the allegation was not true. The Super;

b. Although it was clearly not true at a special meeting of the owners in March 2012 one of the personal respondents repeated the claim and displayed the invoice. Another unit owner took the invoice and repeated the accusation.

5At the hearing the applicant described other circumstances which she believes show evidence of racial and/or gender bias on the part of various board members:

a. The applicant alleges that in March or April 2012 she was meeting with a prior property manager in a condominium office to discuss the termination of their contract when two board members including one of the personal respondents barged in and ordered them out of the room in a loud and abusive manner.

b. The applicant alleges that years prior the son of one of the board members threatened her with death because she was brown.

c. The applicant alleges that at a board meeting it was said that individuals of south Asian heritage do not complain – that is they do not press their complaints. The applicant believes that the board members felt they could take the actions they did (above) because they thought they could get away with it because she is south asian as well.

d. The applicant alleges that as Vice-President she was passed over in favour of the Secretary when the position of President became vacant.

e. The applicant has been told by others that members of the board told unit owners and employees not to speak with her.

6The Application is dismissed because there is no reasonable prospect that the applicant can prove on a balance of probabilities a link between the conduct complained of and the grounds of discrimination claimed.

7Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

9As I indicated in the Case Assessment Direction directing the summary hearing the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent's alleged actions and a Code ground.

10There is no direct evidence of discrimination advanced by the applicant. The applicant asks that an inference be drawn from all of the allegations set out above, in particular, the allegation that the individual respondents falsely accused her of misusing funds to have her washroom renovated. In my view even assuming that this allegation is substantiated and it appears likely that it would be, it is insufficient on its own or considered together with the other incidents of alleged misbehaviour to support the inference the applicant seeks to establish. In my view more than evidence of mere bad behaviour is required to establish a violation of the Code.

11I also agree with the respondents that the actions of the parties including the respondents must be considered in their entire context including the fact that the applicant, together with others, had caused a special meeting of the membership of the respondent condominium for the purposes of considering the removal of the individual respondents from the Board. It is in this context that the individual respondents made the apparently false allegations of misuse of condominium funds. I have also reviewed the Minutes of that special meeting. While the alleged misuse of funds by the applicant is mentioned it is hardly a predominant issue in what appears to have been a fractious meeting in which a great number of issues were discussed.

12As regards the applicant’s allegation that as Vice-President she was passed over for appointment to the vacant President position in favour of the Board Secretary who was white, the respondent stated the condominium’s by-laws has only two identified officers on the Board, that being Secretary and President. It is also stated that the practice is that when the position of President becomes vacant the Secretary becomes President until the next General Meeting. The applicant disputed these assertions.

13Whatever the truth about this factual dispute I must consider that this incident occurred less than four months after the applicant with others had sought the removal of several members of the Board. It is perhaps not surprising that in the circumstances that the individual respondents might not want to appoint her President, and in any event there is no evidence that this decision was influenced by inappropriate considerations.

14I have also considered the application’s allegation that a child of one of the individual respondents children uttered a death threat because of her race several years prior to the events complained of in this Application. While this allegation clearly would cause the applicant concern and might lead her to suspect subsequent actions by anyone associated with this individual, in my view, this allegation would if proved be largely irrelevant to the issues in this case. This is so in my view because whatever the views of the son of a respondent, no inference could be drawn that the respondent shared those views.

15In the end while the applicant’s belief was obviously sincere and understandable given the events about which she complains, more than sincere belief is required.

I agree with the respondent that it is open to me to find that there is no reasonable prospect of success in circumstances where there is no real evidence to support the claim and where another explanation for much of the conduct is very likely.

16For all of these reasons the Application is dismissed.