Yermolenko v. Hugh Garner Housing Co-operative Inc., 2014 HRTO 1226

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Yermolenko

Applicant

-and-

Hugh Garner Housing Co-operative Inc.

Respondent

DECISION

Adjudicator: Eva Nichols

Date: August 18, 2014

Citation: 2014 HRTO 1226

Indexed as: Yermolenko v. Hugh Garner Housing Co-operative Inc.

APPEARANCES

Eugene (Yevhen) Yermolenko, Applicant

Self-represented

Hugh Garner Housing Co-operative Inc., Respondent

Luke J. Saites, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation because of ancestry, place of origin, ethnic origin, disability, and sexual orientation.

BACKGROUND

2The applicant is a member of the Hugh Garner Housing Co-operative Inc. This housing co-operative, located in Toronto, is one of the housing facilities in the city that caters to individuals with the specific disability that the applicant has. The applicant moved into the facility in 2012, after having been on a waiting list for approximately 3 years.

3The applicant alleges that starting in mid-December 2012, he began to receive complaints from his neighbour about being noisy at all times and disturbing the neighbours. He states that this was the start of a series of negative events that he had to deal with, including neighbours patrolling outside his apartment, searching through his garbage, damaging the lock to his apartment and refusing to use the elevator, when he was using it. He also states that his neighbour, who has since moved to another apartment in the co-operative, referred to him within his hearing as a member of the “Russian Mafia”. He states that he felt threatened by the other residents.

4He alleges that the management, staff and board of the housing co-operative were in collusion with the individuals who were treating him so badly.

5He further alleges that he has been denied access to rent subsidy by the management, which represents significant financial difficulties for him.

6The applicant states that he attempted to resolve the situation by talking to management and making a complaint to the police. Neither of these steps improved the situation.

7The respondent denies the applicant’s allegations and states that there has been no discrimination against him. The respondent agrees that the applicant is a person with a disability, and states that he has not asked for any specific accommodation for his disability from management or staff.

8The respondent described that, in response to the applicant’s needs to exercise vigorously at unusual hours of the day and night, they soundproofed his apartment.

9The respondent clarified the co-operative’s financial situation and the rationale for having to deny a rent subsidy to the applicant and other tenants.

10The respondent asked the Tribunal to dismiss the application.

PRELIMINARY MATTERS AT THE HEARING

11The applicant did not comply with the Tribunal’s rules regarding disclosure. In a Case Assessment Direction (CAD), he was directed to do so. He sent an e-mail to the Registrar with a copy to the respondent’s counsel, stating that his Application is his full evidence and that “he, his conscience and God” are his only witnesses. I accepted this as sufficient to indicate that the applicant was not abandoning his Application, but directed the applicant that he could not rely on any other materials or documents in giving his evidence, apart from what was set out in his Application and any Reply.

12Counsel for the respondent raised two other preliminary matters. Firstly, he expressed concern about the applicant’s correspondence, consisting of a large number of e-mails, which potentially or actually contravened the confidentiality agreement that the parties signed at the mediation. I reminded the applicant of his obligation to maintain confidentiality regarding any matters discussed during mediation.

13Counsel for the respondent also informed me that during the previous weekend he received an e-mail from the applicant in which he was told that the applicant had initiated a complaint against him to the Law Society. He wanted the applicant to provide a copy of that complaint to me, as part of the evidence at the hearing. I stated that this matter is outside the Tribunal’s jurisdiction and that I was not prepared to deal with this matter at the hearing.

EVIDENCE HEARD AT THE HEARING

14The applicant, under oath, briefly reiterated the substance of his Application. He referred to the chain of negative and adverse events that he had faced in the past at the housing co-operative. He stated that he felt hurt by the other tenants’ and management’s hostility and rudeness. He went on to describe that things are much better now and that his neighbours are much nicer to him than was the case in the past.

15In his evidence he made no reference to any of the grounds that he cited in his Application nor did he suggest that any of the events were a direct result of discrimination.

16He confirmed that he has no proof or documentary evidence of discrimination whatsoever, he has no witnesses to support his allegations of discrimination, he has no evidence that he has been treated differently from other people with a disability in the housing co-operative or differently from the other tenants who may or may not have a disability.

17He further confirmed that he claimed the cited grounds for discrimination because he believed that these “must have been” the reason why his neighbours did not like him.

NO REASONABLE PROSPECT OF SUCCESS

18Following the conclusion of the applicant’s evidence, including cross-examination by respondent’s counsel, I advised the parties that it appeared to me that the Application may have no reasonable prospect of success, given that the applicant had no evidence whatsoever that the adverse treatment that he alleged that he had faced had any link to a possible violation of the Code. I invited submissions from the parties on this issue. See Pellerin v. Conseil Scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

19The parties agreed that submissions on this matter should be oral, rather than written and should be made immediately, rather than at a later date.

20The applicant made no submission at all, other than stating that he had no information that would link his treatment to a violation of the Code or the protected grounds that he had cited in his application.

21Counsel for the respondent made a brief submission, stating that allegations of general unfairness, even if proven, are not within the mandate of the Tribunal. In order to establish a breach of the Code, the applicant needs to submit facts rather than allegations, speculation or accusations. Given that the applicant had no such facts or evidence, clearly there is no demonstrable breach of the Code. As stated in the test for a summary hearing in previous decisions of the Tribunal, this application has no reasonable prospect of success and should therefore be dismissed.

ANALYSIS AND DECISION

22The relevant section of the Code is as follows:

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.

23In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal discussed the concept of “reasonable prospect of success” as follows, in paragraphs 8 and 9:

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

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

24The Tribunal has stated on many occasions that it does not have the power to deal with general allegations of unfairness. Unfair treatment is not discriminatory in and of itself, unless there is proof that one (or more) of the personal characteristics referred to and protected by the Code is a factor in the treatment that the applicant experienced. Accepting the facts alleged by the applicant does not necessarily include accepting the applicant’s assumptions about why he or she was treated a certain way.

25There is no dispute between the parties that the applicant in this case is a person who can be identified by the cited characteristics, which are prohibited grounds for discrimination. However, since the applicant was not able to produce any direct or indirect proof, evidence or witness statement that he had faced adverse treatment due to these characteristics, I find that the applicant has no reasonable prospect of success of proving that he was subject to harassment or discrimination, as defined under the Code, or that there has been a breach of the Code.

26For these reasons, I find that the Application has no reasonable prospect of success. The Application is dismissed.