Luliwa v. Margaret Laurence Housing Co-operative Inc., 2014 HRTO 1684

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Luliwa

Applicant

-and-

Margaret Laurence Housing Co-operative Inc. and Natasha Silva

Respondents

DECISION

Adjudicator: David Muir

Date: November 21, 2014

Citation: 2014 HRTO 1684

Indexed as: Luliwa v. Margaret Laurence Housing Co-operative Inc.

APPEARANCES

Rose Luliwa, Applicant Self-represented

Margaret Laurence Housing Co-operative Inc., Respondent Luke Saites, Counsel

Natasha Silva, Respondent Cory Wanless, Counsel

1In a Case Assessment Direction issued on August 19, 2014, the Tribunal granted the respondents’ Request for Summary Hearing to determine whether this Application should be dismissed as against the respondents, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed or on the basis of delay.

2A summary hearing was held by telephone conference call on Thursday, November 6, 2014. All parties participated. In anticipation of the summary hearing I reviewed the Application and the Responses (Form 2) of the respondents, a Form 10 Response to a Request for Order filed by the applicant on August 8, 2014 as well as a number of documents filed by the applicant and personal respondent in advance of the hearing.

3At the outset of the summary hearing, I outlined the issues that would be considered at the hearing and asked the applicant if she understood what the purpose of the summary hearing was. The applicant indicated that she understood.

4For the reasons that follow, I find that that this Application must be dismissed because it has no reasonable prospect of success and is in large part out of time.

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 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.

7In her Application the applicant alleges discrimination on the basis of race, colour ancestry, place of origin and receipt of public assistance. In subsequent materials, the applicant has indicated that she believes that all of what has happened to her is a consequence of her race. The applicant identifies as Black, African.

8The respondent Margaret Laurence Housing Co-operative Inc. (“Co-op”) is a non-profit housing co-operative. The Co-op has a Board of Directors made up of members of the Co-op who are elected by the membership. The personal respondent was the property manager of the Co-op for a period of time beginning in February 2012.

9The applicant has lived in the Co-op since 2001. The applicant makes very general allegations that her problems started immediately upon her moving in to the Co-op:

a. The applicant alleges that the respondents use Mr. S, another member of the Co-op, to harass her.

b. That the situation worsened in 2006 and has continued to the present;

c. That she began to receive eviction notices on an annual basis;

d. That the respondents arranged to have Mr. S sue her and that from 2008 to 2010 the applicant was in court on a weekly basis responding to allegations that she had threatened to kill “this man” Mr. S;

e. That on September 2011 the property manager and the Board of Directors arranged to have police come and arrest her; and

f. That on December 27, 2012 the applicant received an eviction notice.

10In their Responses the respondents deny all of the allegations. In addition, the respondents assert that Mr. S., rather than harassing the applicant, has himself been subject to harassment and name calling by the applicant. The respondents also state that they had no involvement with the police and no role in the criminal complaints made by Mr. S against the applicant or her arrest in 2011. The Co-op asserts its belief that the criminal proceedings concluded with the applicant entering into a Peace Bond in which she agreed to have no involvement with Mr. S. Despite these events, the Co-op states that the conflict between Mr. S and the applicant began again after the Peace Bond expired.

DECISION

11At the hearing I asked the applicant to tell me why she believed that the actions of the respondents were informed in whole or in part by her race. It became clear that Mr. S, and the applicant’s conflict with him, are at the heart of this dispute. As indicated in her Application the applicant believes that the Board of Directors of the Co-op and the personal respondent were using Mr. S to harass her. I asked the applicant to point to the evidence that was available to her to establish that the respondents were doing so. The applicant relied on the fact that the December 27, 2012 Notice to Appear (what the applicant refers to as an eviction notice) was based on a complaint dated January 8, 2013 and that that this made no sense. When I pointed out to her that there was also a complaint from Mr. S to the Co-op’s Board of Directors dated December 7, 2012 which could have given rise to the December 27, 2012 Notice to Appear, the applicant suggested that the complaint might have been written after the fact. When I asked the applicant if she had any evidence to support that suggestion she indicated that she did not.

12In my view there is no evidence to which the applicant can point which would tend to support her over-arching contention in this case that the Co-op was using Mr. S to harass her in respect of this incident or any of the other generic allegations of harassment by other members, in particular Mr. S, over the years.

13The lack of any such evidence reasonably available to the applicant largely disposes of this case. However I also find that, with one exception, the other allegations in this Application are clearly out of time.

14Sections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15As indicated above the applicant alleges that she received yearly notices of eviction from the Co-op. It became clear at the hearing that this assertion was not accurate. I have no clear indication of when the applicant received Notices To Appear before the Co-op’s Board (which the applicant called eviction notices) but it was agreed that the last one she received prior to December 27, 2012 was in April 2009.

16The other events described between April 2009 and December 2012 with one exception relate to the criminal proceedings instigated by Mr. S. When asked what evidence she had that would suggest that the Co-op “arranged” to have Mr. S make the criminal complaint the applicant stated that it would be her evidence that she was arrested at a Co-op Member’s meeting. Assuming that this is true it is insufficient to establish a link between the respondents and the criminal complaint and not evidence at all tending to establish that the respondents engaged in discriminatory acts toward the applicant based on her race. Accordingly, these allegations must be dismissed because there is no reasonable prospect that they can succeed.

17As the allegations between April 2009 and December 2012 have been dismissed, there is a temporal gap between the two remaining events the applicant alleges occurred in April 2009 and in December 2012. The Tribunal has held on many occasions that a significant gap in time between incidents of alleged discrimination will interrupt the series contemplated by subsection 34(1)(b) of the Code. In this Application, I find that this gap in time is more than sufficiently lengthy to interrupt the series of incidents. Accordingly any allegation of alleged discrimination prior to and including the event of April 2009 is untimely and must be dismissed.

18Just prior to the summary hearing the applicant made a further allegation that in November 2012 the respondents “snuck” into her apartment and removed her carbon monoxide detector. When she asked about it she alleges she was told by someone in the property manager’s office that she did not need one. She completed a work order and the unit was replaced the next day and she was told that its removal had been a mistake. The applicant believes that the removal of the detector was discriminatory. The Co-op was unable to respond to the particulars of the allegation but did argue that there was no indication on the face of these allegations that would suggest that the applicant’s race was a factor in what she alleges.

19I agree. The applicant may have reason to be suspicious about this incident but mere suspicion is insufficient even at this early stage of the Tribunal process. The applicant must be able to point to evidence which would tend to support the inference that she asks the Tribunal to draw. Considered on its own and even together with the other contemporaneous allegation related to the December 27, 2012 Notice to Appear these two allegations are insufficient to lead to the conclusion that the applicant experienced discrimination on the basis of race.

20The applicant made other general allegations of inappropriate comments by unnamed persons over the years. I asked the applicant to be more specific about these and to the extent that she was able to do so it appeared that these complaints were about Mr. S. As discussed above, there was ongoing conflict between the applicant and Mr. S, but no evidence to support the applicant’s belief that the Co-op used Mr. S to harass her. These allegations, such as they were, are also dismissed as having no reasonable prospect of success both because they are unparticularized and because there is no indication that the Co-op was involved with them or even aware of them.

21I would also observe that in addition to the above considerations with respect to the Co-op, there is no evidence at all to which the applicant can point which could lead to a finding of discrimination by the personal respondent, who it appears, was acting at all times in her brief tenure with the Co-op in the course of her employment and at the direction of the Co-op. For these additional reasons I would dismiss the Application as it relates to the individual respondent.

22For all of these reasons the Application is dismissed.