HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mekuanent Assefa
Applicant
-and-
Sojourn House
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Assefa v. Sojourn House
APPEARANCES
Mekuanent Assefa, Applicant
Munyonzwe Hamalengwa, Counsel
Sojourn House, Respondent
Robert Budd, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to the occupancy of accommodation because of his disability and receipt of public assistance.
2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is has no reasonable prospect of success and/or another proceeding has appropriately dealt with its substance. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed these issues. I have decided to dismiss the Application. The following are my reasons for the dismissal.
BACKGROUND
3The respondent is a non-profit organization, which provides transitional housing and services to refugees who have been identified as having settlement difficulties due to trauma-related issues, and are either homeless or at risk of homelessness. The purpose of the transitional housing program is to assist refugees who require longer term support in order to successfully integrate into the broader community.
4The respondent operates a residence comprised of 52 private apartments, and accepts tenants based on a formal needs assessment. A tenant who is accepted is required to sign a tenancy agreement in which he or she agrees that the apartment is transitional housing, the maximum length of occupancy is two years, he or she will participate in programs and services, and rent will be paid on a geared-to-income basis.
5The respondent also operates a hostel, which is an emergency shelter that provides short-term accommodation.
6In June and July 2010, the applicant, who is a refugee with mental health problems, was assessed by the respondent, and granted an apartment in its residence. He signed a tenancy agreement on July 26, 2010.
7On March 9, 2011, the respondent’s Transitional Housing Coordinator sent the applicant a letter, which advised him that his eligibility for transitional housing was under review because he was not participating in programs and services.
8On December 5, 2011, the Transitional Housing Coordinator sent the applicant a letter, which notified him that his tenancy would be terminated on June 30, 2012, and that a housing worker was available to assist him to secure alternate housing before that date.
9On May 25, 2012, the Transitional Housing Coordinator sent the applicant a letter, which notified him that a meeting had been set up for him to meet with her, a Housing Worker, and the Housing Programs Manager to outline the options that were available to him, and to establish a system to report his housing searches. The letter also stated that in the event that he had not secured alternate housing by June 30, 2012, staff would assist him in finding a space in a shelter.
10On July 3, 2012, the respondent evicted the applicant from the apartment in its residence and provided him with a room in its hostel.
11On June 4, 2013, the applicant filed an Application with the Landlord and Tenant Board, which alleged that the respondent illegally evicted him.
12On July 2, 2013, the applicant filed an Application with this Tribunal, which alleged that the respondent discriminated against him based on disability when it evicted him from his apartment before he had secured alternate housing. The Application also alleged that the respondent discriminated against him because of his receipt of public assistance, but did not explain how. The Application also referred to a number of incidents that occurred after the eviction, but at the summary hearing, the applicant’s counsel clarified that the only alleged incident of discrimination was the eviction that occurred on July 3, 2012.
13On September 13, 2013, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis (1) because it has no reasonable prospect of success, and/or (2) pursuant to s. 45.1 of the Code because another proceeding has in whole or in part appropriately dealt with the substance of the Application.
14The summary hearing took place on January 8, 2014. I heard the parties’ oral submissions and reserved my decision.
ANALYSIS
Should the Application be dismissed on a preliminary basis because it is has no reasonable prospect of success?
15The Application relates to sections 2, 9 and 11 of the Code, which provide:
- (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of… disability or the receipt of public assistance.
(…)
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(…)
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances…
(…)
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
16Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
17The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.
18In his submissions, the applicant’s counsel stated that the Application has a reasonable prospect of success because there is evidence that the applicant has mental disabilities and is a recipient of social assistance, both of which hinder his ability to find housing and live in the broader community, but the respondent failed to take these factors into account and accommodate his needs up to the point of undue hardship when it evicted him. In short, he stated, the respondent treated the applicant like a person who does not have a disability and is not in receipt of social assistance when it evicted him. Such treatment, according to the applicant’s counsel, is discrimination.
19In its submissions, the respondent’s counsel stated that the Application does not have a reasonable prospect of success because the applicant is making general allegations of unfairness, and has not pointed to any evidence that can show a link between his eviction and his disability and receipt of public assistance. He stated that it important to look at the applicant’s allegations in the context of the respondent’s mandate, which is to provide transitional, not permanent, housing, to as many refugees as possible who are having settlement difficulties due to trauma-related issues, and are either homeless or at risk of homelessness. He also stated that the applicant was required, as part of his tenancy agreement, to participate in services which would assist him in transitioning into the broader community, but he failed to do so during his nearly two-year tenancy. He also stated that the reality is that some individuals will never be able to transition into the broader community, but that the respondent does not have a mandate to allow such individuals to live permanently in its housing. He further stated that the respondent did, in fact, accommodate the applicant’s needs because after it evicted him, it provided him with a room in its hostel.
20In my view, the Application has no reasonable prospect of success because, pursuant to the first branch of the Dabic test, even if his factual allegations are true, what he alleges cannot reasonably be considered to amount to a Code violation.
21In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, the Supreme Court of Canada defined discrimination as follows at pp. 174-75:
Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.
22In B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, the Court also stated at para. 4 that the broad goal of anti-discrimination statutes are to prevent the drawing of “negative distinctions based on irrelevant personal characteristics.”
23However, the Court has also emphasized that anti-discrimination law is concerned with substantive discrimination, not merely differential treatment. In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, Abella J., in her concurring reasons, stated at para. 49:
(…) there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
24Furthermore, in Quebec (Attorney General) v. A, 2013 SCC 5, Abella J., writing for the majority on the analysis of discrimination under s. 15(1) of Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, stated, at para. 331, that courts and tribunals should engage in a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of an enumerated ground, and that the contextual factors will vary from case to case because there is no rigid template.
25In my view, the contextual factors in this case are very important. The respondent is not a typical landlord who rents apartments to members of the general public for indefinite periods of time; rather, it is non-profit organization, which provides transitional, not permanent, housing to refugees, like the applicant, who have been identified as having settlement difficulties due to trauma-related issues, and are either homeless or at risk of homelessness. It also has a limited number of apartments to serve as many clients as possible.
26In these circumstances, in my view, what the applicant alleges cannot reasonably be considered to amount to a Code violation. I will assume without deciding that the respondent’s action had the effect of imposing a disadvantage on him because of his disability and receipt of social assistance (i.e. the respondent evicted him from an apartment in its residence and provided him with a less suitable room in a hostel even though he has mental disabilities and is a recipient of social assistance, both of which hinder his ability to find housing and live in the broader community). However, I cannot see how, given the contextual factors and facts identified above, its action was arbitrary. The respondent is a non-profit organization, which provides transitional housing to refugees, who are similarly situated to the applicant, and it has a limited number of apartments to serve as many clients as possible. I cannot see how evicting the applicant, who had lived in a transitional housing apartment for nearly two years, in order to make room for another refugee who was also having settlement difficulties due to trauma-related issues, and was either homeless or at risk of homelessness, amounted to an arbitrary action and was discrimination.
27What the applicant really appears to complaining about is the lack of alternate housing for someone like himself, who has ongoing mental health problems and is still in receipt of social assistance, after he has completed the transitional housing program run by the respondent. This is a larger societal problem, which the respondent cannot be held responsible for.
28In view of my finding on this issue, it is not necessary to decide whether the Application should also be dismissed because another proceeding has appropriately dealt with its substance.
ORDER
29The Application is dismissed.
Dated at Toronto, this 7th day of July, 2014.
“Signed by”
Ken Bhattacharjee
Vice-chair```