Kevin K.R. Liu and Judith Zhang v. Metropolitan Toronto Condominium Corporation No. 541 (MTCC 541) and DEL Property Management Inc., 2014 HRTO 292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin K.R. Liu and Judith Zhang

Applicants

-and-

Metropolitan Toronto Condominium Corporation No. 541 (MTCC 541) and DEL Property Management Inc.

Respondents

DECISION

Adjudicator: Kevin G. Cleghorn Date: March 6, 2014 Citation: 2014 HRTO 292 Indexed as: Liu v. Metropolitan Toronto Condominium Corporation No. 541

Appearances

Kevin K.R. Liu and Judith Zhang, Applicants ) Self-Represented

MTCC 541 and DEL Property Management, ) Antoni Casalinuovo, Counsel Respondents )

1This is an Application for Contravention of Settlement (the “Application”) dated March 24, 2013 brought by the applicants under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On April 16, 2013, the respondents, MTCC 541 and DEL Property Management filed a Response to the Application. The respondents seek to add a party, Paragon Protection Limited o/a Paragon Security (hereinafter “Paragon Security”), to this Application.

2In a Case Assessment Direction dated July 22, 2013, this Tribunal directed as follows:

• a half day teleconference hearing would be convened to hear submissions with respect to the preliminary issue of whether an entity who was not a party to the original application could be added to this application, and, as well, to hear evidence and submissions with respect to the merits of this application;
• the parties were to deliver submissions, witness statements, documents or case law on the preliminary issues and/or the merits no later than fourteen days prior to the teleconference hearing; and
• the Tribunal would consider the parties’ submissions and may issue further directions with respect to any issues and or/ schedule future steps accordingly.

3All parties have filed additional documents. The applicants requested the involvement of a mandarin translator during the teleconference. The applicants indicated that they would utilize the translator’s services as required during the course of the teleconference hearing and did indeed do so throughout. Counsel for Paragon Security, Daniel Chodos, also attended on the teleconference but did not participate pending the determination of the formal involvement of his client.

4In terms of the process, it was agreed that an in-person hearing was necessary to canvass all issues, hear all necessary evidence and/or determine matters of credibility, particularly where the need for a translator on behalf of the applicants had been identified. That being said, I directed that I would consider the matter as a summary hearing and determine if there is a reasonable prospect of success for this application. Neither party objected to this process, particularly when considering that each of them needed to be prepared for a full hearing on the merits of this matter as originally directed in the CAD. In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, this Tribunal stated (at para. 13 and 14):

The Code and the Tribunal Rules of Procedure require the Tribunal to apply its expertise in the resolution of human rights disputes in a manner that is principled, practical, proportionate and adapted to the dispute before it. The Code directs the Tribunal, in s. 41, to adopt procedures and practices that offer the best opportunity for a “fair, just and expeditious resolution of the merits of the matters before it” and this principle guides the interpretation of the Rules (Rule 1.1). The Tribunal is specifically empowered to adopt practices or procedures “that are alternatives to traditional adjudicative or adversarial procedures” (s. 43(3)(a) and Rule 1.6). In particular, the Tribunal is empowered to define and narrow the issues and to determine the order in which the issues and evidence will be presented (s. 43(3)(b) and Rule 1.7 (g) and (h)).

These provisions, in my view, instruct the Tribunal not to be formalistic about the order or extent to which evidence is called. They invite the Tribunal to apply its knowledge of human rights law and the types of disputes that come before it to decide what evidence it needs to hear in order to resolve a dispute, in particular one in which the connection to the Code seems weak. They require the Tribunal to balance the principles discussed above. They suggest tailoring the procedure in a particular case to ensure that the applicant has a fair and appropriate opportunity, given the facts of the case, to obtain and present evidence that might prove, on a balance of probabilities, a link between a respondent’s actions and the Code through disclosure or cross-examination. At the same time, in my view, the process must be structured so that the making of a bald allegation or a mere unfounded suspicion does not place inappropriate burdens on respondents, and so that an application or hearing is terminated when it is clear that there is no reasonable prospect an applicant can prove his or her allegations.

5If I find that there is a reasonable prospect of success, I would then hear formal argument on whether Paragon Security should or should not be added as a party. Once the parties have been defined, the matter would then be scheduled for a formal, in-person hearing on the merits of this Application, with oral evidence to be provided, documents to be filed in the ordinary course and the appropriate translation services to be made available for the applicants.

THE ISSUE

6In the Application, the applicants seek the following relief:

1. MTCC 541 and DEL shall be responsible for this violation and harassment, whether the security guard knew or did not know about the rule changes.
2. MTCC 541 and DEL shall ensure that this type of violation and/or harassment shall not happen again.
3. MTCC 541 and DEL shall pay a monetary penalty pursuant to paragraph 6 of the settlement document.

7The proceedings brought under HRTO file numbers T-0446-08, T-0447-08, T-0448-08 and T-0449-08 (the “original Applications”) were resolved as between the parties by way of Minutes of Settlement. The Minutes of Settlement were executed by the parties in 2012 (no specific date appears on the Minutes of Settlement). I am satisfied that there was a binding agreement made between the parties for resolution of the original Applications. The crux of the settlement involved a change to the rules which had previously prohibited children from using certain recreational facilities in MTCC 541, such facilities which are shared with Metropolitan Toronto Condominium Corporation Number 566 ( hereinafter “MTCC 566”). MTCC 566 was not a party to the original applications or settlement but was listed as an affected party in the minutes of settlement. The facilities included a swimming pool, whirlpool, exercise room and various other rooms. The applicants allege that there has been a breach of paragraph 2 (c) of the Minutes of Settlement, which reads as follows:

c. Children under sixteen (16) years old shall be permitted in the whirlpool, sauna, exercise room, billiard room and hobby room with parental/adult supervision (subject to general closures);

POWERS OF THE TRIBUNAL

8The powers of this Tribunal on an Application for Contravention of Settlement are set out in s. 45.9 (8) of the Code as follows:

If, on an application under subsection (3), the Tribunal determines that a party has contravened the settlement, the Tribunal may make any order that it considers appropriate to remedy the contravention.

9In this instance, the applicants seek a “penalty” of $200,000.00 for breach of the settlement.

10Section 40 of the Code states:

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

11I am satisfied in this instance that adopting the practices associated with the Tribunal’s summary hearing procedure allows for such a fair and just determination of this matter at this preliminary stage. Rule 19 of the Rules of Procedure of the HRTO states:

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.

12In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

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 the 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.

THE FACTS

13Although there are not significant disparities in the evidence proffered, I have chosen to accept the evidence of the applicants whenever there are any contradictions in that regard. In determining the preliminary issue of whether there is a reasonable prospect for success at this stage, the appropriate course is to accept the applicants’ version of events in any and all respects.

14Paragon Security provides security services for MTCC No. 566. According to the applicants, a security guard in the employ of Paragon Security attended at the billiard room of the condominium complex at approximately 9:30 p.m. on February 13, 2013. Ms. Zhang, a co-applicant, was present in the billiard room at that time with two children. The security guard advised her that children were not allowed to play in the room. Ms. Zhang informed the security guard that the rule had been changed. The security guard reiterated his position that children were not allowed in the room. Ms. Zhang, after a conversation of approximately two to three minutes, went upstairs to her unit to obtain confirmation of the rule change for the security guard. The conversation may have been heated. Within ten to fifteen minutes, Ms. Zhang returned to the billiard room with a “letter” confirming the rule change- counsel for the respondents suggested that she had the notification dated February 29, 2012 sent to all unit holders advising of the rule change in accordance with the settlement reached in the original Applications. The security guard, according to counsel for the respondents, had merely forgotten about the rule change and accepted the confirmation provided by Ms. Zhang, whatever it may have been. The applicants did not dispute that conduct on the part of the security guard. There was an additional conversation about the need for identification badges by users of the recreational facilities. The children were never prohibited from entering the billiard room. The security guard later apologized for his actions.

ANALYSIS AND THE LAW

15The Code no longer provides that an allegation of breach of settlement amounts to a basis for an independent application under s. 34: see Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516 at para. 37. Rather section 45.9(3) of the Code provides that a party to a settlement may apply to the Tribunal where they believe another party has contravened the settlement.

16In this instance, the alleged breach was committed by a non-party (Paragon Security), albeit one retained or hired by the respondents, or one of them. There is no evidence suggesting that the respondents had not been diligent in terms of implementing the settlement. Nor is there any evidence to suggest that Paragon Security had been informed to contravene the settlement by actively ensuring that children not be allowed in recreational areas like the billiard room. On the contrary, the fact that Ms. Zhang was so quickly able to satisfy the security guard of the rule change buttresses the notion that the rule change was conveyed to unit holders in a timely fashion and, indeed, some considerable time prior to the alleged breach.

17There is nothing to suggest that the applicants suffered anything but a minor inconvenience in this instance. I do not find that there was anything done by the respondents, or Paragon Security for that matter, to materially breach the settlement in any respect. At best, this cannot be described as anything more than a de minimus (minor) or technical breach of the settlement, and by a non-party at that, acting under a temporary mistaken belief which was quickly corrected. The nature of the actions of the security guard did not amount to a breach of the settlement in this instance and for these reasons I find the application has no reasonable prospect of success.

18This Tribunal has been unwilling, in any event, to order a remedy in situations of a technical, de minimis type of breach and this supports the finding that the application has no reasonable prospect of success. For example, in Adorgloh v. Sentrex Communications, 2010 HRTO 2524, while the Tribunal found that Minutes of Settlement were technically contravened where the respondent mailed settlement monies to the applicant three days later than agreed, it still declined to order any remedy because the breach was de minimis. In Budan-Hughes v. Clemmer Steelcraft Technologies, 2009 HRTO 1618 at para. 9, the Tribunal declined to reconsider its decision dismissing a Contravention of Settlement Application as abandoned partly because the respondent’s eight-day delay in paying the settlement funds was “extremely minor”. The facts and circumstances as described in this Application are similar in proportion and significance and simply do not warrant any remedy regardless.

ORDER

19For the reasons set out above, I hereby dismiss the Application.