HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Claudette Hutchinson
Applicant
-and-
International Ladies Garment Worker Union Co-op and Community First Development
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Hutchinson v. International Ladies Garment Worker Union Co-op
APPEARANCES
Claudette Hutchinson, Applicant
Jean Alexandre de Bousquet, Counsel
International Ladies Garment Worker Union Co-op and Community First Development, Respondent
Silas Polkinghorne, Counsel
1These Applications are filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and allege discrimination with respect to occupancy of accommodation because of disability, creed and reprisal. Application 2013-14573-I (the “First Application) was filed on May 29, 2013 and Application 2014-17916-I (the “Second Application”) was filed on June 9, 2014.
Background
2In both Applications, the applicant makes several allegations about the management and maintenance of the apartment building in which she lives and describes an ongoing conflict with building management and the Board of Directors of her Co-op. In their Responses, the respondents deny that they have acted improperly towards the applicant and assert that her various complaints have no connection to the Code. On July 24, 2013, the respondents filed a Request for Summary Hearing with respect to the First Application.
3In a Case Assessment Direction dated October 1, 2013, the Tribunal granted the respondents’ request and directed that a summary hearing be held to determine whether the First Application should be dismissed, in whole or part, because it has no reasonable prospect of success. In Interim Decision 2014 HRTO 897, dated June 17, 2014, the Tribunal consolidated the two Applications and ordered that the summary hearing be held with respect to both Applications. The Tribunal held the summary hearing by telephone conference call on August 21, 2014.
Applicant’s Submissions
4At the outset of the hearing, counsel for the applicant acknowledged that most of the applicant’s allegations had no connection to the Code and stated that the applicant was pursuing only those allegations that she considered to be Code related. These allegations include an allegation set out in a request to amend the Applications that the applicant filed shortly before the summary hearing.
First Application
5The applicant stated that the applicant was only pursuing two allegations set out of the First Application and her Reply in the First Application: (1) that the respondents deliberately tampered with the elevator in the applicant’s building after she broke her foot to prevent her from having access to the elevator and (2) that the respondents committed a reprisal against the applicant for filing the First Application by not performing repairs to her apartment.
6Regarding the first allegation, the applicant submitted that the building’s caretaker would testify that the elevator did not operate because its backdoor was open and that only the respondents could open that door. The applicant submitted that she would like the opportunity to cross-examine the respondents on this issue. The applicant submitted that security video tape footage would also demonstrate if the elevator had been tampered with.
7The applicant submitted that the second allegation is set out at paragraph 9 in her Reply in the First Applicant, where she states that the respondent did not repair her apartment because she filed the First Application. The applicant submitted that, following disclosure, it “may be possible” to establish that other residents had repairs done when the applicant did not. I therefore asked applicant’s counsel whether he currently had any evidence that other residents had repairs performed in a timely manner. Counsel responded that applicant is aware that other residents had their closet doors and other doors repaired, but the applicant did not. The applicant submitted that she would also testify that noxious chemicals were placed in front of her door, but not in front of other residents’ doors.
Second Application
8The applicant stated that she was also pursuing only two allegations set out in the Second Application. First, she repeats her allegation that the respondents put the elevator out of service when she injured her foot. Second, the applicant alleges that the respondents advised the police to disregard a complaint by the applicant because of the applicant’s mental health.
9Regarding the police matter, the applicant states in the Second Application that two members of the respondent Co-op’s Board of Directors attempted to serve her with an eviction notice when she attended a General Membership Meeting for the respondent Co-op on June 20, 2013. The applicant states that she refused to accept the notice and informed the Board Members to deliver the document to her lawyer. The applicant alleges that, at different times, both Board Members pushed the document into her chest area. The applicant characterizes the Board Members’ actions as assault and she reported the incident to the police on June 28, 2014. The applicant obtained an Incident History from the Peel Regional Police, as well as the interview notes of the police officer who investigated the matter. The applicant pointed to the fact that the Incident History contained the following notation: “SPOKE WITH THE TENANT WHO HAS POSSIBLE MHA ISSUES. NO GROUNDS FOR APPREHENSION” (capitals in the original). The applicant submitted that this notation demonstrates that the respondents informed the police that the applicant has mental health issues in order to have the police disregard the applicant’s complaint. The applicant also submitted that the investigating police officer may also testify. I asked counsel for the applicant how this allegation relates to housing. Counsel responded that the respondents provide housing services and if the respondents told the police that the applicant is “crazy” then this amounts to discrimination because of disability by the respondents.
Request to Amend
10On August 19, 2014, the applicant filed a Request for an Order During Proceedings seeking permission to amend the Applications to include allegations of discrimination against the applicant committed by the respondent’s personnel. The applicant also sought to amend the Applications to include allegations that the respondents’ personnel discriminated against the applicant and other residents of the Co-op regarding accessible wheelchair parking.
11During the summary hearing, the applicant made submissions regarding only her allegations concerning accessible wheelchair parking, which is an issue that she alludes to at paragraph 72 of the narrative to the Second Application. The applicant submitted that the respondent had painted over the signage painted onto a parking spot identifying it as a wheelchair/accessible spot. The applicant submitted that the respondent did this to permit a member of the Board of Directors to park in this spot. The applicant submitted that she was often deprived of accessible parking because there are not enough spots and the respondents’ actions in removing an accessible spot cause her hardship related to her mobility issues because she was forced to park further away.
Respondents’ Submissions
12The respondents submitted that, in general, that the allegations set out in the two Applications are wide ranging, highly speculative and sometimes outrageous and inappropriate. The respondents also submitted that the evidence that the applicant alluded to in her submissions was also highly speculative and that the most generous reading of the applicant’s purported evidence was that it “could be” evidence attributing intention to the respondents. The respondents submitted that the issues between the applicant and the respondents arose after the applicant made baseless accusations of financial impropriety against the respondents.
13Regarding the allegations regarding the elevator, the respondents noted that the building in which the applicant lives is a high rise with approximately 300 units. The respondents submitted that it was ridiculous for the applicant to suggest that someone watched her and disabled the elevator by opening the elevator’s back door only when she wanted to use it. The respondents submitted that this allegation was simply not believable and that the evidence to which the applicant pointed was entirely speculative. The respondents submitted that at the time in question the elevator was frequently out of service because of labour issues with respect to elevator workers.
14The respondents submitted that the applicant’s own actions caused any delays in repairs to her apartment. The respondents submitted that the applicant has a security system in her apartment that must be deactivated to allow contractors into her apartment to make repairs. The respondents submit that the applicant has refused to allow entry into her apartment and that the respondents had to work around her refusals to make the necessary repairs. The respondents pointed to two notices provided to the applicant advising her that a contractor was to enter her apartment to replace her hallway closet doors on May 16, 2014 and May 23, 2014. The respondents noted that the applicant replied in a letter dated May 22, 2014, in which she stated that the contractor did not arrive on May 16, 2014 and that because of issues arising between her and the respondents she did not trust the respondents and would not permit access to her apartment. The applicant therefore requested that the repairs be put on hold. The respondents submitted that the applicant’s allegations regarding noxious chemical is also speculative and “at the outer bounds of believability”.
15The respondents submitted that the applicant mischaracterized the parking spot issue. The respondents submitted that a contractor tasked with painting lines in the parking lot mistaken painted one of the Board Member’s spots as a wheelchair/accessible spot. Consequently, it appeared that the Board Member was parking in an accessible spot until the error was corrected by painting over the wheelchair symbol.
16The respondents submitted that the police report indicates that the police suspected the applicant of having a mental health issue, but does not indicate that the respondent suggested this to the police. The respondents submitted that there was no evidence beyond the applicant’s speculation that anyone made any accusation regarding the applicant’s mental health.
Analysis and Decision
17Section 8 of the Code provides:
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.
18Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
20The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can cause significant financial and emotional damage.
21At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.
22A reprisal claim, under section 8 of the Code, is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant because he or she asserted his or her Code rights. See Noble v. York University, 2010 HRTO 878 at paragraph 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such an intention.
23The applicant helpfully, and in my view correctly, acknowledged that most of her allegations had no connection to the Code and focussed her submissions on the allegations that she felt were Code related. Nonetheless, I find that most of the allegations the applicant chose to continue to pursue at the summary hearing have no reasonable prospect of success.
The Elevator
24There seems to be no dispute that the elevator in the applicant’s building was out of service at times, which was undoubtedly a hardship for the applicant and the other residents. The applicant pointed to no evidence that would support her allegation that the respondents intentionally held the elevator out of service when she wanted to use it. In my view, there is nothing more than the applicant’s assumptions and belief, perhaps due to what appears to be an acrimonious relationship with the respondents, that she was the target of the lack of elevator service. Similarly, the applicant’s submission that review of security camera footage and cross examination may disclose evidence supporting this allegation is entirely speculative and does not amount to a reasonable prospect of success.
Repairs/Noxious Chemicals
25The allegation that the respondent failure to make repairs in the applicant’s apartment was first raised in the First Application is response to Question B8 in Form 1-B, as follows:
Staffs (sic) caused deliberate damages (sic) to front door closure apparatus of my unit, failure to fix closet sliding door apparatus and kitchen cupboard door for which operation of them causes strain and re aggravation of damages (sic) to my lower and upper back.
26As noted in her submissions, the applicant also referred to this allegation in her Reply in the First Application, as follows:
The refusal of the Respondents’ (sic) to fix the closet doors and the vandalism done to the Applicant (sic) front door opening apparatus, in order, (sic) gain ease of access to her unit, greatly increase (sic) her suffering with the fibermyalgy (sic). The lifting, pushing and pulling activities by Ms. Hutchinson causes her upper and lower back to be affected as those movements greatly increases her pain level drastically. Please see attachment, exhibit 4, copies of Ms. Hutchinson (sic) medical reports.
27Accordingly, the applicant first cast the alleged failure to perform repairs in her apartment as a failure to accommodate her disability, not as a reprisal for filing the First Application as counsel for the applicant submitted during the summary hearing. These allegations that the respondents refused to make repairs to the applicant’s unit predate the filing of the First Application; therefore, these allegations cannot amount to reprisal for filing that Application. During the summary hearing, the applicant submitted that other residents had their closet doors and front doors repaired, but the applicant did not, after the First Application was filed. I accept that the continued failure of the respondent’s to make repairs to the applicant’s apartment following the filing of the First Application could amount to a reprisal under the Code, assuming the applicant could establish that this failure was intended to punish the applicant for seeking to enforce her human rights. In my view, however, the applicant pointed to no evidence that she has or has reasonably available that could establish such an intention. While the focus in a summary hearing is not on respondents’ defence, the respondents pointed to documents that indicate that they planned to make repairs to the applicant’s apartment, but she denied access to her apartment. This evidence appears to clearly contradict the applicant’s position that the respondents refused to make repairs to her apartment, and also explains why other residents had repairs done when she did not. The applicant, however, chose not to address this issue at all. In my view, this allegation has no reasonable prospect of success.
28The applicant submitted that noxious chemicals were placed in front of the door to her apartment, but not in front of the doors of other residents. For the purposes of a summary hearing, these allegations are accepted as true. The applicant, however, did not state who she believes placed the chemicals in front of her apartment or how she intended to identify the perpetrator. The applicant again pointed to no evidence that she has or has reasonably available to her that could provide a reasonable basis for inferring that the respondents were responsible for this act and/or that they intended it as retaliation for filing a human rights application. Rather, this allegation appears to be based on the applicant’s suspicions and speculation. Consequently, this allegation also has no reasonable prospect of success.
Police Complaint
29There is no dispute that the Incident History the applicant obtained from the police makes reference to the applicant’s mental health. I agree with the respondents, however, that nothing on the face of the document indicates that the respondents said anything about the applicant’s mental health to the investigating officer. The officer’s notes suggest that the notation regarding the applicant’s mental health may well be based on the officer’s own observations. Consequently, the applicant’s submission that the respondents informed the investigating police officer that the applicant suffers from mental health issues is based solely on her assumption and belief. The applicant stated that the investigating officer may also testify, which is in itself speculative, but did not indicate that the officer’s evidence would confirm her allegation. The most that could be said about the applicant’s case is that there may be evidence that the respondents commented on her mental health to the police, which in my view does not amount to a reasonable prospect of success.
30Moreover, while the applicant attempted to characterize this incident as engaging the social area of occupancy of accommodation, the incident in my view is really about a police investigation. This issue comes within the social area of goods, services and facilities and if the police discontinued an investigation because of the applicant’s perceived mental health issues, as the applicant submitted, then the proper respondent to that allegation would be the police, not the respondents. Regardless, the Incident History records the investigating officer’s observation that the parties have ongoing issues between them and the officer’s view that the both parties were trying to use the police to gain an advantage in their dispute. The officer’s notes also indicate that the issue was resolved with the parties agreeing to stay away from each other and to deal with their problem through the courts. Consequently, there is no indication in the documentary evidence available regarding this incident that the applicant’s mental health was a factor in the officer’s decision not to investigate the matter further. Other than the applicant’s bare assertion, there is no evidence that the investigating officer’s perception of the applicant’s mental health, however arrived at, led the police to stop dealing with her complaint. In these circumstances, the applicant’s allegation that she experienced discrimination because of perceived mental health has no reasonable prospect of success.
Wheelchair Parking
31Having reviewed the materials and submissions presented by the parties I am not prepared to find that the applicant’s allegation that the respondents removed a wheelchair parking spot has no reasonable prospect of success. Pursuant to Rule 19A.6, where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. This conclusion does not mean that the applicant will succeed on this issue, only that a hearing is necessary to determine the merits of the allegation.
Next Steps
32As noted above, the allegation regarding wheelchair parking arises out of the Second Application. Accordingly, the Second Application shall proceed with respect to this allegation only. Although the respondents made submissions about the wheelchair parking allegation during the summary hearing, they have not had the opportunity to respond to this allegation in writing. The respondents shall file an amended Response to the applicant’s allegation regarding wheelchair parking.
33I have found that applicant’s allegations in the First Application have no reasonable prospect of success. This Application is dismissed.
Order
34The Tribunal orders as follows:
Application 2013-14573-I is dismissed;
Application 2014-17916-I shall proceed, but only in respect of the applicant’s allegation regarding wheelchair parking;
The respondent’s shall file an Amended Response (Form 2) regarding the applicant’s allegation regarding wheelchair parking within 35 days of the date of this Interim Decision; and,
If the applicant intends to prove a version of the facts different from those set out in the respondents Amended Response, then she must file with the Tribunal and deliver to the respondents an Amended Reply (Form 3) within 14 days of receiving the Amended Response.
35I am not seized of this matter.
Dated at Toronto, this 6th day of November, 2014.
“Signed by”
Douglas Sanderson
Vice-chair