HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Fairchild

Applicant

-and-

Newton-Trelawney Property Management Services and Colin Sinclair

Respondents

A N D B E T W E E N:

Kathleen Fairchild

Applicant

-and-

O.C.C. 11 (Ontario Condominium Corporation No. 11)

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: December 5, 2014

Citation: 2014 HRTO 1753

Indexed as: Fairchild v. Newton-Trelawney Property Management Services

APPEARANCES

Kathleen Fairchild, Applicant

Jane Mauch, Representative

Newton-Trelawney Property Management Services, Colin Sinclair and O.C.C. 11 (Ontario Condominium Corporation No. 11), Respondents

Matthew Vella, Counsel

Introduction

1These Applications allege discrimination with respect to goods, services and facilities because of age and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Pursuant to a Case Assessment Direction (“CAD”) dated July 15, 2014, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Applications should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Applications will succeed.

3The respondents, and the applicant through her daughter-in-law (the “applicant’s representative”), made oral submissions at the summary hearing held by teleconference.

4At the conclusion of the summary hearing, the applicant’s representative advised she wished to amend the Application to include a claim of reprisal and to allege that the respondents engaged in discriminatory conduct because of the race of her daughter-in-law. On November 10, 2014, I issued a Case Assessment Direction (the “November CAD”) directing the applicant to file with the Tribunal and deliver to the respondent by no later than November 24, 2014 a Form 10 Request for an Order During Proceedings setting out the amendments she wished to make to the Application. The November CAD further directed the applicant to provide details of any additional grounds she was claiming, and to set out the facts to support her allegations by giving details of every incident of discrimination or reprisal that she wished to raise at the hearing.

5By December 1, 2014, the applicant had not complied with the November CAD. As such, I have made a decision based on the Application as originally filed and on the submissions made during the summary hearing.

FACTUAL BACKGROUND

6The applicant is 98 years old and lives in a retirement home. Her son and her daughter-in-law live in a condominium in a complex in which they also own a second condominium (“the unit”). They made an oral agreement with the applicant that she would come and live in the unit beginning in September, 2013 so they could assist in her care.

7There was a July, 2013 fire in the unit that necessitated repairs resulting primarily from smoke damage. Before the repairs were completed, a pipe burst in the unit in May, 2014, necessitating further repairs.

8The parties disagree with respect to whether the repairs have all been completed at this point. What is not disputed is that the applicant has not moved into the unit.

9The applicant brought two Applications alleging that the delays in getting the repairs done were because of her age and disability – one against the condominium corporation and one against the property management company and one of its employees.

DECISION

10The Applications are dismissed on the basis that they do not have a reasonable prospect of success.

ANALYSIS

11This summary hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-9, the Tribunal provided the following guidance:

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. [Emphasis added]

12The applicant’s representative made submissions on behalf of the applicant. Other than alleging that the applicant had a feeling that age and disability played a part in the delays encountered in getting the unit restored to an habitable state, the applicant’s representative could point to no evidence that would make a link between the delays and the Code grounds claimed.

13The applicant’s representative did not identify any evidence she might call to support the assertion that the applicant’s age and disability could be factors in the delays. Neither the narrative in the Applications nor the oral submissions make this link – directly or by inference. When asked what evidence she had that the delays were due to the applicant’s age or disability, the applicant’s representative stated that she could not prove it, but there was no other reasonable explanation for the delays that the insurance company also opined were unreasonable delays. However, it is mere supposition on the part of the applicant that her age and disability played a factor in the delays.

14While the delays certainly seem as though they may have been excessive, unfair treatment does not, in itself, constitute a violation of the Code. As the Tribunal points out in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process 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.

15The applicant’s assertion that her age and disability were factors is nothing more than a bald assertion or, to use the words in Forde, “mere speculation and accusations.”

16In addition, the Tribunal repeatedly has said that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

17Given the absence of proposed evidence on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of the alleged grounds. In coming to this conclusion, I have considered the applicant’s argument that she has not received disclosure of documents from the respondents at this early stage in the proceedings, but other than the speculation by the applicant’s representative that the respondents delayed this matter because of the applicant’s age and disability the applicant’s representative did not suggest any particular document that the respondents would produce to evidence these allegations. As stated at paragraph 10 of Dabic:

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

18I have considered the applicant’s submissions in light of Dabic and find that despite the absence of disclosure, these Applications have no reasonable prospect of success. The applicant’s representative pointed to no evidence that may be disclosed that would support a link to the Code. The applicant’s representative stated she told the respondents that the nursing home had told her the applicant needed to move out of the nursing home and into the unit. She also stated that two other tenants who reported mould in their bathrooms had their issues taken care of more promptly. She did not point to documentary evidence that would support that the delays in the applicant’s case were due to the applicant’s disability or age, other than to submit that there was no other reasonable explanation and the documents might disclose that those were the reasons.

19The parties made additional submissions about whether the applicant could bring herself into a protected social area, namely whether she was in receipt of goods, services and facilities from the respondents despite having no contractual or other relationship with the respondents, but because of my finding that the applicant has made no link to a Code ground, I need not determine this issue.

20As indicated, the applicant raised allegations that were not included in the Applications, including an allegation that the delays were attributable in part to the daughter-in-law’s race or were intended as a reprisal against the daughter-in-law because she is Chinese, owns many units in the same complex, and hired an unlicensed Chinese contractor to do work on the unit before the fire. The applicant’s representative asked that she be allowed to amend the Application to include a reprisal claim and to assert the respondents’ actions were because of her race. I received no submissions pursuant to the November CAD and therefore have not considered these claims.

21Given the absence of proposed evidence on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of the alleged grounds against any of the respondents.

ORDER

22The Applications are dismissed.