HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Devin Sharpe
Applicant
-and-
Maria Man Lai Cheuk
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Sharpe v. Cheuk
APPEARANCES
Devin Sharpe, Applicant
Chantal Tie, Counsel
Maria Man Lai Cheuk, Respondent
Self-represented
Introduction
1The respondent is a landlord who owns a property in Belleville. It is an old warehouse that has been renovated in the style of an urban loft. There is commercial space on the ground floor and an apartment unit on the second floor.
2In April of 2012 the applicant rented the apartment from the respondent. He self-identifies as a gay man who is also disabled. At the time he rented the apartment he was receiving social assistance. On February 20, 2013 the respondent sent him a letter telling him to move out by March 31, 2013. He thought he was obliged to leave, and did, even though he had nowhere else to live. He remained homeless until October of 2014.
3The applicant brought this Application alleging discrimination with respect to housing because of sexual orientation and receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
4A hearing was held on November 10, 2014. Both parties gave evidence, as did the respondent’s partner. Written submissions were filed on December 15, 2014. The applicant has not shown that he was discriminated against because he is gay, but he has demonstrated that his receipt of social assistance was a factor in the respondent’s decision to terminate his tenancy, and this was discriminatory. The reasons below explain why.
the issues in this case
5In s.2(1), the Code prohibits discrimination in accommodation because of sexual orientation or receipt of public assistance:
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.
6The issues in this case are the following:
Did the respondent discriminate against the applicant on the basis of his sexual orientation and/or his receipt of social assistance?
If so, what is the appropriate remedy?
7A number of the findings that I make in this case turn on an assessment of the credibility of the oral testimony I heard. Generally the Tribunal relies on the approach to assessing credibility that is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
8The Tribunal has also noted that the following are factors in assessing credibility: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations of the manner in which they give their testimony. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
9The applicant’s case rests on his version of two events:
The respondent confronted him outside the unit in January of 2013 and said ““I am sick of you people, you are always causing problems for me.” He took this to be a reference to his sexual orientation or his receipt of social assistance, or both.
The respondent’s letter of February 20, 2013 relies on the fact that the applicant was in receipt of social assistance as a ground for terminating his tenancy.
background
10In this section I set out the circumstances leading to the signing of the lease, what took place while the applicant was a tenant, and then the two events which culminated in the termination of the tenancy.
The applicant rents the apartment from the respondent
11Before entering into a lease agreement with the respondent, the applicant lived on the same street as his then partner, but at a different address. They decided to move in together and had agreed to split the cost of rent equally.
12At that time the applicant’s partner was working, but the applicant was not. He was in receipt of social assistance from Ontario Works. A portion of his social assistance was calculated by his Ontario Works caseworker as the amount to cover his rent.
13The applicant and his partner went to the office of the real estate agent who was acting as the respondent’s agent in leasing the apartment. In fact, two real estate agents were present, one to represent the interests of the respondent as landlord and the other to represent the interests of the applicant and his partner as tenants. The respondent covered the fees of both agents.
14The applicant and his partner both signed a contract to rent the apartment and both are identified as tenants on the rental agreement. The applicant testified that when he signed the lease he advised the respondent’s agent that he was receiving Ontario Works. His evidence was that he explained to the agent that he had been studying to be hairstylist and makeup artist, but that he began to have problems with his vision and had to stop his studies as a result. This is what led to him being on social assistance.
15It is not disputed that the applicant has a visual disability.
16The applicant says that the reason he told the agent he was on social assistance is because he knew that he would have to contact his Ontario Works caseworker to inform her of the fact that he was moving and would be paying more rent than in his previous apartment. He says that it was in his interest to do so because he needed to remain eligible for social assistance; the move would result in the shelter portion of his allowance being recalculated and the caseworker would have to verify his rent in any event.
17The respondent denies that the applicant told the agent that he was on social assistance. She says that he told the agent that he was a photographer and hair stylist. This assertion is based on the information provided by the applicant on the rental agreement.
18I find it more likely than not that the applicant did tell the agent that he was on social assistance. First, he had every interest in obtaining the maximum amount of the shelter allowance and knew that his caseworker would verify what he told her with the respondent or her agent. Second, although the applicant and his partner both wrote out their respective occupations on the lease agreement, when the applicant indicated on the form that he was a photographer and hair stylist, he was not representing that he was employed at the time. The form does not ask whether a prospective tenant is employed, it asks what their occupation is. Third, the respondent was not present when the lease was signed. The best evidence to support her contention would have come from the testimony of the real estate agents, but neither of them was called by the respondent to give evidence.
19The applicant claims that his caseworker contacted the respondent in order to verify the rent, and this is how the respondent knew from the outset that he was on social assistance. The best evidence to support his contention would have come from the testimony of the caseworker, but she was not called by the applicant to give evidence.
20In any event, whether the respondent knew in April that the applicant was on social assistance does not ultimately matter because, as I indicate below, by July 2012 the respondent knew he was on social assistance.
The applicant occupies the apartment
21The applicant’s then partner ultimately did not move in with him. The applicant moved in and found other roommates to cover the cost of the rent. Over course of his time there he had four different roommates. The applicant gave the respondent ten postdated cheques, each for the full rental cost of the apartment.
22His first roommate moved into the apartment in June. He was a minor and on social assistance. Because the roommate was not an adult, Ontario Works paid the roommate’s rent directly to the respondent. In order for the respondent not to be overpaid by both cashing the applicant’s postdated cheque and receiving the roommate’s rental payment directly each month, the respondent agreed to refund the applicant the amount of money that Ontario Works was paying for the roommate’s rent. In the course of making this arrangement the respondent was aware that the applicant was also on social assistance.
23The respondent testified that she only became aware of the fact that he was on social assistance when he gave his evidence on the day of the hearing. This is not credible. In completing her Response to this Application the respondent acknowledged that she was aware by July that the applicant was on social assistance, when she repaid the applicant for the roommate’s rent. The earlier statement in her Response was unprompted and volunteered by the respondent. Her testimony that she was unaware that the applicant was on social assistance until the day of the hearing contradicts not only her Response, but also the content of her February 20, 2013 eviction letter (which is reproduced below). I find it was more likely than not that the respondent knew by no later than July 2012 that the applicant was on social assistance.
24Shortly after moving in the applicant complained to the respondent that there was a leak in the roof and that his laptop computer had been damaged as a result of water coming in from the leak. It is not disputed that the respondent paid the applicant $300 to cover the cost of this damage.
25The applicant testified that when the respondent came to inspect the damage in May 2012, they had a casual conversation. The applicant told the respondent that he was planning to go to Toronto in the summer to attend the Gay Pride celebrations. He said that the respondent was unresponsive to this and she then changed the subject. He interpreted her reaction as discomfort with what he had just told her.
26The respondent did not deny that this conversation occurred, but she also said that the applicant’s sexual orientation was of no concern to her.
27Given the respondent’s evidence, I am satisfied that she knew by May of 2012 that the applicant is gay.
28It is undisputed that during the applicant’s tenancy a number of issues arose to do with the respondent’s obligations to maintain the property. Some of them were the subject of an application brought by the applicant under the Residential Tenancies Act, 2006, S.O. 2006, c.17 before the Landlord and Tenant Board (“LTB”) after he left the apartment.
29The LTB issued a decision on October 23, 2013 that found the respondent had not failed to maintain the property in good repair. Specifically, the LTB found that the applicant had repeatedly reported that the locks to his apartment had been broken and that the respondent had met her obligation to repair the locks promptly. It also found that the reason an interior door had come loose and had fallen, damaging the applicant’s computer, was due to the applicant’s improper use of the door.
30The applicant complained of leaks in the roof. In relation to the leak that occurred in April of 2012, the LTB made no ruling on liability because the complaint about that issue was outside the statutory limitation period. In relation to a leak that the applicant complained about in January of 2013, the LTB found that the respondent acted promptly and appropriately to repair that leak. It refused to award the applicant money to compensate for damage to his property.
31The applicant essentially sought to relitigate these findings at this hearing, with a view to having me find that the respondent was indifferent to his concerns as a tenant. The respondent also tried to use the LTB findings, pointing to the LTB dismissal of the applicant’s claim as indicative of a lack of credibility on the part of the applicant.
32Despite the positions taken by both parties, it would be inappropriate for me to revisit the findings of the LTB, as they are governed by the principle of issue estoppel. In any case, the issue I have to determine is whether there was discrimination, not whether the respondent breached her obligations as a landlord or not. Those issues are irrelevant. What is relevant for the purposes of this Application, and the relationship between the parties, is that the respondent had to attend at the property repeatedly during the tenancy because of these maintenance issues.
33On one of the occasions when the locks were broken, paint was also splashed on the outside of the building. At another time glue was poured in the locks.
34In addition, the police were called because on one of the occasions when the locks were broken some of the applicant’s possessions and cash were stolen from the apartment.
35The applicant also complained to the City of Belleville property standards branch about the leak in January of 2013. This led to the city issuing a work order to fix the roof and a downspout, which the respondent complied with.
The respondent’s January 2013 comment
36The applicant’s evidence is that in late December 2012 and early January 2013 he repeatedly contacted the respondent to complain about the leaking roof. The respondent came to the property some time in January. She was accompanied by her partner, Michael Duquette, and by someone from a construction company as well as the handyman that the respondent regularly uses.
37The applicant says that he accompanied them outside to look at the exterior of the building, and that they were taking pictures of the downspout on the side of the building. The applicant claims that at that point the respondent had an outburst and said to him “I am sick of you people, you are always causing problems for me.” She then stormed off and sat in her car while her partner and the others carried on inspecting the leak.
38The applicant interpreted this to be a comment about his sexual orientation or the fact that he was on social assistance. He assumed this to be so because he felt the respondent was uncomfortable with his sexual orientation and because she was aware of the fact that he was on social assistance.
39The respondent did not deny having made the remark. However, both she and Michael Duquette indicated in their evidence that they were frustrated at having to deal repeatedly with maintenance problems during the applicant’s tenancy. Their evidence – which was not challenged – is that they had no complaints about maintenance in the five years prior to renting to the applicant. They did not suggest that the applicant had caused any of the problems with the locks or that he was responsible for paint being thrown at the building, but they were annoyed by how often problems had arisen in the relatively short period of time that the applicant had been a tenant.
40The words of the comment can be interpreted as discriminatory. But they can equally be interpreted as a non-discriminatory expression of annoyance arising from the maintenance problems. The reference to “you people” could be to gay people or people on social assistance, but also could refer simply to the applicant and the roommates who had occupied the apartment without regard to their sexual orientation or reliance on social assistance.
41The context at the time the remark was made is one where the respondent was in the midst of inspecting another in a series of complaints about the maintenance of the unit. While the respondent was, by that time, aware for several months of the applicant’s sexual orientation and his source of income, there is nothing to indicate that either of those facts coloured the relationship between the respondent and the applicant in that time period. This leads me to conclude that what animated the respondent’s remark was frustration at having to deal with a maintenance issue, and when she referred to “you people” she was referring to the applicant and his roommates, not gay people or people on social assistance.
42I accept that the applicant believed the comment to be discriminatory, but his belief is not supported by other evidence. I find it more likely than not that the respondent’s remark was a non-discriminatory expression of frustration at the number of maintenance issues that had arisen in the course of the applicant’s tenancy. As a result I conclude that the applicant has not shown that this comment was discriminatory. This allegation is dismissed.
The February 20, 2013 letter that tells the applicant to leave
43On February 20, 2013 the respondent wrote the following letter to the applicant:
Dear Mr. Sharpe:
Re: Residential Agreement to Lease 255-A Front St.
This letter is your notice to terminate the lease as it's expires on March 31, 2013 and not to renew. You are expected to vacate the premises on March 31, 2013. I will require access on March 30, 2013 for an inspection of the property.
There are a number of reasons for this decision, including but limited to the following:
Late payment of rent for the months of October, November, and December 2012.
Changing co-tenants on more than one occasion, while Jason Mills was identified on the lease agreement.
Misrepresenting employment income, and involvement of Ontario Works.
Not obtaining Renters Content Insurance for the full lease period as required.
An unusual amount damage & repairs required, and false reporting of alleged damage.
Not providing the written notice requesting a lease extension.
You are expected to vacate the premises on March 31, 2013.
44The applicant did not deny that he had been late with his rent in November and December of 2012. He testified that the late payment for November was because of the loss of cash he had sustained when the apartment was broken into, and that for both months he contacted the respondent to ask her not to cash his rent cheque until he enough money in his account to cover the payment. The respondent indicated to him that this was not a problem.
45The respondent did not take issue with this, and Michael Duquette’s evidence confirmed that the applicant advised the respondent in advance that he would be late with the rent.
46The applicant asserted that he advised the respondent each time his roommate changed. The respondent denied this, and argued that this showed that the applicant is dishonest.
47On being questioned about the third point in her letter, the respondent testified that she knows it is illegal to discriminate against someone in the provision of accommodation because they receive social assistance. She said that the reason she wanted the applicant out is not because he was on social assistance, but rather because he had been dishonest and had not told her his source of income at the time he entered into the rental agreement. If he had told her then that he was receiving social assistance, she would certainly have rented the apartment to him.
48In relation to the remaining points in the letter, the respondent did not claim that any of them were in fact valid grounds to evict the applicant. She and Michael Duquette both stated that they did not think the applicant was responsible for damage to the apartment.
49On being questioned why she had sent the applicant this letter, as opposed to using the forms prescribed under the Residential Tenancies Act, 2006, (which advise a tenant that they are not obliged to leave, but can contest the landlord’s application before the LTB), the respondent said she knew the letter provided no legal foundation to evict the applicant. She said “I just wrote this letter to protect myself” and that she wanted him out because she was annoyed at the number of complaints he had made regarding maintenance.
50Michael Duquette helped in drafting the letter. He acknowledged in cross-examination that there was no valid basis underlying any of the six points cited in the letter, but that the respondent wanted the applicant to leave so she could rent to a different tenant.
51The respondent is a paralegal who runs an immigration consulting business. While not licenced by the Law Society of Upper Canada, she is accredited by the Immigration Consultants of Canada Regulatory Council and has a paralegal diploma from Seneca College. She owns five rental properties, three in Toronto and two in Belleville, and has been a landlord since 2003.
52Despite her paralegal training and more than a decade of experience as a landlord, she professed ignorance of the requirements to lawfully terminate a tenancy. I do not believe that she did not know of the requirement to advise a tenant that the tenant can remain in the rental unit and contest an eviction notice. When this was put squarely to her she was evasive in her answers. By contrast, when she completed her Response she asserted that she had “…terminated the Residential Agreement in accordance with the Residential Tenancies Act”. Having regard to her experience as a paralegal and a landlord, I think it more likely than not that she deliberately avoided giving the applicant notice of his rights as a tenant in the hope – which was ultimately realised – that he would leave without putting up a fight.
53In doing so, she cited his reliance on social assistance as one of the purported reasons to terminate the tenancy. Her claim that her objection was not at all to his actual reliance on social assistance, but rather to his dishonesty in not disclosing this fact in April of 2012 is simply disingenuous. She had known since July of 2012 that he was in receipt of social assistance and had readily accepted his cheques, as well as direct deposits from Ontario Works on behalf of his roommate, and had raised no objection. If she so strenuously objected to such dishonesty, then why wait for months before doing something about it? Moreover, the respondent could not explain how the applicant’s alleged dishonesty adversely affected her interests as a landlord, such that she would want to end his tenancy.
54The only way in which point 3 in the respondent’s letter makes any sense is if she was including it in order to pressure the applicant into thinking she had grounds to evict him. I conclude that she inserted the reference to his reliance on social assistance as one in a series of spurious reasons to convince the applicant that he had to leave the apartment. In this sense his receipt of social assistance was a factor in the respondent’s decision to terminate the tenancy. The applicant does not need to show that it was the only reason the tenancy was terminated, only that it was a factor in the termination decision. He has done so. The letter did not tell the applicant – as the law requires – that he could stay and contest the attempted eviction. Instead, it led the applicant to believe that he had to leave the apartment. When he left he had nowhere to go. He has established that in this course of events he was discriminated against.
what is the appropriate remedy?
55The Tribunal’s remedial powers are set out in s. 45.2 of the Code:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
56The applicant requests compensation for injury to dignity, feelings and self-respect in the amount of $10,000.00. He also claims that he could not afford to store his household items and eventually donated them to the Salvation Army. He has estimated this loss at $3,400.00 and he also requests $200.00 in moving expenses.
Injury to dignity, feelings and self-respect
57In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 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.
…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.
58In Sanford v. Koop, 2005 HRTO 53, at paragraph 35, the Tribunal listed a number of factors to consider when awarding damages, including:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self-respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment.
59The applicant’s evidence is that after he left the apartment he stayed with friends, and at times with family. Essentially he was couch-surfing in the Belleville and Trenton area from April of 2013 to October of 2014. He registered with the municipal authorities for emergency housing.
60The applicant has a number of disabilities. He has a visual disability, problems with his back, and periods of depression and anxiety. He testified that being homeless aggravated his depression and anxiety. He felt worthless because he had no income and nowhere to live.
61The respondent did not challenge any of his evidence relating to being homeless in cross-examination. She cast doubt on his efforts to find shelter in her post-hearing written submissions, but provided no evidence at the hearing to support her position.
62I accept the applicant’s evidence in relation to the duration of his episode of homelessness and the impact that it had on him. I find that he was vulnerable at this time and the respondent’s deliberate and calculated actions in evicting him had a negative impact on his psychological well-being.
63As is noted in the Tribunal’s decision in Janes v Wright, 2012 HRTO 1621 at paragraph 82, being made homeless is an objectively serious matter. In that case the Tribunal awarded compensation of $7,500 in circumstances where a respondent landlord revoked a decision to rent to an applicant tenant once the landlord determined that the tenant was reliant on social assistance. The applicant had moved her belongings into the apartment and moved out on the same day. By contrast, in this case the applicant had been living in the apartment for almost a year when he was pressured into leaving. I find that this would have had a more disruptive effect on the applicant’s life than was the case in Janes.
64Counsel for the applicant cited the Tribunal’s decision in Ramadhin v. Chavali, 2014 HRTO 866. In that case the discrimination was based on sexual orientation, and not on receipt of social assistance. In addition to being evicted, the applicant was also subjected to a course of harassing conduct by the respondents both before and after the eviction.
65While in this case there was no similar course of harassment, the applicant was in a vulnerable position and remained homeless for over six months as a result of the eviction. The respondent’s conduct was exploitative in that she knew the February 20, 2013 letter was not a lawful basis upon which to evict the applicant. I consider an award of $10,000.00 to be an amount which reflects the impact that the respondent’s conduct had on the applicant.
Compensation for loss of property and moving expenses
66The applicant testified that as a result of being evicted, he had no place to store his belongings. He could not afford to rent a storage locker and there was no place at his parents’ home to keep his belongings.
67The commercial tenant on the ground floor of the building agreed to keep his possessions from the end of March, 2013 until June of that year, when it moved out. The applicant testified that he then had a week’s notice to try to find a place to store his possessions.
68He made efforts to sell some of it – a sofa, a computer desk and a coffee table – online, but received no offers. He testified that he then donated these possessions, along with a bedframe, side tables, lamps and kitchen equipment, to the Salvation Army because he could find nowhere to store them.
69The applicant estimated the depreciated value of his possessions to be $3,400.00. He did not produce receipts that could have established the original value of any of his possessions.
70I accept that the applicant suffered some loss in having to dispose of his possessions. However, in the absence of any documentation, I found his testimony as to the value of individual items of the property to be vague. In the circumstances I think it appropriate to order that be compensated $1,000.00 for the loss of property and $200.00 for moving expenses.
Public interest remedy
71Given the respondent’s lack of understanding of her obligations as a landlord under the Code, 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/human-rights-and-rental-housing. This training is to be done within 30 days of the date of this Decision.
order
72The Application is allowed in part.
73The Tribunal orders that within 30 days of the date of this Decision the respondent shall pay the applicant:
a. $10,000 as monetary compensation for injury to his dignity, feelings and self-respect;
b. $1,200.00 as compensation for loss of property and moving expenses; and
c. Post-judgment interest at the rate of 3% on any amounts that are unpaid after 30 days of the date of this Decision.
74The Tribunal further orders that within 30 days of the date of this Decision the respondent is to take the e-learning course on the Ontario Human Rights Commission’s website called “Human Rights and Rental Housing” which is found at http://www.ohrc.on.ca/en/learning/human-rights-and-rental-housing.
Dated at Toronto, this 5th day of January, 2015.
“signed by”
Paul Aterman
Vice-chair