Dixon v. Norris Crescent Housing Co-operative, 2014 HRTO 1319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecilia Dixon

Applicant

-and-

Norris Crescent Housing Co-operative and Joey Tavares

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: September 8, 2014

Citation: 2014 HRTO 1319

Indexed as: Dixon v. Norris Crescent Housing Co-operative

APPEARANCES

Cecilia Dixon, Applicant

Joseph Kary, Counsel

Norris Crescent Housing Co-operative, Respondent

Luke Saites, Counsel

Joey Tavares, Respondent

Kim Duong, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of race, colour, disability, family status and association with a person identified by a Code ground.

2The applicant is a former member of the respondent housing co-op. Following a period where the applicant fell into arrears relating to payment of her housing charges, the respondent housing co-op filed an Application to the Ontario Superior Court of Justice for revocation of the applicant’s membership status in the co-op.

3The applicant and the respondent co-op entered into Minutes of Settlement and agreed that a Writ of Possession would be issued by the Court, which writ would not be acted on or filed for execution by the Sheriff by the respondent co-op unless there was a further breach of the payment plan agreed to by the two parties.

4As a result of a breach of the performance agreement entered into for repayment of those housing charges, the Writ of Possession was filed with the Sheriff and the applicant was evicted in August 2011.

5In the Application to the Tribunal, the applicant identified several grounds under the Code. She self-identified as a member of the “visible minority black race”. She indicated that she suffered from chronic leg pain and was, therefore, a person with a disability as defined by the Code. She argued that her association with her mother, who had advocated for others in the co-op, was also a reason for the differential treatment and harassment that she alleges she experienced.

6The applicant made a number of allegations of differential treatment based on Code grounds. She argued that her disability (chronic leg pain) resulted in fluctuating income that had not been taken into account by the respondents. She alleged that recalculation of subsidy as a result of fluctuating income happened in some cases and not in others. She also alleged that long-term guests in non-black households were not subject to a “guest charge”, whereas she was subject to such a charge. Finally, the applicant alleged that requests for repairs made by her were not dealt with in a timely manner while those of others not of her race were acted on promptly.

7On July 17, 2012, a Case Assessment Direction (CAD) was issued setting this Application down for a teleconference summary hearing. The CAD indicated that the parties should be prepared to make submissions on whether the Application should be dismissed in whole or in part as having no reasonable prospect of success under Rule 19A, whether the Application should be dismissed pursuant to s. 45.1 of the Code on the basis that the substance of the matter was appropriately dealt with by the judgement of the Ontario Superior Court of Justice in Court File No. CV-10-00407749 or whether dismissal was warranted on the basis that it would constitute an abuse of process for the Application to proceed.

8The summary hearing teleconference was held as scheduled. An Interim Decision was issued in which parts of the Application were dismissed and a portion of the Application was to proceed to a hearing, 2013 HRTO 510.

9In the original Application, the applicant had made two broad sets of arguments: the first relating to entitlement to and calculation of the amount of subsidy and the second relating to responses to requests for repairs in the home.

10For reasons set out more fully in the Interim Decision, 2013 HRTO 510, the allegations relating to subsidy entitlement and errors in calculating the subsidy were dismissed on the basis that it would have amounted to an abuse of process to permit the applicant to now assert in this proceeding that the amount of the arrears she agreed was owing in an application before the Court was, in fact, incorrect as it is the result of discriminatory conduct on the part of the respondent co-op.

11The remaining allegation of whether the applicant had experienced differential treatment for discriminatory reasons in how her repair requests were dealt with continued in the Tribunal process.

Repair Issue

12The applicant alleged in her Application that requests for repair made by people of her race and colour were not dealt with in a timely manner while those made by non-racialized or white people were dealt with appropriately. In particular, she says that she experienced differential treatment that resulted in disadvantage to her in respect of her repair requests. She attributes the differential treatment to her race and colour.

13In the Application, the applicant provided as a general example the fact that she made ongoing requests for repairs to her kitchen floor between 2006 and 2011, which did not yield any repairs, while she believes that a white Board member’s kitchen floor was repaired almost immediately after the request was made.

14The respondents took the position that all work orders relating to repair requests made by the applicant were completed except when they were denied entry by her. They deny any differential treatment.

15As the applicant indicated that she had evidence, both oral and documentary, which could establish that she experienced discrimination in the manner in which her requests for repairs were dealt with by the respondents, contrary to the Code, those allegations continued in the Tribunal process.

16In advance of the hearing into this matter, the Tribunal issued a number of Case Assessment Directions (CADs) ordering the parties to provide detailed witness statements as required under the Tribunal’s Rules of Procedure and ordering the respondent co-op to disclose a copy of the file it maintained concerning the applicant during her stay as a member in the co-op.

17In particular, the Tribunal directed the applicant to provide particularized witness statements that set out the evidence she had alluded to in the summary hearing teleconference that she intended to rely upon to establish differential treatment on the grounds alleged.

18The applicant did not provide any such particulars, despite being directed to do so, and at the outset of the hearing, the parties were called on to provide submissions on whether the Application ought to be dismissed on the basis that there was no reasonable prospect that it would succeed.

19In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal made the following observation regarding when the issue of dismissal for no reasonable prospect of success could be considered:

Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. In my view, the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process.

20To succeed in her Application the applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination in this case, the applicant must prove a link between alleged discriminatory actions and the Code grounds she has identified.

21The applicant argued that she needed full access to all co-op repair and maintenance records for the time that she had been a member and with access to those records, she would be able to establish differential treatment on the basis of her race and colour. She argued that she would then be able to establish a case that the co-op would have to answer.

22Although the applicant purported to have evidence, both oral and documentary, to establish a prima facie case, apart from her bald assertions that race and colour were factors in how her repair requests were dealt with, the applicant has been unable to point to any evidence that would show a link between un-particularized delays and inaction that she complains about and the various prohibited grounds that she has pleaded.

23The Application is dismissed on the basis that there is no reasonable prospect that it will succeed.