HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ian Ramadhin
Applicant
-and-
Krishnaveni Chavali
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Ramadhin v. Chavali
APPEARANCES
Ian Ramadhin, Applicant
Self-represented
Krishnaveni Chavali, Respondent
Reddy Chavali, Representative
Introduction
1This is an Application filed on July 21, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of sex, sexual orientation, family status, and reprisal. The respondent filed a Response, to which a number of documents were attached, denying the allegations. The respondent requested that the Tribunal dismiss the Application because the issues had been addressed in eviction proceedings before the Landlord and Tenant Board (“LTB”).
brief conclusion
2The Application is allowed in part. For the reasons set out, I find that the respondent discriminated against the applicant on the basis of sex and sexual orientation in housing contrary to the Code, but not on the grounds of family status or reprisal. I do not find that section 45.1 of the Code applies to this situation.
the parties
3The applicant was a tenant who rented a bachelor apartment in one of the apartment buildings owned by the respondent and her husband, who represented the respondent during the hearing. The applicant self-identifies as gay, and has a same-sex relationship with his partner, who resided at a different address.
4The respondent and her husband are both landlords, although Mr. Chavali was not named as a respondent. They did not live in the apartment building in which the applicant was a tenant. The respondent and Mr. Chavali self-identify as elderly “senior citizens”, retired, and stated that they are both over 82 years of age. They testified about the university degrees that they have and the professional employment positions they have held in Canada, including the respondent teaching at an Ontario university. They have extensive experience as landlords. At the time of the hearing, they had 5 properties, but in the past have owned and operated 34 properties at one time.
5The respondent and Mr. Chavali appear to be sophisticated litigants, which becomes relevant in relation to their conduct in the Tribunal’s proceedings. In response to Question 20 on the Application form “Other Important Information the Tribunal Should Know”, the applicant submitted “Landlord has a Supreme Court sanction against litigating others”. Judicial notice allows the Tribunal to take notice of “notorious and undisputed facts”: see, for example, Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at para. 77, and applied in, for example, C.M. v. York Region District School Board, 2009 HRTO 1678 at para. 11.
6In this regard, the Tribunal can take judicial notice of various reported decisions of the courts, including from the Ontario Court of Justice (General Division), Court of Appeal for Ontario, and/or the Supreme Court of Canada, pertaining to the respondent and her representative. This includes a finding by Mr. Justice Cumming of the Ontario Court of Justice (General Division) that the respondent and her representative, along with their son and corporations that were owned or controlled by them, “instituted vexatious proceedings and conducted proceedings in a vexatious manner” such that an order was made to this effect under section 140 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended (the “CJA”). See Law Society of Upper Canada v. Chavali, [1998] O.J. No. 5890 at para. 22, upheld on appeal by the Court of Appeal for Ontario in Law Society of Upper Canada v. Chavali, 1998 CanLII 5043. See also the decision of Mr. Justice Nordheimer in Chavali v. Law Society of Upper Canada, 2005 CanLII 53071 in which the Court ordered, amongst other things, that the respondent and her representative, and others, are prevented from commencing any application under section 140(3) of the CJA for leave to proceed until they paid all outstanding costs awards and obtained a court order giving them permission to bring an application under section 140(3) for leave to proceed with a proceeding or a step in a proceeding.
procedural background
The parties’ conduct during the Tribunal’s proceedings
7This was a difficult and fractious proceeding because of the conduct by the respondent and her representative. The respondent and her representative disregarded the Tribunal’s rules and directions, which generated Case Assessment Directions (“CAD”) and Interim Decisions (“ID”) being issued by the Tribunal, and were discourteous to the Tribunal, its processes, and the applicant, during the course of the hearing.
8The behaviour of the Chavalis had an impact on the applicant. In addition to being offended and visibly upset by their comments and conduct, the applicant became agitated and would engage in heated discussions with the Chavalis, primarily Mr. Chavali, as he was the respondent’s representative. When I directed the parties to direct their comments to me and to calm down, the applicant almost always apologized and immediately attempted to regain his composure. The applicant was generally very compliant with the Tribunal’s orders, directions and rulings.
The hearing and rulings issued by the Tribunal
9Prior to the first day, the Tribunal issued a CAD dated June 19, 2012 as the parties had failed to comply with their disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure, as set out in the hearing notices. The Tribunal noted that there were consequences if these obligations were not met, and directed the parties to immediately comply. The applicant subsequently complied, but the respondent did not.
10The hearing was scheduled for July 20, August 17, October 25, November 27, 2012, and May 22 and 23, 2013. The May 23, 2013 hearing date was not needed as the hearing concluded at approximately 5:30 p.m. on May 22, 2013. The respondent and her representative did not attend the November 27, 2012 hearing.
11The Tribunal heard evidence from the applicant and Mr. Pershad. The Tribunal permitted Mr. Chavali and the respondent to testify despite ruling otherwise in a July 2012 ID, on the basis that the applicant did not oppose their testimony. An exclusion of witnesses was issued such that Mr. Pershad was not present while the applicant testified. Mr. Chavali testified before the respondent did; being a party, the respondent was present during the testimony of Mr. Chavali.
12During the hearing, the Tribunal issued a number of oral rulings about the inadmissibility of various documents. It denied the applicant’s request to introduce blog entries, of which he was not the author, about the respondent and Mr. Chavali as landlords, finding that they were not relevant. It denied the respondent’s attempts to introduce documentation during the hearing that she had not previously disclosed, despite directions issued orally and in writing from the Tribunal to do so.
July 20, 2012 hearing date
13On July 20, 2012, the respondent was not present at 9:30 a.m., the time the hearing was scheduled to commence at the Tribunal’s hearing centre, located at 655 Bay Street, Toronto. Consistent with its practice, the Tribunal held down the start of the hearing until 10:00 a.m. When the respondent still was not present at 10:00 a.m., the hearing commenced and the applicant started to testify.
14The respondent and her representative arrived after 10:30 a.m., and while the applicant was testifying. Mr. Chavali stated that they were late leaving their house and they did not know that there was a Tribunal telephone number to call to advise that they would be late. He advised that they wanted to participate in the hearing. The respondent advised that there were additional witnesses they wanted to call, although the witnesses did not know about the hearing date and had not been subpoenaed, there were additional documents that they wanted to rely upon although they did not have copies with them, and that they were seeking an adjournment. The respondent advised that she would immediately file her documentation with the Tribunal.
15The Tribunal issued an oral ruling permitting the respondent to participate in the hearing and directed that the applicant start his evidence again.
16Immediately after issuing this oral ruling at 11:15 a.m., Mr. Chavali advised that they had another hearing scheduled that day at 1:30 p.m. in Markham which was a continuation hearing before a justice of the peace. He advised that they would need to leave the Tribunal hearing early enough to go home to pick up their materials for the Markham hearing and then travel to Markham. I gave the respondent and Mr. Chavali until 12:05 p.m. to contact those involved in the Markham hearing and to make arrangements to adjourn that hearing, and made arrangements for a telephone, telephone book and room to be available to them as Mr. Chavali advised that he did not have the telephone numbers with him. The Chavalis returned at 12:24 p.m. and Mr. Chavali advised that they were willing to forego the Markham hearing and participate in the Tribunal hearing. With that, the applicant’s examination-in-chief recommenced.
17The respondent caused further delays that day. The hearing adjourned for lunch at 1:25 p.m. and I stated that it would resume at 2:15 p.m. The respondent and Mr. Chavali did not return until 2:40 p.m., without an explanation for their delay, and I advised them that if they did not return on time, the hearing would proceed in their absence.
18Later on the first day of hearing, during the applicant’s cross-examination, the applicant and the Chavalis were shouting at each other such that the hearing became disrupted and the Tribunal determined that a short break was required. I reminded the parties and Mr. Chavali that they were to direct their comments to me rather than to each other. I pointedly told the respondent that she was to refrain from speaking during the hearing, apart from her own evidence, as she had representation. Mr. Chavali challenged my decision to have a short break, but a break was taken to restore order in the proceedings. Regrettably, such conduct continued throughout the hearing.
19A CAD dated July 30, 2012 was issued by the Tribunal addressing the respondent’s failure to comply with her Rules 16 and 17 disclosure obligations, which she had represented, on the first day of hearing, would be immediately filed with the Tribunal. The CAD also addressed section 45.1 of the Code and mediation-adjudication. Once again, the Tribunal directed the respondent to comply with her disclosure obligations within one week of the issuance of the CAD. The respondent did not comply with these directions or otherwise communicate with the Tribunal.
20An ID dated August 13, 2012, 2012 HRTO 1564, was issued by the Tribunal. In it, the Tribunal described the respondent’s conduct on the first day of hearing and noted that the respondent still had not complied with her disclosure obligations. The Tribunal ruled that the respondent could not present any documents, apart from those attached to her Response, and could not call any witnesses. She could conclude her cross-examination of the applicant, which had already started.
August 17, 2012 hearing date
21At the commencement of the second day of hearing, on August 17, 2012, Mr. Chavali advised the Tribunal that he sent a fax to the Tribunal at approximately midnight the night before containing documentation which he wanted to introduce during the hearing.
22In response to a question from the Tribunal about why the respondent had not filed this following the last day of hearing and the July 30 CAD that was issued, Mr. Chavali advised that the respondent was in emergency in the hospital during the day on August 8 and was discharged later that night. The respondent spoke up and said that she was on her “deathbed” and “feared for her life”. Mr. Chavali submitted that they were elderly people and that he himself had knee surgery over a year ago and continued to have problems with his knee.
23The Tribunal gave a break so that it and the applicant could review the fax and so that the Tribunal could receive submissions from the parties about the admissibility of the documentation. The parties provided submissions and then a short break was given following which the Tribunal made an oral ruling as follows:
At 12:12 a.m. on August 17, the day this hearing continued, the respondent faxed 25 pages to the Tribunal and handed the Tribunal and the applicant copies at the hearing. The applicant had not previously received a copy of this material despite a letter dated August 15 at the front of the materials indicating that he had been hand delivered [a copy] as it is addressed to both the applicant and the Tribunal.
Despite his frustrations, which the Tribunal has noted and shares, the applicant does not object to many of the documents being introduced at this hearing as most of them were attached to the respondent’s Response. He does object to a delivery of vacant possession of eviction which had not been previously disclosed and on which, he reminded the Tribunal, that the Tribunal ruled at the July hearing date was inadmissible and he objects to the medical documentation [of the respondent] as it is not relevant to the allegations contained in his Application.
I have determined that the respondent can rely upon the documents contained in this fax as evidence, except for the delivery of vacant possession upon which I have already ruled to be inadmissible, the medical letter and the letter dated August 15. While the August 15 letter and the medical documentation are not admissible as evidence, I have considered them and they are part of the record as they address the respondent’s failure to comply with the previous directives of the Tribunal.
It has been almost 2 months since I issued the June 19 CAD directing the parties to comply with their disclosure obligations which included identification of witnesses and witness statements and despite this passage of time, the respondent still has not provided information or contacted Mr. David Bell, Mark Bell and David Krystal [whom she identified as being witnesses during the hearing] and has not subpoenaed them to attend and these witnesses will not be permitted to testify. Mrs. Chavali and Mr. Chavali will be permitted to testify and the applicant will have the opportunity to cross-examine them.
I want to repeat various directions that have been issued to Mrs. Chavali to refrain from outbursts and making comments during the course of the hearing. As I said earlier, the parties’ conduct is reflected in the decision and if she continues with this conduct, there may be further directions issued including the assumption that Mrs. Chavali no longer wants to be represented by Mr. Chavali and she will have to represent herself with Mr. Chavali having to sit in the hallway until he is called as a witness.
There has been an exclusion of witnesses and I ask that Mr. Pershad leave the hearing room.
24The cross-examination of the applicant then continued. Approximately 30 minutes after the cross-examination recommenced, the respondent advised that she was not well, that she had a “real headache” and “God will help me”. She advised that she has been to the Supreme Court of Canada several times and never “had this type of experience of sitting in this type of hearing before”. After a 15-minute break, before which the Tribunal advised the Chavalis to determine whether or not the respondent required medical attention, the hearing resumed with Mr. Chavali requesting mediation-adjudication. The applicant agreed. The parties, and Mr. Chavali, agreed to the terms of the Tribunal’s mediation-adjudication agreement, which had been attached to the July 30 CAD. The parties spent some time in mediation discussions with the Vice-chair but were unsuccessful in reaching a settlement, so the hearing resumed again after those discussions and a lunch break.
25Upon return from the lunch break, Mr. Chavali again advised that the respondent was not well and had thrown up her lunch. He said that the respondent could only proceed for another 30 minutes and then would be unable to proceed for the rest of the day as he would take her to the doctor. The Tribunal asked if the respondent required medical attention, to which Mr. Chavali said he would have to see. He also commented that perhaps at the next hearing, the respondent would have legal representation.
26The cross-examination took place for another 40 minutes before the hearing was adjourned for the day. Towards the end of the 40 minutes, the respondent was yelling out comments about the applicant including calling him “crazy”, “homosexual”, “everything is a fabrication”, “they should leave”. The applicant objected to these comments and the parties and Mr. Chavali were all shouting and talking at once. The Tribunal said that a short break would be taken so that the parties could calm down because everyone was talking and shouting at the same time and advised the respondent to refrain from such comments.
27When the break was over and the hearing recommenced, Mr. Chavali advised the Tribunal that for medical reasons, the respondent’s high blood pressure, the respondent could not continue that day. Mr. Chavali and the applicant also raised concerns with each other’s behaviour, with Mr. Chavali alleging that the applicant had attempted to call Mr. Justice Nordheimer when the Vice-chair was out of the room, and was trying to use things “against elderly people”, and Mr. Chavali requested production of the applicant’s cell phone to check the number that he was calling. The applicant alleged that during the break, the Chavalis discussed that they wanted an adjournment so that they could retain counsel. The applicant was prepared to hand his phone to the Vice-chair so that she and Mr. Chavali could look at it together.
28I declined the opportunity to review the applicant’s cell phone, saying that it was not relevant to the issues before me, and that Mr. Chavali could address his request in writing if he chose to. The hearing was adjourned for the remainder of the day at 3:11 p.m. because of the medical condition the respondent was alleged to have. The Tribunal stated that the applicant could address this in his final submissions. The Tribunal’s Commissionaire came into the room to provide assistance to the Chavalis in leaving the room, which they declined.
October 25, 2012 hearing date
29During the October 25, 2012 hearing date, despite being previously directed orally and in writing to arrive on time for the hearing, the Chavalis arrived almost 15 minutes after the hearing was scheduled to commence. On this day, the Chavalis also demonstrated the following disrespectful behaviour:
Mr. Chavali’s cellular telephone rang at three different times during the hearing despite direction from the Tribunal on a previous day for the phone to be turned off or put on vibrate as it interrupted the hearing;
Mr. Chavali yelled at the Vice-chair and used profanities towards her, specifically the word “bullshit”;
Mr. Chavali argued with the Vice-chair about the admissibility of a document, a delivery of vacant possession document, that the respondent had not previously disclosed and despite oral and written rulings confirming that the respondent could not rely upon documentation not previously attached to her Response, including this specific document;
Mr. Chavali interrupted the testimony of Mr. Pershad several times during his examination-in-chief, by asking questions when the Vice-chair told him that he would have an opportunity to ask questions during his cross-examination of Mr. Pershad;
The respondent abruptly left the hearing room, without notification; and,
The respondent continued to have outbursts during the hearing, including calling the applicant a “criminal”, yelling out “that’s a lie” during part of Mr. Pershad’s evidence, and interrupting the applicant’s cross-examination of Mr. Chavali by standing up, stating that she wanted to speak; at different points of Mr. Chavali’s cross-examination, the respondent yelled out that the applicant was telling “stories”; “it’s his kind of people and homosexual and we’re not animals. I’m a scientist with two Masters’ degrees”; “there is no use talking to him and he’s not a normal being” and “he [the applicant] should be in jail because he’s asking my husband about fraud”. Further, she yelled out “shut up” different times to both the applicant and Mr. Chavali as well as “I can’t take it”; she banged her hand on the table.
30Further on this date, Mr. Chavali stated that the respondent may not testify on health grounds. He represented that she could not remember things and if there was clarification, she would testify. The Tribunal reminded the respondent that there were specific allegations against her, as the respondent, and that an adverse inference may be drawn against her if she failed to testify.
31During the October 25 hearing date, the parties and I canvassed continued hearing dates and November 27, 2012 was set, subject to confirmation by the Tribunal’s scheduling department. A subsequent notice of continuation of hearing was issued by the Tribunal on October 26, 2012, confirming that the hearing would continue on November 27, 2012.
The respondent’s absence on the November 27, 2012 hearing date and subsequent CADs and communications
32The respondent did not attend the November 27, 2012 hearing date. Once again, the Tribunal held down the hearing until 10:00 a.m. However, the respondent and her representative did not arrive, nor did they communicate with the Tribunal to indicate that they were not able to attend the hearing. At 10:00 a.m., the Tribunal adjourned the hearing and stated that it would be issuing a CAD seeking the parties’ submissions on whether or not the respondent should be permitted to continue to participate in the hearing.
33A CAD dated November 28, 2012 (“the November 2012 CAD”) was issued. In it, in addition to outlining some of their conduct to date, which I observed was disrespectful, the Tribunal directed the respondent to advise, in writing, by December 5, 2012, at 4:30 p.m. the reasons why she and her representative did not attend the November 27 hearing, including any proof of that reason, and why they did not advise the Tribunal prior to the hearing why they would not be attending the hearing. The Tribunal stated that following receipt of this information, or if the respondent and her representative failed to respond to this directive, the Tribunal would issue further directions to the parties, including providing the parties with an opportunity to make submissions about whether the respondent’s conduct to date amounted to an abuse of process and if so, what order, if any, would be appropriate in the circumstances, including whether the respondent should not be permitted to continue to participate in the hearing and the Tribunal process because of her conduct.
34On December 3, 2012, the Tribunal received a letter dated December 1, 2012 and signed by both the respondent and her representative. In their letter, the Chavalis alleged that the Tribunal made “false and discriminatory allegations” against them pertaining to their absence from the hearing on November 27 “without having any evidence and the circumstances the old, Seniors were undergoing in Emergency Hospitals”.
35With respect to the reasons for their absence on November 27, the Chavalis wrote:
Reddy R. Chavali, who represented the matter before the Vice chair, Madam Alison Renton, was suddenly had Breathing Problems, Suffocation and was admitted as the Toronto General Emergency Hospital (Elizabeth and University Avenue) just before the hearing on November 23, 2012 and could not recover till now and inadvertently lost control of memory and could not attend the hearing supposed to be on November 27, 2012, Krishnaveni who is very we[a]k and frail, without not having the knowledge of a step down on the floor, fell on the floor suddenly at Gerard Street, had bruises on her right hand and severe damage to the Waist on November 25, 2012 and the pain became worse, unbearable and was admitted at Sunny Brook Hospital on November 27,-28, 2012.
- Besides all old aged problems, we were under serious breathing problems, headaches, and throwing up, stomach problems over and above the unbearable pains, still continuing, and did not realize the Hearing on November 27, 2012 before the Hon. Madam Alison Renton. This was never, ever our disrespect to the Tribunal or ignoring the attendance on November 27, 2012.
(Errors in the original.)
36The Chavalis also alleged that they had been harassed by the applicant and wrote:
We have great respect to the Tribunal but unfortunately, we the old people have been constantly harassed by Ian Ramadhin and having Nude People in the apartment building, besides having illegallyted and wrong. Another same sex partner in the apartment, contrary to the lease agreement. We are old, Seniors, Victims of deliberate and intentional harassment of the Applicant Ian Ramadhin, who has knowledge of our vulnerability and to create troubles to Krishna and Reddy Chavali, who helped all along. (Errors in the original.)
37With respect to their disrespectful conduct, as described in the November 2012 CAD, the Chavalis wrote:
The statement made in Paragraph 3 of the letter dated November 28, 2012, or the Hon. Madam Alison Renton with respect to the respondent and her representative, is totally wrong discriminatory and misstating the facts and the context of the alleged words used by the respondent and her representative, and ignoring the real facts. The respondents never avoided any hearing without valid reasons, unavoidable circumstances were provided. There was never, ever consideration of the old age and health problems of the Seniors in this situation, except trying to blame the innocent and vulnerable Old people in poor health. Every word of this paragraph is wrong and misstated and involves Power and Politics. Cell phone was cut off right away, if this type discriminatory treatment is shown, we are concern about the Vice Chair hearing these Proceedings, and another Adjudicator should be appointed, to avoid an unbiased and discriminatory treatment. (Errors in the original.)
38Another CAD, dated January 4, 2013 (“the January 2013 CAD”), was issued by the Tribunal. In it, the Tribunal noted that the respondent made the following general submissions: (1) both she and her representative were medically incapacitated on the November 27, 2012 hearing date; (2) the conduct noted in the November 28 CAD was disputed by the respondent and her representative; and (3) both the respondent and her representative have health and/or age-related accommodation needs which have not been met over the course of the proceeding. The Tribunal commented on each of these.
39With respect to the November 27, 2012 missed hearing date, the Tribunal noted that the respondent’s submissions were unclear as to why she and her representative could not attend the November 27 hearing or contact the Tribunal in advance of the hearing to request an adjournment. Despite being required to provide proof in support of the reason why they could not attend the hearing, the Tribunal noted that the respondent did not provide such supporting documentation. Further, it noted that the submissions themselves were unclear whether the respondent’s representative was still in the hospital on November 27, having allegedly been admitted on November 23, and when the respondent herself was allegedly admitted to another hospital on November 27. The Tribunal noted that the respondent submitted that her representative experienced a complete loss of memory from November 23 to December 1, but the respondent made no clear submissions with respect to why she, or another person on her behalf, could not have contacted the Tribunal prior to the commencement of the hearing to advise that the respondent and her representative could not attend the hearing for medical reasons. The explanation about not knowing the November 27 hearing date is not credible as it was a date set by the parties at the October 25 hearing and confirmed in writing by the Tribunal shortly thereafter.
40With respect to the respondent’s apparent assertion that the Tribunal had not appropriately accommodated her during the course of the proceedings, the Tribunal noted that neither the respondent nor Mr. Chavali had requested accommodation during the hearing. Despite this, the Tribunal had accommodated the respondent by providing breaks during the course of the hearing, adjourning one of the hearing dates at approximately 3:00 p.m. because the respondent’s representative had advised that the respondent was not feeling well, and through the provision of physical assistance to the respondent in leaving the hearing room. Furthermore, the Tribunal expressly advised the respondent and her representative during the course of the hearing (and in the context of the respondent abruptly leaving the hearing room, and although her representative stated that the hearing could continue in her absence) that the Tribunal accommodates medical conditions upon request.
41In a January 4, 2013 CAD (“the January 2013 CAD”), at para. 20, the Tribunal directed the parties to provide written submissions to the Tribunal about whether or not the conduct of the respondent and/or her representative amounted to an abuse of process and if so what, if any, order would be appropriate in the circumstances. The applicant filed submissions. The respondent did not. Instead, it sent a letter to The Honourable John Gerretsen, Attorney General, on which the Tribunal was copied. Attached to that letter was a copy of a doctor’s letter dated January 10, 2013 (“the doctor’s letter”).
42Further hearing dates were scheduled for May 22 and 23, 2013. In a Case Assessment Direction dated May 13, 2013 (“the May 2013 CAD”), the Tribunal stated that it would reserve on issuing any determination about the issues identified in para. 20 of the January 4, 2013 CAD. It directed the respondent to bring the original doctor’s letter. It also directed the parties to be prepared to address the issue of section 45.1 of the Code, that had been identified in the July 30, 2012 CAD, during their final submissions.
May 22, 2013 hearing date
43The hearing resumed and finished on May 22, 2013, so that the May 23, 2013 hearing date was not required. On May 22, 2013, the Chavalis were 10 minutes late in arriving for the hearing. They did not have the original of their doctor’s note, with Mr. Chavali claiming that it might have been attached to the letter that was sent to the Attorney General. Neither the Tribunal nor the applicant had the original letter. Mr. Chavali presented some new medical documentation which he submitted established that he and the respondent have health problems and “anything that is happening here is because of deteriorating health”. Both of the Chavalis told the Tribunal that they have never gone through this type of proceeding before.
44Mr. Chavali’s cellular telephone rang again during the May 22, 2013 hearing and despite the previous directions from the Tribunal on other occasions to turn it off during the hearing. The Tribunal then heard what sounded like voices from the hearing emanating from the cellular telephone, such that the Tribunal asked if Mr. Chavali was recording the hearing, and then directed that the phone be left with the Tribunal’s reception desk during the remainder of the hearing.
45When Mr. Chavali’s cross-examination resumed, he commenced yelling at the applicant and called him an “idiot” such that the Tribunal had to direct Mr. Chavali to stop this type of conduct.
46After Mr. Chavali’s testimony finished, he advised that the respondent would adopt his evidence as she did not have good health to testify. The Tribunal reminded the Chavalis that there were a number of allegations about the respondent personally to which she would need to address during testimony and if she failed to testify, and the applicant’s evidence was accepted by the Tribunal, then the Tribunal would likely draw an adverse inference against the respondent for failing to testify. With respect to the suggestion that the respondent adopt Mr. Chavali’s evidence, the Tribunal stated that fairness would require that the applicant would have the opportunity to cross-examine the respondent. The Tribunal also reminded the Chavalis that no medical documentation had been filed with the Tribunal confirming that the respondent was not capable of testifying. The Tribunal then gave the parties a break so that the Chavalis could discuss whether or not the respondent would testify. When the hearing recommenced, the Tribunal was advised that the respondent would testify.
47Several times during the respondent’s cross-examination, Mr. Chavali communicated with the respondent in a language other than English, which I did not understand, such that the Tribunal had to instruct him to refrain from such communication with her as she was being cross-examined. On the second occasion in which this happened, the Tribunal told Mr. Chavali that he would have to wait outside the hearing room while the respondent was cross-examined. Mr. Chavali said that the respondent had high blood pressure and the Tribunal said that if the respondent requires a break for medical reasons, she could communicate that directly to the Tribunal or he could tell me that, but he was not permitted to communicate directly with her. When Mr. Chavali communicated with the respondent later during her cross-examination, the Tribunal stated that if it happened again either Mr. Chavali would have to sit in the hallway or the respondent would have to stop testifying.
48When the parties reached a stage in the respondent’s cross-examination where they and Mr. Chavali were yelling at each other, I advised that we were taking a break. Upon my return to the hearing room, I advised the Chavalis that the Tribunal’s Policy on Representation before the HRTO, as it then existed, allowed the Tribunal to remove a representative from a hearing if they are not complying with the Tribunal’s directives and I trusted that the aforementioned conduct would not occur again. The respondent confirmed that she was able to testify.
49At the end of his examination-in-chief, Mr. Chavali testified, “If there were mistakes it was not intentional”. He apologized if the Tribunal’s directions and procedures were not followed and stated it was because of their collective health problems, not because of intention.
the allegations
50The applicant alleges that the respondent harassed and discriminated against him because of his sex, sexual orientation, and family status and reprised against him. Specifically, he alleges that:
a. The respondent ordered him to change his voicemail message from French to English;
He further alleges that upon finding out his sexual orientation, the relationship between the applicant and the Chavalis changed, and the respondent:
b. Spit upon the applicant and made homophobic slurs to him;
c. Told the applicant that homosexuals could not live in the apartment;
d. Peered into the applicant’s windows;
e. Gave Mr. Pershad a hard time for parking his vehicle at the applicant’s apartment, called Mr. Pershad homophobic names and spit upon him;
f. Evicted him; and
g. Post-eviction, refused to allow him to obtain his possessions and issued a notice of trespass against him.
51The respondent disputes the allegations against her. She claimed, in her Response and during the hearing, that the applicant was not telling the truth and that instead he had harassed and assaulted her and her husband, both of whom are elderly seniors.
52Mr. Chavali submitted, on the second day of hearing, that the applicant was trying to collect money from him, they had “never met a gentleman like this before”, he was evicted because he was not using the premises for residential use, and that the Chavalis are “the victims”. The respondent alleged that the applicant failed to allow her to inspect his premises despite notices being given to him. With respect to the eviction, the respondent asserts that this was addressed by the LTB. As for the applicant’s belongings, Mr. Chavali submitted that a landlord has no responsibility for an evicted applicant’s belongings two days after being evicted by the Sheriff.
53The Tribunal heard evidence from the parties about some wooden boards that were outside the windows of the applicant’s apartment which apparently the applicant removed much to the consternation of the Chavalis. That evidence is not ultimately relevant to the issues before me and accordingly, I am not further addressing it in this Decision.
the evidence
Family Status
54The applicant confirmed, in his cross-examination, that initially his apartment was rented for him by his mother. His mother paid the rent, and then he paid it. Several cheques from 2009, under his mother’s name, were entered as exhibits. The name of the payee was blank.
55He testified that the respondent told him that his family did not have the same status as her family because she was a multi-millionaire and had the status of royalty. I note that during some of her many outbursts during the hearing, the respondent yelled out that she was a multi-millionaire and had never been accused of discriminatory conduct.
56During Mr. Chavali’s examination-in-chief, he testified that initially the applicant’s mother rented the apartment for the applicant and paid his rent. “We didn’t have the full picture of him [the applicant]”, Mr. Chavali stated, because it was the applicant’s mother who saw the unit and she decided to rent it for her son.
Sex and Sexual Orientation
57The applicant self-identifies as a gay man and testified that he was in a same-sex relationship with Mr. Pershad. Mr. Pershad confirmed this during his testimony. This was not challenged by the respondent during the hearing.
A) The Applicant’s Voicemail Message
58On his Application, the applicant identified July 31, 2009 as the date upon which the respondent threatened to evict him because his telephone’s voicemail message was recorded in French. While I heard a considerable amount of evidence on this issue, because I ultimately conclude that this is not Code-related, I am briefly setting out the evidence on this point.
59The applicant testified that his voicemail message was in French. The respondent asked him on “countless and numerous occasions” the meaning of his voicemail message, which he explained and translated to her. The respondent told him that she would evict him if he did not change his voicemail message to English. Mr. Pershad in his examination-in-chief confirmed that the respondent left these voicemail messages for the applicant.
60Mr. Chavali testified that he can understand some French, but the respondent cannot. He agreed that they asked the applicant to change his voicemail message to English rather than French, but denied that the applicant was threatened with eviction if he did not.
61The respondent denied telling the applicant that he would be evicted if he did not change his voicemail from French to English, confirmed that she does not understand French, and testified that she might have told the applicant to change his message into English. While cross-examined on this point, the respondent refused to answer many straightforward questions by the applicant.
B) The change in the relationship between the applicant and the Chavalis
62Both parties agree that initially the applicant had a good relationship with the Chavalis. Mr. Chavali, in his examination-in-chief, confirmed that the applicant and his mother initially had a good relationship with them. “We treated them like our family, the mother and Ian always respected us and called us auntie and uncle and when we had tea, they would come to our house and it was like a family member”, Mr. Chavali stated during his testimony. This point was not challenged by the applicant.
63However, at some point the relationship between the applicant and the Chavalis changed. The applicant testified that it was after the incident with his French voicemail message that the respondent and Mr. Chavali became aware of his same-sex relationship with Mr. Pershad and his relationship with the Chavalis became “topsy-turvy”.
64The respondent agreed that the nature of the relationship changed, but disputed that it was upon learning of the applicant’s sexual orientation. Mr. Chavali denied, in cross-examination, that it was when the respondent found out about the applicant’s relationship with Mr. Pershad. Instead, he testified, friction developed when the applicant’s mother, who was renting a unit at another location, fell behind in her rent such that the Chavalis had to commence court proceedings to have her evicted and to collect her unpaid rent. He further testified that the Chavalis issued a notice of trespass to the applicant’s mother and brother pertaining to the building at which the applicant resided after they allegedly caused a commotion.
65Friction also occurred with the applicant, Mr. Chavali testified, because the applicant refused to let them inspect his apartment. He alleged there were concerns and complaints raised by other tenants about people coming in and out of the applicant’s unit, the type of clothing the people were wearing, and the Chavalis wanted to see the status of the apartment. Their attempts to inspect the apartment were unsuccessful. Mr. Chavali testified that they wanted to inspect the apartment because as a landlord, they had the right to do so upon notice to a tenant.
66The trouble with the applicant’s apartment, Mr. Chavali testified, came to a head on May 24, 2010. The Chavalis were advised in the early morning hours that the police were at the applicant’s apartment. The Chavalis got out of bed and attended the applicant’s apartment where the police told them that they had responded to an emergency call regarding the applicant’s apartment, but that the applicant was not in his apartment so they had to break the lock and the door. The Chavalis wrote a letter of complaint to the Chief of Police about the police damaging their property and the police not identifying the nature of the emergency. That letter was introduced as an exhibit during the hearing.
C) Spitting on the applicant and making homophobic slurs
67On his Application, the applicant identified August 10, 2009 as a date on which spitting occurred. He testified that on this day, he approached the respondent to find out why she had concerns with he and Mr. Pershad, and the respondent spit at him. The applicant said to her, “you spat at me” and she did it again. She picked up a brick and threw it at him. The applicant told her the police would be involved with this incident, so she dropped the brick at the applicant’s feet and Mr. Chavali pushed the applicant towards the inside of the building. The respondent was yelling at the top of her lungs, cursing and calling him names, including “mo”. The applicant testified that the respondent frequently speaks in her dialect, but he can understand some of her dialect and did not understand this word. The applicant testified that he now understands “mo” to mean “homo”. In response to a question from the Tribunal, Mr. Chavali said that he never heard the respondent call the applicant “mo”. He denied seeing the respondent spit on the applicant.
68The respondent, during her examination-in-chief, testified that she did not remember calling the applicant a “homosexual” and telling him that he was “not supposed to be there”. The Tribunal asked if it was possible that she made these comments to the applicant, to which she said “no”. After her cross-examination concluded, the Tribunal asked the respondent if she had ever called the applicant “mo” or spit on him as alleged. She said no to both allegations.
69Following the Tribunal’s question, the applicant asked the respondent “you don’t recall uttering the word ‘mo’ at myself or Mr. Pershad do you not recall using the word homosexual in one of the hearing proceedings in this Tribunal in front of the Vice-chair”. The respondent replied, “I don’t like anybody who is homosexual living in my properties”.
D) Not wanting homosexuals to live in the apartment
70The applicant testified that after the respondent called him “mo”, Mr. Chavali explained to him that previously they had two gay men living in his apartment and that they have “methods put in place to get rid of them” because they couldn’t have “those types of people living here”. At this point of his testimony, the applicant asserted that the respondent nodded her head in agreement with his evidence. When he was cross-examined, Mr. Chavali denied that he told this to the applicant.
71The applicant testified that the respondent told him, on several occasions, that “they don’t have such people living at their residences”. The applicant testified that the respondent did not describe what she meant, but the applicant took that to mean his same-sex orientation. The respondent, the applicant claimed, told him how she and Mr. Chavali “got rid” of previous tenants because of their sexual orientation, and she spoke about those previous tenants in a very disparaging way. During her cross-examination, the respondent initially testified that she did not know if she remembered telling the applicant this, and then denied the allegation.
72On September 13, 2009, the applicant testified, the respondent approached the applicant and Mr. Pershad, pushed on the apartment door and told them that the applicant needed to leave because she did not want “this type of people” living there. The applicant testified that he turned to Mr. Chavali, who was present, and told him that it was not legal to evict him because of his sexual orientation and to issue something in writing. Mr. Chavali smiled and said that he would speak with the respondent. The applicant testified that the respondent made “a big scene” in this small building and “if no one knew about my life before then, they did then”. Mr. Chavali denied this occurred in his cross-examination.
73The last question that was asked to the respondent in her cross-examination was whether she would have signed a lease with the applicant and his mother if she knew the applicant was “of the same sex persuasion” to which the respondent answered “no”.
E) Peering into the applicant’s windows
74The applicant lived in a bachelor basement apartment. He testified that the Chavalis would attend the premises between the hours of 10:00 p.m. and midnight, when they would water various plants that were growing on the premises. He testified, in relation to information in the Response about “naked men being in the apartment”, that if there were naked men in the apartment it was he and his partner. He testified that his apartment was his residence and a private place, and that neither he nor his partner walked around outside naked. If naked men were seen in the apartment, he testified, it was because the respondent and/or Mr. Chavali peered in through the apartment’s windows to see them there.
75Mr. Pershad, in his examination-in-chief, testified that on occasion he would see the respondent peering into the apartment windows late at night to see what was going on in the apartment.
76The respondent denied, in her cross-examination, that she looked through the applicant’s apartment’s windows. She testified, during her examination-in-chief, that male visitors to the applicant’s apartment showed her their “sexual organs” and she asked what they were doing. “There is something wrong” she claimed. She could not answer the question “If you saw a naked woman in the apartment would that have been less traumatic”, because, she testified “I never saw that so I can’t answer that”. She testified that she did not see either the applicant or Mr. Pershad naked.
F) Conduct towards Mr. Pershad
77The applicant alleged that the respondent’s harassing treatment was extended to Mr. Pershad. He testified that the respondent would intersect Mr. Pershad in the building, call him names, spit at him and accost him. He testified that when Mr. Pershad answered the applicant’s apartment door, the respondent would ask him “what are you doing here?”
78Mr. Pershad testified, during his examination-in-chief, that after the Chavalis learned that he and the applicant were in a same-sex relationship, when he visited the applicant, the respondent would chase him from the building and tell him that the applicant was not permitted visitors. On one occasion, Mr. Pershad testified during examination-in-chief, when he arrived with groceries, the respondent chased him from the building, spat on him, called him a “homosexual”, and told him that he did not belong to society. He testified that Mr. Chavali once threw a coffee mug at him as he was going to the back door. During his cross-examination, Mr. Chavali asked Mr. Pershad whether he had prepared any documentation objecting to this type of conduct and Mr. Pershad stated he had not.
79The respondent denied, in cross-examination, that she accosted Mr. Pershad when he arrived in April 2010 with groceries. She claimed that Mr. Pershad was living there, rather than visiting, because he was parking in the parking lot. She did not have a problem with him staying over one night, but with him living there. She said, during her evidence, “Nobody in the world accept when one is living and another man living there with him and no decent man or woman”. She disputed the applicant’s assertion that the furniture that Mr. Pershad brought into the apartment was for the applicant’s personal use rather than his own use.
80Mr. Pershad testified that the respondent called him “mo” and “idiot” but he could not remember the dates that she made these comments. He testified that she told him that homosexuals were not allowed in the apartment building, and said this when he gave her cash for the rent, but he could not recall the dates those comments were made. Mr. Chavali, in response to a question from the Tribunal, testified that he never heard the respondent call Mr. Pershad “mo”. He denied seeing the respondent spit on Mr. Pershad.
81After the respondent’s cross-examination, the Tribunal asked the respondent if she had ever called Mr. Pershad “mo” as Mr. Pershad had testified. The respondent said no. She denied spitting on Mr. Pershad and denied telling him “we don’t allow homosexuals in the apartments that we rent”.
82On several occasions when Mr. Pershad answered the applicant’s door to the Chavalis, he testified that he was told, “What are you doing here, you don’t belong here, we don’t allow homosexuals in the apartments that we rent”. Mr. Chavali, in response to a question from the Tribunal, said, “we never discriminate unless I gave the dates of the nude people in the apartment when this was happening and others complained to us in Exhibit 10 and other than that didn’t say homosexuals are not allowed”.
83Mr. Pershad and Mr. Chavali both testified about Mr. Pershad parking his vehicle in the apartment building’s parking lot. Mr. Pershad testified during his examination-in-chief that after the Chavalis found out about his relationship with the applicant, Mr. Chavali demanded that Mr. Pershad pay $40 per month for parking. Mr. Pershad paid cash for three months, but despite this at some point in 2010, Mr. Chavali called the parking authorities to report that Mr. Pershad’s vehicle was illegally parked.
84Mr. Chavali testified that parking is for the tenants of the apartment building. Mr. Pershad was parking on a continuous basis and for long periods of time. Mr. Chavali testified that they knew that Mr. Pershad worked at the hospital and they thought that he parked at the applicant’s building and went to work. The Chavalis needed to determine if Mr. Pershad was a visitor as he was parking without authorization.
85Mr. Chavali conceded that Mr. Pershad paid for parking for two or three months. When problems became “so serious”, they issued a notice of trespass to him. He denied, in cross-examination, that the respondent refused to allow Mr. Pershad to park at the premises once she found out about Mr. Pershad’s relationship with the applicant. At this point, the respondent yelled out “these are all stories”.
86The respondent, in her cross-examination, testified that she remembered Mr. Pershad paying a monthly fee to park his vehicle at the apartment building. While shaking her finger, she testified, “Visiting isn’t right, he’s spending nights with you [the applicant]”, and “that’s wrong Madam Vice-chair”. She claimed that the applicant was living in his apartment against the law because it was a bachelor apartment and two or more people were living there.
G) The eviction
87The applicant testified that he was evicted primarily because the Chavalis had recently learned of his sexual orientation. He conceded, in cross-examination, that he was in rent arrears before July 2010.
88Mr. Chavali testified that following the May 24, 2010 incident, when the police broke the applicant’s apartment door, the applicant was over $1,000 in arrears for his rent and he, as the landlord, filed an application for the applicant’s eviction with the LTB. In addition to the rent arrears, Mr. Chavali testified that the applicant had placed garbage in the hallway and had obstructed him from watering the plants. Further, he testified that the applicant did not use the apartment for the purposes for which it was intended.
89In this regard, Mr. Chavali testified, there were a lot of people coming into and going from the applicant’s apartment. It was a problem, he testified, seeing naked people in the applicant’s apartment, which the Chavalis saw when they knocked on the door and when other tenants complained about seeing these people come in through the back door. “We came to know about these people and about garbage [being in the hallway] and we knocked on the door and they opened the door the people visited and they were nude and Ian was not there and all these things are not what we created and we reported this to the LTB too”. Mr. Chavali testified that he and the respondent explained this to both the LTB and to the police.
90In his cross-examination, Mr. Chavali confirmed that the Chavalis tolerated the applicant from 2007 until 2010, even though he paid his rent in bits and pieces, was behind in his rent payments, had garbage in front of his apartment, and had “naked people” in his apartment during this time. He denied, in cross-examination, that they became intolerant when they learned of the applicant’s sexual orientation; instead, he testified, “We had to protect other tenants from other people coming in naked and the garbage by the apartment”. There were verbal complaints about the applicant, he stated, although he did not identify the source of the complaints or otherwise provide evidence to substantiate this allegation.
91A copy of the landlord’s LTB application, the mediation agreement (“the settlement”), a June 7, 2010 letter the Chavalis wrote to the “Regional Vice Chairman” of the LTB, and the LTB order evicting the applicant were entered as exhibits at the hearing. A respondent document with the title written in capitals “SEEN NUDE PEOPLE IN THE APARTMENT [ADDRESS], WHERE THE TENANT IAN RAMADHIN RESIDES” [capitals in the original] was also entered as an exhibit.
92The applicant testified that he participated in the proceedings before the LTB, specifically mediation at which a written settlement was reached. The Tribunal asked the applicant if he alleged before the LTB that he was discriminated against on the basis of sexual orientation. The applicant responded that he told this to the mediator and she told him that he would have to take that up with the Tribunal. He confirmed this evidence during his cross-examination.
93During Mr. Chavali’s cross-examination, the applicant suggested that Mr. Chavali had come to his apartment several days before the LTB proceedings and strongly suggested that the applicant participate in mediation. Mr. Chavali denied this and testified that he would never advise any tenant to follow his thinking and mediation was, instead, suggested by the mediator.
94During his cross-examination, the applicant did not agree that he did not pay his rent regularly. He testified that his rent was paid in portions, by cheque and by cash, with Mr. Pershad assisting with the payments. The applicant claimed that the respondent and Mr. Chavali only went to the LTB once they discovered that the applicant and Mr. Pershad were partners. He did not get a copy of the respondent’s application to the LTB and therefore he did not file a response to it.
95With respect to the settlement, the applicant testified in cross-examination that it does not address any human rights issues. The applicant confirmed that he did not put anything in writing at LTB and confirmed that the LTB proceedings and the settlement were not included in his Application. He agreed in his cross-examination that he did not follow the terms of the settlement; specifically he failed to pay his rent monies on the dates specified in the settlement.
96During the applicant’s cross-examination, the respondent attempted to get the applicant to agree that he was using his apartment for a purpose other than for which it was intended, as the respondent submitted on the LTB N7 application. The respondent specifically asked the applicant to confirm the following: there were “people naked in the apartment with the door open”; “the back side door was kept open for those people to come free into that apartment”; the number of times “your people” came to the apartment; and the number of times “people were caught naked in your apartment” by the respondent and Mr. Chavali. The applicant did not directly answer all of these questions. He questioned what Mr. Chavali meant by “your people”, testified that he did not think it was it was the Chavalis’ business if there were naked people within the confines of his apartment, queried how the Chavalis saw naked people in his apartment, and speculated that the Chavalis had to be peering into his apartment to see whether or not there were naked people in his apartment.
97Similarly, during Mr. Pershad’s cross-examination, Mr. Chavali asked, “have you seen any of the people living in that apartment nude without any clothes or dress?” and “have you got any idea who was nude?” Mr. Pershad responded, to the latter question, that he was not aware of anyone nude inside or outside the apartment.
98Mr. Chavali testified in his examination-in-chief that by June 7, 2010, the applicant breached the settlement by not paying his rent monies on time. He, on behalf of the respondent, contacted the LTB and alleged that the settlement had been breached. The LTB issued an eviction order on June 8, 2010, and gave the applicant until June 19, 2010, to move out of his apartment.
99The Tribunal specifically asked Mr. Chavali, “I want to be sure that I understand about the eviction proceeding. You entered into minutes of settlement and Mr. Ramadhin failed to pay his rent by the date that was specified in the minutes. Is this the only reason why you commenced eviction proceedings or were there other reasons?” In response, Mr. Chavali said, “basically I would say the rent proceeding and other problems that had people coming in and having the nude situation and this is a place for residence and not for other activities and not one type of person but other people and not the same person but different people and this concerned us and other tenants”. He also commented about the applicant coming into the garden and pulling out the plants while Mr. Chavali was trying to hose. This was all discussed with the LTB, Mr. Chavali asserted.
100Mr. Chavali denied, in his examination-in-chief, that the applicant was discriminated against, or evicted, because of his sexual orientation. “We didn’t say that he is a homosexual or an idiot and we are not the type to say this and he is saying that we are discriminating against him because he has friends of the same sex and I don’t know what is meant by homosexual and my sincere believe is that he [the applicant] got into problems and he wanted to come back on us”.
101During Mr. Chavali’s cross-examination, he told the applicant, “We don’t have a concern about what you do, but it’s a bachelor unit and there were people coming frequently and causing problems”. In describing how this was a problem, Mr. Chavali said, “People visiting here, if they are normal, and following the rule of law, we don’t bother anybody, but that’s not the case here”. In response to a Tribunal question about what he meant by using the words “if they are normal”, Mr. Chavali testified that there was a problem that people were coming to the applicant’s unit and staying and they were nude and causing problems with the other tenants.
102In response to the Tribunal asking if the Chavalis expressed concern to the applicant about leaving garbage in the hallway, using the back door and naked men being in his apartment, Mr. Chavali said, “We spoke with him after the eviction proceedings and he agreed to mediate and he consented and these issues were all discussed before the eviction and he was aware”. At this point in Mr. Chavali’s evidence, the respondent yelled out, “It’s his kind of people”, “homo” and “we are not animals, I’m a scientist with two Masters degrees”.
103Mr. Chavali testified that by July 3, 2010, the applicant still had not moved out of his apartment and Mr. Pershad was illegally using the parking lot so they issued Mr. Pershad a trespass notice. Mr. Chavali also testified that as late as July 12, 2010, the applicant still was refusing to let the Chavalis see his apartment. He explained that they wanted to inspect the apartment to determine its state and because they believed that there were people coming in and out of the apartment. Mr. Chavali testified that there should be security for their tenants as there were “single ladies” who lived there. He described the “people coming in and out” as mostly men, wearing “rags” and “not wearing proper dress and proper pants”. The Chavalis were so concerned that they called the police. Finally they paid the Sheriff to come and evict the applicant on July 30, 2010. The applicant was evicted without paying his rent arrears or for the property damage that he caused.
104The applicant confirmed in cross-examination that he was evicted from his apartment on July 30, 2010, when the Sheriff attended his residence. Mr. Chavali told the applicant to step out of the apartment while the lock was changed, and that he could return to collect his belongings. The applicant denied that the Sheriff told him that he had two days to collect his belongings and he alleged that the Chavalis locked his possessions, including his passport, into the apartment such that he no longer had access to them. He confirmed that he had no evidence about the belongings that he left behind, apart from his testimony. The applicant testified that after the lock was changed, the Chavalis got into their car and left without giving the applicant the opportunity to remove his personal items.
105Mr. Pershad testified, during his cross-examination, that when he and the applicant attended the apartment to collect the applicant’s belongings, the Sheriff asked them to leave and Mr. Chavali changed the lock.
106Mr. Chavali testified that on July 30, the Sheriff came and changed the lock. Another individual was interested in renting out the apartment and completed an application for residency and was also present on July 30. Mr. Chavali testified that it became an unhappy situation as the applicant and Mr. Pershad were removing the applicant’s belongings from the apartment. When they became nasty towards Mr. Chavali and the respondent, he called the police, who instructed him to issue a notice of trespass which he did after a number of vegetables from the garden were thrown out. Despite issuing the notice of trespass, he testified that the applicant and Mr. Pershad continued to cause problems to the Chavalis. The applicant testified that the notice of trespass was issued some time after his eviction.
107The respondent testified in her examination-in-chief that the applicant still owes them money pursuant to the LTB proceedings.
H) Post-Eviction Conduct
108After he was evicted, the applicant testified that he went back to his apartment to obtain his belongings. The respondent and Mr. Chavali were also present. The respondent called the applicant and Mr. Pershad “mos”, and before the applicant and Mr. Pershad got into the car to drive away, the respondent said “get away from here you mos” and “we don’t want mos in the apartment” and she and Mr. Chavali were laughing. It was at this time, the applicant testified, that Mr. Chavali slapped a piece of paper on his chest. This was the notice of trespass. It was introduced as an exhibit.
109The applicant was not able to get his belongings out of the apartment. This included receipts pertaining to his rent, furniture, including a dining table, and old microwave, lamps, and chairs, his passport, and other personal items.
110Mr. Pershad testified during his examination-in-chief that Mr. Chavali called Mr. Pershad’s residence and asked Mr. Pershad and the applicant to remove the applicant’s belongings from the apartment. When the applicant and Mr. Pershad arrived, the new tenant answered the door and told them that the respondent said that the applicant could remove his belongings. However, the respondent, who was also present, came running and screamed “those homosexuals aren’t allowed to take things out of the apartment and they don’t belong here”. Mr. Chavali was also present and he slammed a paper onto the applicant’s chest, said that it was a notice from the Sheriff’s office and that they were trespassing. This was the trespass notice typed under the Chavalis’ name that was entered as an exhibit. Later the police came to Mr. Pershad’s home and told the applicant not to return to his apartment.
111Mr. Pershad also testified, during his cross-examination, that he was aware that an evicted tenant has only two days to remove his or her belongings from the apartment. Mr. Pershad testified that he and the applicant came on three different occasions to remove the applicant’s belongings, after Mr. Chavali called him several times, but Mr. Chavali refused to open the door and allow the applicant to remove his belongings. On one occasion Mr. Chavali told the current resident to open the door, but then Mr. Chavali slammed the notice of trespass on Mr. Pershad’s chest. Mr. Pershad admitted, during cross-examination, that he did not have any proof that telephone calls were made to him.
112In his examination-in-chief, Mr. Chavali testified that he asked the new tenant if he had the applicant’s belongings to give them to him. According to Mr. Chavali, the new tenant did not speak English very well.
113During the October 25, 2012 hearing date, Mr. Chavali presented a letter signed by the individual who rented the applicant’s apartment after the applicant was evicted. For the purposes of this Decision, it is not necessary to identify this individual by name and he will be identified as the new tenant (“the new tenant”). During his cross-examination, Mr. Chavali testified that he asked the new tenant to come to the hearing but the new tenant had work. Mr. Chavali prepared the letter on his computer, and printed it, and the new tenant read it and initialed it. He denied the applicant’s assertion that the new tenant was forced to sign it. The letter, which has a subject line “Nuisance and serious problems created by the ex-tenant Ian Ramadhin during the first week of August 2010”, confirms the new tenant has resided in the apartment since August 1, 2010. The new tenant says in the letter that he has not had problems with the Chavalis, provides information about the sheriff coming to the premises in July 2010, and alleges the applicant was rude and attacked the respondent on August 1, 2010 such that the police came. He states that the applicant left behind some “junk” which he threw away. The respondent yelled out, during this exchange, that the applicant should be in jail because he was asking Mr. Chavali about fraud, and “There is no use in talking to him [the applicant]” and “he’s not a normal human being”.
114In his cross-examination, Mr. Chavali testified that the applicant, by law, had two days to retrieve his belongings after he was evicted and the landlord has no responsibility for the belongings after that point in time. He asserted that the applicant was asked to vacate and remove his belongings and warned that the Sheriff would come if he did not vacate. When he did not vacate, the Sheriff did come to evict the applicant and the Sheriff changed the lock. Mr. Chavali denied the applicant’s assertion that he himself changed the lock while the Sheriff was present.
115The applicant testified that on September 14, 2010, a date he had identified on his Application, at approximately 6:30 or 7:00 p.m., the applicant and Mr. Pershad attended the respondent’s home. She slammed the door on Mr. Pershad’s face. They knocked again on the door, she opened it again, and she spat on Mr. Pershad’s face and they asked for Mr. Chavali, who was present at the back. The respondent prevented Mr. Chavali from speaking. She yelled at the applicant and Mr. Pershad, and called them names, including “mo”.
116Mr. Pershad and the applicant approached the Chavali residence again, the applicant testified, but they refused to answer the door. The respondent stood on the other side of the door, swearing, carrying on and yelling at the top of her lungs.
117In his cross-examination, Mr. Chavali denied that this incident occurred. He said that the respondent would not spit on anyone and that she is “a lady”. Further, he testified that if there was any kind of incident, it is based upon the respondent’s medical problems and “she can be less tolerant than me but because of her blood pressure she might react to some of the things faster than me”. “She never goes to any man” and “she never speaks to men directly by herself because of her weakness and she is not healthy and not as strong and she always pushes me to go and answer and talk to them even up to today and she might get upset if someone is talking but she can’t go and attack men and she’s tiny and an advanced age and unhealthy”, he said.
Mr. Chavali’s observations
118Mr. Chavali, in his examination-in-chief, testified that he and the respondent have had some health problems, and said that the respondent cannot digest and cannot remember things. “We don’t have the effort to spit on anybody” he said and claimed that they stay together all the time. He noted that the respondent was 86 years old and elderly.
119“We have seen the world and are not here to hurt anybody or make derogatory comments like homosexual”, Mr. Chavali testified. He further testified that this was the first time in their lives to have a tenant allege discrimination by them. “We never do this and we tolerate Hungarian refugees” whom, he testified, they later had to evict for causing property damage. Mr. Chavali testified that he and the respondent have no intention to harass or discriminate against anyone and “this is the first and last time that we will have a complaint about this and this is lesson for us to be careful with any person”.
120In his cross-examination, Mr. Chavali made a point of telling the applicant that the respondent’s position was supported by documentation and the applicant’s allegations were not supported by documentation and it “boils down to your word versus our word”. “We’ve never gone to this level with any tenant like this”. He asked that the applicant “be careful and don’t accuse” and told him that “God is there to punish”. Similarly, Mr. Chavali had Mr. Pershad admit during his cross-examination that he did not prepare any documentation objecting to the alleged offensive conduct by the respondent.
121Finally, during his cross-examination, Mr. Chavali told the applicant that he respected the applicant and his family, that problems and friction arose between them, and the applicant was using the Tribunal’s process to create more problems for the Chavalis. “We honestly, I swear to you, never ever hurt you and because of the situation that we were in with the building and people complaining about going in and no proper dress and we had concerns and that’s why we brought the application to the LTB”.
The respondent’s outbursts during the hearing
122During Mr. Chavali’s cross-examination, the applicant asked him whether the respondent’s outbursts during the hearing were related to “mental incapacity”. Mr. Chavali retorted by telling the applicant that he was mentally incapacitated to say this, his allegations were false, and Mr. Chavali’s documents were the truth. He testified that the applicant could have stopped the eviction and the loss of his belongings “if you are normal and if you are decent”.
the law
123The relevant portions of the Code are sections 2 (accommodation, which means housing), 7(1), 8, 10(1) (definition of harassment) and 45.1. They state the following:
- (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.
(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
(1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing
(1) In Part I and in this Part,
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
“family status” means the status of being in a parent and child relationship;
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
124The Residential Tenancies Act, 2006, S.O. 2006, c. 17, as amended (the “RTA”) has some relevance to these proceedings. The relevant sections are:
(1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:
The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant.
A settlement mediated under section 194 or order made with respect to the previous application,
i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and
ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph i.
- The tenant has not met one or more of the conditions described in subparagraph 2 i.
(6) If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant.
general legal principles
Onus of proof
125In this case, as with all applications filed with the Tribunal, the applicant bears the onus of proving the allegations on a balance of probabilities. The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”), that the “balance of probabilities” standard of proof applies to all civil cases and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”. The Court advises, at para. 58, to “look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”.
126If the applicant does not prove that his or her allegations amount to a violation of the Code, then an application is dismissed. If an applicant does prove that some or all of his or her allegations amount to a violation of the Code, then the Tribunal can award varies remedies pursuant to section 45.2 of the Code.
Credibility
127In many human rights cases, a respondent denies the allegations that the applicant has made against him, her or it. Accordingly, the Tribunal is often required to decide issues of credibility between the parties and their witnesses and in this case, I have had to make findings of credibility.
128In making those findings, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often cited by the Tribunal in cases in which credibility is assessed. It held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
129Underlying this traditional “harmony with the preponderance of the probabilities” are a variety of factors that have been considered by the Tribunal in assessing reliability and credibility, including:
The internal consistency or inconsistency of evidence;
The witness’s ability and/or capacity to apprehend and recollect;
The witness’s opportunity and/or inclination to tailor evidence;
The witness’s opportunity and/or inclination to embellish evidence;
The existence of corroborative and/or confirmatory evidence;
The motives of the witnesses and/or their relationship with the parties;
The failure to call or produce material evidence.
Shah v. George Brown College, 2009 HRTO 920 (“Shah”) at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36.
130Thus, evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. Further, as discussed in Shah, above, a finding of lack of credibility with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as not-credible.
131Generally, I found the applicant and Mr. Pershad to be credible in their evidence, although their evidence was unreliable on some points, particularly dates. The fact that they did not have documents in support of their oral testimony does not affect my finding that they were credible.
132I do not find that the respondent and Mr. Chavali are credible witnesses with respect to the applicant’s allegations against them. Their evidence was inconsistent with some of their own documentation, particularly the respondent’s materials to the LTB. It was internally inconsistent and inconsistent with their comments and conduct during the hearing. They were argumentative during their cross-examination and, on many occasions, would not answer straightforward questions that were asked of them.
133The Chavalis’ continuous references to their multiple university degrees, including the respondent telling me that she taught at an Ontario university, in English, were efforts to have the Tribunal accept that they were more credible than the applicant and Mr. Pershad. While there was no evidence about the educational background of the applicant and Mr. Pershad, the fact that one has a university degree, or degrees, does not make a witness more credible than a witness who does not have the same level of education.
134In fact, this suggestion belies their statements that they did not understand the Tribunal’s processes and procedures, or that they did not understand the questions that were asked of them during their cross-examination, including some of the wording that was used.
135Finally, I cannot accept that the respondent and Mr. Chavali do not understand the processes and procedures before the Tribunal regardless of whether or not they have previously been named as a respondent. Part of the Tribunal’s mandate is to be accessible and understandable. Irrespective of that mandate, it is clear, as the judicial notice set out above in paragraphs 5 and 6 above, that the respondent and Mr. Chavali are very experienced litigators and as such I cannot find their explanations about not knowing, for example, about continuation dates or the requirement to produce documentation in advance of the hearing dates to be credible. This is particularly so where continuation dates were set in consultation with the parties and confirmed in writing, as well as disclosure requirements being set out in writing.
136I do not place any weight upon the letter that the new tenant allegedly signed, regardless of whether or not it was drafted by Mr. Chavali. First of all, it provides information about the new tenant’s own relationship with the respondent and Mr. Chavali, which is not relevant to the issues that are before me. Second, the new tenant states that he has been living at the premises since August 1, 2010, yet provides information about what occurred on July 27, 2010, when apparently he was not there. Finally he provides information about the applicant subsequent to August 1, 2010, but it is unclear whether he personally witnessed this information. Most importantly, the applicant did not have the opportunity to cross-examine the new tenant on whether it even was his letter, let alone his knowledge of the contents of that letter.
137Furthermore, the new tenant says that he was asked by the Chavalis to testify, but could not attend because he would “suffer and I cannot get permission from my employer”. The letter is dated October 24, 2012, and the respondent did not request a subpoena so that she could subpoena the new tenant to testify. The issue of subpoenaing witnesses was addressed by the Tribunal with the respondent on the first day of hearing.
analysis
Should the Application be dismissed pursuant to [section 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?
138Before turning to the merits, it is important to consider whether or not the Application should be dismissed pursuant to section 45.1 of the Code.
139Section 45.1 of the Code requires a two-part analysis: (1) was there another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.
140A hearing before the LTB has been held by this Tribunal to be a proceeding for the purposes of section 45.1. See Legault v. Whitewater Seniors Residence, 2010 HRTO 1542, and Brown v. Margoma Holdings Ltd. c/o Briarlane Rental Property Management Inc., 2013 HRTO 1220 at para. 7. However, in neither of those cases was the hearing before the LTB ex parte or a mediation with a member of the LTB, as was the situation in the case before this Tribunal.
141Therefore, the relevant determination in this case is whether the proceedings before the LTB appropriately dealt with the substance of all or part of the Application. I find that the LTB proceedings did not.
142In May 2010, the respondent filed a combined L1 and L2 application under the RTA to terminate the applicant’s tenancy (“the LTB application”). The LTB application was introduced as an exhibit in this hearing. The applicant became aware of the LTB application and participated in mediation at the LTB that resulted in a mediated settlement. The settlement agreement was also entered as an exhibit. The applicant testified that because of the mediation, he had no opportunity to raise his allegations of harassment and discrimination against the respondent. In fact, he testified, the LTB mediator told him that he could not raise his human rights allegations in that proceeding and he had to file an application with this Tribunal, which he did on July 21, 2010.
143Para. 6 of the mediated settlement stated that if the tenant (the applicant in this Application) failed to comply with any of the terms of the mediated settlement, the landlord (the respondent in this proceeding) could apply under section 78 of the RTA, without notice to the tenant, for an order terminating the tenancy and evicting the tenant. The parties agree that the applicant failed to comply with the rent arrears payment agreed to in the mediated settlement.
144When the applicant failed to comply with the rent arrears payment, the respondent applied for an order to terminate the tenancy and evict the applicant pursuant to section 78(6) of the RTA and for an order to have the applicant pay the rent and compensation he owed the respondent because of his failure to meet a condition in the mediated settlement (“the request to evict”). The respondent’s request to evict included a letter dated June 7, 2010 to the Regional Vice Chairman of the LTB, which was entered as an exhibit. In making this request, the respondent submitted, at para. 2 of the June 7, 2010 letter, “The Tenant is continuing, has not changed his course of action, and still Landlord and other tenants are suffering and the Residential premises (complex) is not used for the purposes it is intended for as stated in N7 form”. The N7 form was not submitted as an exhibit in the proceedings before the Tribunal, but is identified in the request to evict as “10-Day Notice to Terminate a Tenancy Early (Form N7)”.
145The respondent’s request to evict was, according to section 78(1), ex parte, meaning that the applicant did not receive any notice of the respondent’s filing. A member of the LTB determined that the applicant breached the rent arrears clause of the mediated settlement, granted the respondent’s order, and terminated the tenancy between the applicant and the respondent. It is unclear whether or not the respondent was required to attend an in-person hearing to obtain this order. The LTB order did not address any other reasons for the eviction.
146Based upon the above, it is evident that the LTB did not deal with the applicant’s human rights claims, regardless of whether or not I accept his evidence that the mediator told him that he could not raise his human rights concerns with the LTB.
147This is not a situation like that in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, where an applicant obtained an unfavourable judgment on the merits and attempted what could be seen as a collateral attack on the decision by filing a human rights application. Instead, in this case, there is no information before me that the LTB heard the applicant’s harassment and discrimination allegations because the request to evict was dealt ex parte and without the applicant being present. Therefore, it is not a collateral attack on the LTB’s decision for the applicant to file an application with the Tribunal. Whether or not the LTB may have had jurisdiction over the applicant’s allegations in the context of the matter before it, it is clear it did not deal with those allegations and the HRTO does have jurisdiction over his human rights allegations.
148For these reasons, I deny the respondent’s request to dismiss the Application under section 45.1 of the Code.
What the Application is not about
149This is an Application filed under section 34(1) of the Code by the applicant, brought on his own behalf. He did not file it on behalf of another person under section 34(5) of the Code. Mr. Pershad has not filed an Application under section 34(1) of the Code against the respondent. As Mr. Pershad is not an applicant, the Tribunal cannot determine whether or not the respondent’s and Mr. Chavali’s actions towards him amount to a violation of the Code. It can, however, consider Mr. Pershad’s evidence pertaining to the applicant’s allegations.
150This case is also not about whether Mr. Chavali in his own capacity or as an agent of the respondent violated the applicant’s Code rights. Mr. Chavali was not named as a respondent.
The applicant’s French voicemail
151I find that the respondent ordered the applicant to change his voicemail message from French to English. In this regard, I prefer the evidence of the applicant, as supported by Mr. Pershad, to the evidence of Mr. Chavali and the respondent.
152Regardless of accepting the applicant’s evidence on this issue, I do not find that it amounts to discrimination under the Code on the basis of family status, sex, sexual orientation or reprisal. While the applicant speaks French, there was no evidence before me, or inference to be drawn, that the French voicemail message was related to his family status, sex, sexual orientation or reprisal. There was no evidence about the applicant’s ethnic origin or ancestry and in any event the Application was not based upon those enumerated grounds. The Tribunal does not have the power to deal with general allegations of unfairness. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
153Accordingly, this part of the Application is dismissed.
Reprisal
154Reprisal has a very specific definition in the Code. It is found at section 8, as is set out above.
155In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Noble v. York University, 2010 HRTO 878 at para. 31.
156Having reviewed the evidence as a whole, including the post-eviction evidence, I do not find that the applicant has established that he was reprised against contrary to section 8 of the Code. In particular, there is no evidence before me to suggest that the applicant asserted to the respondent that his Code rights were being violated, following which he was met with negative consequences.
157In this regard, I note that while the Application was filed on July 21, 2010, and the post-eviction evidence occurred in August 2010, there is no evidence before me to indicate that the respondent was aware of the Application before the Tribunal sent it to her on November 18, 2010.
Harassment and Discrimination by the Respondent
158Upon reviewing the materials that were filed by the respondent, the documents that were marked as exhibits, the evidence given by the respondent and Mr. Chavali, and the comments made by them during the course of the hearing, it is clear that they have difficulties accepting that the applicant is a gay man, in a same-sex relationship, and living in one of their units. This attitude manifested itself in their conduct towards the applicant and Mr. Pershad while the applicant was a tenant, and ultimately was one of the reasons for the applicant’s eviction.
159Throughout her evidence, and in her own words, the respondent testified, “I don’t like anybody who is homosexual living in my properties”, and she would not have signed a lease with the applicant and his mother if she knew the applicant was gay. She stated, “Nobody in the world accept[s] when one is living and another man living there with him and no decent man or woman”, and, perhaps most significantly during her cross-examination, “Visiting isn’t right, he’s spending nights with you” to which she added, “that’s wrong Madam Vice-chair”. The respondent’s evidence demonstrates that she believes that homosexuality is ethically wrong or indecent.
160This belief was reinforced in the respondent’s many outbursts during hearing. This included calling the applicant, “crazy”, “homosexual”, “criminal”, “it’s his kind of people and homosexual and we’re not animals”, and “he’s not a normal being”. The choice of the respondent’s words illustrate, in my view, her opinion that being homosexual is wrong.
161Mr. Chavali was more careful in his evidence not to display overt discrimination, but I find that he also shared the opinion that homosexuality is wrong. He testified, “we didn’t have the full picture of him [the applicant]” because his mother saw the unit and then decided it would be for her son. “We never discriminate unless I gave the dates of the nude people in the apartment when this was happening and others complained to us in Exhibit 10 [the document entitled “SEEN NUDE PEOPLE IN THE [APPLICANT’S] APARTMENT….and other than that didn’t say homosexuals are not allowed”. However, he also testified, “We also came to know about these people”, “they were nude”, “the back side door was kept open for those people”, and “your people” came to the apartment. In his examination-in-chief, Mr. Chavali testified, “We didn’t say that he is a homosexual or an idiot and we are not the type to say this”, “I don’t know what is meant by homosexual”, and “People visiting here, if they are normal, and following the rule of law, we don’t bother anybody, but that’s not the case here”. He asserted that the applicant could have stopped the eviction if he was “normal” and “decent”. Mr. Chavali’s inclusion of the words “these people” “those people” “your people”, “normal” and “decent” demonstrate, in my view, that he views homosexuality as something other than normal and different, in a negative way, from himself. I do not find Mr. Chavali credible when he testified that he does not know what is meant by the word homosexual.
162This belief was also reinforced in the choice of wording he used throughout the hearing, including submitting a number of times that the applicant was using the apartment for a purpose other than for which it was intended, his focus on seeing naked men in the applicant’s apartment, and asking the applicant and Mr. Pershad who was naked in the applicant’s apartment.
163In the respondent’s and Mr. Chavali’s letter to the Regional Vice Chairman of the LTB, dated June 7, 2010, which was entered as an exhibit and which Mr. Chavali signed on behalf of both of them, the respondent expresses her concerns with the applicant’s homosexuality and his lifestyle. It states, in paragraph 2, “The Tenant is continuing, has not change his course of action, …. and the Residential premises (complex) is not used for the purposes it is intended for as stated in N7 form”.
164The exhibit entitled, “SEEN NUDE PEOPLE IN THE APARTMENT….” (capitals in the original), which lists four different dates from January 19 to March 19, 2010 which Mr. Chavali entered through his examination-in-chief and testified that naked men were seen around the applicant’s apartment or in his apartment also reinforces the Chavalis’ concerns with the applicant’s homosexuality.
165In the Chavalis’ response to the November 2012 CAD, as noted in para. 36 above, in addition to alleging that they were the victims of harassment, they confirmed that they had seen nude people in the apartment which, amongst being illegal, was “wrong” and mentioned the applicant as having a same-sex partner “contrary to the lease agreement”.
166Having concluded that the respondent and Mr. Chavali see homosexuality as “wrong” or “indecent”, and given my finding that the respondent and Mr. Chavali were not credible as witnesses, I make the following findings with respect to the applicant’s allegations of harassment and discrimination.
167Harassment, as set out in section 10(1) of the Code, as above, means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The Tribunal has found that homophobic comments and actions constitute harassment under the Code. See Selinger v. McFarland, 2008 HRTO 49 at para. 24, and Messmer v. Piliwood Investments Ltd., 2011 HRTO 1421 at para. 55.
168Prior to learning about the applicant’s sexual orientation, the applicant and the Chavalis had a good relationship. During this period of time, the Chavalis accepted rent payments for the applicant from his mother, and from the applicant. For a long period of time, the applicant was behind on his rent payments and paid in installments. This is evidenced, for example, in the respondent’s letter dated December 31, 2009 to the applicant setting out the balances that were owed. Although it is signed as “Krishvaveni Gaddam”, Mr. Chavali confirmed that is in fact the respondent.
169I appreciate that as landlords the Chavalis would want the full amount of the rent paid and on time and I accept that they pursued the applicant’s mother for her own rent arrears. However, they took no steps to pursue the applicant for his rent arrears, beyond writing to him, until they knew about the applicant’s sexual orientation, that he had a same-sex partner, that his same-sex partner was staying overnight in the applicant’s apartment, and objected to activities that they believed were occurring in the applicant’s apartment. After finding out about the applicant’s sexual orientation, I find that the respondent engaged in harassing behaviour towards the applicant and Mr. Pershad.
170I accept the evidence of the applicant and Mr. Pershad that the respondent spit upon them, on more than one occasion, that she called them “mo”, and called Mr. Pershad “homosexual”. She called the applicant “homosexual” during the hearing. I accept the applicant’s assertion that “mo” is a shortened form of “homosexual”. I accept that the respondent threw various objects at the applicant and made her views known to them that she did not want a homosexual man to be one of her tenants. I also accept that she peered into the applicant’s windows on unspecified occasions. The respondent’s comments and conduct in this regard constitutes harassment under the Code.
171Furthermore, the difficulties that Mr. Pershad experienced in relation to his parking also support the applicant’s assertion that he was subjected to harassment on the basis of sexual orientation. I accept that parking is for the tenants of the apartment building; however, Mr. Pershad’s difficulties parking occurred after he had been allowed to park at the building for three months, for which he paid, and after the Chavalis realized that he was the applicant’s partner and staying overnight with the applicant. At that point, Mr. Pershad received a notice of trespass and Mr. Chavali called the parking authorities to advise that Mr. Pershad’s vehicle was illegally parked.
172Furthermore, the Chavalis believed that inappropriate sexual activity between men was occurring at the applicant’s apartment and they really wanted to know what was happening within the apartment. Both the respondent and Mr. Chavali testified that they saw naked men in and around the apartment and had complaints from other tenants about this, but no other firsthand evidence was tendered to support this claim. The respondent testified that she saw naked men in the apartment when she went to the apartment door and the respondent’s “naked men” document indicates that for two of the three entries, the naked man was observed in the apartment after the respondent or Mr. Chavali knocked on the door of the apartment and it was opened. The third entry observes “nude people” walking in the hallway. In the Chavalis’ May 25, 2010 letter to the chief of police, that they both signed, they questioned the reason why the police attended the apartment and “where were they hiding?”
173The day after the police attended the apartment, on May 26, 2010, the respondent filed the initial LTB application. In the initial LTB application, the respondent alleged that the applicant was behind in his rent, the police had been called to the apartment the previous night, the police damaged the apartment door, paint on the door, the applicant had refused her entry into his apartment and, as mentioned above, the claim, “There is a continuous flow of people coming very late night hours for drugs or sex”. The applicant admitted that his rent was in arrears. During the hearing there was no testimony about the apartment being used for drugs.
174I do not have the jurisdiction to determine whether or not the respondent, as a landlord, was justified in filing the LTB application pursuant to the RTA. My role is to determine whether or not the eviction was based upon a discriminatory reason or reasons. In reviewing the information and evidence pertaining to the eviction, I find that the applicant’s sexual orientation was a factor, but not the only reason, for his eviction.
175There is no dispute that the applicant was in arrears for his rent. He conceded that he was in the lead up to the initial LTB application and he agreed that he breached the mediated settlement by not paying the rent on the date stipulated in that agreement. However, the timing of the initial eviction application, along with the claim asserted in the respondent’s June 7, 2010 letter to the LTB’s regional vice chair, “The tenant is continuing, has not changed his course of action, … and the residential premises (complex) is not used for the purposes it is intended for as stated in N7 form” indicate to me that the respondent and Mr. Chavali wanted the applicant evicted, in part, because of his sexual orientation.
176My determination is also supported by Mr. Chavali’s testimony in response to a question that I asked him. The full question is set out in para. 99 above, but essentially I asked him if the eviction proceedings were commenced because the applicant failed to pay his rent by the specified date or if there were other reasons. Mr. Chavali responded, “basically I would say that rent proceedings and other problems that had people coming in and having the nude situation and this is a place for residence and not for other activities and not one type of person but other people and not the same person but different people and this concerned us and other tenants”. To me, the reference to the “nude situation” and “not for other activities” and “not one type of person”, when examined in the context of this case, reveals that the applicant’s sexual orientation was one of the reasons why the eviction proceedings were commenced.
177While the respondent and Mr. Chavali had legal proceedings with the applicant’s mother pertaining to her own tenancy, and while she is the one who initially found the applicant’s apartment and paid at least some of his rent for some of the time, I do not find that the applicant’s family status was a factor in either the harassment that occurred or as a reason for his eviction.
178With respect to the events surrounding the applicant physically being evicted from his apartment by the Sheriff, I do not find that the applicant has been able to establish that those interactions amounted to harassment or discrimination on the basis of sexual orientation, family status or reprisal and that part of the Application is dismissed. The applicant’s tenancy was terminated by the LTB, and in its order, the LTB identified June 19, 2010 as the date by which the applicant was to move out; directed a copy be provided to the Sheriff; and warned the applicant that the Sheriff was directed to give vacant possession of the unit to the respondent on or after June 20, 2010.
179With respect to the allegations about the comments made by the respondent to the applicant and Mr. Pershad after the applicant was evicted, I find that it is more probable than not that after the applicant was evicted from his apartment, the respondent called him and Mr. Pershad “mos”, made comments to the effect that she did not want “mos” in the apartment, and told the new tenant “those homosexuals aren’t allowed to take things out of the apartment and they don’t belong here”. Those comments are contrary to sections 2 and 7(1) the Code on the basis of sexual orientation.
180I accept that the applicant experienced difficulties and resistance from the respondent and Mr. Chavali when attempting to remove his belongings after he was evicted. The fact that some of the applicant’s belongings were left behind was not in dispute between the parties. The new tenant’s letter also says that the applicant left behind “some junk”.
181As an evicted tenant, the applicant had a limited window, two days, within which he was permitted to remove his belongings from his apartment. Mr. Chavali testified about this and Mr. Pershad understood this at the hearing during his cross-examination. However, I accept that the applicant did not know, at the time, about that window. The evidence is that despite the LTB ordering the applicant to vacant his apartment by June 9, 2010, the applicant did not move out and the respondent was required to utilize the Sheriff’s services on July 30, 2010 to trigger the applicant’s departure. The new tenant moved in on August 1, 2010, and the applicant’s interactions with the Chavalis continued beyond the two-day window. On August 14, 2010, Mr. Chavali presented the applicant and Mr. Pershad with the notice of trespass, and on September 14, 2010, when the applicant and Mr. Pershad attended the Chavalis’ home.
182However, the Chavalis’ conduct, and the respondent’s comments, make it clear that the applicant’s attempts to remove his personal belongings from the apartment were thwarted by the respondent and done so because, at least in part, of the applicant’s sexual orientation.
183I accept the applicant’s evidence that on July 30, 2010, the lock was changed such that his possessions were locked into the apartment and he was locked out. The Chavalis then got into their car and left the apartment such that the applicant was prevented that day from removing his items. Another tenant moved in on August 1, 2010.
184Following the eviction, the respondent made a number of comments about the applicant’s and Mr. Pershad’s sexual orientation, including “mos”, “get away from here mos”, and “homosexuals aren’t allowed to take things out of the apartment and they aren’t allowed here”, when the applicant and Mr. Pershad attempted to make arrangements to remove the applicant’s belongings from his apartment.
185While the applicant’s conduct may have given rise to the police being called, and the subsequent notice of trespass issued, the respondent’s conduct, together with her comments, prevented the applicant from removing his personal belongings. To be clear, I find that the respondent prevented the applicant from removing his belongings during the two-day period immediately following his eviction and that the applicant’s sexual orientation was at least one reason for this.
remedies
186The Tribunal's remedial jurisdiction is set out in section 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.
187In the oft-cited Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal explained the factors that it considers in ordering remedies. At paras. 52 to 54 it stated:
The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
188The applicant submitted that filing an Application with the Tribunal was not something that he wanted to do and that he does not usually have difficulty dealing with people. “It’s been quite a road trip for me” he stated. He submitted it had been psychologically difficult for him for him to see the Chavalis and their conduct during the hearing, in addition to the treatment to which he had been subjected while he was a tenant. As remedies, he stated that he wanted an apology from the respondent, $10,000 as compensation for the treatment to which he had been subjected and the return of his belongings. In the event that his belongings could not be returned, then the applicant submitted that he was seeking $15,000 as compensation representing the value of the furniture and personal belongings.
189The respondent submitted that the applicant had financial difficulties and that he had filed his Application and made the allegations against the respondent in order to make some money.
190It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator. Intention to discriminate is not a governing factor in construing human rights legislation. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“Simpsons-Sears”) at para. 18. It is the result or effect of the alleged discriminatory action that is significant.
191I have determined that an award of $10,000 is appropriate in the circumstances of this case, taking into account the objective seriousness of the respondent’s conduct, the subjective impact it had on the applicant, and the fact that the applicant sought $10,000 for injury to dignity, feelings and self-respect (an amount I consider well within the appropriate range for a case such as this). Pre-judgment interest at 0.8% from the date of filing the Application is also awarded pursuant to section 127 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended. Post-judgment interest arises 30 days after the date of this Decision in the event the order remains outstanding.
192First of all, I have found discrimination by the respondent. The discrimination occurred over a period of time and in differing forms, from the harassing comments made by the respondent and her harassing conduct while the applicant was a tenant and afterwards, to it being a factor in the respondent’s decision to evict the applicant. While the Tribunal does not have to find that a respondent intended to discriminate in order to determine that the Code was violated, it is hard to imagine that the comments that the respondent made to the applicant and Mr. Pershad were not intentional.
193Second, it occurred at the applicant’s place of residence, a place the Tribunal has recognized as being where one reasonably expects privacy, safety and freedom, particularly freedom from discrimination. See Hill-LeClair v. Booth, 2009 HRTO 1629 at para. 44.
194Third, the harassment and discrimination fundamentally strikes at the applicant’s identity – his sexual orientation. It was clear from seeing the applicant’s demeanour during the hearing and hearing his testimony that the respondent’s harassing comments and conduct and discrimination visibly affected him not just when they occurred but reverberated during the hearing itself.
195The Tribunal has the ability to award special, or out-of-pocket, damages pursuant to section 45.1(2) of the Code. The applicant submitted that he was seeking $15,000 as compensation for the loss of his furniture and personal belongings. The evidence is that the applicant was unable to remove a dining table, old microwave, lamps, chairs, rent receipts and documentation above the kitchen counter and his passport. The applicant did not submit any receipts for these items, and testified that his receipts were still in the apartment when he left.
196In these circumstances, and bearing in mind that the applicant did not provide any receipts, I find it appropriate to award $5,000 as compensation for the loss of his furniture, and personal belongings, including his loss of his passport.
197I decline to award an apology as it is unclear whether the ordering of an apology by the Tribunal would be in violation of the right to freedom of expression. See Messmer, above, at para. 95.
198In my view, it would be appropriate for the respondent to receive training on her rights, obligations and responsibilities under the Code. This can be achieved by requiring her to take the e-learning course on the Ontario Human Rights Commission’s website called “Human Rights in Rental Housing” which is found at http://www.ohrc.on.ca/en/learning/rental-housing. This training is to be done within three months of the date of this Decision.
order
199The Tribunal orders the following:
The Application is dismissed on the grounds of family status and reprisal;
The respondent is required to pay the applicant $10,000.00 for injury to his dignity, feelings and self-respect;
The respondent is required to pay the applicant $5,000.00 for loss of his furniture and personal belongings, including his passport;
Pre-judgement interest in the amount of 0.8% on both amounts arising the date the Application was filed;
Post-judgment interest arises after 30 days if the monetary orders remain outstanding;
Within three months of the date of this Decision, the respondent is required to take the e-learning course on the Ontario Human Rights Commission’s website called “Human Rights in Rental Housing” which is found at hpp://www.ohrc.on.ca/en/learning/rental-housing.
Dated at Toronto, this 12th day of June, 2014.
“Signed by”
Alison Renton
Vice-chair