HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rosemarie Manradge
Applicant
-and-
Calvary House (Markham) Corporation
Respondent
DECISION
Adjudicator: Kevin Cleghorn
Indexed as: Manradge v. Calvary House (Markham) Corporation
APPEARANCES
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Rosemarie Manradge Applicant ) Self-represented
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Calvary House (Markham) Corporation, ) Susanna Crichlow, Counsel Respondent )
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1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing on the basis of race, colour, family status and receipt of social assistance. The Application alleges that the applicant experienced discrimination when she was treated differently than other unit holders generally because of her race, colour, family status and/or receipt of social assistance. She cites differential treatment in terms of her requests for services, the availability of parking, retaliation, the ability of one or both of her daughters to live with her and the frequent use of racial slurs directed to both her and her daughters by the property manager, Samuel Park.
ISSUE FOR DETERMINATION
2I must determine the following after consideration of all of the evidence:
Was the applicant’s race, colour, family status or receipt of social assistance a factor in the decisions made by the respondent in relation to services/treatment afforded to her at her housing complex?
FACTS AND BACKGROUND
3The applicant resides in an apartment where she has lived for twenty years. At various times, she has resided there with her two daughters (Raccine now age 27 years and Racquel now age 25 years). She indicates that problems began for her when Samuel Park became the property manager approximately ten years ago.
4The applicant describes the problems as being harassment generally and the denial of specific services in particular. She states that Mr. Park arranged for her vehicle to be towed from the street adjacent to the property after he had given her permission to park above-ground (with the appropriate parking permit displayed prominently on the dashboard).The applicant had an underground parking spot but required the vehicle to be above-ground for repairs to be effected. She has also been brought before the Landlord and Tenant Board by Mr. Park on behalf of the respondent on several occasions - there was a dispute over rent occurring around the time of the towing incident and, as such, she believes that the towing was done in retaliation.
5She claims that Mr. Park is always calling her names, such as “n…er”, “monkey” and “free loader”. He would call her names whenever he saw her. He would refer to her children by the same names. Mr. Park is also perpetually taking her to “court” and has been driving her “crazy”. Despite being in the same unit for twenty years, she was denied the request to have her carpets changed, even though such privileges were extended to at least one other tenant. She was advised she would have to pay $2,500.00 (to cover the cost of painting and carpeting) to move from one unit to another in the housing complex. In short, she claims to be refused everything she asks for. The applicant maintains that Mr. Park prefers people from his own country (he is Korean).
6The applicant notes that she was charged criminally for damaging a light fixture in the hallway near her apartment but that she was acquitted of the charge in 2012 or 2013. She is the recipient of numerous complaints for putting items in the garbage room and once for leaving a shopping cart in the hallway. She claims to have photographs of other tenants leaving baby strollers in the hallway but she is treated differently because of Mr. Park’s attitude toward her and his preference for his own people.
7On cross-examination, the applicant conceded that she may have been brought before the Landlord and Tenant Board on more than ten occasions. She also acknowledged that she has received extensions of time to pay rent more than once. She further acknowledged that her daughter Racquel had moved in with her before Christmas, 2013 and resides with her even now.
8In relation to the parking incident, when confronted with the notion that she had not been given a parking pass and that the one displayed in her vehicle was larger than those issued, she claims that Mr. Park had given her permission to increase the font on the parking pass to allow her to park above-ground. The applicant insisted that Mr. Park had contacted the parking authority to have her towed, and remained firm in this conviction when confronted on cross-examination with the fact that the property management office was closed at the relevant time and it was accordingly unlikely that Mr. Park would have been present on the property.
9The applicant had observed another lady in the complex getting the carpet changed in her unit. The applicant conceded that Mr. Park told her that the other lady had paid for the carpet to be changed herself. She admits that the responsibility to pay for renovations in her unit is shared with the housing complex. She denies that she damaged a light fixture in the hallway despite photographs which appear to depict her doing just that. The camera in the hallway down from her unit has now been removed. She denies that Mr. Park ever advised her that placement of her cart in the hallway is a fire hazard.
10The applicant denied ever calling Mr. Park any names. She then said that she had called him names, particularly “racist”.
11Claudia Bennett testified on behalf of the respondent. She did not witness any interactions between the applicant and Mr. Park. She also testified about her personal experiences with Mr. Park.
12Samuel Park also testified on behalf of the respondent. He is employed at Calvary House and has been its property manager since 2005. He is originally from Korea. Mr. Park explained that Calvary House is a non-profit housing complex affiliated with a nearby Korean Church. It has one hundred units (seventy-eight are subsidized and twenty-two require payment of market rent) and the facility is now subsidized by York Region. He describes the market rent units as being managed “normally” and that he calculates the rent for the subsidized units for York Region. An internal review of the calculation is conducted by York Region when required. He utilizes a Guide to Rent Geared to Income Assistance for his calculation (filed as Exhibit Five). He states that there have been many issues with the applicant about payment of rent over the course of her tenancy. She has been constantly in arrears from 2003 according to their records (a summary of rental payment history for the applicant was filed as Exhibit Six). It has resulted in multiple (over twenty) appearances for her before the Landlord and Tenant Board, with payments being made by the applicant at the last minute to avoid eviction.
13There were also issues with respect to the occupation of the applicant’s unit once her daughters turned sixteen years of age. Various eligibility criteria had to be considered, including whether the applicant’s daughters were in part-time or full-time attendance at school. It was difficult to determine whether her daughters were living there at all times. But once they left, the applicant was considered “overhoused” when she was residing alone in a two bedroom apartment. Once a tenant is offered a new, smaller unit, and refuses the offer twice, the tenant is considered ineligible for subsidized rent.
14Mr. Park described a long waiting list for housing (over 1,500 applicants currently) and the frequent challenge of tenants attempting to by-pass the normal process by having relatives live in their units. He emphasized that adult relatives need to apply for housing through normal channels as any other prospective tenant would. He has spotted Raccine and Racquel around the building many times, but noted that guests are permitted for a maximum of seven days at a time.
15He testified that there are one hundred parking spots in a garage for tenants. Above-ground parking is “visitors only”. He is authorized to give a pass to allow overnight parking on Church property only. He indicates that a black Honda (presumably the applicant’s vehicle) was parked in a handicapped parking spot above-ground. A warning sign was put on the black Honda as a courtesy. He is not on the premises overnight and does not call the towing company on illegally parked vehicles. The by-law enforcement officer attends at the premises sporadically. He did not initiate the removal of the applicant’s vehicle.
16Mr. Park denies ever using the words “n….er”, “monkey” or “free loader” in relation to the applicant, her children or anyone. He reiterated that on cross-examination.
17He advises that a carpet was changed for a Korean lady in apartment 216 who had experienced damage due to her dog. The applicant requested that the same be done for her. Upon inspection of the applicant’s carpet, Mr. Park believed that it just needed to be cleaned. The applicant also demanded to see a “binder” which contained the standard policies for York Region. He believes he may have given the applicant the binder.
18There were a series of incidents near the first floor laundry room. A camera was placed in front of the applicant’s apartment to determine the perpetrator(s). The applicant left him a “blistering message” on his voice mail system about the camera, which had been placed inside a light fixture. The light fixture was eventually damaged and the camera removed by person or persons unknown. Photographs of the person who may have damaged the light fixture in the hallway were filed as Exhibit Ten. The police could not do anything about the removal of the camera. Mr. Park identifies the applicant as the person depicted in the photographs.
19He also confronted the applicant about items left in the hallway near her unit. He talked to the applicant about the issue and then sent her an official warning letter
20Miriam Kim testified on behalf of the respondent. She is an employee of Calvary House and assists all tenants in the building. She has worked there for approximately eighteen months. When she first became employed, she read the history of each tenant. Ms. Kim states she was told to leave all of the applicant’s matters for Mr. Park to deal with.
21In observing Mr. Park interact with the applicant, Ms. Kim describes him as calm. Whenever the applicant would request a parking pass for her daughter and was refused, the applicant would come down to the office and scream at them or leave voice mail messages of an insulting and derogatory nature. Some of the voice mail messages were played at the hearing. The applicant admitted to leaving at least two of the messages. The messages were angry and derogatory in tone. She never observed Mr. Park to call the applicant names; rather, she observed the applicant calling Mr. Park names such as “stupid” or “monster”. Mr. Park would appear to get angry but attempted to ignore the applicant. She also observed the applicant to become physically aggressive with Mr. Park once, waving papers around and hitting him with them.
22Ms. Kim describes the housing complex as multi-racial. It houses white, black and Korean tenants. She has never heard any complaints about Mr. Park. In describing the applicant’s behaviour, Ms. Kim states that she is polite when she makes requests at the office but becomes belligerent whenever there is a refusal of her requests. The biggest request made by the applicant was in relation to her daughters moving back in to the complex. Ms. Kim indicates that Mr. Park handled that request personally.
THE LAW
23Section 2 of the Code provides as follows:
Accommodation
- (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. R.S.O. 1990, c. H.19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (2); 2012, c. 7, s. 2 (1).
Harassment in accommodation
(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance. R.S.O. 1990, c. H.19, s. 2 (2); 1999, c. 6, s. 28 (3); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (3); 2012, c. 7, s. 2 (2).
24The issue is whether the applicant experienced differential treatment because of an enumerated ground in the Code.
25I must decide whether the applicant’s race, colour, family status or receipt of social assistance played any role or was at all a factor in the type of treatment that she received from Mr. Park. The applicant must prove on the balance of probabilities that the respondent did indeed discriminate against her based on race, colour, family status or receipt of social assistance. In my view, she has wholly failed to do so.
26It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.
27The Tribunal has stated on several occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201; Badvi v. Voyageur Transportation,2011 HRTO 1319; and Watt v. Cambridge (City), 2014 HRTO 218. 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 unless there is proof that one or more of these characteristics was a factor in the treatment the applicant experienced. It is readily acknowledged that various experiences of unfairness, not specifically defined as discrimination in the legal sense, can result in significant negative financial and emotional consequences to one degree or another. The applicant has failed to show that she experienced any unfair treatment in an objective sense. She simply does not like Mr. Park and refused to accept any refusal of service or request to comply with the rules and regulations of the complex. She assumes that there has been discrimination in any such circumstance, or that discrimination is the basis for the manner in which she is treated.
28The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment, in her view, is not generally sufficient to support an inference of discrimination. The issue for the Tribunal now is whether there is sufficient direct or indirect evidence available to connect the unfair treatment alleged by the applicant with the applicant’s personal characteristics. However, since the applicant is unable to point to circumstances beyond her own assumptions or belief, the Application cannot succeed. It is not clear even that the applicant has experienced any differential treatment. Mr. Park offers plausible explanations for the decisions made in relation to the applicant’s requests. The applicant has not offered anything beyond her own speculation or suspicion that any treatment afforded to her was different than that which any other occupant of her housing complex receives in the ordinary course.
29There is no evidence in this instance that the respondent ever engaged in even unfair treatment of the applicant, or more significantly, that the treatment related in any way to any of her personal characteristics. Although it is conceivable that Mr. Park may have engaged in inappropriate conduct or practices or used intemperate language with the applicant at times when considering the nature of their relationship, the evidence in this case is utterly lacking in any particulars which establish a nexus with a proscribed ground of discrimination under the Code. There is no evidence whatsoever to suggest that the actions of Mr. Park, or indeed those of anyone associated with the respondent, amounted to any form of discrimination within the meaning of the Code as against the applicant at any time, or that the applicant’s personal characteristics were a factor in any way, shape or form. There is a significant difference in discrimination which can be linked to a prohibited ground under the Code and the impact of actions experienced by a person through conduct which does not amount to a breach of the Code. In this instance, the only evidence of name calling that is corroborated is that of Mr. Park. The applicant could not even be specific in citing dates or times or events when name calling supposedly occurred by Mr. Park. That should have been relatively easy for her to do when she maintains that such name calling was happening “all of the time”. She had indicated that her daughters would testify and corroborate the evidence about the name calling but, for whatever reason, they did not attend the hearing. I cannot speculate about what they would or would not have said, but merely point out that the opportunity for the applicant’s evidence to be corroborated was available to her. I am also struck by her initial denial that she ever called Mr. Park names when it became apparent that she had on several occasions.
30I find the testimony of the respondent’s witnesses to be credible and rely on the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357, against the evidence heard and presented, as follows:
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 carried 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.
I find that the evidence given by Mr. Park and Ms. Kim was straightforward and credible, and confirmed by all documentary evidence filed as exhibits at the hearing. By contrast, the applicant’s testimony was selective, evasive and at times shifting. It was often at odds with documentary evidence and even when confronted with discrepancies on cross-examination she tended to either deny them or only grudgingly make admissions against her interest. Where the testimony of the applicant and the respondent witnesses conflicted I generally preferred that of the respondents.
31The applicant has therefore not met her onus to establish that a breach of the Code has occurred on the balance of probabilities.
DECISION
32For all the foregoing reasons, the Application is hereby dismissed.
Dated at Toronto, this 8th day of August, 2014.
“Signed by”
Kevin Cleghorn
Member