Simona Noe v. Ranee Management, 2014 HRTO 746

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simona Noe Applicant

-and-

Ranee Management Respondent

DECISION

Adjudicator: Douglas Sanderson Date: May 23, 2014 Citation: 2014 HRTO 746 Indexed as: Noe v. Ranee Management

APPEARANCES

Simona Noe, Applicant Self-represented

Ranee Managment, Respondent David Strashin, Counsel

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 occupancy of accommodation because of disability.

Background

2The applicant identifies herself as a person suffering from environmental sensitivities. At the time of the Application, the applicant lived in an apartment in a building operated by the respondent at 195 Barrington Avenue in Toronto, Ontario. The applicant alleges that the respondent paints and varnishes apartments when a tenant moves out and that the fumes from the paint and varnish cause her to be very ill. The applicant states that she made a request to the property manager to be transferred temporarily to another unit when the apartments next to hers were painted and varnished in December 2011, but the request was denied. In March 2012, the applicant requested assistance from the Centre for Equality Rights in Accommodation (CERA). The applicant states that CERA advocated on her behalf throughout the spring and summer of 2012 to have the respondent accommodate her environmental sensitivities by providing her with another apartment or by using less toxic chemicals. The applicant states that she provided medical information to support her request, but the respondent did not accept this information as sufficient to require accommodation. The applicant asserts that in July 2012 the respondent agreed to notify her in advance of doing work on apartments on her floor and that it would use less toxic products in nearby units. The applicant alleges that the respondent did not honour this commitment and varnished and painted apartments on her floor in July and October 2012 and also installed new carpets on her floor in July 2012 without notice to her and did not use less toxic products.

3In its Response, the respondent acknowledged that the applicant was a long-term resident at 195 Barrington Avenue, a building managed by the respondent. The respondent states, however, that the applicant did not provide notification of any of the symptoms set out in the Application. The respondent states that the medical information provided by the applicant was vague and did not indicate that any tests were performed to link the applicant's complaints with the conditions alleged to exist in the apartment building. The respondent states that it is prepared to accommodate the applicant by using low/non-toxic products and by providing notice to her regarding work to be performed in the building upon presentation of appropriate medical evidence.

The Hearing

4The Tribunal scheduled this matter for hearing on February 20 and 21, 2014. Both parties appeared on February 20, 2014, but the first day of hearing was adjourned because the respondent's counsel, Mr. Strashin, was ill. Fortunately, Mr. Strashin recovered sufficiently for the hearing to proceed on February 21, 2014. At the outset of the hearing, the applicant sought to tender chemical analysis reports regarding her apartment at 195 Barrington Avenue. The applicant had not disclosed these documents prior to the hearing as required by Rule 16 of the Tribunal's Rules of Procedure. In my view, these documents went to the remedies requested by the applicant. Accordingly, rather than adjourn the hearing, I directed that the hearing would be bifurcated, i.e., that I would hear evidence and argument about whether the applicant's Code rights had been breached. I would then render a decision on this issue and would later reconvene a hearing regarding the appropriate remedy, if necessary.

5The applicant testified and tendered several documents into evidence. The respondent did not adduce any evidence.

Evidence/Facts

6There was little, if any, dispute about the facts in this matter. There was no dispute that the applicant on her own and with the assistance of CERA, requested that the respondent accommodate her regarding the use of chemicals, such as paint and varnishes. The parties agree that the applicant provided the respondent with two letters from her doctor. The first, dated February 28, 2012, stated as follows:

To whom it may concern,

Re: Simona Noe

This lady has a history of allergic sinusitis/rhinitis. She is negatively affected by the poor air quality in her apartment during this last 3 months. She is unable to sleep in her bedroom due to the chemical smell. Simona sleeps in the living room with a noisy fridge and chemical smell there as well. She requires a change of apartment.

7There is no dispute that the respondent considered this letter to be inadequate The applicant therefore provided the respondent with a second letter from her doctor, dated March 8, 2012, which stated as follows:

To whom it may concern,

Re: Simona Noe

This lady has been a patient of mine from February 2009 onwards. I see her on a fairly regular basis. After work was done to the 2 apartments next (sic) hers (sanding and varnishing of floors and painting of walls), her health started to deteriorate. She suffers from multiple environmental sensitivities (varnishes, latex products, cleaning products, strong fragrances designed to mask odours/smoke).

8It is common ground that the respondent took no action to address the applicant's concerns. There was also no dispute that the respondent performed the work in the apartments near the applicant's apartment as described in the Application.

9The applicant's evidence was that the fumes given off by the chemicals the respondent used at 195 Barrington Avenue would cause her to have cramps, palpitations and problems with her nose and eyes and that she found it difficult to go into areas where she encountered such fumes. The applicant stated that in response to her accommodation requests the property manager did not answer her calls and was not responsive to her requests. The applicant stated that, when she did speak with him, he would always ask her "why do you complain" and would tell her not to complain. The applicant testified that her inquiries were often ignored by the respondent.

10In cross-examination, the applicant confirmed that she lived at 195 Barrington Avenue from December 1993 until November 2013, when she moved to an apartment on Eglinton Avenue. The applicant also stated in cross-examination that between December 1993 and the late fall of 2011 no apartment on her floor had been painted or varnished, explaining that no one on the floor moved for a long time. She stated however, that one of the apartments next to hers was then painted and varnished twice in a 3 month period. The applicant stated that if she was moved to an area where chemicals were not in use she would have no difficulties.

Argument

11The applicant submitted that she requested accommodation of environmental sensitivities, but the respondent would not listen to her. The applicant submitted that she sent letters to the respondent, but was ignored and treated like a "crazy lady". The applicant submitted that she paid rent to the respondent and should not have had to live with pollutants.

12The respondent acknowledged that it has obligations under the Code to accommodate tenants if they have real needs based on Code grounds. The respondent submitted that it is not unreasonable for a respondent to make inquiries or conduct due diligence when faced with a request for accommodation. The respondent submitted that an accommodation request must be accompanied by information substantiating the request. The respondent submitted that the medical evidence provided by the applicant provided no evidence that the conditions in the apartment changed over the course of her tenancy. Specifically, the respondent submitted that the applicant presented no evidence of any change the respondent made to the types of cleaning, painting and varnishing products it uses in apartments after tenants move out.

13The respondent submitted that the two medical notes authored by the applicant's doctor did not indicate that the applicant had been referred to an allergist or had undergone testing to confirm her diagnosis. On this point, I asked counsel for the respondent if he could point to any case law that indicates that secondary testing or referral to a specialist is required to support a request for accommodation. Mr. Strashin conceded that he was not aware of any such case law, but submitted that the applicant needed to provide better information that she did.

14The respondent submitted that it had made a commitment to notifying the applicant of work on apartments and to use less toxic materials. The respondent submitted that this commitment was made on pragmatic grounds and not because there was any obligation under the Code to do so. I note that the only evidence before me on this point is that the respondent did not meet this commitment, whatever the basis for it.

Analysis and Decision

15The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent's use of chemicals such as paint and varnishes and the failure to accommodate her disability related needs regarding these chemicals amounted to an infringement of her human rights. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

16The relevant sections of the Code are as follows:

2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

10(1) In Part I and in this Part,

"disability" means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

17This Application focusses on the issue of accommodation. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

18Section 17 of the Code provides a defence where a person is unable to perform the essential duties of an activity, e.g., employment, because of disability, subject to the duty to accommodate. The respondent did not rely on a defence under section 17 and, in my view, section 17 does not apply to this case. Section 24 of the Code identifies several specific exceptions regarding equal treatment in employment that also do not apply here. The applicant did not suggest that the respondent's use of various chemicals at 195 Barrington Avenue was overtly discriminatory; therefore, for the Application to succeed I must find that using these chemicals amounted to constructive discrimination, under section 11 of the Code.

19Jurisprudence regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations. A person seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation and must act in a reasonable and cooperative manner. The party receiving the request, however, is primarily responsible for determining how best to accommodate, based on the information provided by the person seeking accommodation regarding his or her restrictions. The party responsible for accommodation may also seek further information regarding the request. See for example, Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at page 31. In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the Tribunal described how the duty to accommodate is triggered at paragraph 35:

In order to trigger the duty to accommodate, it is sufficient that an employer be informed of the employee's disability-related needs and effects of the condition and how those needs and effects interact with the workplace duties and environment. As such, an employee does not necessarily have to disclose a detailed diagnosis of the disability in order for an employer to respond to a request for accommodation. This is not to detract from the well-established principle that accommodation is a collaborative process and the applicant should endeavour to provide as much information as possible to facilitate the search for accommodation.

20There is no dispute that the respondent used chemicals such as varnishes and paint at 195 Barrington Avenue. There is nothing discriminatory per se about using such chemicals, but the evidence was that exposure to the fumes given off by these chemicals caused the applicant to be ill and prevented her from accessing areas where fumes were present, including her own bedroom. I find therefore, that the respondent's use of these chemicals adversely affected the applicant.

21I further find that this adverse effect was related to a disability. There is no dispute that the applicant requested accommodation regarding her sensitivities to the chemicals, e.g., paint and varnish, the respondent used at 195 Barrington Avenue. The respondent did not accept the need to accommodate the applicant. The applicant provided the respondent with two letters from her doctor that connected the applicant's conditions to her medical condition. The respondent argued that these letters were inadequate, but presented no evidence to explain how the information presented by the applicant was insufficient to support her request for accommodation. I find no merit in the respondent's position. As noted above, the duty to accommodate is triggered when a person seeking accommodation of a disability requests it and identifies his or her needs. The applicant did this and provided medical information that confirmed her needs and identified her diagnosis – allergic sinusitis/rhinitis and multiple chemical sensitivities. This went beyond the information a person seeking accommodation is generally required to provide since although a person seeking accommodation must disclose their disability related needs they are not necessarily required to disclose the specific diagnosis or condition. See Simpson, above. The respondent provided no basis for questioning the medical information provided by the applicant. I find that the conditions described in the doctor's letters come within the definition of disability under the Code.

22In these circumstances, I find that the respondent was obliged to accommodate the applicant to the point of undue hardship, which it made no attempt to do. The respondent did not argue that using the chemicals it did was a bona fide requirement or that it could not accommodate the applicant. To the contrary, the respondent's position was that it could accommodate the applicant by using less toxic chemicals, for example, but concluded, incorrectly, that it was not obliged to do so.

23The respondent argued that the applicant presented no evidence that it had changed the chemicals used at 195 Barrington Avenue. First, whether the respondent used the same or similar chemicals throughout the applicant's tenancy is irrelevant. Whatever its past practices, the respondent was obliged to address the applicant's request for accommodation. Second and in any event, the only evidence before me was that the applicant had limited exposure to chemicals at 195 Barrington Avenue until late 2011.

24I find that the respondent's use of chemicals at 195 Barrington Avenue, such as paint and varnishes, had a discriminatory effect on the applicant because of disability and that the respondent failed to accommodate the applicant's needs to the point of undue hardship. Consequently, the respondent violated the applicant's right to be free from discrimination with respect to the occupancy of accommodation, pursuant to section 2(1) of the Code.

Next Steps

25As noted above, the parties did not address the issue of remedy during the hearing on February 21, 2014. The Tribunal shall schedule a one-day hearing in person to address the issue of the appropriate remedy for the breach of the applicant's Code rights. Not less than 21 days prior to the hearing date, each party shall file with the Tribunal and deliver to the other party any additional documents that they intend to rely upon at the hearing, along with witness statements summarizing the evidence of any witnesses they intend to call, including the applicant.