Munroe v. Ottawa (City), 2014 HRTO 148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kirk Munroe Applicant

-and-

City of Ottawa Respondent

DECISION

Adjudicator: Eric Whist Date: January 31, 2014 Citation: 2014 HRTO 148 Indexed as: Munroe v. Ottawa (City)

APPEARANCES

Kirk Munroe, Applicant (Self-represented) City of Ottawa, Respondent (David Patacairk, Counsel)

INTRODUCTION

1This Application was filed on August 26, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application originally alleged discrimination in accommodation and in the provision of services on the basis of race, colour, disability, the receipt of public assistance and reprisal and named four institutional respondents and five personal respondents.

2A summary hearing was held to consider the applicant’s Application on February 22, 2012. In an Interim Decision dated March 12, 2012, 2012 HRTO 511, the Tribunal dismissed the applicant’s allegations in relation to his application for social housing. The Tribunal determined that there was no reasonable prospect that these allegations would succeed.

3The Tribunal did determine that the Application would proceed in relation to the applicant’s allegations that he was subject to discriminatory treatment while a resident in the Carling Family Centre (the “Centre”), a City of Ottawa emergency housing shelter. This decision was based, in large measure, on the further information the applicant provided during his summary hearing about the unparticularized allegations in his Application.

4In its March 12, 2012 Interim Decision the Tribunal directed the applicant to provide an amended Application setting out his allegations in more detail in order to clarify what specific actions he was alleging constituted discrimination and on what grounds. The applicant was also directed to explain why he was of the view that the remaining four personal respondents were necessary parties to the Application.

5The applicant did not provide an amended Application as directed. On August 22, 2012, the City of Ottawa and the four City of Ottawa staff the applicant named as personal respondents filed a Request for an Order during Proceedings to remove the personal respondents. In an Interim Decision dated September 20, 2012, 2012 HRTO 1807, the Tribunal determined that the Application would proceed only in relation to the applicant’s allegations of discrimination on the basis of disability and reprisal related to his time at the Centre in 2011. The Interim Decision also granted the request to remove the personal respondents.

6At the applicant’s subsequent hearing I heard testimony from the applicant, from his wife, Emily Blondeau, and, for the respondent, from Lori Tinsley, a supervisor at the Centre. The hearing took place over two days. Both parties disclosed documentary evidence.

DECISION

7The Application is dismissed. The applicant has not proven, on a balance of probabilities, that the treatment he received while a resident of the Centre was discriminatory. In many instances he provided inconsistent and unreliable reasons for why he was subject to this treatment. By contrast, I found the respondent’s non-discriminatory explanations for its actions credible and persuasive.

BACKGROUND

8The applicant self identifies as a white Canadian. He has a spouse and two young children. He testified that he has a chronically painful back condition which has limited his mobility (at the time of the events that gave rise to the Application he was using a cane). He testified that while living at the Centre he was taking various medications for his back including Oxycontin.

9In February 2011 he and his family entered into the City of Ottawa’s emergency housing shelter system, first living in a motel before transferring to the Centre in March 2011. The Centre has 44 rooms and provides shelter only for families. Many of the families are led by single mothers. I heard evidence that many of these women are escaping from abusive domestic partners or are recent immigrants fleeing from foreign conflict zones. It appears that a large proportion of the Centre’s residents are recent immigrants.

10The applicant and his family were first placed in one of the largest rooms in the Centre, Room #205. The applicant had no issue with the adequacy of this room.

The April 16, 2011 incident

11The applicant got into an argument with another shelter resident on April 16, 2011. The incident took place in a communal kitchen and began when the other resident, described as a Somali woman, objected to the applicant washing what she thought was a pair of red underwear in the kitchen sink. The applicant testified it was a rag stained with cranberry juice that he wanted to rinse. The applicant testified that he told the other resident that it was none of her business what he was doing but that she kept persisting that he should show her what exactly he was washing. He testified he went to complain to a staff person that he was being harassed only to have the staff person take the side of the other resident and accuse the applicant of being aggressive in his dealings with this other resident. He testified that in response he returned to his room, retrieved the rag in order to show that it was just a rag, and when he returned to the kitchen he tossed the rag to the woman. He testified that the other resident then called him a “Lucifer lover”. The applicant maintained there was nothing inappropriate or aggressive about his conduct and his interactions with this other resident.

12The staff person documented her assessment of the incident. She records in her “Incident Report”, a report that was in evidence, that she asked the applicant to retrieve the article of clothing he had wanted to wash and that she and the applicant then returned to the kitchen in order to resolve the dispute. She indicates that the other resident (and other witnesses in the kitchen) were of the view that the rag the applicant returned with was not the same article he had previously brought to wash. She records that the applicant was upset and angry, that he began to yell and that he subsequently threw the wet rag directly at the other resident’s head “with a lot of force” but that the other resident moved out of the way and the rag missed her. The staff person records that she told the applicant this was unacceptable behaviour in the shelter. She records that the applicant responded by telling her that staff only take the side of Arabic families and do not stand up for “real Canadians”. At the hearing the applicant denied that any of his actions on August 16 constituted aggressive behaviour, insisting that he had tossed the rag to the other woman to catch.

13The staff person reported the incident to management and management determined that the applicant’s actions, given their aggressive nature, warranted the applicant being asked to leave the shelter. The shelter arranged for the applicant to transfer to a men’s shelter.

14Ms. Tinsley testified that the Centre has zero tolerance for acts of aggression given its concern for the safety and security of its clients further noting that a lot of its clients are children and the women fleeing domestic violence or conflict zones.

15At the hearing the applicant initially alleged that the staff person favoured the account of the other resident because the other resident was female and an immigrant and thus the applicant was subject to discrimination based on his sex and race.. These are not allegations the applicant made in his Application or at the summary hearing. The applicant also agreed during cross-examination that he was not removed from the shelter because of his sex and race..

16In my view, the applicant essentially retracted his allegations that the Centre’s actions on April 16 were related to his sex and race during his cross-examination. However, even if I was to accept that he simply provided inconsistent testimony on this issue I would nonetheless find there is no persuasive evidence to suggest the decision to expel him from the shelter was based on his sex or race rather than strictly on an assessment of his conduct on April 16. The fact that the staff person (who was present for most of the incident in question) may have preferred the accounts of others to that of the applicant’s does not lead me to find that the applicant was subject to discrimination based on his sex and race.

17The applicant did testify that he was taking Oxycontin at the time of the April 16, 2011 incident and that Centre staff were aware of this. He testified that Oxycontin is a medication that affects one’s mental state, that it can cause “outbursts” and that Centre staff should have known what to do in response to an “outburst”. The applicant testified that the Centre should have been prepared to work with him and should have kept him in the shelter even if he had an “outburst”.

18I note here that the applicant and Ms. Blondeau testified that they did provide the Centre with medical documentation about the applicant’s back condition including his medications. Ms. Tinsley testified that the Centre did not receive such a document only a document indicating the applicant had a back condition that was causing him pain. She testified that the shelter was unaware of the applicant’s medication at the time he was expelled from the shelter.

19In referring to his use of Oxycontin and its side effects the applicant is essentially arguing that the Centre knew or ought to have known that the applicant’s conduct on April 16, 2011 was disability-related and that they should have accommodated this disability-related behaviour by not requiring him to leave the shelter. I would note this argument is fundamentally inconsistent with the applicant’s evidence that his actions on August 16 were not aggressive and did not warrant action being taken.

20That said, clearly the Centre was of the view that the applicant acted in an aggressive manner on April 16 that warranted his expulsion. However, I do not accept that the Centre knew or ought to have known that the applicant’s behaviour on April 16, 2011 related to medication the applicant may have been taking.

21To begin I am not satisfied that the Centre was aware at the time that the applicant was taking Oxycontin. I am not satisfied that the applicant did provide the Centre with medical documentation about his medications prior to April 16. The applicant did disclose three medical documents (all post-date April 16 and none refer to his medications) but he did not produce a copy of this alleged document. The respondent denied having received such a document.

22However, even if the respondent knew the applicant was taking medication and that the medication was Oxycontin the applicant has not established that this drug accounted, in some measure, for his actions on April 16. I have no medical or other persuasive evidence about the effects of Oxycontin or its effects on the applicant or what effects it might have had on the applicant on April 16. There is no evidence that the applicant raised with the Centre his use of Oxycontin as a factor that affected his behaviour on April 16 either at the time the incident was being investigated or later that day when the applicant was ordered to leave so that the Centre could consider this information and a possible accommodation. I find that there is no persuasive evidence to conclude that in making its decision to expel the applicant from the Centre the respondent failed to appropriately consider and accommodate the applicant’s disability.

Allegation of Reprisal.

23The applicant testified that he went to City Hall to complain about being expelled from the Centre. He testified that he complained to someone in the mayor’s office who took notes and who told the applicant that he would look into the issue and would see that the decision was overturned. He testified that a couple of days later a person called “Dave” called him to say he had been talking to the manager at the Centre and she would meet with the applicant about returning to the shelter. The applicant testified that there had no meeting with Centre staff but five days later he was back at the Centre after agreeing to sign a document saying he would not act aggressively.

24The applicant testified that shortly after this he was told by Ms. Tinsley that he and his family were being moved out of Room #205 to a smaller room, Room #220. The applicant testified that this room was significantly smaller and, in his view, was too small for a family of four. The applicant alleges he and his family were moved and assigned to this room as retaliation for having complained to City Hall about being expelled from the Centre. The applicant alleges that this constitutes reprisal under the Code.

25Ms. Tinsley testified that following the applicant being ordered to leave the Centre she met with the applicant’s wife, Ms. Blondeau, who was upset and wanted the applicant to be allowed to return. Ms. Tinsley testified that she subsequently contacted her manager to advocate for the applicant’s return. She testified that while she supported his expulsion (she was not involved in the decision) she was of the view he should be given a second chance. She testified that the applicant was subsequently allowed to return on April 20, 2011, on the condition he made a written commitment to not act in an aggressive manner in future.

26Ms. Tinsley testified that she never got a call from the mayor’s office or notification of such a call and testified that the City has a strict protocol about inquiries from the mayor’s office. She testified that the Centre’s manager never received information that the applicant had complained about being expelled.

27Ms. Tinsley testified that the applicant and his family were moved out of Room #205 because of a need to accommodate an incoming family with special needs. She testified that the shelter had to accommodate a new family with a member requiring kidney dialysis who needed an accessible room (with accessible shower, washroom). She testified the only such room in the shelter was Room #305 which was occupied by a mother with four older children. She testified that the only empty room at the time was Room #220 which was not suitable for the family presently in Room #305 being too small for this family with four older children. She testified that the decision was made to move the applicant and his family from Room #205 where they were over housed into Room #220 and to move the family from Room #305 into Room #205 to facilitate the new family arriving who required Room #305. She testified that she was reluctant to move the applicant and his family into Room #220 because she knew that this would be an issue for the applicant who was always threatening legal or other action but she was of the view there were no other viable choices. She denied that the decision to move the applicant out of Room #205 to Room #220 was in reprisal for his complaints about being expelled or was related to any other Code ground.

28The applicant testified that he believed that the family who moved into Room #205 from Room #305 was only there a few weeks and that after that he asked for the room back only to be told that it was being given to a single parent family with three children, one of whom refused to live there. Ms. Tinsley testified that Room #205 was subsequently given not to a family of four but to a family of nine or ten.

29The applicant acknowledged that Room #205 was large and bigger than what was required by a family of four. Ms. Blondeau testified she was unaware of any other family in the shelter who could have moved into Room #220 given its size.

30The applicant also testified during cross-examination that he accepted that the Centre had reason to move him and his family out of room #205 given that they were over-housed and the Centre had a larger family it needed to move into the room. He testified that his issue was being given room #220.

31I do not find that the applicant was moved from Room #205 and then moved into Room #220 to be an act of reprisal under the Code, for three reasons. One, the Code states that every person has a right to claim and enforce his or her rights under the Code and to do so without reprisal. However, it is not evident that when the applicant went to City Hall to complain about being expelled from the shelter that he was enforcing his rights under the Code. It is not evident that he was complaining to City Hall that the Centre had discriminated against him on August 16 because of his race, sex or disability. As I understand the applicant was complaining that he should not have been expelled because he was not aggressive in the manner alleged. Consequently, any subsequent action by the Centre would not be an act of reprisal for the applicant enforcing his rights under the Code.

32Two, I am not satisfied that Ms. Tinsley even knew of the applicant’s complaint to City Hall and that her subsequent actions could therefore be in reprisal for such a complaint. I find her credible when she maintained that she was unaware of this complaint, that there is a protocol for inquiries from the mayor’s office and she was not informed of such an inquiry. By contrast, I find the applicant’s claim that a person called Dave from the mayor’s office told him not only would they look into his complaint but that the Centre’s decision would be overturned to not be credible. I do not find that it credible that a member of the Mayor’s office would have communicated a commitment to overturn a decision by a City of Ottawa staff person rather than to simply communicate a willingness to follow up on a complaint made by a member of the public.

33Finally, I find the Centre provided a credible non-discriminatory reason for its decision to move the applicant from Room #205 to Room #220 - it needed to move Centre residents around in order to accommodate the arrival of new clients. I note that it was not disputed by the applicant that he was over-housed in #205 and that the Centre needed to move him and his family to accommodate new arrivals. I heard testimony that room #220 was available. I heard evidence that there was no other family (because of size and age of children) that would have been suitable for Room #220. And while Room #220 was clearly less desirable - it was smaller – I find it reasonable, under the circumstances, that the Centre would have chosen the applicant and his family to move into Room #220. Finally, I note that I found Ms. Tinsley credible when she stated that she would’ve avoided putting the applicant and his family in Room #220 if she could have because the applicant was always threatening legal action but that she did not have any viable alternatives.

34In summary I do not find the transferring of the applicant to Room #220 to be an act of reprisal.

Experiences in Room #220

35The applicant and his family were in Room #220 from late April 2011 to October 1, 2011, when they moved into a social housing unit.

36There was no dispute that Room #220 was small and staying there was a hardship for the applicant and his family. I had photographs of the room showing a bunk bed, a crib and a double bed along with the family’s possessions crammed into a small space. The applicant estimated that the room was 10’ x 12’ with an adjoining 6’x 5’ bathroom. I accept that it was a difficult and trying experience to live in this room. The issue is whether the applicant was subject to discriminatory treatment while living there.

37The applicant testified that he raised a need for accommodations when he was in Room #220. He testified that he requested a second grab bar in the bathroom. He testified that he requested that his bed be replaced. He testified that he told the Centre that he needed spaciousness for his disability, so that he could more easily move around. He submits that the Centre’s responses to these issues were inadequate.

38I heard evidence that a second grab bar was installed. There was some dispute about how the grab bar came to be installed but it was installed within three weeks of the request. The applicant asked that his bed be replaced because of his back. The bed was replaced with an orthopedic bed although the applicant testified that the replacement bed was inadequate and he continued to have problems with his back. It was not clear when or how the applicant raised a complaint that a lack of spaciousness was affecting his back (or why “spaciousness” was a required accommodation for his bad back) but the Centre did try to resolve the applicant’s cramped conditions by offering him and his family another room that became available in June. The applicant declined this room believing he and his family would be receiving a social housing unit shortly, which ended up not being the case. As a result the applicant and his family continued to live in Room #220 until October 2011.

39While the applicant may have issues about how quickly a second grab bar was provided and whether the replacement bed was adequate I do not find these alleged shortcomings (or failure to provide him with a more spacious room) violate his rights under the Code. The right to be free from discrimination because of disability, whether in services or the provision of accommodation (i.e. housing) may require a service or housing provider to take steps to accommodate an individual’s disability. This does not mean that someone with a disability has a free-standing “right to accommodation”. At minimum, there must be a disadvantage that arises from the individual’s disability. Once an individual has established that, then both parties have an obligation to participate in a process to identify an appropriate form of accommodation that addresses the disability-related disadvantage. In this case, the applicant has failed to establish that any lack of ‘spaciousness’ disadvantaged him because of his disability. To the extent that the applicant required a grab bar and a specialized bed to accommodate a back-related disability, I would find that the respondent fully complied with any duty it had to accommodate him.

40The applicant repeatedly expressed his frustration of having to live in Room #220 over an extended period of time. I understand the frustration of having to live in a small room in emergency, temporary housing for a period of approximately six months. This was clearly difficult for the applicant and his family (the applicant’s wife and children all got bacterial skin infections). However, I find that the Centre’s actions in dealing with the applicant and his family during this time and, indeed throughout his time at the shelter were supportive and non-discriminatory in nature.

41I heard evidence about the applicant’s own social behaviour at the Centre including evidence that he expressed the view that the shelter favoured foreign residents and that he resorted to derogatory comments about immigrants and was repeatedly warned for racial name calling. I have not relied on this evidence for the purposes of my decision and accordingly have not detailed it here.