HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.M.
Applicant
-and-
Toronto Police Services Board and G.A.
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: J.M. v. Toronto Police Services Board
APPEARANCES
J.M., Applicant Self-represented
Toronto Police Services Board, Respondent David Gourlay, Counsel
G.A., Respondent Self-represented
BACKGROUND
The Process
1This Application alleges discrimination with respect to accommodation and services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that her former landlord, G.A. (the “landlord”), and the Toronto Police Services Board (the “Board”) discriminated against her with respect to her housing and regarding services provided by the police. The applicant asserts the discrimination occurred because of the applicant’s mental health or perceived mental health issues. The applicant states she has an anxiety disorder.
2The Application proceeded to a hearing on October 22, 2013. The applicant’s direct evidence was concluded that day. The applicant was not cross-examined on her evidence. The applicant’s evidence was transcribed by a court reporter at the Board’s expense. The Board provided a transcript of this evidence to the applicant, the landlord and the Tribunal.
3At the conclusion of the applicant’s direct evidence, I advised the parties that I wanted submissions on whether the applicant’s allegations against the landlord have no reasonable prospect of success. A timetable for the receipt of written submissions was established at the hearing.
4On October 23, 2013, the applicant wrote to the Tribunal to advise that she did not want to make written submissions and requested the opportunity to make oral submissions.
5By Case Assessment direction dated October 25, 2013, I granted the applicant’s request to make oral submissions.
6A teleconference was held on April 14, 2014, to hear the parties’ oral submissions on the question of whether the allegations against the landlord have no reasonable prospect of success. The applicant and the landlord made oral submissions. The Board attended the teleconference, but did not make submissions.
7Extensive written submissions on the no reasonable prospect of success question were filed by the applicant before the teleconference. The applicant continued to file written submissions after the teleconference. Brief written submissions were filed by the landlord before and after the teleconference.
8Because of the sensitive information contained in this decision, the names of the applicant and the individual respondent have been anonymized.
Procedural Fairness
9In her submissions on the summary hearing, the applicant raises the following procedural fairness issues:
a. The Tribunal erred when it did not require the landlord to provide particulars of the reasons for the eviction when the applicant requested these particulars in the Reply.
b. The proceeding before the Tribunal was unfair because:
- the Tribunal did not require the landlord to file material in support of her request to dismiss the Application under section 45.1 of the Code;
- the hearing proceeded without full disclosure from the Board;
- the Tribunal allowed the landlord to file her witness statements after she had received disclosure; and
- the Tribunal called a summary hearing in the middle of the applicant’s testimony, without warning.
10With respect to the first allegation of procedural unfairness, the applicant did not file a Request for Order During Proceedings (“RFOP”) requesting particulars from the landlord. In the absence of a RFOP, there was nothing for the Tribunal to decide. The applicant is familiar with the process for requesting interim relief and has used it in the course of this proceeding. The requirement to file a RFOP was made clear to the parties in my interim decision of July 12, 2013. In any event, the applicant was provided with reasons for the eviction. She was in possession of the eviction notices which set out the grounds for eviction.
11With respect to the second allegation of procedural fairness, the Tribunal has not addressed any request by the landlord to dismiss the Application on the basis that it has been appropriately dealt with by another proceeding under section 45.1 of the Code. The issue before the Tribunal in this decision is whether the allegations against the landlord have no reasonable prospect of success. This was made clear in the Case Assessment Direction of October 25, 2013.
12With respect to the remaining allegations of procedural unfairness, the applicant has not identified any disclosure that is missing from the Board and how such disclosure is relevant to the question of whether the allegations against the landlord have no reasonable prospect of success.
13The Tribunal did allow the landlord to file her witness statements after she had received disclosure of the arguably relevant documents. This process accords with the Tribunal’s standard practice. The parties disclose arguably relevant documents to each other and later file their witness statements and the documents they intend to rely on at the hearing. The applicant has not explained how this alleged procedural unfairness relates to the no reasonable prospect of success issue.
14I will now address the applicant’s final allegation of procedural unfairness relating to raising the question of no reasonable prospect of success at the conclusion of the applicant’s direct evidence. At this juncture, it is important to note that the applicant’s case is based on her evidence alone. There are no other witnesses being called by the applicant.
15At the conclusion of the applicant’s evidence, prior to cross-examination, I raised the question of whether the allegations against the landlord have no reasonable prospect of success. In raising this issue with the applicant, I stated the following:
I have heard all of your evidence against (G.A.) and I … I want to hear submissions, but the issue has arisen in my mind whether or not there’s a complaint of discrimination here, which is (G.A.) treated you differently and discriminated against you.
You clearly had a conflict with your landlord and there is no question it impacted you greatly. I’m not here to question that, but I only have authority to hear human rights cases. I have heard all of your evidence against (G.A.), and there is an issue whether or not what you complain of … complain about, is discrimination. Is there a link between your complaint against (G.A.) and the Human Rights Code?
16The applicant was advised the determination of the no reasonable prospect of success issue would be based solely on the evidence that was adduced by the applicant during the hearing. An excerpt of my discussion with the applicant on this issue is set out below:
Applicant: I just wanted to make sure that when they do file submissions and that it was clear that I was objecting to having any of (G.A.)’s submissions entered in as evidence in retrospect to their submissions, and whether or not there’s any prospect. They can rely on the evidence I submitted, they can rely on the I/CADs and the police reports, because they have been submitted as evidence, but not on speculative or allegations that haven’t even proffered to the courts.
Vice-chair: [J.M.], you are absolutely right.
17In her written submissions on the no reasonable prospect of success issue, the applicant referred to the landlord’s witness statement and documents. The landlord has not testified and her documents have not been entered into evidence. As such, this information has not been considered by me in making this decision.
18It was not procedurally unfair to the applicant to raise the question of no reasonable prospect of success after all of her evidence in chief was heard. The applicant was given the opportunity to make written submissions, and at her request, oral submissions, on this question. If at the conclusion of the applicant’s evidence in chief it appears that her allegations against the landlord have no reasonable prospect of success, they should proceed no further. It is not fair, just or expeditious to require a party to continue to defend allegations of discrimination when they have no reasonable prospect of success. As the Tribunal stated in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 26:
…it is neither appropriate nor principled that the hearing continue when there remains only a theoretical possibility and no reasonable prospect that evidence that could meet an applicant’s burden of proof will come forward.
The Allegations of Discrimination against the Landlord
19The applicant makes the following allegations of discrimination against the landlord:
a. The landlord perceived the applicant to be mentally ill and shared this perception with her neighbours;
b. The landlord treated the applicant adversely to evoke a reaction from her so that she could perpetuate the notion the applicant was unstable in order to secure an eviction or get support from the police;
c. The landlord sought an eviction order against the applicant by falsely alleging the applicant was a threat.
THE EVIDENCE
The Facts
20The applicant became a tenant of the landlord in March 2006. The applicant’s apartment was in the basement of the landlord’s house. By all accounts, the applicant and the landlord had a very good relationship.
21In late April 2011, the landlord advised the applicant that she intended to take possession of the basement apartment. On April 27, 2011, the applicant wrote to the landlord and indicated her desire to stay in the apartment.
22On April 30, 2011, the landlord provided the applicant with a Notice to Terminate a Tenancy at the End of the Term For Landlord’s or Purchaser’s Own Use Form (the “Notice”). The Notice advised the applicant that she had to move out of her rental unit before June 30, 2011.
23The applicant opposed the eviction because the landlord had not provided reasons as to why she intended to take possession of the basement apartment. The applicant did not believe her eviction was lawful.
24On May 2, 2011, the landlord filed an application with the Landlord and Tenant Board to evict the tenant.
25The applicant wrote to the landlord on May 5, 2011, and requested greater detail as to why she needed to live in the basement apartment. The applicant advised the landlord that she did not believe the landlord was acting in good faith.
26On June 21, 2011, the hearing before the Landlord and Tenant Board was adjourned to permit the applicant to obtain legal representation.
27On June 23, 2011, the applicant obtained new rental accommodation and paid first and last months’ rent. The applicant was advised she could take possession of the new rental unit by August 15, 2011. The applicant did not inform the landlord that she had found a new place to live.
28On July 11, 2011, the landlord gave the applicant notice that she needed to access the basement for four hours on July 15, 2011, to fix the screens.
29On July 15, 2011, the landlord and the repair person attended at the applicant’s apartment. They knocked on the door and the applicant told them she needed a couple of minutes because she was waking up from a nap. The landlord told the applicant they were waiting. The applicant advised the landlord that she intended to file an application for moving costs and for the difference in rent. She further advised the landlord that she wanted to be compensated for the noise that resulted from repairs going on elsewhere in the house. The applicant told the landlord that she believed the landlord suffered from a psychiatric disorder and that she should get help because she was irrational over nothing. The applicant stated she said this because of the landlord’s reaction to one simple letter and to the applicant’s claim for moving costs.
30The landlord told the applicant that she does suffer from a psychiatric disorder and was getting treatment. The applicant stated the landlord told her she was a very good tenant and thought the world of her, but that she wanted her out. At that point, the applicant told the landlord that she had found a new place to live. She told the landlord that she was writing out her complaints respectfully and that she wanted the landlord to be respectful of her. The applicant did not tell the landlord the date she would be vacating the apartment.
31On July 25, 2011, the landlord wrote to the applicant confirming the applicant’s advice that she had found a new place to live. The landlord advised the applicant that if she moved out by August 1, 2011, she would not cash her July rent cheque.
32On July 29, 2011, the applicant was provided with a notice of hearing for the Landlord and Tenant Board proceeding. The hearing was scheduled for August 11, 2011. The applicant believed the landlord delivered the notice personally. The applicant ripped up the notice of hearing and delivered a letter to the landlord to advise her not to deliver any more notices. She told the landlord that because they had decided to communicate by letter, she should put her mail in the mailbox. The applicant returned to her apartment and yelled, “Stop, for the love of god, stop harassing me please”.
33On July 29, 2011, the applicant told a neighbour that she was moving. The landlord came out to see what they were doing. The applicant said to the neighbour that the landlord looked mentally unstable.
34On July 29, 2011, the landlord called the police and advised the applicant was becoming substantially aggressive, and that it had been going on since the end of April. The landlord told the police the applicant came home screaming, banging on the landlord’s door and ripping up documentation for the hearing on August 11, and then went into the basement yelling “get the fuck out of my house, you fucking bitch”.
35On July 30, 2011, the landlord told the applicant that she had called the police. The applicant asked the landlord why she was telling her this. The applicant testified that she felt the landlord was trying to antagonize the applicant.
36The applicant returned to her apartment after her conversation with the landlord. The landlord went to the apartment a short time later and started banging on the door to the applicant’s apartment. The applicant told the landlord that if she did not leave, she would call the police.
37At some point on July 30, 2011, the landlord delivered a note under the applicant’s door indicating that the green bin would be placed under the stairs.
38The applicant called the police on July 30, 2011, and told them she was having problems with her landlord – that the landlord was harassing her and would not leave her alone. The applicant told the police the landlord was violently banging on the door because she did not like where the green bins were placed. The applicant told the police the landlord had harassed her the day before as well.
39The landlord also called the police on July 30, 2011. She asked the police whether the applicant had called them because if she had, she would wait for the officers to arrive. The landlord was asked by the police whether she was having a problem with the applicant and the landlord advised that she was not.
40The landlord called the police on July 31, 2011. She advised the police that she was calling to document every event with the applicant. She told the police the applicant had accused the landlord, in front of neighbours, of being on drugs, of taking anti-depressants, and threatened to call the Ontario College of Teachers. (The landlord is a teacher.) The landlord stated this was “not cool” and wondered whether it was defamatory. The landlord told the police that she did not feel threatened physically. The landlord was asked whether the applicant was mentally ill. The landlord stated it was hard for her to say because she did not feel qualified to comment. When asked if the applicant sounded like an emotionally disturbed person, the landlord stated she felt the applicant was manipulating the situation. The landlord told the police that she did not feel afraid.
41On August 1, 2011, the applicant paid half of her monthly rent and told the landlord her move-out date was August 15, 2011.
42On August 4, 2011, the applicant received a 10 Day Notice to Terminate a Tenancy Early (the “Second Notice”) under the door to her apartment. The Second Notice stated the applicant had to vacate by August 14, 2011. The reasons for the notice were as follows:
- On May 1, the applicant shouted at the landlord with her finger in the landlord’s face that she would not be moving out. The landlord was frightened.
- On June 5, the applicant shouted at the landlord that she better be careful.
- On July 15, the applicant shouted at the landlord that she needed to show her respect, that the landlord was insane and pointed her finger in the landlord’s face.
- On July 21, the applicant shouted “what would happen if there was a fire”.
- On July 29, the applicant shouted at the landlord to get out of her house.
- On July 31, the applicant shouted she was going to get the landlord.
- On August 1, the applicant shouted she was going to get the landlord.
The landlord stated she was substantially afraid for her physical well-being as the applicant was substantially interfering with her life on a regular basis.
43After receiving the Second Notice, the applicant spoke to one of her neighbours about whether he knew of any inexpensive movers. The landlord came outside and listened to the applicant’s conversation with the neighbour. The applicant told the landlord that she had the right to talk to her neighbours. The applicant also told the landlord that the landlord was sick and that she should get psychiatric help. The applicant told the landlord that she was going to call the police.
44The landlord and the applicant called the police on August 4, 2011. The landlord called the police and requested services because the applicant was “losing it” and was “freaking out”. When asked if the applicant had mental health issues, the landlord confirmed that she did, but did not know of any diagnosis. The landlord called the police again to cancel the request for services because the applicant had left the premises.
45The applicant called the police five times on August 4, 2011. During the first call, the applicant told the police the landlord was behaving violently and that the landlord was uneasy about an eviction notice. The applicant advised the police that she was afraid the landlord was mentally unstable and was more afraid because she was a teacher. The applicant asked the police whether the landlord had called them and was advised this information could not be disclosed.
46The applicant called the police a second time and complained that the landlord was becoming erratically violent. She also wanted to know whether the landlord had called the police because if she had, she would return to her apartment and wait for them.
47The applicant called the police a third time and requested the police attend because the landlord was harassing her by writing letters and slipping them under her door, not letting the applicant talk to neighbours, and by banging violently on doors. She advised the police the landlord could not calm herself and she believed the landlord was mentally unstable. The applicant said it was worrisome because the landlord was also an elementary school teacher and her behaviour was bizarre.
48The applicant called the police a fourth time to inquire when the police would be attending. The applicant was advised the police had attended. The applicant advised the police that she was frightened by the landlord’s behaviour.
49The applicant called the police a fifth time to complain about harassment by the landlord’s friends. The applicant advised the police that she was waiting for the police outside because she had lost her keys and asked the police to come quickly because she was afraid for her safety.
50The applicant and the landlord attended at the Landlord and Tenant Board hearing on August 11, 2011. The applicant advised the member conducting the hearing that she was moving out on August 15, 2011. Because the applicant was moving out, it was not necessary for the Landlord and Tenant Board to decide the applications for eviction. The Landlord and Tenant Board member gave the applicant until August 16, 2011 to move out. The member instructed the landlord to leave the applicant alone on moving day.
51The applicant moved out of her apartment on August 15, 2011. The landlord blocked the moving van because the applicant had not returned her keys. The applicant told the landlord that she was returning later on to the apartment. The landlord told the applicant that she had called the police and that they had told her the applicant was required by law to advise when she was returning her keys. The applicant replied: “You did not call the police about that and the police did not advise you that way. They’re not going to advise you on a tenant issue, when they don’t have any clue about tenant act issues”. For about twenty minutes, the landlord blocked the moving van. The moving van was eventually able to leave.
52The applicant called the police to complain about the landlord’s conduct during the move. She advised the police that the landlord was mentally ill, had been hospitalized before and had acted out violently towards the applicant. She asked the police to attend at the apartment to make sure everything was okay when the applicant left to ensure the landlord did not make any false allegations against her.
53The police attended at the apartment around 11:00 p.m. that evening. The applicant picked up her remaining possessions. The police took the keys to the applicant’s apartment and advised the applicant they were giving the keys to the landlord. The applicant then left the premises.
54During her evidence, the applicant summarized her complaint against the landlord as follows:
I really wanted to be left alone…. I’m moving out when I didn’t have to move out. I got tricked, but nonetheless I’m moving out. I’m doing exactly what she wants. I’m moving out by August the 15. I don’t know why she kept doing this. I think what she basically was trying to do, and I’m going to testify to this, is that I believed at the time… what I believed was she was trying to trump. I think she thought I was playing her when I said that I was going to move.
And this is important, because I told her not once, but twice that I was moving and she still kept telling the police that I wasn’t moving out. Even that night, she told the police when they came that I wasn’t moving out. And I tried to explain to the police that that’s not the case, I am moving out, I just don’t know how to handle the eviction right now until I’ve spoken to Ms. Bruckman (the applicant’s lawyer).
ANALYSIS
The Test for Discrimination
55The Supreme Court of Canada has recently set out the test for discrimination in Moore v. British Columbia, 2012 SCC 61. The Court held that to demonstrate discrimination, an applicant must show that he or she has a characteristic protected from discrimination; has experienced an adverse impact in relation to a particular social area; and that the protected characteristic was a factor in the adverse impact.
56In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161, Justice Abella, in concurring reasons, stated discrimination is not established simply by showing a negative impact on a claimant who is a member of a protected group. She stated there is a difference between a distinction and discrimination, and not every distinction is discriminatory. In order to establish discrimination, Justice Abella stated a claimant must establish a link between group membership and the arbitrariness of the disadvantaging criterion or conduct.
57In Moore, the Court held the test for discrimination is the same in every case: does the practice result in the claimant suffering arbitrary or unjustified barriers on the basis of his or her membership in a protected group? Where it does, discrimination will be established (para. 60).
58These cases have used the word “arbitrary” when describing discriminatory treatment. In my view, arbitrariness is an indicia of discrimination: it helps us understand how it is manifested. For example, stereotyping is treating someone based on the ascribed traits of a group, rather than on the basis of a person’s actual capacities or conduct. Stereotypes are themselves arbitrary. However, it is the arbitrary application of the stereotype that is in the problem in human rights terms. Thus, in order to determine whether someone has been the subject of discriminatory stereotyping, the focus of the analysis is on whether the stereotype has been applied to the applicant. If it has not, there is no link between the adverse treatment and a prohibited ground of discrimination.
Application of the Test
59The applicant alleges that she was discriminated against when: the landlord perceived that she was mentally ill and shared this perception with her neighbours, when the landlord perpetuated the notion that the applicant was unstable to get support from the police, and when the landlord sought an eviction by falsely alleging the applicant was mentally unstable and a threat. The applicant asserts the landlord’s treatment was based on discriminatory stereotypes concerning persons with mental health issues.
60I accept the applicant’s submission that people with mental health issues are often unfairly constructed as being threatening and a risk to safety, and to treat someone on the basis of this construction is discriminatory. However, it is not sufficient for the applicant to show that this general stereotype exists: she must demonstrate that it was applied to her. If the applicant is unable to prove the landlord’s treatment was influenced by or based upon discriminatory mental health stereotypes, there is no link to the prohibited ground of disability. In that circumstance, the allegations are dismissed as having no reasonable prospect of success.
Stereotyping with Neighbours
61With respect to the first allegation, the applicant gave no evidence concerning comments made to neighbours that the applicant was mentally ill. As such, there is no evidence to support this allegation and it has no reasonable prospect of success. It is dismissed for that reason.
Stereotyping with the Police
62With respect to the second allegation, the applicant asserts the landlord labelled her as safety threat, delusional and violent on several occasions when she called the police. The applicant asserts the landlord marked the applicant with negative stigma based on general stereotypes of the mentally ill. The adverse treatment complained about is the landlord calling the police and making discriminatory comments about the applicant. There are several difficulties facing the applicant regarding this allegation.
63One, in order to establish discrimination, the applicant must show adverse treatment in relation to a social area. The social area relied upon in relation to the allegations against the landlord is housing. Although both the applicant and the landlord called the police to get assistance about their landlord and tenant problem, the involvement of the police did not adversely impact the applicant’s housing per se. The applicant is not complaining about the presence of the police at her apartment and how that impacted her housing. Her complaint relates to the fact that the landlord called the police to request services and what the landlord said during those calls. The applicant was not privy to that information until she obtained disclosure of the police tapes for this hearing.
64Two, even if the involvement of the police did impact the applicant’s housing, it is difficult to see how the applicant was stereotyped on the basis of her mental health or perceived mental health.
65The applicant and the landlord were in conflict over the applicant’s eviction. From July 29 to August 4, 2011, the conflict escalated and they both called the police. The landlord accused the applicant of banging on her door, yelling at her, making public accusations about the landlord using drugs, and threatening to report the landlord to the College of Teachers. Similarly, the applicant accused the landlord of banging on her door, being violent, and being mentally unstable. There is no dispute about this evidence because it is contained in the police tapes. The applicant relies on the landlord’s communications with the police and asserts that she was constructed as a safety risk because of stereotypes around mental health.
66The landlord called the police on July 29, 2011, to complain that the applicant was becoming increasingly aggressive. While it is possible, based on the applicant’s direct evidence alone, that the landlord unfairly described the applicant’s conduct, it is important to examine all of the landlord’s communications with the police in order to determine whether the landlord constructed the applicant as a safety risk because of her mental health or perceived mental health.
67In reviewing all of the police tapes of the calls from the landlord to the police, it is apparent that the landlord was very careful to not stereotype the applicant. For example, on July 30, 2011, the landlord specifically advised the police that she was not having a problem with the applicant. On July 31, 2011, when asked by the police if the applicant had a mental disability, the landlord responded that she was not able to make that determination. She was also careful to say that she did not feel physically threatened or afraid. On August 4, 2011, the landlord advised the police that the applicant had a mental health issue (which is acknowledged), after the applicant accused her publicly of being sick and told her to get psychiatric help. The applicant admits making these comments. However, when the applicant left the premises, the landlord called the police back to cancel the request for services.
68These actions are inconsistent with the applicant’s assertion that the landlord stereotyped the applicant as a safety threat with the police. The landlord was reluctant to tell the police the applicant had a mental health issue. She was reluctant to diagnose the applicant. The landlord was clear with the police when she did not feel threatened for her safety. The landlord’s communications with the police over a one-week period, when examined in their totality, do not support the applicant’s view that the landlord stereotyped the applicant as a safety threat because of her mental health. As such, this allegation has no reasonable prospect of success and it is dismissed on this basis.
Stereotyping in the Eviction Notices
69With respect to the third allegation, the landlord commenced two proceedings to evict the applicant. The first Notice sought to evict the tenant because the landlord wanted to take possession of the applicant’s rental unit. There is no assertion that this eviction was discriminatory.
70The Second Notice sought to evict the applicant because the applicant was substantially interfering with the landlord on a regular basis. The landlord stated she was afraid for her physical well-being. The adverse treatment being asserted by the applicant is the landlord attempting to evict the applicant by falsely accusing her of being a threat.
71The applicant received the Second Notice on August 4, 2011. The grounds for eviction related to the applicant’s conduct on May 1, June 5, July 15, July 21, July 29, July 31 and August 1, 2011. The grounds included: the applicant shouting at the landlord with her finger in her face that she was not moving out and that she better be careful; the applicant telling the landlord to be respectful, pointing her finger in the landlord’s face and accusing the landlord of being insane; the applicant shouting “what would happen if there was a fire”; the applicant shouting at the landlord to get out of her house; and the applicant shouting that she was “going to get” the landlord.
72When testifying about the Second Notice, the applicant did not give any evidence about these events. Importantly, she did not deny that they occurred. Although the applicant attempted to give further evidence about them in her written submissions, this information is unreliable for a host of reasons and was not considered by me. As stated at the outset of this decision, the evidence that was relied upon in making this decision is the applicant’s direct evidence and the exhibits filed during her testimony.
73In her testimony about the Second Notice, the applicant stated it didn’t bother her because she had decided to move out. It is also apparent when examining the Second Notice, that it was the applicant who raised the issue of the landlord’s mental health when she accused the landlord of being insane. This is consistent with the information provided by the applicant to the police.
74The issue then comes down to this: does the fact that the landlord says she was afraid in the Second Notice unfairly construct the applicant as a safety threat because of her mental health or perceived mental health? In my view, it does not.
75The landlord may well have been afraid. There is no question that the escalation of the conflict between the applicant and the landlord made both of them upset and afraid. They expressed their fear to the police. The fact that the landlord became afraid is not in and of itself evidence of discriminatory stereotyping against the applicant because of her mental health. When examining the events that preceded the Second Notice and the grounds set out in the Second Notice, it is more probable that the landlord’s expression of fear was based on the escalation of the conflict between the applicant and the landlord over the eviction, than on a mental health stereotype. I therefore find that the applicant has failed to adduce sufficient evidence to support her claim that the Second Notice was based on discriminatory stereotyping. As such, this allegation has no reasonable prospect of success.
76The burden of proving discrimination rests on the applicant. In this case, the applicant must do more than establish that people with mental health issues or perceived mental health issues are unfairly stereotyped as being a risk to safety. The applicant must prove this stereotype was applied to her by the landlord. The evidence adduced by the applicant does not show the arbitrary application of mental health stereotypes by the landlord. It shows the reverse. The evidence, when examined in its totality, shows the landlord being careful not to stereotype the applicant. The fact that the landlord became afraid over the significant escalation in conflict between the applicant and the landlord is not evidence of the arbitrary application of a stereotype because it was based on events that took place between the applicant and the landlord. As such, the applicant’s allegations against the landlord have no reasonable prospect of success and are dismissed for this reason.
Order
77The applicant’s allegations against the landlord are dismissed as having no reasonable prospect of success.
78The Application will continue against the Board and new hearing dates will be set. The hearing will commence with the cross-examination of the applicant by the Board. At the conclusion of the cross-examination and any reply evidence, the Board will call its case.
79If the applicant and the Board agree, I am prepared to offer mediation/adjudication in relation to the allegations against the Board. Both parties are directed to notify the Tribunal within two weeks of the date of this decision if they consent to this process.
Dated at Toronto, this 5th day of September, 2014.
“Signed by”
Jennifer Scott
Vice-chair