Fostka v. Metropolitan Toronto Condominium Corporation No. 1352, 2014 HRTO 704

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Fostka Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 1352 Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: May 15, 2014 Citation: 2014 HRTO 704 Indexed as: Fostka v. Metropolitan Toronto Condominium Corporation No. 1352

APPEARANCES

Edward Fostka, Applicant Kate Sellar, Counsel

Metropolitan Toronto Condominium Corporation No. 1352, Respondent Mark Willis-O’Connor, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation because of disability. The applicant lives in a condominium which has access to a nearby park. The applicant has mobility issues. In June 2012, the applicant asked the condominium board to make an adjustment to fencing around the property that he said would allow him improved access to the park as it would reduce the distance he has to walk to get to the park. The applicant’s request was denied by the Board at an Annual General Meeting of the condominium, and in a letter dated June 27, 2012 addressed to the applicant.

2In 2013, the applicant's brother, who lives in the same condominium, made the same request to change the fencing. It appears that this request was not made specifically on the applicant's behalf, but more generally “in order for residents to have equal access to the beach.” It appears that this request was raised at the Annual General Meeting on June 26, 2013. The Application was filed on July 30, 2013. This was about one month after the June 26, 2013 Annual General Meeting but more than one year after the 2012 Annual General Meeting and the letter of June 27, 2013.

3The Application was delivered to the respondent. The respondent filed a Response which argued that the Application was not filed in time and that it should be dismissed by summary hearing.

4In a Case Assessment Direction dated October 30, 2013, the Tribunal directed that a summary hearing be held to determine if the Tribunal has jurisdiction to deal with the Application because of the timeliness issue and if the Application should be dismissed as having no reasonable prospect of success.

5The summary hearing was heard by telephone conference call hearing on February 7, 2013. After filing the Application and prior to the telephone conference call hearing, the applicant became represented by the Human Rights Legal Support Centre. The applicant did not appear at the telephone conference call hearing but Kate Sellar, counsel with the Human Rights Legal Support Centre did appear. She advised that she did not think it was necessary for the applicant to be present because, in her view, the only issues in the hearing were legal issues. The respondent was represented by Mark Willis-O’Connor. A representative from the condominium was also present.

THE TIMELINESS ISSUE

6Section 34 of the Code provides:

34. (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.

7The Application was filed within one year of the Annual General Meeting at which the applicant’s brother raised the fence issue. It was filed more than one year after the 2012 Annual General Meeting when the applicant raised the fence issue.

8The respondent makes two arguments about the timeliness of the Application. First, the respondent submits that the events at the Annual General Meeting in 2013 when the applicant’s brother raised the issue cannot be seen as an infringement of the applicant’s Code-protected rights because the issue at that time was not raised with respect to the applicant but only more generally on behalf of condominium members who might have mobility issues. Counsel for the respondent points out that under the Code, an Application must relate to a person who believes his or her Code-protected rights have been infringed.

9Second, the respondent submits that even if the events at the 2013 Annual General Meeting are found to be events that involved the applicant specifically and not just the community of people with mobility issues, the events at the time of the 2012 Annual General Meeting cannot be seen as a “series of events” for the purpose of section 34(1)(b). The respondent submits that as a result, at most the Application must be limited to the allegations about the events in 2013 and cannot include the events in 2012.

10I am satisfied that the Application was filed in accordance with section 34. In my view, even if the issue raised by the applicant's brother at the 2013 meeting was raised in the context of condominium residents generally and not expressly on behalf of his brother, since the issue raised was exactly the same issue that was raised by the applicant in 2012, and since the issue was raised by the applicant's brother, I am sure that the 2013 request was understood to relate at least in part to the applicant's specific mobility issues.

11The authority for the proposition that alleged discriminatory events that occurred more than one year apart cannot be seen as a “series of events” for the purpose of section 34(1)(b) is Chintman v. Toronto District School Board, 2009 HRTO 1225. At paragraph 11, the Vice-chair in that case stated:

I note that the delay between the penultimate and the final competition in February 2007 is one year and eight months. As I interpret section 34 where a series of events is relied upon, a gap of more than one year between incidents in a series of events would in most cases interrupt the series in the absence of evidence of the considerations set out in section 34(2).

12This statement does not stand for the proposition that a gap of more than one year can never be regarded as a series of events. It is a general statement that even on its face applies to only “most cases and in any event can only be taken as a general guideline. The gap in Chintman was 20 months whereas the gap in the present case is 13 months.

13In consideration of the circumstances in this case, I am satisfied that the allegations relating to the events at the time of the 2013 Annual General Meeting are sufficiently connected both in their substance and in time to be regarded as a series of events for the purpose of section 34.

THE TRIBUNAL’S SUMMARY HEARING PROCESS

14The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. Details about the process are discussed in the Tribunal’s Practice Direction on Summary Hearings which states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

15The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.

16In some cases, the evidence that the applicant proposes to call is his own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis. However, at the summary hearing stage the Tribunal does not generally assess whether the applicant’s testimony at a hearing will be found to be credible. Assessment of credibility is generally only done when evidence is heard and is subject to cross-examination by the respondent and questioning by the Tribunal. This does not occur in a summary hearing.

SHOULD THE APPLICATION BE DISMISSED AS HAVING NO REASONABLE PROSPECT OF SUCCESS?

17The applicant argues that the Application should not be dismissed at this stage. The main basis for this argument is that the applicant believes that the respondent infringed the applicant's rights by not conducting an investigation to determine if the applicant’s request to alter the fence by changing a section to a gate would result in undue hardship. The applicant also submits that the respondent’s arguments about why the Application should be dismissed require me to accept the respondent’s submissions about the condominium complex and the physical environment as evidence and this could only be properly done at a hearing.

18On this point, I note that one of the purposes of a hearing is to allow the applicant to explain what evidence he will call to show that the respondent’s explanation for what is alleged to have happened is inaccurate, unreasonable or a pretext for discrimination. This does not require acceptance of the respondent’s explanation as true but instead requires the applicant to explain how he will refute the respondent’s explanation. I am also of the view that the fact that a respondent is alleged to have failed to adequately investigate a request for accommodation to determine if undue hardship would result may not be sufficient to establish that the Application should not be dismissed as having no reasonable prospect of success. In some circumstances, an applicant must be able to show that the request for accommodation was reasonable and would appropriately address a Code-related issue. If an applicant cannot show this at a summary hearing, the Application could be dismissed.

19The respondent’s main submission about why the Application has no reasonable prospect of success is that the applicant’s request to change the fencing because of his mobility issues did not seem to make any sense because the route proposed by the applicant would be more difficult for someone with mobility issues than the other available routes. As well, the respondent submits that there is a very reasonable fully accessible route available.

20The condominium complex is surrounded on two sides by a park. To the East, the park includes a beach. From the photos and Google map documents submitted by the respondent, the respondent’s view is understandable if it is assumed that the applicant is concerned about getting to the park entrance to the South of the complex. There is a short path leading from the complex to the park entrance to the South. However, it involves a set of steep steps. However, by travelling through the complex to the West, there is a series of public sidewalks and walkways leading to the park entrance that does not involve a distance that is very much different than the short path with the steps route. The respondent further submits that the ground beyond the fence is rough and uneven and is not land that is owned or controlled by the respondent. The respondent thinks that it could be dangerous for someone with mobility issues to go that way. As well, the respondent thinks that it would be difficult for someone with mobility issues to get through all the doors in the complex itself before even getting to the fence.

21The gate and fence that the applicant has raised are at the Eastern end of the complex. After exiting the fence, it would be a short walk to the part of the park that lies in that direction and that includes a beach. To get to the beach by the Western route would involve quite a bit of walking as compared to the route that would be possible if it was possible to exit through the fence.

22A problem in this case is that it is not at all clear where the applicant wanted to get to by way of the proposed gate in the fence. If he wanted to get to the park entrance to the South, the respondent’s view is understandable. If he wanted to get to the beach, the request for alteration of the fence might not be unreasonable although I note, as indicated above, that this route would require that the applicant cross a stretch of lawn which is not part of the condominium complex and which the respondent does not control. It also appears that the applicant would have to cross a roadway to access the beach area from this route.

23Unfortunately, this answer to this question is not clear on the basis of the materials submitted by the applicant. It could have been cleared up if the applicant’s representative had recommended that he participate in the summary hearing. However, this did not happen, apparently because his representative felt that the issues in the summary hearing were limited to the legal issue of whether the respondent had met its procedural duty to accommodate the applicant by properly investigating his request.

24I should also note that the respondent appears to have reached out to the applicant in an attempt to resolve matters but the applicant chose not to respond on the grounds that he was now represented and the matter was before the Tribunal. While this is not directly relevant to the issues before me, it did seemingly represent an opportunity to at least clear up any misunderstandings that may exist about what the problems are and how they can best be addressed.

25While I am concerned that the applicant has not presented a clear explanation for why the respondent’s understanding of his request and the reasonableness of his request was wrong, there is also some ambiguity about whether the respondent understood the purpose of the applicant’s request and considered that request in light of the Code.

26For this reason, I am not satisfied that it is appropriate to dismiss the Application at this time.

27In the Application, the respondent indicated it was willing to participate in mediation. The applicant did not confirm that he was willing. As the applicant was not present for the conference call, it was not possible to clarify whether the applicant is willing to try to resolve the Application through mediation.

28Within two weeks, the applicant shall advise the Tribunal if he is willing to try mediation. If so, the Tribunal will schedule a mediation session. If not, the Tribunal will continue to process the Application and schedule a one day hearing.