HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Taite
Applicant
-and-
Carleton Condominium Corporation No. 91 and
Professional Property Management
Respondents
DECISION
Adjudicator: Michelle Flaherty
Indexed as: Taite v. Carleton Condominium Corporation No. 91
APPEARANCES
John Taite, Applicant ) Self-represented
Carleton Condominium Corporation )
No. 91 and Professional Property ) T. Kirk Boyd, Counsel
Management, Respondents )
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 and harassment with respect to goods, services, and facilities because of disability, sex, and age. The Application also alleges reprisal or threat of reprisal.
2The applicant states he has a disability that limits his neck movement, causes him pain, and affects his mobility, particularly in cold weather. He owns a vehicle that does not fit into the underground parking lot at the condominium where he resides. He states that his vehicle is particularly well-suited to accommodate his disability because it allows for good visibility, accommodates additional mirrors that he has attached to enhance his visibility without requiring him to turn his neck, and because the vehicle is very safe and would provide enhanced protection in the event of a motor vehicle accident. The applicant states that the respondents have a duty to accommodate his disability by allowing him to park in an above-ground parking spot reasonably close to the entrance to the building.
3The respondents deny the allegations of discrimination. The respondents state that they have offered the applicant a suitable parking space. In any event, they take the position that there is no evidence of any correlation between the particular size and model of the applicant's vehicle and his disability-related needs.
4For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success.
RELEVANT FACTS
5The applicant is a retired firefighter who was injured at work. His injuries were exacerbated by a subsequent motor vehicle accident. Although they initially disputed the existence of a disability, the respondents now accept that the applicant is disabled within the meaning of the Code.
6The applicant purchased a condominium unit with the respondent in the Spring of 2007. The respondents operate an underground parking garage and also have limited above-ground parking. Condominium owners are required to park in the underground lot and disabled parking spots are available for them underground. The respondents have not designated any parking for residents (disabled or otherwise) in the above-ground lot. They do, however, operate a visitors parking lot, which is above ground and which includes disabled parking spots for visitors.
The applicant's vehicle
7When he moved into the condominium, the applicant owned a Ford F150. This truck is a few centimeters too high to fit in the respondents' parking garage. In 2010, the applicant purchased a replacement vehicle, another Ford F150, which also does not fit in the respondents' parking garage.
8The applicant states that he decided to purchase a truck after he was involved in a motor vehicle accident in 2002. The applicant acknowledges that he did not consult a health care provider before selecting the F150, but based his choice on his own comfort and perception of his needs.
9The applicant states that he drives a Ford F150 because truck's size and its rigid frame offer greater protection in the case of an accident. He states that he has difficulty entering and exiting a car and that a truck has more windows, which gives him better visibility in light of his restricted next movements. He also stated that he takes greater psychological comfort from driving a larger vehicle and that, because of the nature of his disabilities, he fears they would be further exacerbated should he have another motor vehicle accident.
10It is very clear that the applicant feels strongly that the Ford F150 is the truck best suited to him and his disability. The issue for me to consider, however, is whether the applicant has a reasonable prospect of showing that his choice of this particular vehicle is more than a personal preference and that it raises accommodation issues within the meaning of the Code.
11The applicant testified that he realized his vehicle did not fit in the underground parking garage after he had purchased the condominium. According to the applicant, he had a number of discussions with various representatives of the respondents about his disability, his vehicle, and his need for above-ground parking near the entrance. I understand that the respondents dispute that the applicant alerted them to any connection between the vehicle and his disability before November 24, 2008. However, for the purposes of the summary hearing test, I will assume (without finding) that the facts alleged by the applicant are true.
12The applicant first put his request for accommodation in writing on November 24, 2008, when he wrote the following to the respondents' Board of Directors,
The vehicle [the Ford 150] is modified to meet the requirements of my disability and is approved by my personal physician.
13At the hearing, the applicant acknowledged that the only modification to his vehicle was the addition of mirrors. He acknowledged also that any vehicle could be modified in this way at a cost of about $20.
14Dr. Kindle, the applicant's treating physician, gave evidence that was not consistent with the applicant's November 24, 2008 note. At the hearing, Dr. Kindle explained that he first discussed the applicant's choice of vehicle with him in February 2009. Dr. Kindle testified that he has never seen the applicant's vehicles and that, before purchasing either of his F150s, the applicant did not consult him about the vehicle or whether it would meet his disability-related needs. Dr. Kindle readily acknowledged that is not an expert in motor vehicles and that he did not "prescribe" any particular vehicle for the applicant. When asked whether a vehicle with a slightly lower profile could meet the applicant's disability-related needs, Dr. Kindle responded that he never discussed this with the applicant, that he is not aware of the specifications of the F150 or, for that matter, of other vehicles. Dr. Kindle acknowledged that a slightly lower vehicle might provide adequate visibility for the applicant.
15During the applicant's cross-examination, counsel for the respondents questioned whether the applicant's vehicles had, in fact, been "approved by his physician" as alleged in the November 24th note. The applicant maintained that his vehicle had been approved by Dr. Kindle. The applicant testified that, in signing the documents necessary for him to obtain an accessible parking permit in July 2007, Dr. Kindle expressly approved his use of a large truck. It is not clear to me that, in supporting his application for an accessible parking permit, Dr. Kindle made any explicit or implicit statements about the nature of the vehicle the applicant should drive. In any event, the applicant readily explained that Dr. Kindle "has never recommended any vehicle for me. He has left it up to me to decide what best suits my disability." The applicant also stated, "Whatever vehicle I chose, he [meaning Dr. Kindle] would have supported me." As noted, this was confirmed by Dr. Kindle in his testimony.
16Based on the evidence of both Dr. Kindle and the applicant, I find that there was never any medical basis for the applicant's specific choice of vehicle. I find that while he supports the applicant's choice of vehicle, Dr. Kindle has never "prescribed" this vehicle to him, nor has he provided any medical or disability-related basis for this particular choice.
17In cross-examination, the applicant testified that he did not seriously consider whether alternatives to the F150 would also accommodate his disability. He testified that he did not consider other brands of vehicles because he preferred to drive a Ford. When asked if other vehicles could meet his visibility needs, he responded, "I don't know".
Response to request for accommodation
18In response to the applicant's written request for accommodation of November 24, 2008, the respondents wrote to the applicant on December 2, 2008. In the letter, the respondents stated that, before approving any accommodation measures, they required written confirmation of his physician's recommendations, including other vehicle options available to him.
19The applicant responded by letter dated February 23, 2009. In this letter, he sets out what he refers to as "general damages calculation that will be included in the Ontario human rights complaint". He also attached a medical note, prepared by Dr. Kindle on February 5, 2009. The note states:
This 56 [year old] man has had 3 separate spinal surgeries. He has very limited movement in his neck. This has necessitated his purchasing a truck which is high and gives him better visibility. Also he had to get several mirrors attached to the windshield to make up for his lack of neck movement. He needs this vehicle for medical reasons.
20The applicant testified that, in response to his request for an appropriate parking spot, the respondents repeatedly told him to purchase another vehicle or make other arrangements for parking. For a few weeks after he moved into the condominium in the Spring of 2007, he was permitted to use above-ground visitor's parking, near the entrance. However, the respondents soon advised the applicant that they had received complaints from other residents, who objected to the applicant using one of the limited visitor parking spaces. The applicant then began parking on the street. He received a number of parking tickets and had to move his vehicle often to avoid getting additional tickets. This arrangement caused a great deal of stress for the applicant.
21In July 2007, the applicant applied for a disabled parking permit from the city of Ottawa. When he received this permit, he began parking in a disabled above-ground parking spot in the respondents' visitor parking lot. The respondents took the position that a disabled parking permit from the city did not entitle the applicant, a resident of the condominium, to use the visitor's parking space.
22The relationship between the applicant and the respondents deteriorated considerably over time. The applicant describes a number of "confrontations" with the respondents. He states that he resorted to "civil disobedience" to "force the issue". He parked in the disabled spot in the visitor's parking lot even though the respondents had told him not to. The applicant testified that his vehicle was vandalized during this time.
23The respondents offered the applicant an above-ground parking spot close to the entrance sometime between December 2008 and March 2009. However, the applicant initially declined to use this spot. He said it did not accommodate his needs because:
a. the respondents were also obliged to provide video surveillance because his vehicle had been vandalized and was at risk of being further damaged. (I note that the respondents have now installed video surveillance); and
b. the spot offered to the applicant, although at least as close to the entrance as the visitor's parking he had been using, was not the closest spot available to the entrance. I note that the applicant elected to park on the street, which was significantly further from the entrance than the parking spot offered to him.
24The applicant began using a designated parking spot following the mediation-adjudication held in this matter in November 2011. The applicant initially maintained, however, that the offered parking spot did not fully accommodate him because residents and others used his spot from time to time and he was required to park elsewhere.
25On November 25, 2011, the first day of hearing in this matter, the parties agreed to participate in a mediation-adjudication and a significant part of the hearing day was taken up with settlement discussions. In the end, the parties were unable to fully resolve the matter and the hearing proceeded.
26On November 25, 2011, I heard the evidence of the applicant's treating physician and part of the applicant's testimony-in-chief. I also heard evidence from Barry Spratt, a witness for the applicant. I declined to hear parts of Mr. Spratt's intended evidence because it was not clear to me at that stage of the proceeding that his evidence would assist me in determining the issues in dispute: 2011 HRTO 2334 at paras. 11-12.
27On December 1, 2011, the applicant wrote to the Tribunal requesting that I recuse myself, that I make an immediate determination of some of the issues in dispute, and that I reconsider my preliminary procedural rulings. On December 8, 2011, I issued a Case Assessment Direction inviting written submissions from the parties on these matters.
28In an Interim Decision dated December 30, 2011, I declined to recuse myself and I dismissed the request to reconsider my procedural rulings. I held that the applicant could not require a determination of issues at this stage of the proceeding and that it would not be appropriate (as the applicant had suggested) for me to recuse myself in the event I did not find in his favour on the issue of whether he has a disability: 2011 HRTO 2334.
29The Tribunal held a further day of hearing on October 1, 2012. At that time, I heard the remainder of the applicant's testimony. The applicant has identified one further witness whom he wishes to call, however I have not yet heard that witness' testimony.
30At the close of the hearing day on October 1, 2012, and in accordance with the Tribunal's decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 ("Pellerin"), I explained to the parties that I wished to seek submissions regarding whether the Application should be dismissed in whole or in part because there is no reasonable prospect that some or all of the allegations will succeed.
31In oral directions that I gave to the parties on October 1, 2012, I referred them to the Tribunal's decision in Pellerin. While I did not limit the scope of the parties' submissions, I specifically invited them to address the following issues:
a. In light of the medical evidence, whether certain portions of the Application had any reasonable prospect of success;
b. Whether there was a reasonable prospect that the applicant's allegations of reprisal would succeed; and
c. Whether and how the applicant's additional proposed witness would assist him in establishing that the Application had a reasonable prospect of success.
32The parties were scheduled to provide these submissions on October 4, 2012. However, late in the day on October 3, 2012, the applicant wrote to the Tribunal requesting an adjournment of the October 4 hearing date for medical reasons. Along with his request, the applicant filed a medical note from his treating physician. In an Interim Decision dated October 4, 2012, I granted the applicant's request for an adjournment: 2012 HRTO 1883. At paragraph 8 of the Interim Decision, I directed that (by November 29, 2012), the applicant deliver to the respondents and file with the Tribunal further medical information from his physician indicating when he was expected to be able to proceed with the hearing.
33On December 4, 2012, the applicant emailed the Tribunal and counsel for the respondents. He wrote that he had "no set date of return" and that his doctor would provide further information when he makes that assessment. On December 12, 2012, I issued a CAD. I explained that the applicant's email was not responsive to the Interim Decision and I directed him to provide further medical information from his physician. The applicant later provided a medical note from his doctor indicating April or May 2013 as possible dates to resume the hearing process.
34Continuation dates were scheduled for June 4 and 5, 2013. At the request of counsel for the respondents, who was also scheduled to do a trial on those dates, these hearing dates were adjourned: 2012 HRTO 1051. Although he consented to the request for adjournment at the time, the applicant has since written to the Tribunal to dispute the basis of counsel's request for adjournment.
35A three-hour telephone conference call was scheduled for June 21, 2013. On May 3, 2013, I issued a CAD confirming that the purpose of the June 21 hearing day was to hear submissions regarding whether the Application had any reasonable prospect of success. I again referred the parties to Pellerin.
36The June 21, 2013 continuation hearing took place, as scheduled. At the outset of the hearing day, I provided the following direction to the parties: (a) I explained that the issue before me was whether the Application should be dismissed because it had no reasonable prospect of success and I asked both parties to confine their submissions to matters relevant to this issue; and (b) I noted that there was a factual dispute between the parties as to when the applicant first alerted the respondents to his need for accommodation and I explained to the parties that, for the purpose of the summary hearing test, I will assume (without finding) that the applicant's version of events was true.
37I also gave both parties an opportunity to ask questions about these directions or about the hearing process, generally. I explained that I would first hear submissions from the applicant, then the respondents, and that the applicant would have a limited opportunity to make submissions in reply. I explained to the applicant that his reply submissions would be limited to any new issues or argument raised by the respondents and not addressed in the applicant's own initial submissions.
38During the applicant's submissions, I intervened on a number of occasions to pose questions and to direct him to limit his submissions to material relevant to the reasonable prospect of success issue. After the applicant had responded to my questions, I gave him an opportunity to make further submissions. I also explained to him that his right of reply would be limited to anything new raised in the respondents' submissions. I then heard submissions from counsel for the respondents. Finally, I heard reply submissions from the applicant.
39During lengthy reply submissions, the applicant repeatedly sought to make new arguments, to refer to evidence that was not before the Tribunal, to accuse opposing counsel of misconduct, and to take issue with my interventions, questions and preliminary rulings. I repeatedly explained to the applicant the nature of reply submissions and I declined to hear much of his submissions on the above-noted issues.
40During his reply submissions, the applicant also sought to discuss the following two issues, which he had not addressed in his original submissions:
a. Whether there was a reasonable prospect that his arguments based on reprisal could succeed, and
b. The relevance of a further witness proposed by the applicant, and whether this witness' prospective testimony could help establish that the Application had a reasonable prospect of success.
41I proposed and heard submissions from the parties regarding whether a further telephone conference was appropriate in the circumstances. I ruled orally that the parties could make additional written submissions on the two issues identified in para. 40 and that a further telephone conference would be scheduled to hear submissions on these two issues only.
42During the June 21 telephone conference, I discussed timelines for filing submissions with the parties. At the time, the Applicant requested a delay of four months in which to make written submissions. This was opposed by the respondents. When I orally directed the parties to provide submissions within six weeks, the applicant indicated that he would obtain a medical certificate to extend the time for filing materials. The applicant has not provided any such medical certificate.
43At the June 21, 2013 hearing date, the applicant also requested a mistrial and alleged that I should not continue to hear the matter because of "lack of independence" and "judicial misconduct." He sought to make oral submissions on these issues. I declined to hear oral submissions and directed that the applicant make any such request in writing, by filing a Request for Order During Proceeding. He has not done so.
44I issued a CAD on June 25, 2013, confirming the oral directions I gave at the close of the June 21, 2013 hearing. The parties filed written submissions as directed, following which I ruled that, given all of the circumstances, the most fair, just, and expeditious way of proceeding was to time limit the parties' oral submissions. I allotted 20 minutes for each party's submissions on the two outstanding issues: CAD dated August 28, 2013.
45A continuation date was scheduled for December 10, 2013. Late in the day on December 9, 2013, the applicant requested an adjournment of the hearing for medical reasons. He provided a medical note in support of his request, which indicated that the applicant would not likely be able to proceed with this matter for two or three months. Counsel for the respondents did not oppose the Request for adjournment.
46I granted the Request for Adjournment orally at the hearing on December 10, 2013. Counsel for the respondents then asked that, given the multiple delays and the fact that the parties had already had the opportunity to make oral and written submissions, the Tribunal not reschedule the hearing but determine the matter based on the information already provided by the parties. The applicant opposed this request and indicated that he wished to have the opportunity to make further oral submissions.
47In a CAD dated January 7, 2014, I granted the respondents' request. After reviewing the applicant's written submissions, which he filed in accordance with the direction I provided at the June 21 hearing date, it was not clear that there remained any outstanding issues that the applicant has not addressed. Certainly the applicant raised none in these written submissions, although he had an opportunity to do so. I further held that the requirements of the Code had been met and that the applicant had been given an opportunity to make oral submissions. I concluded that, in all of the circumstances, the most fair, just and expeditious way of proceeding was to determine the Application based on the written and oral materials already before me.
ANALYSIS
48The Application raises the following issues:
a. Is there a reasonable prospect that the applicant could show that the respondents breached their substantive or procedural obligations to accommodate the applicant's disability?
b. Is there a reasonable prospect that the applicant could show that the respondents reprised or threatened to reprise against him?
(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
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.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
50The issue for me to determine under the summary hearing test is whether the Application has any reasonable prospect of success: Pellerin, supra. I am mindful that, as the Tribunal explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraph 10:
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
51As the Tribunal indicated in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
No duty to accommodate
52The duty to accommodate is not a free-standing obligation under the Code. In other words, while the Code prohibits is discrimination, it does not require accommodation in the absence of discrimination. As the Tribunal pointed out in Baber v. York Region District School Board, 2011 HRTO 213 at para. 90, an applicant who claims a breach of a duty to accommodate is really claiming: (a) that he has experienced discrimination because of disability; and (b) that the respondents cannot justify the discrimination by showing that the applicant could not be accommodated without undue hardship.
53As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case discrimination. In this case, to establish a prima facie case of discrimination, the applicant must demonstrate (a) that he has a disability within the meaning of the Code and (b) that a requirement imposed by the respondents, namely that residents drive vehicles that fit in the underground parking, adversely affected the applicant because of his disability. As the Tribunal explained in Pellerin, supra, at para. 32, the principle of the prima facie test incorporates the concept of no reasonable prospect of success.
54Only once a prima facie case of discrimination is established does the inquiry shift to whether the respondents fulfilled their duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28. If the duty to accommodate is triggered, the respondents have both procedural and substantive obligations. Procedurally, the respondents have an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required. The substantive duty requires the respondents to provide appropriate accommodation measures up to the point of undue hardship.
55As I have indicated, there is now no dispute that the applicant has a disability. The principal issue, therefore, is whether there is a reasonable prospect that the applicant can demonstrate that he was adversely impacted because of his disability.
56Importantly, the purpose of the Code is not to accommodate individuals' preferences: Akash v. Toronto Transit Commission, 2012 HRTO 677. Thus, to establish a prima facie case of discrimination, it is not sufficient for the applicant to establish that his preference is to drive a particular vehicle. Nor it is not sufficient for him to argue that has a disability and that, because of his disability, he prefers to drive a particular vehicle. Rather, to establish a prima face case, the applicant must show not just a preference, but a disability-related reason behind his choice of vehicle.
57While it is quite clear that the applicant prefers to drive a Ford F150, he has failed to provide evidence of a disability-related reason for his choice. As noted, although Dr. Kindle prepared a note on February 5, 2009 indicating that the applicant required his specific vehicle "for medical reasons", this was not born out in the physician's testimony. Dr. Kindle has not seen the vehicle, is unaware of its specifications, and has not considered the applicant's disability-related needs in light of the particular specifications of this vehicle. In sum, Dr. Kindle supports the applicant's vehicle preference, but has provided no basis to conclude that the applicant's choice of a F150 is anything more than a personal preference. The applicant's own evidence supports this conclusion. He readily stated that he chose a vehicle based on his own preferences and perceptions of his needs, not based on any direction from Dr. Kindle or any other medical caregiver.
58To put it differently, even assuming that the applicant's disability is such that he should drive a large truck, there is a range of large trucks for him to choose from. The parties agree that the profile of the F150 is only slightly too high to fit in the underground lot. Counsel for the respondents suggested that many if not most other large trucks would fit into the respondents' underground lot. The applicant did not dispute this. Neither the applicant's nor Dr. Kindle's evidence suggests that a different brand or model of large truck would not have suited the applicant's needs. Indeed, neither witness explored the possibility.
59The applicant indicated that he needed to drive a large truck because it is difficult for him to enter and exit a smaller vehicle and because he feels more secure driving a larger vehicle. The applicant has provided no basis to suggest that only the F150 offers these advantage or that a different brand or model of vehicle could not address his mobility, visibility, and security concerns.
60As an expression of his personal preferences, the applicant elected to purchase F150s. As the applicant asserted at the hearing, he is certainly entitled to purchase the vehicle of his choice. However, absent some evidence that this particular vehicle correlates to his disability-related needs, the applicant is not entitled to have his choice of vehicle accommodated by the respondents.
61I do not accept the applicant's argument that his disabled parking permit establishes a connection between the applicant's disability and his choice of vehicle or that it in any way requires that the respondents accommodate an F150. The fact that the applicant was issued a permit in July of 2007 shows only that the city of Ottawa accepts that the applicant has a disability and that he is entitled to use accessible parking spots. This issue is not in dispute in the Application; I have no difficulty accepting that, because of his disability, the applicant should have access to a parking spot reasonably close to the entrance of his condominium building.
62The respondents have, in fact, made such a parking spot available to him. The issue at the root of this dispute is that the parking spot provided was in the underground parking lot and the applicant's vehicle is slightly too big to fit in the underground. I find that the applicant's ability to park near the entrance of the condominium was limited not because of his disability but because he chose to drive a model of vehicle that does not fit in the underground lot. Again, the applicant has failed to adduce any medical evidence that his choice of vehicle is anything other than a personal preference.
63For these reasons, I find that the applicant has no reasonable prospect of establishing a prima facie case of discrimination. Accordingly, there is no reasonable prospect that the applicant could establish that the respondents have a duty to accommodate him, either procedurally or substantively.
No discrimination based on sex and age
64Although the Application also alleges discrimination on the basis of age and gender, the applicant did not present or point to any possible evidence to support these allegations. Accordingly, I find that the applicant's allegations of discrimination on the basis of sex and age are dismissed because they have no reasonable prospect of success.
Reprisal
65In Noble v. York University, 2010 HRTO 878 at paras. 33 to 35, the Tribunal described the requisite elements of reprisal as follows:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
66At this stage of the proceeding, the issue is whether the allegations of reprisal have a reasonable prospect of success. As with all other types of allegations, for allegations of reprisal to continue in the Tribunal's process following a summary hearing, there must be a basis beyond mere speculation and accusations.
67The applicant's allegations of reprisal are as follows:
a. he states that the respondents reprised against him because they reported to the condominium's all general meeting and identified his claim as a "law suit" in which he sought "damages" rather than as a "human rights complaint". When asked to explain how this amounted to reprisal, the applicant stated that this alleged mischaracterization of his claim, "shifts the specter of responsibility", that the respondents should have disclosed that the claim had a foundation in human rights and by omitting this information, the respondents were attempting to "mitigate their responsibility."
b. he says the respondents refused to call police when he complained about three inebriated individuals who were throwing beer cans. The applicant says that, when he confronted these individuals, they commented on his truck, saying that "it won't be nice for long".
c. the applicant states that this is a reprisal because his relationship with the respondents had deteriorated by this point and, had someone else made the complaint, the respondents would have contacted police.
d. he states that the respondents' failure to ensure his exclusive use of the parking spot constitutes reprisal. He also alleges that the vandalism to his car when he used a disabled visitor's parking spot amounts to reprisal.
68While some of these incidents are unfortunate, I find that they do not fall within the meaning of reprisal under the Code. First, there is no information before me to suggest that there was actual action taken, or a threat made, to the applicant because he had claimed a right under the Code. Second, he has not pointed to any evidence reasonably available to him that could establish that the respondents' intention was to retaliate against the applicant for making human rights allegations.
69It is not at all clear to me that the respondents' characterization of the applicant's human rights application as a "law suit" is problematic. A human rights application initiates a legal proceeding and can result in an award for damages. While the applicant may have preferred that his neighbours be told that his suit included human rights allegations, the Code in no way obliges the respondents to do so. I do not accept that describing the human rights proceeding as a "law suit" amounts to reprisal.
70The allegations of reprisal concerning the beer can incident are speculative in nature. The applicant did not identify any other, similar incidents that had actually occurred where the respondents contacted police. Moreover, nothing would have prevented the applicant from calling the police himself. Given that the applicant did not find it necessary to contact police, I cannot see that the respondents had any such obligation or that their failure to do so could amount to reprisal. It is regrettable that, in the context of this incident, the applicant was threatened with damage to his truck. However, the applicant has not pointed to any evidence that would suggest that the threat was made in retaliation for his human rights complaint. Rather, the threat appears to have been made in the context of a confrontation unrelated to any human rights issues.
71The applicant's allegation that the respondents' failure to ensure his exclusive use of an outdoor parking spot (made available to him following a mediation) is also speculative. The respondents designated a parking spot for the applicant and eventually put into place video surveillance and signage to indicate that the spot was reserved for him. The applicant has not pointed to any potential evidence to show that the respondents intended that others use the applicant's spot or that they intended this as retaliation for the human rights claim. At most he is alleging that they took insufficient steps to ensure his exclusive use. This does not amount to reprisal within the meaning of the Code.
72Finally, while the incidents of vandalism to the applicant's vehicle are unfortunate, I cannot conclude that they constitute reprisal by the respondents. The applicant explained that his vehicle was vandalized when, as an act of "civil disobedience," he began parking in a disabled parking space designated for visitors. The applicant's vehicle was not disturbed when parked elsewhere, either on the street or, later, in the designated spot assigned to him by the respondents. This suggests that that the applicant's vehicle was vandalized not because he asserted a human rights claim, but in retaliation for his decision to occupy the accessible parking spot in the visitor's.
73While I do not condone acts of vandalism, the Tribunal does not have the power to deal with general allegations of unfairness; the only issue within my mandate to decide is whether the applicant was discriminated or reprised against on the basis of a Code ground. While it is unfortunate that the applicant's vehicle was damaged, I cannot conclude that the damage arose out of a violation of the Code.
74For these reasons, the allegations of reprisal are dismissed because they have no reasonable prospect of success.
The proposed additional witness
75The applicant indicated that he wished to call as a witness a real estate agent who works nearby and who is also a vice-president with one of the respondent organizations. The applicant has indicated that although he was not allowed to park in the respondents' visitors lot, the proposed witness and other real estate agents received preferential treatment and were allowed to park in these spaces. The applicant suggested that this proposed evidence would help him establish that he was treated unfairly.
76Again, the Tribunal does not have the power to deal with general allegations of unfairness. The only issues within the Tribunal's mandate to decide is whether the applicant was discriminated against on the basis of one of the grounds in the Code. The applicant's proposed witness may support an allegation that the applicant was treated differently from others. However, there is nothing before me to suggest that this witness would help the applicant show that his disability was a factor in any such differential treatment.
77It is not at all clear to me that this proposed witness's evidence is material to the issue in dispute. Even assuming (without finding) that the respondents allowed local business owners to park in the outdoor lot, this does not assist the applicant in demonstrating that the Application has a reasonable prospect of success. As I have explained, there is no medical evidence to support the applicant's contention that his vehicle is necessary to meet his disability-related needs or that his choice of vehicle is anything more than a personal preference. The fact that other individuals may have been allowed to park in the outdoor lot does not help the applicant overcome this fundamental shortcoming in his argument.
DECISION
78For the above reasons, the Application is dismissed.
Dated at Toronto, this 5th day of February, 2014.
"Signed by"
Michelle Flaherty
Vice-chair
