HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.B.
Applicant
-and-
Havcare Investments Inc. and Carolyn Goodman (also known as Marian Linton and Carolyn Krebs)
Respondents
DECISION
Adjudicator: Alison Renton
Indexed as: A.B. v. Havcare Investments Inc.
APPEARANCES
A.B., Applicant
Megan Evans Maxwell, Counsel
Havcare Investments Inc. and Carolyn Goodman (also known as Marian Linton and Carolyn Krebs), Respondents
Carolyn Goodman, Representative
1This Application alleges discrimination with respect to accommodation (housing) because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
The Parties
2The applicant, at the time of filing her Application, was 17 years old and withdrawn from parental control. Her name has been anonymized using random initials because, at the time of filing her Application, she was a minor and under the age of 18.
3The corporate respondent is the owner of an apartment building located at 500 Dawes Road in Toronto. It ultimately became evident that the personal respondent conducts business and represents herself to the world under at least two names, neither of which represent her actual legal name. As set out below, one of these is the personal respondent’s married name which she has apparently used for decades but which she has never formally assumed through changes to her identification on documents such as her driver’s license or passport. The other identity is completely fictitious. The use of these names, or identities, extends to use in various legal documents and appears to have been, and continue to be, pervasive.
The History of the Identity of the Personal Respondent
4Initially, the Application was filed against “M. Linton”. The individual purporting to be “M. Linton” confirmed, in correspondence to the Tribunal on November 28, 2011 that her legal first name was “Marian”. The corporate respondent was added as a respondent by Interim Decision, 2011 HRTO 1510. A Response was filed by the individual purporting to be Ms. Linton, who identified as being the property manager of 500 Dawes Road, but it was not filed on behalf of the corporate respondent.
5Another Interim Decision, 2012 HRTO 100, was issued requiring the corporate respondent to either file a Response or confirm that Ms. Linton’s Response was a joint Response. In an Interim Decision, 2012 HRTO 409, having received no response to its direction, the Tribunal deemed the corporate respondent to have waived its rights to further notice or participation in the hearing. The individual purporting to be Ms. Linton then wrote to the Tribunal on March 12, 2012 saying that the Response was a joint Response. The Tribunal then issued another Interim Decision, 2012 HRTO 787, revoking its order concerning the non-participation of the corporate respondent. Throughout the remainder of the proceeding the personal respondent acted on behalf of the corporate respondent and on her own behalf.
6Shortly before the first day of hearing, the applicant’s then representative emailed the Tribunal and enclosed copies of newspaper articles which stated that one of the owners of the corporate respondent was named Carolyn Krebs, who also went by the name of “Mrs. Linton” and “Mrs. Goodman”. The applicant’s then representative submitted that there may be confusion about the identity of the personal respondent.
7At the commencement of the hearing, and in response to the Tribunal asking who was representing the respondents, a female stated that she was representing both respondents. She informed the Tribunal that when she attends proceedings before the Landlord and Tenant Board (“LTB”), she explains her different names to the LTB and they address her as Ms. Krebs. She explained to the Tribunal that “her married name” is Carolyn Krebs and that she and her husband own the corporate respondent which owns 500 Dawes Road. She also stated that she goes by the name of Marian Linton, as the property manager of 500 Dawes Road, and that she could be referred to as Ms. Krebs in the proceeding before the Tribunal. She signed the Tribunal’s Appearance Sheet using both names. Based on her representation, at this point in the hearing, the applicant and I referred to her as Ms. Krebs.
8Subsequent to the first day of hearing, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to add Carolyn Krebs as a personal respondent. The Tribunal granted this request in an Interim Decision, 2013 HRTO 61, and Carolyn Krebs was added as a personal respondent.
9The Tribunal issued an Interim Decision, 2012 HRTO 2161, directing the “personal respondents” (i.e. either Marian Linton or Carolyn Krebs) to provide photo identification and the corporate respondent’s articles of incorporation. When the personal respondents did not respond to this direction, the Tribunal issued another Interim Decision, 2013 HRTO 61, seeking the parties’ submissions about whether or not the “respondents’” conduct amounted to an abuse of process. The applicant filed submissions; the respondents did not.
10These issues were addressed during the February 12, 2013 hearing. On that date, the individual purporting to be Ms. Krebs advised that she could not comply with the Tribunal’s direction because she does not have any photo identification in either of these names. She advised that she uses the name “Marian Linton” to sign contracts and attend LTB proceedings and that it was “concocted” by a previous superintendent. She stated that her married name is Carolyn Krebs, which she also uses before the LTB as the corporate respondent’s articles of incorporation set out her “married name,” but she does not have any photo identification although she has credit cards in that name. Her birth name is Carolyn Goodman and she did not change her name when she married in the 1960s. She stated that she has used Carolyn Krebs for the past 40 years and considers that to be her legal name. The corporate respondent’s articles of incorporation were produced by the applicant.
11On this date, she produced a valid Ontario driver’s licence and a Canadian passport. Both contained photo identification, were issued in the name of Carolyn Goodman, and signed by Carolyn Goodman. She also provided her marriage certificate. These documents were marked as exhibits, with some of the information, such as their serial numbers, redacted. I take judicial note of the fact that in Ontario, if you are married, you don’t have to change your last name legally — which means changing your birth certificate. You can simply assume your spouse’s last name. According to the “Service Ontario” website, a benefit of assuming a married name instead of doing a legal name change is that it does not change your last name on your birth certificate. While the Service Ontario website indicates “[y]ou can use your marriage certificate to make the change on your identification (driver’s licence, health card),” it is evident that the personal respondent has made no such change. From this point onwards, the Tribunal referred to her as Ms. Goodman. In an oral ruling issued on May 28, 2013, the Tribunal added Ms. Goodman as a personal respondent, which was confirmed in a Case Assessment Direction dated July 18, 2013, and in an Interim Decision, 2013 HRTO 61.
12At the beginning of her evidence on February 13, 2013, Ms. Goodman testified, under affirmation, that Carolyn Krebs is her “legal name” and her “married name,” despite her photo identification marked as exhibits which are in the name of Carolyn Goodman. In cross-examination, she testified that she believes her name to be Carolyn Krebs. She testified that Marian Linton is a name “concocted” by a superintendent “George” about 20 years ago as a joke, which contractors then called her and the name stuck. During cross-examination, she testified that she did not dislike being called Mrs. Linton because it protects her from angry tenants who used to show up at her house. She signs contracts as Ms. Linton. As “Ms. Linton,” she is the property manager of 500 Dawes Road, which she attends on a daily basis. 500 Dawes Road is owned by the corporate respondent, of which she and her husband are the principals. They own 11 buildings that have apartments in them. The superintendents and rental agents report to her. In cross-examination, she testified that she has never tried to legally change her name to Carolyn Krebs and that she signed the purchase and sale agreement for 500 Dawes Road in the name of Carolyn Krebs.
13Ms. Goodman refused to admit, in cross-examination, that Ms. Linton and Ms. Krebs were fake identities, claiming instead that they were “alter egos”. She insisted during her cross-examination that she uses all three names in a legal fashion and she did not disclose her name of Carolyn Goodman because it did not occur to her that her driver’s licence was in her maiden name. She testified in cross-examination that she believes that she has two legal names and a birth name.
14As indicated above, once Ms. Goodman presented photo identification in the name of Ms. Goodman, the Tribunal called her Ms. Goodman and I find as a fact that this is her legal name. Whether or not the personal respondent sincerely believes it, and notwithstanding the entirely routine practice of assuming a married name, an individual can have only one legal name – that is the name on a person’s current birth certificate and passport. In light of the fact that the personal respondent has also never taken steps to change her name on identification documents such as her driver’s licence or passport to reflect her married (i.e. assumed) name, for the purposes of this Decision, I will refer to her as Carolyn Goodman. I note that the witnesses testified that in their interactions with her, they believed her identity to be Marian Linton and/or Carolyn Krebs.
The Allegations
15The applicant’s allegations in this Application are straightforward. The applicant alleges that the respondents discriminated against her when they denied her a bachelor apartment (“the unit”) at 500 Dawes Road, Toronto, in January 2011 because she was under the age of 18.
16The respondents denied the allegations against them. Their evidence in defending against the allegations was not straightforward, as the reasons for denying the allegations changed as the hearing progressed. While the respondents’ defence to the allegations shifted significantly over the course of the hearing, they did maintain the submission that the applicant filed her Application to obtain money from them, noting that it did not cost her anything to file or proceed before the Tribunal.
The Hearing
17The hearing took place over 7.5 days from November 7, 2012, to September 10, 2013. Written submissions were filed by the applicant after the last hearing date. The parties participated in voluntary mediation-adjudication for part of one of the days which did not result in a settlement. The hearing then resumed.
18The length of time it took to complete the hearing was due, to a large extent, to the difficulty in scheduling the personal respondent’s attendance. Ms. Goodman represented that she was not available from November 2012 to January 2013 due to vacation. When an issue about scheduling a date for a witness to testify arose during the hearing, which is discussed below, Ms. Goodman wrote to the Tribunal in July 2013, claiming that she was unavailable on more than 70 business days between July and December 2013.
19Further, the requirement to address a number of procedural issues, many of which related to the conduct of the personal respondent, contributed to the length of hearing. These procedural issues included the need to confirm the personal respondent’s (i.e. Ms. Goodman’s) identity and the respondents’ requests at the end of the hearing to call a new witness, recall the personal respondent and introduce new documentation.
20The Tribunal heard evidence from: the applicant; Leigh MacDonald, the applicant’s Children’s Aid Society (“CAS”) youth worker; John Fraser, then director of the Center for Equality Rights in Accommodation (“CERA”) and the applicant’s former representative; and Carolyn Goodman (on behalf of the corporate respondent and herself). There was an order excluding witnesses.
21Then the Tribunal heard evidence in reply from Deborah St. John, the applicant, and the individual whom the respondents had identified as being the tenant who moved into the unit that the applicant was interested in renting. For the purposes of this Decision, that individual does not need to be identified and he will be referred to as “the purported tenant”.
22Ms. Goodman testified, in reply to Ms. St. John’s evidence after the applicant’s reply evidence and before the testimony of the purported tenant.
23I wish to also briefly acknowledge my appreciation to the applicant’s counsel. She advocated on behalf of her client in an organized and thorough manner, and maintained her professionalism and composure throughout the hearing, notwithstanding the various challenges that arose. I am appreciative of her professionalism during this hearing.
Deborah St. John
24Ms. St. John is a former rental agent for the respondents who has lived at 500 Dawes Road with her husband for almost 20 years. At times the parties referred to her as the superintendent, but it was clear from the evidence that she was a rental agent who occasionally cleaned and worked in the office, and was not a superintendent. She received $50 commission on units that were rented that she showed.
25Initially, Ms. Goodman attempted to call Ms. St. John as a witness for the respondents by using a Provincial Offences Act summons that she claimed she had signed by a Justice of the Peace. Ms. Goodman represented to the Tribunal that when she contacted Ms. St. John to testify, Ms. St. John claimed not to remember the encounter with the applicant and so no witness statement was filed for her anticipated evidence. A witness statement is supposed to be filed as part of the normal pre-hearing disclosure process, even if it is to confirm that the witness will testify to having no independent recollection of the events in dispute. Notwithstanding that the personal respondent was evidently familiar with legal proceedings and had been provided with notice of these requirements, as noted below, I was ultimately required to order her to file a witness statement if she intended to call this witness.
26On February 12, 2013, the day mentioned on the summons, Ms. St. John’s husband attended the hearing and said that Ms. St. John was sick and could not attend. As it turned out, Ms. St. John’s evidence was not required on that date. At the beginning of the February 13 hearing day, Ms. Goodman said she attempted to contact Ms. St. John, but only reached her voicemail and left a message. The Tribunal permitted Ms. Goodman to keep her cellphone on during the hearing in the event that Ms. St. John returned her call. She did not.
27At the end of the February 13 hearing day, the Tribunal directed Ms. Goodman to advise the Tribunal by February 20 whether or not she was calling another witness to testify and if so to file a witness statement. The Tribunal had given Ms. Goodman a Tribunal summons to witness form, and explained about subpoenaing witnesses by serving the summons along with conduct money.
28On May 24, Ms. Goodman sent a fax to the Tribunal containing a summons for Ms. St. John and an explanation of how she “served it” through the slot in Ms. St. John’s door.
29On May 27, Ms. St. John sent a letter to the Tribunal stating that she was not able to attend the hearing as a witness due to illness and claiming that she did not receive any conduct money when the summons was slid through the slot in her door. She also wrote, “Ms. Linton, as I know her has been harassing me to go to court to lie for her. I told her I would not lie”. She then asserted that Ms. Goodman did discriminate against the applicant on the basis of her age.
30At the beginning of the May 28 hearing date, the Tribunal addressed the issue of the respondents not filing a witness statement for Ms. St. John. Ms. Goodman represented that one was not filed, and she did not provide conduct money, because Ms. St. John had been telling her for some time that she was not going to attend the hearing. She reiterated how she “served” Ms. St. John by sliding the summons through the slot in door. Despite this, Ms. Goodman still wanted Ms. St. John to testify so that she could question Ms. St. John on her May 27 letter.
31At this point, the applicant’s counsel advised that she contacted Ms. St. John after receiving the May 27 letter and that the applicant was prepared to call Ms. St. John as a witness in reply. Ms. Goodman was satisfied with this arrangement. I issued an oral ruling stating that Ms. St. John would be required to testify in-person and be subpoenaed as there were credibility issues pertaining to this witness. I also ruled that if she was unable to attend in person due to illness, she would be required to provide medical documentation confirming this.
32Ms. St. John testified in person, in reply evidence as a witness for the applicant. Over the objections of Ms. Goodman, the examination-in-chief of Ms. St. John was conducted by Meaghan Parry, a student-at-law volunteering with CERA.
33Following Ms. St. John’s evidence, the parties entered into an agreed statement of facts relating to a dispute between the respondents and Ms. St. John’s son, for which he had been criminally charged, with the applicant confirming that she does not challenge the respondents’ position about this and observing that she does not know anything about the son’s conduct. The parties agreed that Ms. St. John’s evidence is what she testified about on July 23.
The Purported Tenant
34Ms. Goodman took the position that the unit the applicant sought to rent was already rented when the applicant viewed it. In a Case Assessment Direction dated October 22, 2012, the Tribunal stated that it would expect the respondents to produce a copy of the application form for the purported tenant who ultimately rented the unit. The respondents submitted no witness statement for the purported tenant but a copy of the purported tenant’s application form was attached to Ms. Goodman’s own witness statement which was filed with the Tribunal before the hearing commenced.
35Ms. Goodman testified that she could not get in touch with the purported tenant so that he could testify as a witness for the respondents because his numbers were out of service. However, the applicant’s counsel reached him, confirmed that he would testify for the applicant in reply evidence, and stated that because of the nature of his work and his work hours, his availability to testify was restricted to Mondays.
36Efforts were made to find a date upon which the purported tenant could testify. Ms. Goodman was not cooperative when the Tribunal canvassed dates for the purported tenant to testify. Details about this are set out under the credibility section below. Ultimately, the purported tenant testified as a reply witness for the applicant.
The Respondents’ Request to Introduce New Documents and New Witnesses at the End of the Hearing
37After the evidence of all witnesses except for the purported tenant, the respondents produced new documentation from a ledger, purporting to show rental information about the units in the apartment building from May, July and August 2013. The applicant did not oppose these being marked as an exhibit and they were marked as an exhibit, without any evidence being tendered about them.
38Ms. Goodman also stated, at this time, that she wanted her husband to testify about more new documentation called “rent rolls” with a run date of 01/02/11 with a cut-off date of 01/31/11 and 02/28/11 that she thought was “long lost” and which she had allegedly found the Wednesday or Thursday before the Monday hearing date. She sent a brief outline about what Mr. Krebs would testify about, including that an “L. Mercer” took possession of the apartment January 1, 2011. The applicant objected to the introduction of this documentation and evidence about this documentation at this point in the hearing. I agreed with the applicant and issued an oral ruling denying Ms. Goodman the opportunity to re-testify or Mr. Krebs the opportunity to testify about the documentation, or from having the documents entered as exhibits, with reasons to be included in the final decision.
39The Tribunal has a clear, well-established document disclosure process that requires disclosure of all arguably relevant documents well in advance of the first hearing date. This process is set out in the Tribunal’s Rules of Procedure, parties are reminded of their obligations in various Tribunal notices, and, specific to this case, the respondents were directed to produce documentation, orally at the hearing and in writing. The respondents did not disclose this in the normal course but instead purported to “find” it after most of the witnesses had testified, and most importantly after the purported tenant’s proposed evidence was disclosed, which – contrary to their own initial position – did not support their theory of the case. The respondents provided no real or credible explanation of why or how this supposed new evidence could not have been found earlier. So to summarize: the respondents sought to introduce documentary evidence that a tenant had already rented the unit the applicant sought to rent, but could not be found; the applicant then located this purported tenant but the witness (through a witness statement from the applicant) instead indicated he would testify contrary to the respondents’ assertion; and then, only at this stage, did the respondents purport to find “new evidence” which was going to show yet another, different individual (an “L. Mercer”) occupied the unit. Given all of this, and at this very, very late stage of the hearing, I found their introduction would significantly prejudice the applicant and the hearing process. A new witness, Mr. Krebs, would be required to testify about new documentation and his evidence would be inconsistent with the respondents’ then-held position that the unit was rented later in January 2011. Once again, there was no indication the respondents intended to call the actual purported tenant to testify.
40The introduction of the new documentation, with evidence from Ms. Goodman and/or Mr. Krebs, would have further delayed the hearing and required additional hearing days. At the point in time that the documentation became disclosed, the date for final submissions had already been scheduled and some witnesses, such as Ms. St. John, may have been required to recall to testify whether a “L. Mercer” had resided in the unit.
41Accordingly, I ruled that neither Mr. Krebs nor Ms. Goodman could testify about “L. Mercer” renting the unit and I denied the introduction of the rent rolls documentation at this stage of the proceeding.
Credibility of Witnesses
42The Tribunal is often required to decide issues of credibility between the parties and their witnesses. In this case, I have had to make such findings of credibility.
43In making those findings, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
44Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including:
The internal consistency or inconsistency of evidence;
The witness’s ability and/or capacity to apprehend and recollect;
The witness’s opportunity and/or inclination to tailor evidence;
The witness’s opportunity and/or inclination to embellish evidence;
The existence of corroborative and/or confirmatory evidence;
The motives of the witnesses and/or their relationship with the parties;
The failure to call or produce material evidence.
Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.
45Thus, evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as non-credible.
46Although I found that the applicant was feisty, at times, in cross-examination, such as when she objected to some questions asked of her and queried their relevance instead of leaving the objections to her counsel, I found the applicant generally to be credible. Her evidence was consistent with the Application, witness statement and internally consistent between her examination-in-chief and her cross-examination. This is particularly significant because at the time of her cross-examination, the respondents questioned her on an issue that they retracted during their final submissions, specifically the assertion that she first came to 500 Dawes Road at the beginning of January 2011. Her evidence on the key relevant issues was also consistent with the evidence of Ms. MacDonald, Mr. Fraser, and Ms. St. John. I accept her evidence over the evidence of Ms. Goodman.
47I found Ms. MacDonald to be a credible witness. At the beginning of her cross-examination, she testified that she had notes that as a CAS worker she was required to take, which had not been produced during the proceedings. The applicant agreed to produce the notes, but to redact the information that was not relevant to housing, and then submitted that a Tribunal order was required for the production. The Tribunal accordingly ordered the notes to be produced with the non-housing information redacted. Ms. MacDonald was questioned during her cross-examination on the notes. Her evidence during examination-in-chief, which was given before her notes were introduced, was consistent with the notes which were later produced, as was her evidence given in cross-examination.
48Ms. MacDonald’s evidence was also internally consistent between examination-in-chief and cross-examination, and was consistent with the evidence of the applicant, Mr. Fraser, and Ms. St. John where their evidence overlapped. Where there was conflicting evidence between Ms. MacDonald and the personal respondent, I prefer the evidence of Ms. MacDonald.
49Ms. MacDonald’s suggestion, “we would not be here right now if she said that the apartment was rented”, which she stated during cross-examination, appears to me more probable than Ms. Goodman’s suggestion that she told Ms. MacDonald the unit was rented. Had the applicant been informed from the outset that it had already been rented, there would have been no obvious reason for Mr. Fraser from CERA to be involved or an Application to be filed with the Tribunal.
50I also found Mr. Fraser to be generally credible in his testimony and that his evidence was consistent with his notes. Although I have not placed any significant weight on his demeanour in determining his credibility, to some extent this was brought into issue by the personal respondent, who alleged he had intimidated and scared her in a telephone conversation that occurred during the material time when the applicant sought to rent the apartment unit. He denied that he intimidated or scared her and also remarked that she remained polite with him during their call but was clearly not interested in accepting what he told her. I find this to be a more balanced characterization of the call in dispute and more in keeping with the preponderance of probabilities, in part because it includes what is essentially a concession that the personal respondent was polite throughout. Again, although I would not place significant weight on demeanour, I did note that this witness remained soft-spoken, calm, and polite during his testimony, including while he was being cross-examined by the personal respondent. I accept Mr. Fraser’s evidence that he did not tell Ms. Goodman that “this whole thing can go away if you evict the current tenant”, or words to that effect, and I accept his evidence that such a statement would be inconsistent with his role as executive director of CERA, whose mandate is to obtain housing for individuals who allege discrimination, to educate housing providers about the Code, and which expressly precludes urging the illegal eviction of existing tenants. I also accept that minor errors that Mr. Fraser made in the drafting of the applicant’s Application were due to his review of the Application with the applicant over the telephone.
51I found Ms. St. John to be credible and largely reliable. Ms. St. John was internally consistent in her evidence, and testified about evidence which was against her self-interest. Her admission that she told the applicant that the unit would not be rented to her because she was under 18 years old would not assist Ms. St. John in her dealings with Ms. Goodman as her landlord, particularly given her stated concern about reprisal from Ms. Goodman as she was still a tenant at 500 Dawes Road.
52Ms. St. John testified about a letter dated May 24, 2013 that she sent to the Tribunal and the applicant’s counsel about not wanting to attend the May 28, 2013 hearing date. The letter was marked as an exhibit. She testified that Ms. Goodman was harassing her to come to “court” and “lie for her”. Specifically, she testified that Ms. Goodman asked her to lie about the unit being rented, to testify it was her fault and that she discriminated against the applicant.
53She agreed, during cross-examination, that when Ms. Goodman initially spoke with her about the applicant, she had no recollection of it. She testified that Ms. Goodman grabbed her in the hallway and harassed her. When she reflected on it later on at her kitchen table, the details came back to her, although she could not remember who was the superintendent at the time since there have been so many in a short period of time.
54The personal respondent urged me to conclude that this witness gave false testimony because her husband had worked at the building but no longer did, and because of the reasons for his no longer working at the building, and/or because of issues with which the respondents have had with her son. I carefully considered these submissions and for a number of reasons reject them and concluded this witness was forthright and reliable. The witness did not challenge the assertion that her son had engaged in behaviour against the respondents for which he was criminally charged. Rather, she reasonably maintained she was upset with her son but not with the respondents regarding the dispute between them. The legal issues pertaining to her husband have now ended. I also accepted her testimony that Ms. Goodman harassed her by following her around to discuss the case, throwing papers through the mail slot in her door and banging on her door. She continues to live in the apartment building where she has lived for almost 20 years and in my view she reasonably feared retaliation by Ms. Goodman if she testified contrary to Ms. Goodman’s interests. I am further supported in my conclusion that she believed it was not in her interest to testify contrary to Ms. Goodman’s interests by her initial attempts to avoid having to do so and in light of the observation that she was ultimately summonsed to attend the hearing.
55I found the purported tenant to be credible. He had no personal involvement or self-interest in this proceeding. He did not know the applicant or Ms. Goodman. Furthermore, the relevant parts of his evidence were not seriously challenged by the respondents. By the time the purported tenant testified, the respondents had retracted from their position that he had rented the unit to claiming that another person, “L. Mercer”, had rented the unit during the time in question.
56I did not find Ms. Goodman to be a credible witness. In fact I have difficulty in accepting almost anything she said or wrote during the proceeding to be true.
57It was incredibly difficult to ascertain Ms. Goodman’s true and legal identity. Initially, she identified herself as “M. Linton” and when pressed by the Tribunal to provide her legal first name, she advised that it was “Marian”. This was not true and it appears that “Marian Linton” is a fictitious name, made up by a superintendent 20 years ago that she continues to use to shield herself from the tenants given that she operates at 500 Dawes Road as the property manager.
58Then she claimed that her legal name is her married name of Carolyn Krebs. While it may be that she did not change her name when she married, in 1968 according to her marriage certificate, has used that name for 40 years, has credit cards in this name, and is listed as a principal of the corporate respondent in this name, it does not appear that this is her legal identity. I do not accept her evidence that this is her legal name as she testified.
59She signed the appearance sheet at the hearing as Marian Linton and Carolyn Krebs, and signed communications to the Tribunal under either or both names, until it was revealed that her name was Carolyn Goodman. This was ascertained only after much resistance by her and only because the applicant’s counsel continued to pursue the issue of her identity. When she finally produced her Ontario driver’s licence and Canadian passport, the documents had photo identification which matched the woman who attended the hearing, were valid, were issued in the name Carolyn Goodman and contained her signature in that name. Accordingly, I find that the legal identity of the woman who attended the hearing for the purposes of this Decision is Carolyn Goodman.
60Whether or not Ms. Goodman’s reluctance to reveal her identity was an effort to shield herself from liability in the event the Application was upheld would only be speculation on behalf of the Tribunal. She clearly understood that knowing someone’s legal identity is important. She testified that she requires photo identification and social insurance numbers of potential tenants at 500 Dawes Road before they are approved so that the individual identified on the applicant form is the person living in the unit, and if she has problems collecting rent from the individual she is able to go to LTB and collect from the correct individual. An agreed statement of fact was entered into between the parties addressing this point. However, Ms. Goodman’s unwillingness to readily reveal her own legal identity, along with the other reasons set out below, is a factor in me determining that she was not a credible witness.
61Throughout the hearing, Ms. Goodman’s testimony on key issues was often in stark contrast to that of other witnesses. However, whereas for the most part the testimony of other witnesses remained unchanging and internally consistent, Ms. Goodman’s testimony would often be retracted at a later stage in the hearing or otherwise change and was often also internally inconsistent. One example of this was a disputed fact of whether Ms. St. John, as a rental agent, had the authority to approve a tenant, or whether Ms. Goodman had the final say on who was a tenant. Ms. Goodman’s own evidence was that after showing the applicant the unit, Ms. St. John told her the applicant’s age, to which Ms. Goodman said “no problem”. She later retracted this evidence, since she had maintained the decision occurred at a time that would have made this exchange impossible. If she had not retracted this testimony, it would have demonstrated that she, and not Ms. St. John, had the final say on whether or not a tenant was approved because if Ms. St. John had this authority, she would not have needed to tell Ms. Goodman the applicant’s age at all. It would have been a non-issue. This is just one example in which her testimony was not only shifting, but also internally inconsistent.
62Ms. Goodman testified in her examination-in-chief that a superintendent, rather than she, found the purported tenant’s application in the unit’s file. She testified in both examination-in-chief and cross-examination that she could not recall the name of the superintendent. She testified that she tried to reach the purported tenant by calling the telephone numbers on his application form, but the numbers were not in service. She agreed during her cross-examination that it would be “wonderful” for her if he testified. However, when the applicant’s counsel said that she located him at the work telephone number listed on his application and he would testify as a reply witness for the applicant that he never lived in the unit and did not apply until 2012, Ms. Goodman created a number of obstacles in having the purported tenant testify.
63When the applicant’s counsel submitted that the purported tenant’s availability was very restricted due to his work schedule, such that he was only available on Mondays, Ms. Goodman then told the Tribunal that she was virtually unavailable on any Monday for almost a year due to the collection of rent, which she stated occurs on the first Monday of a month, and potential matters, that had not been scheduled, being scheduled before LTB. When one Monday was finally selected, she then further restricted herself by saying that she would only be available in the afternoon and after 1:30 p.m. She opposed the purported tenant testifying over the telephone, and insisted that he testify in person. I did not find the excessive restrictions claimed by the personal respondent credible.
64After learning that the purported tenant would testify that he did not complete the application that the respondents had produced, had never lived at 500 Dawes Road, and applied in 2012, and after Ms. St. John had finished her testimony, Ms. Goodman then sent new documentation to the Tribunal consisting of ledger excerpts and rent rolls for 2011. She now claimed that a “L. Mercer” lived in the unit rather than the purported tenant and that the superintendent, whose name she still did not recall, had given her not only the wrong application, but had altered the information on it. She did not provide either the first name of L. Mercer or a copy of L. Mercer’s housing application.
65In essence, she changed the respondents’ position that the purported tenant had rented the unit and moved in in January 2011, which they had maintained since October 23, 2012, to an L. Mercer had rented that unit. A change in a respondent’s position, particularly during a hearing, is a factor in determining that the respondent is not credible as a witness. See Morgan v. Herman Miller Canada Inc., 2013 HRTO 650 at para. 102.
66Further, without “L. Mercer’s” completed housing application, or his or her first name, Ms. Goodman made it impossible for the applicant’s counsel to track down this purported “L. Mercer” or challenge the respondents’ new evidence. The timing of this new position also meant that Ms. St. John, whose evidence had finished, could not contradict this new position unless she was recalled as a witness. As a result of the timing and dramatic nature of the change in the respondents’ position, I do not find their explanation that the unit was rented to be credible. Indeed, I ultimately conclude that the personal respondent fabricated evidence regarding the purported tenant and when this fabrication began to unravel (i.e. when applicant’s counsel actually located the initial purported tenant) she actively sought to obstruct the ability of that witness to testify because she reasonably concluded he would testify contrary to her assertions.
67The personal respondent’s position changed on a number of other evidentiary facts, in addition to those described above.
68Throughout the hearing, Ms. Goodman maintained that the applicant had called her at the beginning of January 2011 to inquire whether or not the landlord would rent to a 17-year-old. She testified that she told the applicant that it did, and the applicant came the next day to see the unit. Ms. Goodman provided very detailed information about her interactions with the applicant in early January in her witness statement, her opening submissions, and in her testimony. She cross-examined the applicant, Ms. MacDonald and Ms. St. John on these points and did not accept their denial of not only the early January dates, but also the details for those dates.
69However, during her final submissions, the respondents’ position changed. Ms. Goodman stated that it was not the applicant who attended at 500 Dawes Road at the beginning of January 2011, met with her, and who exhibited terrible behaviour, but instead it was another 17-year-old. There was also a second, or third, 17-year-old she then submitted who had contacted Ms. St. John in December 2010 about apartments being rented to 17-year-olds. Ms. St. John denied this in her evidence. The change in position not only affected the facts set out above, but a host of other facts related to these dates. This change in position also undermined Ms. Goodman’s credibility as a witness.
70Further reasons were also provided by the respondents about why the applicant did not receive the unit. There was the information that it had already been rented to the prospective tenant, as set out above, and then to “L. Mercer” when the prospective tenant was set to testify. The personal respondent also stated, at different times, that the applicant did not leave a deposit with her application, the application form was not completed, and that the applicant did not return the application form in a timely manner before the unit was rented out. If in fact the unit was rented, which point I do not find Ms. Goodman credible about, it is not logical to then assert that the applicant was denied the unit because she did not leave a deposit or did not complete her application. Those points would be moot if in fact the unit had already been rented.
71Ms. Goodman testified about individuals whom she alleged were witnesses to her version of events. However, she was evasive and defensive in both her examination-in-chief and cross-examination about the identity of those individuals. She claimed that they were former superintendents or the wives of former superintendents, and apart from a “Lorna”, whose last name she could not recollect, she could not recall their names. She testified that 500 Dawes Road has such a high turnover of superintendents, and that once they are fired or quit “they don’t want to return”. The evasiveness and vagueness of Ms. Goodman’s testimony on this point was lacking in any credibility. On her own evidence she was the property manager and owner of 500 Dawes Road to whom these employees reported, and I find it inexplicable that she could not have obtained their names from searching her records of their employment. This is a further example of her not being credible or reliable.
72Ms. Goodman was also inconsistent between the Response that she filed, signed and declared to be true and her testimonial evidence on a number of other facts. This included what happened to the applicant’s application for the unit, not renting to individuals under 18 years of age, and not knowing that the applicant was in receipt of CAS support.
73In their Response, the respondents submitted that the applicant’s application for the unit never left the applicant’s hand and in her witness statement the personal respondent said that she could not put the applicant on a waiting list because she did not have the applicant’s application. However, Ms. Goodman later testified that the applicant dropped off the application in the office, including the specific detail that it was in little squares “like it had been in her pocket for a long time”. On the third day of the hearing, she testified that the applicant’s application was placed on the superintendent’s desk. She testified that she told Mr. Fraser that she would put the applicant to the top of the waiting list and she directed Ms. St. John to put the applicant to the top of the waiting list. She testified that in early February 2011, someone came and took away the applicant’s application.
74The respondents’ position changed from denying that Ms. St. John told the applicant that the landlord does not rent to individuals under 18 years of age, to agreeing that Ms. St. John said this. Their position was also internally inconsistent from Ms. Goodman testifying that she cannot accept individuals under 18 years of age as she cannot obtain an order from LTB for rent collections, to testifying that she has accepted those under 18 years of age as tenants, including one named “Amber”, “who trashed the place”.
75Ms. Goodman’s evidence about how the applicant would pay the rent also varied. At one point she testified that she thought the applicant had a trust fund, at another time she testified that she knew the applicant had guaranteed income through CAS, and yet another time she testified that she had no idea how the applicant would pay her rent. This was in contrast to the applicant, Ms. MacDonald and Ms. St. John testifying that the applicant left a completed application which indicated CAS as the source of her rent payments.
76Ms. Goodman’s evidence was at odds with the evidence given by other witnesses, whom I have found were credible. For example, she suggested, for the first time when Mr. Fraser testified, that she offered the applicant a one-bedroom apartment. Mr. Fraser denied that this was offered, and this was not reflected in his notes. This was not reflected in Ms. MacDonald’s notes either.
77She testified that the unit had been rented when the applicant viewed it. The applicant and Ms. St. John testified that it was empty when the applicant viewed it and Ms. St. John testified that it had not been rented to her knowledge when she showed the unit to the applicant.
78Ms. Goodman failed to produce relevant documentation into the proceeding. She also produced an altered document, and attempted to produce documentation too late in the hearing. She did not produce the application of “L. Mercer,” as noted above. She did not provide any official corporate documentation, in any form, showing the name of the tenant, the unit he or she rented, the period of time, and the amount of the rent per unit, and in this case, the amount that the purported tenant paid to move in early into the unit. It was not until the end of the hearing that the respondents attempted to introduce some of this documentation, but by then it was too late and in relation to a totally new purported tenant. During her evidence, particularly her cross-examination when she was questioned extensively about the failure to produce official corporate documentation showing this information, Ms. Goodman testified that any such documentation, including ledgers and old applications from the unit’s files, had been thrown into the garbage a long time ago. She testified that her accountant does not need to know the names of the tenants from whom she receives rent payments, but rather just the amount and date of the payments.
79As set out in para. 34 above, Ms. Goodman attached a copy of the purported tenant’s application to her witness statement, which she filed with the Tribunal prior to the start of the hearing. She produced the original at the hearing and copies were made as the intention was to mark it as an exhibit. When Ms. Goodman was testifying about the purported tenant’s application form, the Tribunal noted that the original appeared to have some information whited out by liquid paper with new information written over it. Ms. Goodman testified that she did not know who had used liquid paper and written over it. The applicant’s counsel alleged that the document was forged from the original application form, which Ms. Goodman denied, and then Ms. Goodman said that she did not want the original application form introduced as an exhibit and she took back the original application form.
80When the purported tenant testified, the applicant’s counsel wanted his original application form to be present during his testimony. Ms. Goodman stated that she did not bring it to the hearing; the Tribunal gave her time to look through the extensive papers that she had with her, following which Ms. Goodman stated that she did not have the original with her. The Tribunal made a copy of the purported tenant’s application form, as Ms. Goodman also said that she did not bring a copy to the hearing.
81Ms. Goodman objected to a copy of the purported tenant’s application form being introduced as an exhibit. She stated that the person who gave it to her, who she could not identify, gave her something that was false and incorrect, and she did not want such a document introduced as an exhibit. Her objection was overruled by the Tribunal and the copy was admitted as an exhibit during the purported tenant’s testimony. The copy shows that various information, including the dates, had been covered by something similar to white out, with dates written on top of the white out. It appears that Ms. Goodman altered, or had altered, the purported tenant’s application and thus presented a fabricated document to the Tribunal. The Tribunal has recognized that this is a very serious offence, which significantly undermines its ability to determine applications based upon the facts and true merits of a case. See Nyonzima v. Idlewyld Manor, 2011 HRTO 1517 at para. 46.
82At the very end of the hearing, right before the purported tenant was to testify, for the first time Ms. Goodman sent new documentation to the Tribunal. This included excerpts from a purported ledger showing rental information about units at 500 Dawes Road from May, July, and August 2013, and “rent rolls” including the names of tenants with a run date of 01/02/11 and a cut of date of 01/31/11 and 02/28/11 that she alleged she thought were “long lost”. She submitted that these were discovered by a new superintendent, whose name she did not identify, by “fluke” because they were not visible to the naked eye. She provided a lengthy and complex narrative about how she, along with a superintendent Devon, recently found these documents in an office closet at 500 Dawes Road when they were cleaning the office because a superintendent, who she did not identify, recently left. The new documents were on top of binders in the office closet, were not visible to the naked eye, and could be observed only when standing on a chair.
83I do not accept this information. I find the explanation about how they were found to be lacking any air of reality, particularly since Ms. Goodman testified that she is the property manager at 500 Dawes Road, works out of the office, and is at the building almost every day of the week. These were not admitted as exhibits.
84The late production of this relevant documentation, with Ms. Goodman’s detailed information about how it was discovered, with the complex description of which superintendent was involved in finding it, and most significantly the timing of its find after the purported tenant’s anticipated evidence was revealed, is another point which undermines Ms. Goodman’s credibility.
85Finally, I found that Ms. Goodman attempted to influence a witness, Ms. St. John, to deny that the applicant had been denied the unit on the basis of her age. The Tribunal has recognized that this is one of the gravest abuses a party can commit because it depends upon the individuals who testify before the Tribunal to tell the truth. See Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 80.
86Taken as a whole, I do not find that Ms. Goodman was a credible or reliable witness.
The Findings
87As I have found that Ms. Goodman was not a credible or reliable witness, I essentially accept the evidence of the applicant and her witnesses. These are the findings of facts that I have made. I have not set out the evidence that the applicant, Ms. MacDonald, and Ms. St. John denied, in response to Ms. Goodman’s questions to them in cross-examination, or Ms. Goodman’s own testimony, about the applicant first establishing contact with 500 Dawes Road in early January 2011, given that the respondents retracted from this position during their final submissions.
88At the time of the events alleged in her Application, the applicant was 17 years old, withdrawn from parental control, a Crown ward, and under the care of the Children’s Aid Society (“CAS”), having recently been out of the care of a group home once she turned 16 years old. Her CAS worker was Ms. MacDonald, who was tasked with assisting the applicant find safe and affordable housing. Their efforts to find the applicant housing commenced in November 2010 and continued until mid-March 2011 when the applicant secured an apartment for April 2011. The applicant also had a social worker. She received financial support from CAS. Ms. MacDonald testified that CAS would pay the landlord directly and CAS usually provides guaranteed rent payment letters to be attached to housing application forms.
89During Ms. Goodman’s final submissions, for the first time, she asserted that the applicant had not provided any information establishing that she had withdrawn from parental control. She had not challenged the applicant, Ms. MacDonald or Mr. Fraser on this point during the entire hearing. As part of her post-hearing submissions, the applicant supplied a CAS letter which confirmed that she was Crown ward and in receipt of support from CAS. Although this letter was helpful confirmation of the fact, because the respondents did not challenge this point until final submissions, I would have accepted the initially unchallenged evidence of the applicant and Ms. MacDonald that the applicant was a Crown ward and withdrawn from parental control.
90Several days before Christmas 2010, the applicant visited her mother, who lived in another province, with the intention of living with her, but that plan did not work out. The applicant returned to Toronto on January 4, 2011. She was experiencing some serious personal issues, including a pregnancy, which had an impact on her ability to try to find housing until later in January 2011.
91Furthermore, the applicant was homeless. In January 2011, the time that she attended the corporate respondent’s apartment building, the applicant was living with a friend, sleeping on her couch, and paying her some rent. She was also sporadically staying with her boyfriend who became abusive towards her. She attended high school on a full-time basis.
92Ms. MacDonald was involved in the applicant’s search for housing in January 2011. She spoke with the applicant about housing issues on January 18, and sent her listings on January 24. These points were reflected in her notes, which she is required to take within 24 hours of contact with her client. Ms. MacDonald testified that “things were up in the air” earlier in January because of other personal issues pertaining to the applicant, most specifically her pregnancy. Once the applicant made a decision about that, then the search for housing could resume.
93The applicant testified that during the week of January 24, 2011, she was given the listing of the unit by her CAS worker, Ms. MacDonald. The applicant had friends in the area and had a friend living in the apartment building. She called the apartment building on January 26, spoke with whom she believed was the superintendent, and made an appointment to view the unit for the next day. She left her name and telephone number and denied that she asked if the building rented to 17-year-olds.
94Ms. St. John testified that she answered a telephone call from the applicant about the unit and the applicant arrived the next day to view it. The applicant did not provide any personal information at the time, including her age.
95On January 27, the applicant attended at the apartment building, toured the unit with a woman who identified herself as the superintendent, whom she now knows is Ms. St. John, who confirmed that they had spoken the previous day. The unit was empty and the superintendent said that it was available immediately. She told Ms. St. John that she was interested in renting the unit and that she had guaranteed income because CAS would be directly paying the landlord. She was given a blank application form and asked how old she was. Ms. St. John confirmed this information in her examination-in-chief.
96When the superintendent learned that the applicant was 17 years old, she said that the building has a policy of not renting to persons under 18. The superintendent told the applicant that she would rent to her if she could, but she did not have the authority to do so. She gave the applicant an application, and directed her to telephone the property manager or owner to convince them to rent the unit to the applicant. The applicant tried to get in touch with the owner, but was unable to do so because the owner was not present. Ms. MacDonald’s January 28 note indicates that the applicant spoke with the landlord that morning and was denied the unit. The applicant did not go to the office in the apartment building.
97Ms. St. John did not tell the applicant the requirement about a deposit because the applicant was in receipt of CAS benefits and it would be like a direct deposit. Ms. St. John told the applicant that she needed to complete the information on the form including the information on the back about how the rent would be paid and provide photo identification.
98The applicant called and spoke with Ms. MacDonald, who told her that landlords were not allowed to deny her an apartment because of her age. The applicant did not know this was illegal before she toured the unit. Together, the applicant and Ms. MacDonald filled out the application form and made arrangements to return to 500 Dawes Road the next day. Ms. MacDonald’s notes reflect this and she made arrangements for a deposit to be made.
99The next day, January 28, the applicant and Ms. MacDonald attended the apartment building with the completed application form. Ms. MacDonald buzzed for the superintendent and said that they were dropping off the application for the unit. When the superintendent, the same woman as the previous day, saw them, she shook her head no and said that because the applicant was not 18, the apartment would not be rented to her. Ms. MacDonald explained that it was illegal not to rent to individuals under 18 years old as they are legally entitled to enter into a lease. The superintendent was pleasant but said that she was doing what the landlord told her to do. Ms. MacDonald gave the superintendent the completed application form and a copy of a subsidy letter, but not a deposit. They did not keep a copy of the application or the documentation. They were not told a deposit was required. Ms. St. John confirmed that she received the application and the documentation and did not tell them that a deposit was required.
100After Ms. MacDonald and the applicant left, Ms. St. John left the applicant’s application on Ms. Goodman’s desk. Ms. Goodman told her “she’s 17 and 17-year-olds aren’t liable for damages to the apartment”. Ms. Goodman reminded Ms. St. John of another 17-year-old, “Amber”, who had rented a unit at the nearby apartment building who “trashed” the apartment and Ms. Goodman had been unable to collect for the damage to that apartment.
101Ms. St. John testified that she did not show the unit to anyone else between the time she showed the unit to the applicant and the following day. The unit was empty the day she showed it to the applicant; she understood from her husband, who was doing work on the unit, that it was empty the day after she showed it to the applicant, although she did not see it. She did not see anyone move into it.
102Ms. St. John testified that the reason why the applicant did not get the unit was because of her age. She did not deny the applicant the unit and the denial would have been either from Ms. Goodman or the superintendent.
103Ms. MacDonald and the applicant left and sat in Ms. MacDonald’s car in the parking lot. In the car, the applicant was upset. Ms. MacDonald suggested that she contact CERA who could help her advocate for her housing rights. The applicant called from Ms. MacDonald’s cell phone and left a message at CERA. Mr. Fraser called and spoke with the applicant and Ms. MacDonald.
104Mr. Fraser called the apartment building on January 28 and again on January 31 to attempt to speak with the property manager, whom he believed was Ms. Linton. Eventually he spoke with her later on January 31. He took notes of these attempts and of his conversation with her, which were made immediately after the action. The electronic notes were entered as an exhibit and contain what he thought was relevant information.
105When he spoke with Ms. Goodman, Mr. Fraser introduced himself, explained CERA, and that he was calling on behalf of the applicant. Ms. Goodman recognized the applicant from her name. Mr. Fraser told her that the applicant had been denied the unit for discriminatory reasons and Ms. Goodman’s response is that the applicant was not 18. Mr. Fraser, at this point, had not mentioned the applicant’s age. He confirmed, in cross-examination, that he had no firsthand information about what took place at the apartment building when the applicant attended and whether or not Ms. Goodman was present.
106Mr. Fraser advised Ms. Goodman that a 17-year-old could not be denied housing and Ms. Goodman told him that she did not realize this. He advised that the applicant was very interested in renting the unit, to which Ms. Goodman told him that the unit was already rented, but she did not tell him that the person paid additional monies to move in early. Since this is a common response that Mr. Fraser hears from landlords, he told Ms. Goodman that this was serious and that the applicant could take legal action by filing an Application with the Tribunal. He did not tell Ms. Goodman to evict the current tenant, as advocating for an illegal eviction of another tenant would be against CERA’s mandate. Ms. Goodman told Mr. Fraser that the applicant would get the next available unit, although she did not know when that would be, and she would contact the applicant directly. She did not tell him that the applicant would be placed at the top of the waiting list. Ms. Goodman was polite, Mr. Fraser thought, meaning that she may not have been sincere but she was pleasant. He did not think she was “intimidated” or “scared silly” as she suggested during her own testimony.
107After his conversation with Ms. Goodman, Mr. Fraser called the applicant and told her that Ms. Goodman told him that the unit had been rented. He advised the applicant to follow up with 500 Dawes Road in a couple of days to see if the unit was rented. The applicant later told him that a friend called on February 3 and was told the unit was rented. The applicant decided, in consultation with Mr. Fraser, to file an Application and they reviewed a draft over the telephone. The Application that was filed contained some minor mistakes, including the date of viewing the unit as being January 26 rather than being January 27.
108The applicant continued with her housing search with Ms. MacDonald, without success. She continued to live with her boyfriend, who was abusive, took away her money, telephone, and shoes, and physically restrained her from attending school such that she missed out on the semester. She did not complete high school. Eventually, she found an apartment for April 1, 2011. It was smaller and more expensive than the unit at the apartment building.
109Ms. MacDonald testified that the applicant’s living situation was unstable and this contributed to a number of issues for the applicant, including medical issues and inability to attend school. For some part of February, Ms. MacDonald lost touch with the applicant because of these issues. Eventually, in mid-March and after experiencing some difficulties in having apartments rented to her at other buildings, the applicant secured an apartment for April 1. Mr. Fraser and Ms. MacDonald testified that Mr. Fraser assisted in speaking with some other landlords who were reluctant to rent to the applicant because of her age.
The Law
110The applicable provisions of the Code are sections 2(1), 4, and 46.3(1). They state:
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.
4(1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.
(2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old.
46.3(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act or thing done or omitted to be one in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
General Legal Principles
Onus of Proof
111In this case, as with all applications filed with the Tribunal, the applicant bears the onus of proving the allegations on a balance of probabilities. The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court advises, at para. 58, to “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”.
112If an applicant does not prove that his or her allegations amount to a violation of the Code, then an application is dismissed. If an applicant does prove that some or all of his or her allegations amount to a violation of the Code, then the Tribunal can award varies remedies pursuant to section 45.2 of the Code.
113Having regard to the findings and my assessment that Ms. Goodman was not a credible witness, I have no difficulty in finding that the applicant was discriminated against by the respondents on the basis of age as a 17-year-old withdrawn from parental control.
114The evidence is clear from the applicant, Ms. MacDonald, and Ms. St. John that Ms. St. John told the applicant, first on January 27 by herself, and then on January 28 in the presence of Ms. MacDonald, that the applicant was denied the unit because of her age and the respondents’ prohibition against renting to individuals under 18 years of age. Despite Ms. MacDonald’s efforts to educate Ms. St. John about this being contrary to the Code, there is general agreement amongst these three witnesses that Ms. St. John conveyed that this was a policy of 500 Dawes Road. She encouraged the applicant to speak with the property manager, now known to be Ms. Goodman, but these efforts also failed.
115A policy does not have to be in writing for it to be enforced or effective. Whether the respondents’ “policy” was truly a policy, a requirement, or an understanding amongst those who showed and rented units at 500 Dawes Road, it is clear that the respondents did not want those under the age of 18 who had withdrawn from parental control to rent units. It is also clear that this direction was set by Ms. Goodman herself, given my finding that Ms. St. John was credible in her evidence that she had no authority to approve a tenant even if she had shown the individual the unit. Pursuant to section 46.3 of the Code, the respondents are liable for Ms. St. John’s comments, given that she was acting as their agent and in accordance with their policy or requirement.
116I also find that Ms. Goodman herself discriminated against the applicant on the basis of her age. Ms. Goodman told the applicant, during their telephone conversation after the applicant viewed the unit, that 500 Dawes Road does not rent to those under 18. She told Ms. St. John about “Amber” who was in receipt of CAS benefits, damaged her apartment and because she was under 18, the respondents could not collect any payments from her.
117Further, in telling Mr. Fraser “she’s not even 18”, disregarding Mr. Fraser’s explicit references to the Code and its prohibition against not renting to those under 18 who have withdrawn from parental control, falsely insisting that the unit was rented, and claiming that she would not be able to take the applicant to LTB if she damaged the property or did not pay her rent, she continued her discriminatory action.
118In light of my findings regarding the respondents’ actions, the applicant was able to prove that she was subjected to differential treatment by the respondents. See Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, [2010] O.J. No. 3812 at para. 86.
119Intent to discriminate is not a governing factor in construing human rights legislation. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 18. It is the result or effect of the alleged discriminatory action that is significant. However, it is difficult to imagine how the respondents’ actions towards the applicant are anything other than intentional.
120Accordingly, the applicant was denied the unit at 500 Dawes Road because of her age contrary to the Code. Ms. Goodman herself acted contrary to the Code in giving this directive and continuing to deny the applicant a unit because of her age when Mr. Fraser called her about the situation.
Remedies
121The Tribunal's remedial jurisdiction is set out in section 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.
122The applicant seeks $10,000 as a monetary remedy for the violation of the Code, with pre- and post-judgment interest, to be paid jointly and severally by the respondents. She does not seek any special damages. She seeks an order requiring the corporate respondent to develop and implement a comprehensive human rights policy which complies with the Code, an order that this be disseminated to all directors, employees and independent contractors who work for the corporate respondent and who have contact with potential occupants, and an order that within 60 days the corporate respondent confirm that it has complied with this order to the Tribunal and the applicant. Further, she requests that the Tribunal order the corporate respondent to provide human rights training, approved by the Ontario Human Rights Commission, for the personal respondent, as well as the directors, employees and independent contractors of the corporate respondent and that the Tribunal remain seized with the implementation of its order. She requests that these last orders only pertain to 500 Dawes Road.
123The respondents submit that the Application should be dismissed. In the alternative, they submit that the Tribunal should only award $100 for damages between February 1 and 3 when the applicant discovered that the unit was rented, or alternatively from February 1 to 7 when Ms. MacDonald was told by another case worker that 500 Dawes Road was a “bad” building. In any event, the respondents submit, the applicant is supposed to mitigate her damages and that she failed to do that because she did not pursue other reasonable housing avenues that were available to her. The respondents submit they did not know that the applicant was homeless at the time that she applied for the unit. The respondents would be agreeable to the Ontario Human Rights Commission’s (“the Commission”) Code cards being posted and Ms. Goodman taking the Commission’s Human Rights 101 e-learning training module.
124In the oft-cited Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal explained that there are several key factors that it considers in ordering remedies, specifically the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. At paras. 53 to 54 it stated:
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
Monetary Compensation for Injury to Dignity, Feelings and Self-respect
125It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator.
126In this case, I find that $10,000, representing injury to her dignity, feelings and self-respect, the amount requested by the applicant, is appropriate in these circumstances. This amount is to be paid jointly and severally by the respondents, noting that Ms. Goodman is an owner and principal of the corporate respondent, but in the name of Carolyn Krebs. See Ontario (Human Rights Commission) v. Farris, 2012 ONSC 3876, [2012] O.J. No. 3060 at para. 51. The Tribunal orders pre-judgment interest at the rate of 3% annually from March 7, 2011, the date the Application was filed, and post-judgment interest at the rate of 3% annually arising on any unpaid amount 30 days after the Decision is issued.
127From an objective perspective, being denied housing for a discriminatory reason is serious. Housing is of fundamental importance in our lives. Many experience hardship in finding adequate and affordable living accommodation, and discrimination puts many groups at a higher risk of homelessness. See Taranco v. Michedes, 2010 HRTO 128 at para. 29, and the Ontario Human Rights Commission’s “Policy on Human Rights and Rental Housing” at p. 29.
128I note that a person under the age of 18 who has withdrawn from parental control and who is homeless is acutely vulnerable and objectively at risk of suffering enormously and in many ways. See Garbett v. Fisher, [1996] O.H.R.B.I.D. No. 12 at para. 59, and Office of Child and Family Service Advocacy, “We are your Sons and Daughters: The Child Advocate’s Report on the Quality of Care in 3 Children’s Aid Societies”. Denying such an individual an apartment because of their age could also be considered a form of disadvantage which perpetuates prejudice or stereotyping. See, for example, Hendershott v. Ontario (Ministry of Community and Social Services), 2011 HRTO 482 at paras. 45 and 46.
129Youth and vulnerability because of pregnancy have been considered factors in determining monetary remedies. See, for example, Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736 at para. 39, and Maciel v. Fashion Coiffures Ltd., 2009 HRTO 1804 at para. 57.
130The discrimination against the applicant occurred by the one of the owners of the building and the rental agent, at the direction of the owner. Although the discrimination flowed from the same incident, it occurred over successive days and despite Mr. Fraser’s efforts to educate Ms. Goodman about the Code and renting to individuals under 18 who have withdrawn from parental control.
131While the respondents did not know that the applicant was homeless, they knew that she was 17 years old and had the support of CAS. Without knowing any further details of the applicant’s personal situation, these facts in and of themselves suggest a very vulnerable person for which the discriminatory denial of housing would have objectively seriously consequences. In any event, the assessment of an appropriate remedy is remedial in nature and not subject to the degree to which the respondents knew how acutely their discriminatory action would impact the applicant.
132From a subjective perspective, the applicant was one of the most vulnerable types of individuals in society and whose odds were pretty much stacked against her. She was a very young woman, 17 years old and withdrawn from parental control, she had been a Crown ward since she was 13 years old, was homeless, and was still in high school. Furthermore, she was dealing with significant personal issues, including a pregnancy. She was relying upon the assistance of adults, including Ms. MacDonald and Mr. Fraser, to help her find housing, navigate her through life, and advocate on her behalf, in addition to her own efforts. When she was denied the unit by the respondents, she continued to have an unstable housing situation, leaving one unstable living arrangement with a friend and moving into an even more unstable living arrangement with her boyfriend for almost two months. During this period of time, her boyfriend became abusive to her and his actions contributed to her losing a semester of high school.
133The respondents claim that they are not responsible for what happened to the applicant after she was denied housing. In assessing the extent of “loss arising out of the infringement” (see Code, s. 45.2(1)), the Tribunal’s jurisprudence has held that it is appropriate to consider whether an applicant’s “particular circumstances make the effects particularly serious” when assessing the subjective seriousness of the discriminatory conduct. This can include a heightened impact arising from any particular vulnerability of the applicant. See Garbett, above, at para. 60 and the cases cited therein. It is unnecessary to engage in a detailed assessment of what happened to the applicant after she was denied housing by the respondents because the applicant has not attempted to quantify or seek damages for specific losses and the immediate impact of the discriminatory decision was sufficiently serious from both an objective and subjective basis to justify the $10,000 award sought for injury to her dignity, feelings and self-respect.
Development of a Human Rights Policy and Training
134Both Ms. St. John and Ms. Goodman testified that the respondents do not have a human rights policy and do not provide human rights training to those, including superintendents and rental agents, who are involved in renting out units. Ms. Goodman, whose evidence on this point may have been credible, testified that superintendents and rental agents have to use their “common sense” in renting out apartments. Ms. St. John identified a number of other groups to which, she testified, the respondents do not rent out units.
135Whether or not the respondents discriminate against others beyond the applicant is not relevant to my determination that they did discriminate against the applicant. But it is clear that the respondents need to develop a policy and provide human rights training to those who are involved in showing units to prospective tenants at 500 Dawes Road. This would include an owner, any superintendent, rental agent, or employee who shows units to prospective tenants.
136Accordingly, the Tribunal orders the respondents to retain an expert in human rights to develop, within six months, a human rights policy specific to rental housing for 500 Dawes Road. This policy, along with the Commission’s Code cards, is to be posted in the rental office at 500 Dawes Road.
137Furthermore, the Tribunal orders the respondents to retain an expert to provide human rights training applicable to rental housing to anyone who is involved in showing units to prospective tenants at 500 Dawes Road, including, but not limited to, the owners, superintendents, rental agents and employees. This training shall occur within six months of the date of the Decision.
138These orders are limited to the 500 Dawes Road location given that the applicant was not seeking an order beyond the 500 Dawes Road location.
139The Tribunal orders that the respondents report to the applicant’s counsel and the Tribunal when it complies with the directions pertaining to the policy and training. The Tribunal will remain seized with respect to the implementation of this portion of its order.
Order
140The Tribunal orders the following:
The respondents shall be jointly and severally responsible to pay the applicant $10,000 representing the Code violation and injury to her dignity, feelings and self-respect;
Pre-judgment interest on the amount in 1. shall be paid at the rate of 3% annually from March 7, 2011 until the date of the Decision;
Post-judgment interest on the amounts in 1. and 2. shall be paid at the rate of 3% annually on any unpaid amounts after 30 days of the date of the Decision;
Within six months of the date of the Decision, the respondents shall:
a. Retain an expert in human rights to develop a human rights policy specific to rental housing for 500 Dawes Road, Toronto;
b. Post the policy and Ontario Human Rights Commission’s Code cards in the rental office at 500 Dawes Road, Toronto;
c. Retain an expert in human rights to provide human rights training specific to rental housing to anyone who shows prospective tenants units at 500 Dawes Road, Toronto, including, but not limited to, owners, superintendents, rental agents, and employees; and,
Report to the Tribunal and the applicant’s counsel when it has complied with 4.
The Tribunal Vice-chair shall remain seized with any issues arising from the implementation of 4 and 5.
Dated at Toronto, this 24th day of July, 2014.
"Signed by"
Alison Renton
Vice-chair