Mohit Bali v. Les Madhavji, 2014 HRTO 1683

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohit Bali

Applicant

-and-

Les Madhavji

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: November 20, 2014

Citation: 2014 HRTO 1683

Indexed as: Bali v. Madhavji

APPEARANCES

Mohit Bali, Applicant

Self-represented

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 reprisal with respect to housing because of disability.

2By Case Assessment Direction (“CAD”) dated February 20, 2013, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The summary hearing commenced by teleconference on June 5, 2013. I determined that given the applicant’s disabilities, which include anxiety and depression, the voluminous material filed by him, and the fact that the respondent was not participating, the fair, just and expeditious approach was to set this matter for an in-person hearing on the merits for August 2, 2013.

3The history leading up to the hearing of this matter on August 2, 2013 is set out in Interim Decision, 2103 HRTO 1025, dated June 6, 2013. A subsequent teleconference was held with the applicant on August 25, 2014, following a CAD dated July 10, 2014. In Interim Decision 2013 HRTO 1025, I determined that the respondent had notice of the Application, had chosen not to participate, and had clear notice of the consequences of his failure to participate. The hearing of the Application proceeded without further notice to the respondent.

4The respondent is the owner of the condominium unit that the applicant occupied at the time of the filing of his Application. He is referred to by the applicant throughout his materials as the “landlord”. There is clearly a long history associated with the applicant’s tenancy which goes back to May 2004. There have been multiple applications to the Landlord and Tenant Board which have resulted in numerous decisions. One of those decisions in particular, by Member Ruth Carey dated November 1, 2010 (the “Carey Decision”), addresses many of the allegations contained in the Application before the Tribunal.

5The applicant’s testimony and oral submissions helped to clarify and distinguish between issues which relate to the enforcement of orders arising from the Carey Decision over which the Tribunal has no jurisdiction, and the allegations which relate to the Code and post-date the Carey Decision. For example, the fact that the landlord has not complied with the Board’s decision to provide the applicant with a second electronic key fob to enter the building is more in the nature of an enforcement issue, which the Tribunal is not empowered to resolve. However, the allegations arising after the Carey Decision, that the respondent has failed to properly respond to the applicant’s allegations of ongoing harassment and discrimination by condominium staff and agents, is an issue that the Tribunal can resolve.

6The applicant is a person living with multiple disabilities as defined in the Code. He no longer actively works and is in receipt of disability benefits including Canada Pension Plan. He suffers from depression and a severe anxiety disorder which is aggravated by stress. He is also on medication for a cardiac condition. The applicant testified that since the Carey Decision, he continues to be harassed and he lives in fear that if he leaves his unit he might not be able to return in time to take his medications or access his medical equipment.

7The applicant’s materials are voluminous and replete with allegations which have been adjudicated by the Landlord and Tenant Board. Having reviewed all of that material and considered the applicant’s testimony, I have determined that the following incidents fall within the Tribunal’s jurisdiction:

a. During a meeting on September 19, 2011, the property manager of the condominium threatened to disable the applicant’s electronic key fob despite being aware of the applicant’s significant medical issues;

b. At the same meeting, the property manager required the applicant to fill out another copy of the same residential questionnaire he has completed and submitted on at least two other occasions. The applicant testified that this was unnecessary and a form of harassment. (The property manager also took a further $20.00 from the applicant as a deposit for a fob which was never provided to him. This issue was dealt with by the Landlord and Tenant Board in a decision dated December 8, 2011);

c. The property manager initially agreed, and then subsequently refused, to provide the applicant with a letter addressed to the security guards of the condominium to assist him in ensuring access to the building and laundry facilities in the event that his fob failed to work; and

d. The property manager refused to accommodate the applicant’s need for reasonable notice for inspections of the property and to have those inspections carried out at a time other than in the mornings, when the applicant experiences his most incapacitating medical symptoms.

8The applicant testified that the respondent was notified of these concerns as well as the impact of these incidents on the applicant’s health and well-being. He also testified that the respondent refused to take steps to address this conduct on the part of the staff and agents of the condominium corporation. The applicant believes that the landlord is instructing the property manager and others to act in this manner toward him as a reprisal for asserting his Code-related rights.

9As I indicated previously, it is not the role of the Tribunal to enforce the decisions of the Landlord and Tenant Board and as a result, those allegations which relate to the landlord’s ongoing failure to abide by the Landlord and Tenant Board decisions, particularly the Carey Decision of November 2010, are not within the jurisdiction of the Tribunal.

10Section 2(1) of the Code provides that every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of disability, among other prohibited grounds. The incidents set out above post-date the Carey Decision of November 2010, are linked to the applicant’s disability, and considered together, constitute a breach of the applicant’s right to equal treatment with respect to accommodation. They demonstrate a lack of understanding and respect for the applicant’s disabilities and his need for accommodation. The respondent was aware of the experiences that the applicant was having with the property manager and the impact of those experiences on the applicant’s health, but failed to intervene to address the applicant’s concerns. In my view, as the owner of the unit, the respondent had an obligation to take action to address the applicant’s allegations of discrimination.

11While I am able to find, on the basis of the applicant’s evidence alone, that he has experienced discrimination, the applicant is unable to point to evidence, beyond his own belief, that the respondent was engaging in reprisal as that concept is understood under the Code. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s Code rights. See Noble v. York University, 2010 HRTO 878 at para. 31.

12The applicant believes that the staff and agents of the condominium corporation were acting under the direction of the respondent, who was promoting that behaviour as a reprisal for the various applications filed against him by the applicant. Some of the Landlord and Tenant Board applications engage the applicant’s Code rights, as does the Application before this Tribunal. However, there is no evidence, beyond the applicant’s own belief, that the staff and agents of the condominium corporation were acting under the instructions of the respondent and that the respondent intended those actions as a reprisal against the applicant for asserting his Code rights.

13As a result, I have determined that the applicant’s allegations of reprisal should be dismissed.

Remedy

Injury to Dignity, Feelings and Self-Respect

14When the hearing reconvened in August, 2014 for submissions on remedy, the applicant advised the Tribunal that he was seeking, in his words, damages in general and punitive damages in particular.

15The applicant is seeking damages with respect to all of the allegations set out in his Application, the vast majority of which have been addressed by the Landlord and Tenant Board. He is also seeking damages for the respondent’s ongoing failure to abide by the orders of the Landlord and Tenant Board. However, the Tribunal’s jurisdiction does not extend to enforcing the Landlord and Tenant Board decisions or providing compensation to the applicant for the respondent’s failure to comply with the decisions of the Landlord and Tenant Board.

16The applicant testified that the impact on him of the incidents which have been found to be discriminatory is that he is afraid to leave his apartment. He has tremendous anxiety about the possibility that he would leave his apartment and return to find that his fob has been deactivated or is no longer working. He was promised, but never received, a letter which would inform the security staff in such a circumstance that he should be permitted access to the building. His anxiety is related to the fact that he has significant medical needs and would not have access to his medications and medical equipment if he could not get into the building. His anxiety is also exacerbated by the respondent’s failure to ensure that the applicant is accommodated by having inspections carried out during the times when he is experiencing fewer disabling symptoms.

17Prior to the coming into force of the current remedial provisions of the Code contained in section 45.2 of the Code, the Tribunal had developed relevant criteria for assessing damages to compensate for an applicant’s inherent right to be free from discrimination and for mental anguish. See, for example Ketola v. Value Propane Inc. (2000) O.H.R.B.I.D. No. 14, and Sanford v. Koop, 2005 HRTO 53. Since the coming into force of section 45.2, the Tribunal has found the criteria developed in those previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See, Hughes v. 1308581 Ontario, 2009 HRTO 341.

18The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at paragraph 153, held that the following are among the factors that the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. The Court also recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”.

19In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents.

20In all of the circumstances I find that a payment of $5,000.00 for injury to dignity, feelings and self-respect is substantiated by both the objective seriousness of the respondent’s conduct toward him and the applicant’s own evidence about the effect that the experience of discrimination had, and continues to have, on him. One of the most important factors in this determination is the level of vulnerability experienced by the applicant because of his multiple disabilities. At the same time, I was conscious of the fact that he has been embroiled in conflict with the respondent for many years and over a significant number of issues which are unrelated to his Code rights. For the applicant, all of those experiences combine in his request for substantial damages; however, this Tribunal is not empowered to provide compensation for all of the damage that the applicant is alleged to have experienced since he assumed his tenancy in 2004.

Interest

21The applicant is entitled to interest on the monetary awards. I have calculated the interest in accordance with sections 127 and 128 of the Courts of Justice Act, R.S.O. c. C. 43, as amended (“CJA”).

22Prejudgment interest runs from the date of the infringement to the date of this Decision. While entitlement to pre-judgment interest runs from the date of infringement, the rate itself is based on when the application was commenced. Prejudgment interest rates are determined by the Ministry of the Attorney General in accordance with the formula set out in section 127 of the CJA. A chart is published by the Ministry showing the prejudgment interest rate for each quarter. (See also, O.Reg. 339/07, as amended)

23In this case, the Application was commenced on November 17, 2011. That date falls within the fourth quarter of 2011. The chart shows that the prejudgment interest rate in effect in the fourth quarter of 2011 was 1.3%. The applicant is therefore entitled to interest on the award of $5,000.00 for loss arising from the infringement of his rights under the Code to be calculated at a rate of 1.3% from the meeting with the property manager on September 19, 2011, to the date of this Decision.

24The respondent will have 30 days to pay the monetary award, failing which, postjudgment interest will be applied to the outstanding award. The expiry of the 30-day period falls in the fourth quarter of 2014. The interest rate in effect for that period is 3%.

Order

25The Tribunal orders the following:

• Within 30 days of the date of this Decision, the respondent shall pay the applicant $5,000 for his losses arising from the infringement of his rights under the Code.

• The respondent shall pay prejudgement and postjudgment interest in accordance with paragraphs 21 to 24 of this Decision.