HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Darlene Schuller Applicant
-and-
Wilf Parlee Respondent
DECISION
Adjudicator: David Muir
Indexed as: Schuller v. Parlee
APPEARANCES
Darlene Schuller, Applicant Self-represented
Wilf Parlee, Respondent Sidney Klotz, Counsel
Introduction
1This is an Application filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing accommodation on the basis of sex, receipt of public assistance and reprisal.
2In her Application the applicant alleges that the respondent, the owner and landlord of a residential apartment building, made comments about the size of her and her daughter’s breasts in conversation with the building superintendent. This allegation is not entirely denied but is said to have been said in private and in a certain context. The respondent does deny making any comparison between the two women. The question raised by this aspect of the Application is whether the respondent landlord can be found responsible for the superintendent repeating comments made by him in what was intended to be a private conversation. The applicant also alleges that the respondent said that he would not accept persons in receipt of Ontario Works as tenants. This allegation is also not denied.
3The Application was subsequently amended by the addition of a number of alleged incidents of reprisal following the filing of this Application. The respondent denies that he treated the applicant any differently after learning of this Application.
4A hearing was held on September 17, 2014 in Toronto. I heard from the applicant and her daughter. I also heard from the respondent. Neither party called the superintendent to give evidence. When asked by me why the superintendent was not present, I was advised by the respondent that she had left suddenly in February of this year and could not be located. The superintendent played a very important role in the narrative of events underlying this Application. An Order excluding witnesses was made on consent of the parties.
5For the reasons that follow the Application is allowed in part.
6Although there is not a great deal in dispute in this case there are one or two points on which the parties’ versions of events diverge. Accordingly a brief note about credibility and reliability of the witnesses is required. Having heard the evidence and considering the factors the Tribunal has normally considered Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A) in assessing credibility and reliability of the witnesses, I find that I generally accept the version of events offered by the applicant and her witness.
7In this case, the applicant gave her evidence in a straightforward and forthright manner. While she could not remember exact or precise dates, she was nonetheless certain about much of the surrounding detail in support of her allegations. Her version of events has not changed from what was alleged in her Application and Reply and although vigorously cross-examined by counsel for the respondent, she was not shaken in her recollection of the events. In short her story had the ring of truth about it. The applicant’s daughter confirmed the applicant’s evidence with respect to one of the conversations with the superintendent. She was not cross-examined on her recollection of the conversation with the superintendent. She gave her evidence, as brief as it was, in a straightforward way. It diverged in some minor details from her mother’s, as one might expect. In my view the evidence of this witness was believable as well and I accept it.
8The respondent’s evidence appeared less reliable for a number of reasons. I note at the outset that the version of events related to the central allegation in this case contained in the Response is markedly different from the respondent’s evidence at the hearing – which was not only different and unclear but crafted in a self-serving way. This was a theme in his evidence as the respondent attempted to cast himself in a favourable light in contrast with the applicant and her family who he attempted to portray as terrible tenants. Much of this evidence was irrelevant to the issues in dispute. At one point during his evidence I admonished him that the case was not about him being a good person and that I did not need to hear any more irrelevant evidence to that end. As well, in contrast to the applicant, he could not support his assertions with facts. For example one of the allegations he made about the applicant was that she kept asking him for more and more repairs to be completed in the apartment. But when asked to tell me what these additional “burdensome” requests were he was unable to do so. When asked to identify these additional requests on the work orders that were created in early July 2013 he was unable to say what if any additional requests were made by the applicant.
9For all of these reasons I generally prefer the evidence of the applicant over that of the respondent.
The discriminatory comments
10The applicant testified that she was told by the superintendent that the respondent referred to her daughter as the kid with “big boobs, really big boobs”. She also testified that the superintendent told her that the respondent wondered how her daughter could have such big boobs because the applicant had nothing or words to that effect. The applicant’s daughter testified that the superintendent told her, when she was present during a conversation between the superintendent and her mother, that the respondent had referred to her as the kid with big boobs or words to that effect. Both women testified that the superintendent referred to the respondent as the applicant’s daughter’s “boyfriend who was on his way to see her.” When the applicant’s daughter questioned who the superintendent could be referring to, the superintendent indicated that she had been referring to “Wilf”, the respondent. The comments were passed on to the applicant’s husband in a third conversation between the superintendent, the applicant and her husband.
11The applicant testified that she overheard a conversation between the superintendent and the superintendent’s son which confirmed to her that the son had also been told about the landlord’s comments. She testified that the superintendent confirmed that she (the superintendent) had told her son and his girlfriend and apologized for doing so and attempted to explain why she had done so.
12The respondent took various positions on whether or not he made these comments to the superintendent. In the Response the respondent made the following assertion:
Marion, (my superintendent), and I had a private discussion in her apartment about all of the tenants in the building. She was new to the building and wanted to know all about the tenants that she was going to have to deal with. A comment was made about the breast sizes of the girls in apartment # 5. Marion states that she brought the subject up but it could have been me. This was one comment made within a conversation about all tenants. It was overheard by another tenant and passed on to Darlene [the applicant] as Marion states that she had no such discussion with Darlene.
13At the hearing the respondent told a quite different story. He testified that he was orienting his new superintendent about the tenants in the building and advising the superintendent on what to look out for. The respondent testified that he told the superintendent that there had been a concern expressed by the applicant about another male tenant following the applicant’s daughter. The respondent appeared to suggest that he described the applicant’s daughter as the kid with big boobs in an effort to explain the possible interest of the male tenant. The respondent denied that he made any comparison between the breast size of the applicant and her daughter.
14I find that the applicant was told by the superintendent that the respondent referred to her daughter as the kid with big boobs, or words to that effect, and I also find that it is more likely than not that the applicant was told by the superintendent that the respondent made some kind of comparison of the applicant’s breast size and her daughter’s. I also accept the applicant’s evidence that the superintendent’s son was made aware of the respondent’s comments by the superintendent. Finally I find that the superintendent, in conversation with the applicant and her daughter, referred to the respondent as the daughter’s boyfriend.
15I also note that the respondent conceded that he did say during this same period that he would no longer rent units to people on Ontario Works. The applicant and her family were in receipt of social assistance at the time. It is also true that most of the respondent’s tenants were in receipt of social assistance and that he rented a unit to a family in receipt of social assistance in September 2013.
Analysis
16At the hearing I pointed out the Application might have been brought by or on behalf of her daughter as it appeared to largely concern her. The applicant responded that while the Application was filed in part out of concern for her daughter’s safety and well-being, the applicant also stated that the fact that comparisons were apparently being made between her and her daughter’s breast size was upsetting and made her feel very uncomfortable and unsafe.
17I find that the respondent made comments about the applicant and her daughter and that they were transmitted by the respondent’s superintendent to the applicant, her daughter and husband and at least one other tenant in the building. The comments were sexualizing of both women. I make this finding based on the reliable evidence of the applicant and her daughter. I appreciate that the applicant’s evidence as it relates to what the respondent actually said to the superintendent is hearsay but in the circumstances of this case it is hearsay that I can accept. As indicated I do not accept the evidence of the respondent as reliable on this point. Clearly some kind of inappropriate comments were made about the applicant’s daughter despite the changing version of that conversation from the respondent. It is not clear to me on what basis I would find that the superintendent would have made up the additional remarks about the comparative breast size of the applicant and her daughter. To the extent that the respondent wants me to find that this was the case and the superintendent was on a frolic of her own, it fell to the respondent to clear up that issue and call the superintendent as a witness. In the end I am left with the unreliable evidence of the respondent on one side and on the other clear evidence of an inappropriate conversation between the respondent and his superintendent as well as the reliable evidence of the applicant of what she was told of that conversation. In the circumstances I accept the applicant’s version of what she was told was said as being more or less what was actually said between the respondent and his superintendent.
18I also find that because the superintendent was his agent (see below) that the respondent is responsible for remarks attributed to him that were passed on by the superintendent.
19The applicant argued that the respondent was a person in authority – he was her landlord – and the fact that he was making comments about her daughter and herself made her feel very uncomfortable and unsafe in her own home. It affected her behaviour and the way she dressed. Although she did not use this terminology, what she described was a poisoned environment. Although the comments were made only once and could not be considered a course of conduct, the comments once made by the respondent were repeated and were known by at least one other person in the building. This was a small 8 unit building and the respondent was a not infrequent visitor. The fact that the applicant might feel that she and her daughter were exposed is understandable in the circumstances. Most importantly the applicant had been told, and reasonably believed it to be the case, that she was subject to sexualizing scrutiny by the respondent, her landlord. In the particular circumstances of this case I find that the comments comparing her and her daughter were discriminatory and were sufficiently egregious to create a poisoned environment for the applicant in that apartment building. I accept the applicant’s evidence that she made efforts to find new accommodation but given the family’s circumstances this was not easy to do. She testified and this is not disputed that the family has since moved out of the respondent’s building.
20I also find that the respondent is responsible for the fact that the superintendent, his agent, publicized his remarks.
21The respondent argued that the superintendent was acting outside of her authority in telling the applicant and her daughter about the conversation and that he had no control over her. I understand that the respondent might have had limited ability to control the superintendent, but in my view, he is responsible for the remarks he himself made, and to the extent the superintendent passed these on and contributed to creating a poisoned environment, he is also responsible for the effects of the superintendent’s conduct. In my view the superintendent was the respondent’s agent in his relationships with his tenants including the applicant and her family. There can be no dispute about this. The superintendent was a resident of the building and was there 24/7. She was the primary point of contact between the respondent and his tenants including for the payment of rent – the central point of exchange in the relationship.
22For all of these reasons I find that the comments were made, on balance, as heard by the applicant and that they were discriminatory on the basis of sex and were sufficiently egregious in the circumstances to create a poisoned home environment for her for at least a period of time. I make no finding with respect to the reference to the respondent as the daughter’s boyfriend. Other than the fact that the remark was made in an apparently joking reference back to the other comments I heard no evidence from the applicant about the impact on her, as opposed to her daughter, of this remark. I accordingly do not need to decide if the respondent can be responsible for this remark in the circumstances. I also make no finding in respect of the comment about recipients of social assistance as I heard no evidence from the applicant about this remark or its impact on her and to that extent this aspect of the Application is dismissed.
Reprisal
23The Application as it relates to discrimination on the basis of reprisal is dismissed.
24Section 8 of the Code provides as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
25The Tribunal has determined that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31.
26The Application relies on a number of alleged actions and failures by the respondent subsequent to her making the respondent aware that she was filing this Application. The Application was filed with the Tribunal on or about July 19, 2013.
27The applicant testified that she told the superintendent in the first week of July 2013 that she was intending to file a human rights application about the comments made by the respondent about her and her daughter. The applicant concedes that she has no evidence that the superintendent told the respondent of this fact. The respondent testified that he first became aware of the possibility in very late July or early August of 2013 when the superintendent told him that the applicant was telling all that she was going “to get $10,000 from Wilf”. The respondent testified that he received the Application from the Tribunal on August 18, 2013, which is also his birthday. I find that the respondent would have had no reason to know that the applicant had a Code concern or was seeking to enforce her Code rights before August 1, 2013.
28I also note that this landlord tenant relationship was fraught. Although the applicant testified that she had no issues with the respondent prior to her filing the Application, the fact is that the respondent made three Applications to the Landlord and Tenant Board (LTB) against the applicant and her family prior to the filing of the Application. Two of these related to unpaid rent and occurred in January and March 2013. The third was for an Application to evict the applicant for non-payment of rent.
29The last LTB Application was filed on July 2, 2013. The applicant alleges that this was in reprisal for her Application at the HRTO and alleges that she paid her rent on July 2, 2013. This is not disputed by the respondent but he relies on a settlement of the prior Application signed on June 27, 2013 which required that the applicant pay the rent and arrears on July 1, 2013. The respondent testified that he had had enough of the applicant and her family at that point and no longer trusted them to pay their rent in a timely fashion and accordingly sought to enforce his strict rights with them. I accept this evidence, but more importantly note that the LTB proceeding was commenced before the respondent would have had any reason to believe that the applicant was intending to or had filed this Application.
30I also find that the other allegations of the applicant – that the respondent communicated to the superintendent in mid-July that no more work would be done in her unit – were made before the Application was filed and in any event before the respondent knew about the Application. I also note the applicant’s assertions that even the superintendent had issues with respondent’s response to requests for repairs of her unit.
31The applicant also relies on the fact that a motion activated camera was installed in her hallway in December 2013 and that she believed it could view into her apartment. When I asked if she had any evidence that the interior of her apartment could be seen the applicant agreed that she did not. The applicant asserted that it was the only one installed in the building and that no one had asked for it. She felt that she and her family were being monitored.
32The respondent testified that he bought a number of cameras and installed two of them. He testified that he first installed one of them on the exterior of the building to see how well it would work. After several months of use, he testified, he installed the other to monitor the entrance to the building and the stairs going up to the third floor. He agreed that it was placed on the wall opposite the applicant’s doorway but because of its range of movement would not capture any of the interior of her unit.
33It is agreed between the parties that when the applicant expressed concern about the camera and its ability to monitor them inside their unit, the respondent immediately installed a shield which would restrict the camera’s range of observation.
34The respondent’s evidence in this respect was given in a straightforward and forthright way unlike much of his evidence. He was able to describe the cameras and their placement in some detail. In short his testimony in relation to the camera had the ring of truth to it and I accept his evidence on this point.
35While the applicant may be suspicious about the motivations of the respondent in his approach to repairs after she filed the Application, her evidence does not establish on a balance of probabilities that the respondent acted in an intentional way to punish her for filing this Application. In this regard I have considered the timing of the Application in relation to the most concrete of her allegations which appear to pre-date the Application being filed; the ongoing somewhat troubled relationship between the parties and the fact that the respondent likely wanted the applicant out of the building for other reasons.
Remedy
36The remedial provisions of the Code are set out in section 45.2 (1) which provides as follows:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the
37For the reasons set out above I find that the comments of the respondent related to the applicant and her family on three occasions constitute discrimination under the Code in that by sexualizing the applicant in her home it created a poisoned environment for the applicant in her own home.
38Neither party made submissions concerning the appropriate remedy at the hearing. In her Application the applicant indicated she was seeking $10,000 in general damages and an apology letter.
39In my view an order of compensation of some amount is warranted here. However I also observe that the Application is in an important way about the applicant’s daughter about whom the applicant was understandably concerned. The applicant’s daughter is not the applicant. That said, as previously discussed, the allegations which I have found the applicant has made out implicate her in discriminatory commentary and created a poisoned environment in which she lived. I accept the applicant’s evidence that she was upset by the comments and the knowledge that she was being scrutinized by her landlord in a sexualized way. For these reasons I find that it would be appropriate to award a modest quantum of compensation in the amount of $1,000 for injury to the applicant’s dignity, feelings and self-respect.
40The Tribunal makes the following Orders:
a. The respondent Wilf Parlee will pay to the applicant the sum of $1,000 in compensation inclusive of interest for non-pecuniary losses arising from the violations of her rights under the Code.
b. The applicant is entitled to post judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 30 days after the date of this Decision.
Dated at Toronto, this 10^th^ day of October, 2014.
“Signed by”
David Muir
Vice-chair