Gaines v. Toronto Community Housing Corporation, 2014 HRTO 1249

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Gaines Applicant

-and-

Toronto Community Housing Corporation and Kimberley Garrett Respondents

DECISION

Adjudicator: Sheri Price Date: August 22, 2014 Citation: 2014 HRTO 1249 Indexed as: Gaines v. Toronto Community Housing Corporation

APPEARANCES

Gary Gaines, Applicant Self-represented

Toronto Community Housing Corporation and Kimberley Garrett, Respondents Suzanne Nigra, Representative

INTRODUCTION

1This is an Application under s.34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleging that the respondents discriminated against the applicant because of disability with respect to housing, contrary to s.2 of the Code.

2During the relevant timeframe, the applicant was a tenant in a building owned and operated by the Toronto Community Housing Corporation, a social housing provider and a wholly-owned subsidiary of the City of Toronto (“TCHC” or “the respondent landlord”). The personal respondent, Kimberley Garrett, was the property manager employed by the respondent landlord and was responsible for the building in which the applicant resided during the relevant time frame (“the property manager”).

3On October 26, 2011, the respondent landlord delivered two notices of eviction to the applicant, stating that the applicant was required to vacate his rental unit on November 25, 2011, on the basis that he had allegedly substantially interfered with the reasonable enjoyment of other tenants or the landlord and impaired the safety of others in a residential complex. However, based on legal advice that the TCHC did not have legal grounds to terminate his tenancy, the applicant took no steps to vacate his rental unit. The respondent landlord did not initiate proceedings before the Landlord and Tenant Board to evict the applicant based on the notices of eviction and the applicant remained in his unit.

4The applicant felt very aggrieved by what he regarded as the respondent landlord’s attempt to illegally evict him. Accordingly, the applicant filed a complaint against the TCHC with the City of Toronto’s Ombudsman.

5The Ombudsman investigated the applicant’s complaint and interviewed a number of people, including the applicant and the property manager.

6On November 27, 2012, the Ombudsman wrote to the applicant to advise that her investigation into his complaint was complete. The Ombudsman also provided the applicant with a copy of her final investigation report, which contained her findings and recommendations with respect to the applicant’s complaint.

7Upon reading the Ombudsman’s report, the applicant noted that there were six different places in the report where the property manager was recorded as having stated to the Ombudsman that the applicant had “possible mental health challenges” or “mental health issues”.

8This Application does not relate to the 2011 notices of eviction that were issued to the applicant per se. Rather, in this case, the applicant alleges that the respondents discriminated against him in two ways.

9First, the applicant alleges that the respondents discriminated against him when the personal respondent told the Ombudsman, during the course of her investigation into the applicant’s complaint, that the applicant had “possible mental health issues.” The applicant submits that he knows that the personal respondent made statements about him having possible mental health issues to the Ombudsman because statements to that effect are attributed to the property manager in the Ombudsman’s November 2012 report. The applicant takes great issue with the personal respondent “insinuating” that the applicant had or has "possible mental health issues”. The applicant submits that he has never had any mental health problems. The applicant contends that the personal respondent’s statements that he did have mental health problems disclose that she “perceived” the applicant to have a mental disability. The applicant alleges that this “perceived disability” constituted discrimination contrary to the Code.

10Related to this, the applicant argues the personal respondent could have ascertained that he did not have a mental disability, before talking to the Ombudsman, by checking his tenant record file. The applicant explained that the tenant record file is a file maintained by the respondent landlord, which contains information about tenants’ disabilities based on their “self-reporting” such information to the landlord. The applicant submits that it was negligent for the personal respondent not to check his tenant record file before telling the Ombudsman that she believed that the applicant had a mental disability.

11The second way in which the applicant alleges that the respondents discriminated against him was by failing to advise fellow tenants that the applicant did not have a mental disability when they complained about the applicant to the respondent landlord and/or the property manager.

12For their part, the respondents take the position that the Application should be dismissed on the basis that the applicant has not made any allegations against the respondents that could be construed as discriminatory, within the meaning of the Code. Among other things, the respondents point out that the Ombudsman did not release her November 2012 report to the public and in any event the applicant was not identified in the report. Accordingly, the respondent submits that the applicant cannot show that he was disadvantaged by the personal respondent’s statements to the Ombudsman and therefore cannot establish that he experienced discrimination within the meaning of the Code.

13In addition, the respondents submit that the Ombudsman’s report is statutorily privileged by virtue of s. 19(6) of the Ombudsman Act, R.S.O. 1990, c. O.6, as amended, which applies to the exercise of powers and duties by the Toronto Ombudsman, by virtue of s.172(3) of the City of Toronto Act, 2006. Section 19(6) of the Ombudsman Act provides:

Except on the trial of any person for perjury in respect of the person’s sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Ombudsman is admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Ombudsman shall be given against any person.

14The respondents submit that comments allegedly made by the personal respondent about the applicant during the course of the Ombudsman’s investigation clearly constitute “statement[s] made … in the course of any inquiry by … the Ombudsman” within the meaning of s.19(6), and that the personal respondent’s alleged statements to the Ombudsman are therefore not admissible in this proceeding under the Code. The respondents submit that this means that the applicant cannot rely upon the Ombudsman’s report to found his discrimination claim against TCHC and the property manager. In the absence of an evidentiary foundation for his claim that the personal respondent stated that the applicant had possible mental health issues, the respondents submit that the Application cannot succeed and should be dismissed.

15The applicant submits that even if the Ombudsman’s report itself is inadmissible, he could call the personal respondent as a witness and ask her under oath whether she thought the applicant had a mental disability. To this, the respondents submit that s.19(6) of the Ombudsman Act not only prevents the applicant from relying upon the Ombudsman’s physical report, but it also prevents the personal respondent from being questioned about her statements to the Ombudsman.

16The respondents also took the position that some of the applicant’s allegations, particularly those concerning the 2011 eviction notices and related events, ought to be dismissed because of delay. However, it is not necessary for me to address this issue because the applicant made it very clear that he was not pursuing any allegations relating to the eviction notices. He agreed that such allegations would not be properly before the Tribunal because of delay.

HEARING

17The Application was heard in Toronto on May 26, 2014. Shortly after the commencement of the hearing, following the parties’ opening statements, the applicant stated that he felt that the hearing process was unfair because the respondent was represented by two lawyers whereas he was self-represented. The respondent clarified that it was actually represented by a paralegal and that a lawyer who was in attendance with the respondent (for the first part of the day only) was present as an observer only. Nonetheless, I asked the applicant if he wanted to seek an adjournment of the hearing to obtain legal counsel. The applicant declined to do so and elected to proceed with the hearing on his own.

18The applicant testified on his own behalf and was cross-examined by the respondent. The respondents did not call any witnesses. In addition to the applicant’s testimony, certain documents were marked as exhibits for identification purposes, subject to the respondents’ objection to the admissibility of the Ombudsman’s report and subject as well to the respondents’ objection to the admissibility of a draft Application to the Landlord and Tenant Board prepared by and/or on behalf of the applicant on the basis of relevance.

ANALYSIS AND DECISION

19For the reasons that follow, assuming without finding that all of the applicant’s proposed evidence is admissible in this proceeding, the applicant has not established that the respondents discriminated against him because of disability within the meaning of the Code. The Application is dismissed on this basis. In the circumstances, it is not necessary for me to determine whether the Ombudsman’s report is inadmissible in this proceeding by virtue of s.19(6) of the Ombudsman Act. Even if the report were admitted, it would not assist the applicant in establishing that the respondents infringed his right to be free from discrimination because of disability or perceived disability.

Perceived mental disability

20As noted above, the first way in which the applicant alleges that the respondents infringed his rights under the Code was by perceiving the applicant to have a mental disability, which he does not have. Many times during the hearing, the applicant described his as a “case of perceived disability”. In support of this claim, the applicant argued that the personal respondent’s statements to the Ombudsman that the applicant had possible mental health issues establish that the respondents perceived the applicant to have a mental disability.

21That may be. However, as I explained to the applicant during the hearing, in order to succeed in his discrimination claim, the applicant would need to establish that the respondents treated him in a disadvantageous manner because of a perceived disability. Contrary to the position taken by the applicant, it is not a violation of the Code merely to perceive a person to have a disability that he or she does not have. Accordingly, assuming without finding that the applicant could rely upon the Ombudsman’s report or present other evidence to show that the respondents perceived the applicant to have a mental health disability, this would not establish that the respondents infringed the applicant’s rights under the Code. Merely perceiving someone to have a disability is not disadvantageous treatment “because of” a disability and is therefore not discrimination within the meaning of the Code. This aspect of the applicant’s case is dismissed accordingly.

22Likewise, I dismiss the applicant’s claim that the personal respondent infringed his rights under the Code by not checking the applicant’s tenant record file to determine whether the applicant had a mental disability before conveying to the Ombudsman that she believed the applicant had mental health issues. The applicant argues that the personal respondent’s failure to check the tenant record file constituted a failure on her part to do her “due diligence” and was “negligent”.

23In essence, the applicant is arguing that it was discriminatory for the personal respondent to perceive him to have a mental disability without reviewing all of the information at her disposal. As explained above, however the personal respondent came to the conclusion that the applicant had a mental disability, the mere fact that the personal respondent perceived the applicant to have a mental disability and conveyed this to the Ombudsman during the course of the Ombudsman’s investigation, did not constitute an act of discrimination. Nor is an allegation of negligence an allegation of discrimination under the Code. This aspect of the applicant’s claim is also dismissed.

Failure to advise other tenants that the applicant did not have a mental disability

24I also dismiss the applicant’s claim that the respondents discriminated against him when the personal respondent failed to inform the applicant’s fellow tenants that the applicant did not have a mental disability.

25Apparently, the 2011 eviction notices that were delivered to the applicant were preceded and/or precipitated by a petition submitted by a group of tenants to the TCHC, seeking to have the applicant evicted.

26The applicant contends that when the petitioners complained to TCHC about the applicant, the personal respondent was obliged, under the Code, to inform the applicant’s fellow tenants that the applicant did not have a mental disability. The applicant believes that, had the personal respondent done this, it would have “snuffed out” the petition to evict him.

27During the hearing, the applicant acknowledged that he could not identify who the petitioners were; the nature of their complaint against the applicant or why they wanted him evicted; or what, if any, conversations they had with the personal respondent or other TCHC staff members about the applicant. However, the applicant submits that it is his reasonable belief that the petitioners believed that the applicant had a mental disability and conveyed this to the personal respondent. The applicant bases this conclusion on the fact that the personal respondent told the Ombudsman that the applicant had possible mental health issues. The applicant submits that, although he had communicated with the personal respondent in the past by telephone and email, he had never met her in person. Accordingly, the applicant submits that the personal respondent could not have come up with the idea that the applicant had a mental disability based on her own experiences with him. She must have, the applicant submits, gotten this idea from someone else. The applicant submits that it is reasonable to conclude that the “someone else” was either the tenants who petitioned the TCHC to evict the applicant or TCHC staff members who had personally interacted with the applicant.

28There are a couple of problems with this aspect of the applicant’s discrimination claim.

29First of all, it is far from clear that a landlord would ever be obliged under the Code to inform tenants that another tenant does not have a disability.

30Leaving that aside, in this case, there is no evidence before me to support this aspect of the applicant’s discrimination claim. The applicant’s claim that the petitioners believed that the applicant had a mental disability, and that they would not have petitioned the TCHC to evict the applicant if they had been told that the applicant had no such disability, is purely speculative.

31During the hearing, the applicant argued that it was reasonable to conclude that the petitioners were motivated by their perception that the applicant had a mental disability because one fellow tenant had called the applicant a “mad man”. However, the applicant conceded that he did not know if that individual had been one of the tenants who complained about the applicant.

32The applicant also explained that he believes that another tenant with whom he has had conflict in the past, Mr. H., was one of the petitioners. At the hearing, the applicant submitted a draft Landlord and Tenant Board (“LTB”) application in which the applicant alleges that Mr. H. disturbed the applicant on a number of occasions because (in the applicant’s assertion) Mr. H. has a mental disability. However, there is nothing in the draft LTB application to support the conclusion that Mr. H. perceived the applicant to have a mental disability. Moreover, although the applicant may believe that Mr. H. was one of the petitioners, there is no evidence to support this assertion. Indeed, the applicant acknowledged at the hearing that he does not know if Mr. H. was one of the petitioners.

33The absence of any evidence to support the allegation that fellow tenants complained about the applicant because they perceived him to have a mental disability is sufficient reason, in and of itself, to dismiss this aspect of the applicant’s discrimination claim.

34In addition, even if the applicant had established that the complaint against him was linked to the tenants’ perception that the applicant had a mental disability, there is no evidence to establish that the respondents were aware or even believed that the petition to evict the applicant was based on any perception by the applicant’s fellow tenants that the applicant had a mental disability. Again, the applicant’s claim that the petitioners told the personal respondent that the applicant had a mental disability is purely speculative. This is further reason to dismiss the applicant’s claim that the respondents discriminated against him by not telling the applicant’s fellow tenants that the applicant did not have a mental disability.

35For the above reasons, the Application is dismissed.

ORDER

36The Application is dismissed.