Jurcic v. United Croats of Canada Branch Dr. A. Pavelic and A. Saric, 2014 HRTO 329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Jurcic

Applicant

-and-

United Croats of Canada Branch Dr. A. Pavelic and A. Saric and Drago Banjavcic

Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: March 11, 2014 Citation: 2014 HRTO 329 Indexed as: Jurcic v. The United Croats of Canada Branch Dr. A. Pavelic and A. Saric)

APPEARANCES

Mary Jurcic, Applicant Self-represented

The United Croats of Canada Branch Dr. A. Pavelic and A. Saric and Drago Banjavcic, Respondents Drago Banjavcic, Representative

1The applicant alleged that the respondents discriminated against her because of marital status contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondents discriminated when they evicted her from a cottage that she and her husband were permitted to use for a period of approximately twelve years. The organizational respondent evicted both the applicant and her husband from the cottage after her husband was suspended and later expelled from the organization.

2The Tribunal held a hearing into the Application on February 21, 2014. I heard testimony from the applicant; her husband Milan Jurcic; and the personal respondent, Drago Banjavcic who is also the current president of the organizational respondent.

3For the reasons set out below, the Application is dismissed.

Factual Background

4The organizational respondent is a volunteer run not-for-profit corporation that is governed by a board of directors. The organization’s main purpose is to provide social activities for its members, all of whom are members of the Croatian community. The organization plans activities such as dinners and picnics for its members. Members of the organization assist with these activities on a volunteer basis. For example, members volunteer to cook for the picnics and to clean up afterwards.

Applicant’s Membership Within Organization

5The applicant testified that she was a member in good standing of the organization since she joined. The applicant did not recall when she joined the organization but her husband testified that she joined in 2005.

6The applicant’s husband was very active with the organizational respondent, as well as its parent organization, the United Croats of Canada, for over a decade. He was president of the organizational respondent until he was suspended and later expelled due to circumstances that led to a decision of the Ontario Superior Court of Justice in August 2012. The reasons why the applicant’s husband was expelled from the organization are irrelevant for the purposes of this Application.

7After the organization suspended Mr. Jurcic’s voting rights, the applicant and her husband continued to submit cheques to cover both the fee for the use of the cottage and their membership fees. The applicant entered into evidence cheques dated July 2010 and May 2012 that were not cashed by the organizational respondent. The personal respondent testified that the cheques were not cashed since the organization had evicted the applicant and her husband from the cottage and therefore it would not accept the rental fee from them. It appears that neither the applicant nor the respondents followed-up either to provide or to accept payment of the applicant’s membership fees, even if the respondent was refusing to accept the cottage fees from the applicant and her husband.

Applicant’s Level of Activity Within Organization

8In general, the applicant had trouble recalling the timing and details of relevant events in her testimony. The applicant testified that from approximately 2004 to 2010 she was not very active within the organization because she worked on week-ends and most of the organization’s activities took place on week-ends. The applicant did not recall the exact year that she ceased employment but she stated that it was likely around 2010. When asked in cross-examination, what activities she had participated in during her time as a member, the applicant testified that she had helped to do the dishes after a couple of dinners. When asked to provide more details, she could only provide details of helping to wash dishes after one dinner and she could not remember when it was.

9The applicant did not deny that she was not very active within the organization even after she left her employment. She claimed that this was because the organization never invited her to take part in, or volunteer for, the organization’s activities. She testified that the organization would assign members to carry out various volunteer tasks in relation to the organization’s activities. She stated that the organization never assigned her to any tasks. She testified that she would have been more active if the organization had provided her with volunteer opportunities. The applicant testified that after her husband’s suspension, she often heard other members talking about how she and her husband were being pushed out of the organization. She testified that there was general talk amongst members that she and her husband were no longer welcome within the organization. However, she did not provide any evidence linking such general talk to any specific actions of the respondents.

10The personal respondent testified that the organizational respondent does not personally invite members to its activities. Instead, the organization announces activities through a Croatian radio station and/or in a bulletin posted at a church attended by many of the organization’s members. The personal respondent testified that the organization has a working committee that organizes events. He testified that the organization tried assigning volunteers to tasks in 2012 and 2013 but stopped the practice because it did not work well. He stated that both before this time and now, the organization simply announces events and accepts assistance from whoever shows up to volunteer before and after these events. He testified that, in practice, most volunteer work is done by members of the organization’s board and its committees. However, he testified that any member is welcome to help out by doing volunteer work.

Use of Cottage By Applicant and Her Husband

11The organizational respondent owns a large piece of land with a community center and several cottages in or near Caledon, Ontario. It was not disputed that the organizational respondent permits members who are especially active within the organization to use these cottages as an acknowledgement of their service to the organization. The members who are granted use of the cottages typically use them at various times from the spring to the fall of each year.

12It was not disputed that the organizational respondent permitted the applicant and her husband to use one of the cottages over a period of approximately twelve years because of Mr. Jurcic’s contributions to the organization. It was also not disputed that sometime after Mr. Jurcic’s suspension, the organization advised Mr. Jurcic and the applicant that they were no longer permitted to use the cottage. The parties did not agree on whether or not the organizational respondent provided the applicant and her husband with proper notice of eviction. However, the issue of proper notice is not relevant to determining whether discrimination occurred in this case.

13The applicant testified that she was a member in good standing of the organization at the time that the organization denied her and her husband use of the cottage. Mr. Jurcic’s voting rights within the organization were suspended at a meeting of members in 2008. The organization’s board of directors expelled him from membership in 2012. The personal respondent was a member of the organization’s board of directors at the time of Mr. Jurcic’s expulsion from the organization. He testified that the board of directors voted unanimously to expel Mr. Jurcic from the organization. He also testified that the board decided to deny the applicant and her husband the right to continue using the cottage they had been using for twelve years. When I asked the personal respondent whether the board had considered permitting the applicant to use the cottage on her own, he replied that the applicant was not very active within the organization and she was not offered continued use of the cottage for that reason. The personal respondent testified that the board determined that the use of the cottage should be granted to a more active member of the organization.

14The applicant’s husband testified that there were two or three female members of the organization who have been permitted to continue using cottages after their husbands died. He alleged that the applicant was being treated differently from these other women due to her association with him. The personal respondent did not deny that the organization has permitted some members to continue using cottages after their spouses died. However, he testified that the female members referred to by Mr. Jurcic remained active in the organization in terms of attending events and providing services to the organization. He gave the example of a woman who owns a flower shop and provides flowers for the organization’s events.

Parties’ Submissions

15The applicant submitted that she deserved to stay in the cottage that she and her husband had been using. She claimed that the respondent discriminated against her because of marital status by evicting her from the cottage when her husband was suspended and later expelled from the organization.

16The respondents denied that they discriminated against the applicant. As a preliminary matter, they argued that the Application did not fall within any of the social areas covered by the Code (such as accommodation or services). They also submitted that the applicant’s marital status was not a factor in their decision to evict the applicant along with her husband. The respondents submitted that the applicant was not permitted to continue using the cottage after her husband’s expulsion because she was not active as a member of the organization. The respondent argued that it was simply applying its policy of providing use of the cottages to members who were most active within the organization.

Applicable Law

17Under ss. 1 and 2 of the Code, every person has a right to equal treatment with respect to services and the occupancy of accommodation without discrimination because of a number of grounds including marital status. The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. The case law is clear that a protected ground need only be one of the factors involved for there to be a violation of the Code.

18In s. 10 of the Code, “Marital status” is defined to mean the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage.

Analysis and Findings

Preliminary Ruling

19At the hearing, the respondents made a preliminary request that the Tribunal dismiss the Application on the basis that the applicant’s allegations did not fall under any of the social areas covered by the Code. I denied the respondents’ request on the basis that the applicant’s allegations engage the Code’s protection against discrimination in the occupancy of accommodation and with respect to services. In my view, the protection against discrimination in the provision of accommodation in s. 2 of the Code is broad enough to encompass the provision of cottage accommodation such as in this case. In addition, the Tribunal has interpreted the term “services” to include membership in private association and organizations such as the organizational respondent in this case. See for example: Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association), 2006 HRTO 1 and Barclay v. Royal Canadian Legion, Branch 12 (1997), 1997 CanLII 24838 (ON HRT), 31 CHRR D/486.

Findings re. discrimination

20I find that the applicant has not established on a balance of probabilities that she was discriminated against because of marital status.

21It is clear from Supreme Court of Canada case law that the ground of marital status encompasses circumstances where discrimination results from the particular identity of a complainant’s spouse or family member. See B. v. Ontario (Human Rights Commission), 2002 SCC 66. However, the applicant has failed to satisfy me on a balance of probabilities that her marital status, or her husband’s identity, were a factor in the respondents’ decision to evict her from the cottage that she and her husband had been using prior to his expulsion from the organizational respondent.

22As noted above, it was not disputed that the organizational respondent grants the use of cottages to members who are most active within the organization. It was also not disputed that the organizational respondent granted the applicant and her husband use of a cottage due to her husband’s significant contributions to the organization before his voting rights were suspended and he was later expelled.

23The applicant also did not dispute that she was not ever very active within the organization. The applicant’s own evidence was that since she became a member of the organization in 2005 she had volunteered at most a couple of times. In fact, she could only provide detailed evidence about volunteering once in that period of time. Based on this evidence, I accept the organizational respondent’s submission that it evicted the applicant from the cottage at the same time as her husband because she herself had not demonstrated the level of activity within the organization that would lead it to continue to offer her use of the cottage.

24As noted above, the applicant argued that she would have been more active in the organization if they had only invited her to volunteer with the organization. I do not accept this submission. I do not find it credible that the organization had a practice of assigning volunteer work on an invitation only basis. I find the evidence of the personal respondent more credible that if the applicant had wanted to volunteer for the organization she could have done so by showing up and assisting with the organization’s social activities as other members did. It may well be, as the applicant testified, that there was general talk amongst members that she and her husband were no longer welcome within the organization. It may also be that other members did not treat her and her husband fairly after his expulsion from the organization. However, the applicant provided no detailed evidence linking these actions or statements by members to actions of the respondents in this case.

25For all of these reasons, I find that the applicant has failed to establish on a balance of probabilities that she was discriminated against because of her marital status.

26However, I must note that I am concerned that the organizational respondent appears to have refused to renew the applicant’s membership within the organization as of sometime around 2010. As noted above, the applicant sent the organization cheques to cover both her membership fee and the cottage rental fee. The organization did not cash these cheques allegedly because it had issued several evictions notices to the applicant and her husband. In my view, the applicant should have been permitted to remain a member of the organization since there is no evidence of her being expelled along with her husband. Any refusal by the organizational respondent to accept her as a member could amount to marital status discrimination due to the Supreme Court of Canada’s finding in B. v. Ontario, above.

27The applicant did not pursue any claim of alleged discrimination with respect to her organizational membership either in her Application or at the hearing. As well, the evidence with respect to the applicant’s membership in the organization at the hearing was generally very unclear in part due to the applicant’s lapses in memory and what appears to be relatively informal record-keeping by the organization. Also, despite the uncashed cheques, the applicant herself stated she was a member in good standing of the organization at the time of her eviction from the cottage. In these circumstances, I can make no finding of discrimination in relation to the applicant’s membership in the organization. The applicant did not pursue any allegations with respect to her membership and accordingly she has not met her onus of proving discrimination with respect to her membership on a balance of probabilities.

ORDER

28For the reasons set out above, the Application is dismissed.