Brushett v. J.M.G. Consulting Inc., 2013 HRTO 838

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Toni Brushett

Applicant

-and-

J.M.G. Consulting Inc. and Joubert Georges

Respondents

INTERIM DECISION

Adjudicator: Ruth Carey

Date: May 16, 2013

Citation: 2013 HRTO 838

Indexed as: Brushett v. J.M.G. Consulting Inc.

APPEARANCES

Toni Brushett, Applicant

Marc-Nicholas Quinn, Counsel

J.M.G. Consulting Inc. and Joubert Georges, Respondents

Joubert Georges, Representative

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of disability.

2The applicant and the corporate respondent were in a landlord and tenant relationship. The applicant rented an apartment in a three unit residential complex. The personal respondent is an authorised agent of the corporate respondent.

3The Application alleges that on January 30, 2012 the applicant suffered a slip and fall accident at the residential complex which caused her to become disabled within the meaning of the Code. The Application states that the respondent harassed the applicant in contravention of subsection 2(2) of the Code by failing to maintain the residential complex causing the applicant’s injury.

4The applicant’s counsel asserted a claim against the corporate respondent with respect to the slip and fall accident. After the slip and fall accident the respondents complained to the Law Society of Upper Canada (the “Law Society”) about a letter the applicant’s lawyer had written and obtained an order evicting the applicant. The Application alleges that the complaint to the Law Society constitutes harassment under the Code and the eviction is discrimination on the grounds of disability.

5On October 10, 2012 the respondent filed a Request for Summary Hearing. By Case Assessment Direction (CAD) dated January 21, 2013 the Tribunal granted the Request on the basis that “the applicant may be unable to prove a link to the ground or grounds alleged” (at paragraph 4). The summary hearing took place by way of teleconference call on April 22, 2013.

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation and it is important that this be determined at the earliest opportunity, where appropriate. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

8The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

9The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

10Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

11The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

12Support for that connection may come in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application will be found to have no reasonable prospect of success.

13The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

14The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

15The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

PROCEDURAL ISSUE

16On April 18, 2013, four days prior to the summary hearing, the applicant filed written submissions alleging new grounds of discrimination: marital status, family status, receipt of public assistance and reprisal; and containing new facts alleging denial of access to laundry facilities which were available to other tenants.

17I was prepared to consider the new grounds and allegations at the summary hearing but because they were not raised in a timely way I asked the respondents whether they wished an adjournment. The respondents declined the offered adjournment and the summary hearing proceeded.

ANALYSIS

The Slip and Fall Accident

18The Application states: “Respondent harassed and intimidated me by creating an unsafe property and by failing to maintain a safe premises…” Assuming that to be true, all of the tenants of the residential complex were subject to the same conditions. Therefore, the applicant was not subjected to differential treatment from the respondents on any of the alleged grounds.

19Also, prior to the slip and fall accident the applicant was not disabled so it cannot be said she was more at risk of injury. Therefore, the allegedly unsafe conditions cannot constitute an exclusion, restriction or preference for a group of persons of whom the applicant is a member.

20Harassment is defined in s. 10 of the Code as a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. Subsection 2(2) says everyone has a right to freedom from harassment in accommodation 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. The applicant has not pointed to any proposed evidence that would link the alleged lack of maintenance to any of the listed grounds.

21Therefore, I find that there is no reasonable prospect of success with respect to the allegations in the Application concerning the state of the residential complex.

The Eviction

22Prior to the applicant’s slip and fall accident the corporate respondent filed an application with the Landlord and Tenant Board (LTB) for an order to terminate the tenancy and evict the applicant because she had not paid the rent she owed. That application resulted in an order dated November 2, 2011 that found that the applicant was in arrears of rent but would not be evicted as long as she paid what was owed in accordance with a repayment schedule.

23After the slip and fall accident the corporate respondent obtained an eviction order because the applicant did not comply with the repayment schedule. The applicant was successful in having the eviction order set aside and on March 13, 2012 the LTB issued another order containing a different repayment schedule. The applicant breached the second repayment schedule and on April 3, 2012 the LTB issued another eviction order. The applicant unsuccessfully attempted to have this order set aside and was evicted on May 23, 2012.

24The applicant’s counsel concedes there is no reason to believe the respondents only evict tenants for non-payment of the rent when the tenant is disabled, or unmarried, or a parent, or in receipt of public assistance or direct evidence linking her eviction to these characteristics. Rather, he argues that the applicant cannot work because of her disability and has extra expenses because of it so her breach of the repayment schedule was because of her disability. Therefore, the corporate respondent’s application for an eviction order constitutes discrimination on the grounds of disability.

25Subsection 2(1) of the Code says:

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.

The Code does not operate to excuse people from their financial obligations just because they identify with a protected ground. It is not discrimination to require a tenant to pay rent. This is true even where it can be established that the individual’s lack of funds is directly related to one of the protected grounds.

26The applicant also suggests that the eviction was a breach of the Code because it was in response to her asserting the slip and fall claim. Section 8 says:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

A slip and fall claim is not a proceeding or the assertion of a right under the Code, nor is it a refusal to infringe someone else’s rights under the Code. Therefore, even if it is true that the corporate respondent evicted the applicant in part because she asserted a slip and fall claim, that is not a reprisal.

27Therefore there is no reasonable prospect of success with respect to the allegations in the Application about the applicant’s eviction.

The Law Society Complaint

28After the applicant’s slip and fall accident she retained counsel to act for her. Applicant’s counsel wrote to the respondents on March 6, 2012 notifying them of the claim and asking that his letter be forwarded to the respondents’ insurer. On March 15, 2012 the respondents replied to his letter. They deny any knowledge or liability for the alleged slip and fall accident and provide the name of their insurance company for the applicant to contact directly.

29On March 22, 2012 applicant’s counsel wrote to the respondents acknowledging receipt of their March 15, 2012 letter and saying: “… thank you for the admissions made in your letter… [which] confirms your liability in this matter…”. The respondents then filed a complaint to the Law Society about this statement. Their complaint says:

Based on [applicant’s counsel]’s malicious and contradictory reply to my letter, I am asking the Law Society to review if applicant’s counsel is not misleading his client by pretending that based on my letter dated March 15, 2012 I have admitted to anything that may have led him to believe I acknowledged his client’s allegations are true? I am also asking the Law Society to remind the applicant’s counsel of his ethical code of conduct regarding how he is handling this case in general and in particular how he is falsely twisting my words.

30The Law Society either dismissed the respondents’ complaint or otherwise declined to deal with it.

31The applicant’s counsel argued that the respondents’ complaint to the Law Society was not in response to his letter but because the applicant was in a vulnerable position as a disabled single mother in receipt of public assistance. In his submission the complaint was designed to separate the applicant from her counsel of choice and dissuade her from pursuing her claims. Applicant’s counsel also argues that the respondents would not have used the Law Society’s complaint process to intimidate the applicant if she had been a successful educated married male not in receipt of public assistance.

32During the summary hearing I asked the applicant’s counsel what evidence he could point to in support of the proposition that the respondents would not have complained to the Law Society about his behaviour if the applicant had not been a disabled single parent in receipt of public assistance. He could not point to any proposed evidence except for admissions he hoped to get from the personal respondent on cross-examination at a hearing. He argued that the respondents’ pattern of behaviour in dealing with the slip and fall matter supported the proposition that the Law Society complaint was part of a strategy to deter the applicant from pursuing her claim. As the applicant’s counsel put it: “He didn’t see her as a person with the ability to deal with confrontation.”

33The only pattern of behaviour referred to by applicant’s counsel was the respondents’ resistance to the slip and fall claim which included questioning whether the accident had actually occurred and whether or not the respondents were liable for it; and providing the name of their insurer to applicant’s counsel rather than contacting the insurer themselves. As there is no proposed evidence that would indicate the respondents’ behaviour in response to a slip and fall complaint by someone without the applicant’s personal characteristics would be different, I agree with the respondents that the applicant’s theory of discrimination and harassment is based on bare assertions and find that there is no reasonable prospect of success with respect to the allegations in the Application about the Law Society complaint.

Laundry Room Access

34The applicant states that in February, 2012 the respondents posted a notice closing the laundry room. The tenants owned their own washers and dryers but the laundry room was provided for these machines. As a result, the applicant removed her washer and dryer from the laundry room. One other tenant was living in the residential complex at this time and she was permitted to leave her machines in the laundry room.

35Initially the other tenant was not permitted to continue to use her machines. But after some time the respondents permitted her to resume use of the laundry room. When the third unit was rented the new tenants were permitted to install and use their own washer and dryer in the laundry room.

36The respondents state that it would be their evidence at a hearing that the reason the laundry room was initially closed was because it was so unkempt that it was a safety hazard. The respondents also state the other tenant was not required to remove her machines because her unit was too small to store them. After the respondents determined that the applicant was solely responsible for the condition of the laundry room the other tenants were permitted to use it again but the applicant was not.

37During the summary hearing, the applicant’s counsel argued that the respondents knew, or ought to have known, that the applicant had a disability when the laundry room was closed and that she would be adversely impacted by no longer having on site laundry facilities because of the nature of her disability. He also argued that when the laundry room was reopened for use by some tenants, but not the applicant, the respondents discriminated against the applicant on the grounds of disability.

38Having heard the nature of the proposed evidence, I am unable to conclude that the applicant’s allegations with respect to laundry room access and disability have no reasonable prospect of success.

39The applicant’s counsel also suggests that because the applicant has a child she has more laundry, and because she is in receipt of public assistance she has less income. Therefore, requiring her to use an outside Laundromat has a differential and negative impact on her.

40It is not substantive discrimination for there to be greater costs for greater use of goods and services. Larger families may need to do more laundry, at a higher cost, but that is not discrimination. It is also not discrimination for people in receipt of public assistance to have to pay for laundry services. See: Harrington v. Hamilton (City), 2010 HRTO 2395.

41There was no suggestion in the materials filed by the applicant or during the summary hearing that the closure of the laundry room was related to the applicant’s marital status.

42Therefore there is no reasonable prospect of success with respect to access to the laundry room on the grounds of marital status, family status or receipt of public assistance.

43My conclusion that the Application can continue with respect to the issue of the laundry room access and disability is not an indication of the merits of the case or that any party’s facts or legal theory will be successfully established; it is simply a finding that, in light of the parties’ allegations and the anticipated evidence, I am unable to conclude at this stage that the Application concerning laundry room access and disability has no reasonable prospect of success.

NEXT STEPS

44In order to provide for the fair, just and expeditious resolution of this matter, the Application shall be amended by the Tribunal to include the allegation concerning laundry room access and disability as described above.

45Rule 8 of the Tribunal’s Rules will be waived meaning that the respondents do not have to file an amended Response to the Application and the above summary of their proposed evidence shall be considered to be their Response. However, if the respondents want to file an amended Response to the Application they must do so and deliver it to the applicant no later than 21 days after the date of this Interim Decision.

46Rule 9 of the Tribunal’s Rules will be waived meaning that if the respondents file an amended Response to the Application, the above summary of the applicant’s proposed evidence shall be considered to be her reply. However, if the respondents do file an Amended Response to the Application and the applicant wants to file a Reply, she must do so and deliver it to the respondents no later than 14 days after delivery of the amended response.

47The Registrar will schedule a hearing of the Application.

48Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, each party is required to deliver to the other parties and file with the Tribunal the following material not less than 45 days prior to the first scheduled hearing day:

a. A list of all documents upon which the party intends to rely at the hearing;

b. A copy of each document contained on the list; and

c. A list of all witnesses the party intends to call at the hearing, including a brief statement summarizing each witness’ expected evidence.

49In the Notice of Confirmation of Hearing that the Registrar will send to the parties, the parties will be reminded of these obligations.

50If the applicant intends to testify on her own behalf at the hearing and only intends to testify as set out above, then she merely needs to confirm this. If there are other facts about which the applicant intends to testify, then she needs to provide these details in a witness statement.

51If the personal respondent intends to testify on his own behalf at the hearing and only intends to testify as set out above, then he merely needs to confirm this. If there are other details to which the personal respondent intends to testify, then he needs to provide these details in a witness statement.

52All other requirements of the Rules with respect to disclosure and witness statements must be complied with.

DECISION

53The Tribunal makes the following order:

a. The Application is amended to include the allegation concerning the laundry room on the ground of disability;

b. The Application shall proceed with respect to the allegation concerning the laundry room and disability only and all other aspects of the Application are dismissed;

c. If the respondents want to file an amended Response to the Application they must do so and deliver it to the applicant no later than 21 days after the date of this Interim Decision;

d. If the respondents do file an amended Response to the Application and the applicant wants to file a Reply, she must do so and deliver it to the respondents no later than 14 days after delivery of the amended Response to the Application;

e. When the applicant and personal respondent exchange and file their witness statements they shall either confirm they are relying on their proposed evidence as set out above or provide additional details.