McMahon v. Wilkinson, 2015 HRTO 1019

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalie McMahon

Applicant

-and-

Marvon Wilkinson

Respondent

A N D B E T W E E N:

Quentelin Vetira

Applicant

-and-

Marvon Wilkinson

Respondent

DECISION

Adjudicator: Brian Eyolfson

Date: July 30, 2015

Citation: 2015 HRTO 1019

Indexed as: McMahon v. Wilkinson

APPEARANCES

Natalie McMahon and Quentelin Vetira, Applicants

Nir Gepner, Counsel

Marvon Wilkinson, Respondent

Self-represented

Introduction

1These Applications were filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 5, 2013. Both Applications allege discrimination in housing on the basis of sexual orientation, gender identity, gender expression, marital status, receipt of public assistance and association with a person identified by a Code ground.

2The applicants, Ms. McMahon and Ms. Vetira, explain in the Applications that they are a same-sex couple and that Ms. McMahon is a trans woman. Their Applications include the following allegations:

Around August 1, 2012, Ms. Vetira entered into a tenancy agreement with the respondent landlord, Mr. Wilkinson, and rented a room.

In December 2012, Ms. McMahon and Ms. Vetira decided to live together. They decided to marry soon after. Ms. Vetira asked the respondent to allow Ms. McMahon to reside with her. The respondent refused, however, he offered them another unit in the residence in which the applicants would have privacy and which included a bathroom and a kitchen. The respondent was agreeable to a new lease, and the terms of the prospective tenancy agreement were set in principle, but the tenancy agreement was contingent on the respondent meeting Ms. McMahon and the applicants’ review of the unit.

In February 2013, after the applicants were married, they met with the respondent, with the intention of paying first and last months rents, which they brought with them, and signing the new tenancy agreement. At the meeting, the respondent first met Ms. McMahon and realized that she is a trans woman. Ms. McMahon also told the respondent that she was in receipt of Ontario Works (“OW”). The respondent was visibly uncomfortable, and the tenancy agreement was not signed that day as the respondent had to “think about it”. When Ms. McMahon left, the respondent asked Ms. Vetira whether Ms. McMahon was transgendered and Ms. Vetira replied that she is.

The following day the respondent texted Ms. Vetira and told her that he spoke with his wife and that they had determined not to rent the unit to the applicants because of the nature of “Natalie’s situation”. The respondent told Ms. Vetira that he did not want to make other tenants in the residence uncomfortable and recommended that the applicants find a more suitable place to live that would better accommodate them. Ms. Vetira indicated that she would terminate her tenancy in order to live with Ms. McMahon and that once she found a new unit she would leave the residence.

The following day, the respondent contacted Ms. Vetria again and offered that the applicants reside in the basement where they would be less likely to be seen by other tenants. The respondent believed that the tenant who resided in the basement, a “Canadian” female, would be more agreeable to the applicants’ relationship. He indicated that, upstairs, were “Asian” tenants who would be disturbed by a same-sex couple residing in close proximity.

The applicants rejected the respondent’s offer, which they found humiliating. In an email exchange between the respondent and Ms. Vetira, Ms. Vetira expressed anger with the respondent’s “discriminating” behaviour. In response, the respondent wrote, “It’s unfortunate things didn’t work out”, and added: “… my thoughts on the situatipn [sic] with Natalie remains [sic] the same and hasn’t changed at all – sorry, but that’s the way I am”.

Ms. Vetira’s tenancy was terminated by agreement in April 2013.

3In his Responses to the Applications dated March 24, 2014, the respondent submits that the applicants have grossly misrepresented the true facts and distorted the events that took place. He also states that he strongly disagrees with the applicants’ allegations, and that the allegations are totally unfounded. He alleges that the applicants edited correspondence that previously took place.

4In a Reply filed May 16, 2014, the applicants submit that, contrary to the respondent’s allegation, there has been no misrepresentation of the email correspondence and facts in this matter.

5By letter dated June 9, 2014, the Tribunal proposed that these Applications be consolidated, and provided the parties with an opportunity to object to consolidation within two weeks if they wished to do so. As no party objected to consolidation, these Applications were consolidated and heard together.

EVIDENCE

6The applicants and the respondent testified at the hearing. Although not required to do so, Ms. McMahon voluntarily excluded herself from the hearing room while Ms. Vetira testified. The applicants provided the Tribunal with copies of written electronic messages between each other on February 12, 2013, and an email exchange between the respondent and Ms. Vetira on March 30 and 31, 2013.

The applicants’ evidence

Ms. Vetira

7Ms. Vetira testified that she is from Namibia and has been in Canada for about 3.5 years. She testified that she is gay and that she came out in 2011, after moving to Canada. She explained that it was not comfortable for her to be out in Namibia where it is illegal to be gay. When she moved to Canada, she felt that she could be herself. She met Ms. McMahon in 2012 and they commenced a relationship. Ms. Vetira testified that they were separated, but still in contact and just friends.

8When Ms. Vetira met Ms. McMahon, the respondent was her landlord. She testified that she had a pretty big room and she shared a kitchen and a bathroom with two other tenants. Her rent was $470. Around December 2012, the applicants were planning on getting married so they decided to move in together. Ms. Vetira testified that the original plan was to move into her unit because it was bigger than Ms. McMahon’s. She testified, however, that they did not move into her room and that the respondent did not allow them to move in together.

9Ms. Vetira referred to copies of written electronic messages between herself and Ms. McMahon. She testified that they wrote the text messages on February 12, 2013. In a series of messages commencing at 9:28 p.m., Ms. Vetira tells Ms. McMahon that she texted her landlord and asked him if he could allow two girls to share a room, since they were getting married. In a message at 9:40 p.m., Ms. Vetira tells Ms. McMahon that the respondent responded to her and said, “Congratulations”, and that, if she was free, could she please call him. In a further message to Ms. McMahon at 9:42 p.m., Ms. Vetira states that she guesses she should call the respondent. In a message to Ms. McMahon at 10:03 p.m., Ms. Vetira states as follows:

So he says he has another room in a main floor for 550 that has kitchen and bathroom inside he can offer me that one, he think having two girls in the same might make the other girls uncomfortable so it would be better if we have our own room. So…yup!

10Ms. Vetira confirmed that the “he” she was referring to in the above message was the respondent. At 10:03 p.m. Ms. McMahon responded, “Nice!”

11Ms. Vetira testified that, instead of Ms. McMahon moving into her room, the respondent offered another room for $550 on the main floor, and he thought that the “other girls” upstairs would be uncomfortable with two women in Ms. Vetira’s room. Ms. Vetira testified that she wanted to move to the main floor unit, and that she was happy because it had a kitchen and a bathroom, and it was bigger.

12Ms. Vetira testified that she felt a little offended by the respondent’s comment that the other girls might not feel comfortable. She also testified that the respondent told her that it was not comfortable because the other tenants were “Asian girls” and not used to seeing such things, but she was agreeable to moving to the main floor. She agreed in cross-examination that having four people living on the second floor would have been overcrowded.

13Ms. Vetira testified that she spoke to the respondent personally, and she agreed to the main floor unit he proposed, and they were supposed to sign a lease and move into the unit in February 2013. She testified that the respondent said, “Okay, fine”, and that they could come and pay “first and last”. She then went to meet with the respondent, see the unit and pay “first and last”, but they did not sign a lease. She explained that she met the respondent first and saw the main floor unit, and Ms. McMahon came after.

14Ms. Vetira testified that, when they met with the respondent, he said, “Okay, you pay first and last”, and he wanted to see Ms. McMahon’s “ID”. She testified that the respondent wanted to see if Ms. McMahon was the person she said she was. She testified that the respondent saw Ms. McMahon’s ID and then, at that point, he seemed really nervous. She also testified that Ms. McMahon told him that she was receiving social assistance and, after that, “he was like, ‘I will think about it’”. She testified that the respondent said that he wanted to talk to his wife about it and that he wanted to think about it, so they did not sign a lease on that day. In cross-examination, Ms. Vetira testified that Ms. McMahon mentioned to the respondent that she was receiving social assistance when he asked them how they were going to pay the rent.

15Ms. Vetira testified that the respondent texted her the next day and said that he thought about it - about the applicants renting the place - and he thought that they should find another place, and he was not going to give them the place. She testified that he did not really mention why, but said that he thought they could find another place that could suit both of them.

16Ms. Vetira explained that she lost her cell phone, so there are some text messages that she does not have, but the respondent sent her a text message saying he would not rent her the unit. In cross-examination, Ms. Vetira testified that she does not have a text message where the respondent agreed to rent a unit to her and Ms. McMahon, that she lost her phone, and that she just has the text messages between her and Ms. McMahon. She also testified that some of the conversations with the respondent were verbal.

17Ms. Vetira testified that she was really disappointed and really hurt. She testified that they were supposed to sign the lease on the same day, and then when the respondent saw Ms. McMahon’s ID, and knew she was receiving social assistance, she felt that it was really bad of him to do that, and she felt really bad. She testified that, after that, she just told him she was going to find another place.

18Ms. Vetira testified that the next day the respondent texted her and said he had the basement if she wanted a basement. She also testified that he told her that the basement was more comfortable for the applicants because it was a two-bedroom apartment, and the “other girl” who took the other room is a “Canadian girl”, so she would be okay with the applicants sharing the room because she is used to seeing same-sex couples. Ms. Vetira testified that she lived in a basement before and she just did not want to move to the basement.

19Ms. Vetira referred to copies of email dated March 30 and 31, 2013. It appears that, on March 30, 2013, the respondent sent an email indicating that Ms. Vetira and another individual would be moving out by the end of April. It is not clear who the email was sent to, but the respondent states that he thought the recipient(s) might like to say “good-bye” and send their best wishes before they leave.

20In a responding email to the respondent on March 30, 2013, Ms. Vetira states, in part, that “[t]here is no need for you to try to fool everyone that you are this nice landlord…” and that he was “discriminating Natalie”.

21In a reply email to Ms. Vetira on March 31, 2013, the respondent states, in part, that, “its unfortunate things didnt work out, but nevertheless, i still do hope yr next place of stay will suit you better than my place”, and, “my thoughts on the situatipn with natalie remains the same and hasnt changed at all – sorry, but thats the way I am.”

22Ms. Vetira was asked why she wrote in her email to the respondent that she felt he was discriminating against Ms. McMahon. She testified that she wrote that because they were supposed to sign the lease on the day they met with the respondent but, when he saw Ms. McMahon’s ID, and then asked her if Ms. McMahon is transgendered and she confirmed that Ms. McMahon is transgendered, they did not sign the lease that day. Ms. Vetira testified that she believed it was because Ms. McMahon was receiving social assistance and because she is transgendered. She testified that she was not sure if that is what the respondent meant by “the situation” with Ms. McMahon in his March 31, 2013 email to her.

23In cross-examination, Ms. Vetira reiterated that the respondent asked for ID, and he asked her if Ms. McMahon is transgendered and she said that she is. She testified that she does not know what the respondent meant by “the situation” with Ms. McMahon, but that he asked for ID and then asked if Ms. McMahon was transgendered, and she was also receiving social assistance, so that is what she thought he meant.

Ms. McMahon

24Ms. McMahon testified that she identifies as female, has been living as a female, and changed her name legally. She testified that, in terms of identifying as female, she has had challenges over the years, including difficulties with jobs and with people in general. She also testified that she is lesbian.

25Ms. McMahon testified that she met Ms. Vetira in 2012, and commenced a relationship but separated in 2014. She testified that they are not really still in contact.

26Ms. McMahon testified that she decided to move in with Ms. Vetira in February 2013. At the time, she was living in subsidized housing, about a 40 minute walk away. Her rent was $134 per month and she was receiving OW. She started working in March or April 2013, and her rent increased to $353 per month, after a “grace period”, in September 2013.

27Ms. McMahon testified that the unit she was living in was really small, and that the unit Ms. Vetira was living in was bigger than hers, but not that big. She testified that, originally, she was going to move into Ms. Vetira’s unit because she had a lease, but it did not work out. She testified that the respondent offered them a different room that she thought was better on the main floor of the building in which Ms. Vetira lived.

28Ms. McMahon referred to the copies of the 9 pages of messages between her and Ms. Vetira on February 12, 2013. She testified that they were their “Facebook chats” that she printed. She testified that she normally communicates on Facebook on her home computer, but there is “app” to talk on your phone, so Ms. Vetira could have been talking on her phone.

29Referring to the February 12, 2013 messages between her and Ms. Vetira, Ms. McMahon testified that the respondent offered them a room on the main floor for $550. In the messages, Ms. McMahon clarified with Ms. Vetira that it was the main floor and not the basement, and stated, “As long as it’s not basement”. She testified that she did not want the basement.

30Ms. McMahon testified that $550 was very good rent, especially for two people, and she was very excited about moving in together with Ms. Vetira. Ms. McMahon was asked about the comment that Ms. Vetira attributed to the respondent in writing on February 12, 2013, about “other girls” being uncomfortable “having two girls in the same” room. Ms. McMahon testified that, at the time, she was so excited to move in that it did not even “register”, but it is very biased. She testified that, at the time, she was agreeable to move in anyway.

31Ms. McMahon testified that she and Ms. Vetira met with the respondent around March 2013. The respondent showed them the room, and she brought the “difference” for them to go from Ms. Vetira’s room to the new room, so the idea was they were going to pay him. Ms. McMahon testified that it was fine until the respondent saw her ID. She testified that there was an awkward pause, probably because her ID still says “male”. She testified that her ID says “Natalie”, but she has not changed the gender on her ID.

32In cross-examination, Ms. McMahon testified that she showed the respondent her birth certificate and either her “health card” or Ontario photo ID. She also testified that, before the respondent saw her ID, he did not show her any disrespect, and they got along fairly well and had a number of casual friendly conversations.

33Ms. McMahon testified that they did not move to the main floor because the respondent said that he did not want her moving in. She testified that the respondent did not say that to her, but that Ms. Vetira told her. She testified that he said he had to think about it and, after a while, he declined. Ms. Vetira then told her that the respondent did not want her visiting. She testified that the respondent then offered a basement room, but, at that point, they were so angry and humiliated that they did not want to live there. She testified that she felt like he was attacking her and discriminating.

34Ms. McMahon was referred to copies of the March 30 and 31, 2013 email exchange between the respondent and Ms. Vetira and asked why Ms. Vetira would say that the respondent was discriminating against her. She testified that it was pretty clear to her and Ms. Vetira that the respondent did not want her moving in, or her and Ms. Vetira living together, because of her “situation”. She testified that the respondent was not willing to change his opinion, and that he does to like her for no good reason, and there is no other reason why he would say that.

35Ms. McMahon testified that she stayed where she was until January 2014 when she moved in with Ms. Vetira and their rent was $875. She testified that she filed her Application because she felt humiliated and discriminated against.

The respondent’s evidence

Mr. Wilkinson

36Mr. Wilkinson confirmed that he was Ms. Vetira’s landlord, and testified that he has rented to a wide mix of people. He testified that he has rented to people receiving OW, and that it is not a problem to him at all because, in fact, those can be the best tenants to have. He testified that, because the money is coming to you from the government, as a landlord, it would be foolish to turn that down and not rent to someone receiving OW.

37Mr. Wilkinson testified that the reason why he was not comfortable, and did not think it was right to rent the room on the second floor to both Ms. Vetira and Ms. McMahon, was purely and mainly for overcrowding reasons. He explained that there are three bedrooms on the floor, and if Ms. Vetira was to share with Ms. McMahon, there would be four people on the floor. He testified that the shared kitchen is absolutely tiny, and that it would not have been humane or right for him to rent to both of them, with 3 people already renting, and with one bathroom.

38Mr. Wilkinson testified that he recalled very clearly, on multiple occasions, talking to Ms. Vetira about moving into the basement, and she was saying “yes” and “no” at least three to five times. He remembered showing the “text” to his wife, and they could not understand what Ms. Vetira really wanted. He testified that he always tries to make sure his tenants are happy, and when he has tenants moving in he sends texts and email asking if they are okay and happy. He testified that Ms. Vetira would not respond clearly to any text or email, and it was not clear if she was really comprehending the questions.

39Mr. Wilkinson testified that Ms. McMahon claimed in her evidence that, before he realized she was transgendered, he was comfortable having conversations and discussions with her, but the applicants allege in their Applications that the first time he met Ms. McMahon was when they came to pay the deposit. He also testified that he cannot understand why, on one occasion, he would congratulate a couple for getting married, yet, at the same time, say that he is not comfortable, or disagree, with persons of the same gender having a relationship.

40With respect to Ms. Vetira’s March 30, 2013 email to him, where she says that he was discriminating against Ms. McMahon, he testified that his wife asked him if Ms. Vetira was saying that because Ms. McMahon is white and the girls upstairs were Japanese. He testified that he told his wife “no, because the lady in the basement is also of the same nationality.” He testified that he thought that Ms. Vetira was not making sense.

41With respect to his March 31, 2013 email reply to Ms. Vetira, Mr. Wilkinson testified that he replied that he was sorry that he could not meet her requirement to live on the second floor and she said she did not want the basement, and was back and forth on the basement. He testified that he said, unfortunately, it is not working out. He testified that when he said his “thoughts on the situation with Natalie remain the same”, it was the situation about her having to move into the second floor with Ms. Vetira.

42Mr. Wilkinson also testified that the applicants were trying to misrepresent email, and being selective and “cherry picking”, and that there was far more email, but he does not have it. He testified that there is no clear evidence presented whatsoever that states that he agreed to rent “the room or apartment” to the applicants. He testified that, if that agreement did take place, he would like to see it in an email or in a text. He testified that when he is renting to someone there is always some text or something to show that there was an agreement, but he was not shown anything.

43Mr. Wilkinson remembered on a couple of occasions early in the morning Ms. McMahon coming down the stairs and it appeared that she had stayed overnight. He testified that he never challenged or questioned that, and he never said she was not allowed to stay overnight. He also questioned why he would meet someone and ask “are you transgendered” or “of the opposite sex”. He testified that he does not ask tenants that question, and that it is just ridiculous.

44In cross-examination, Mr. Wilkinson was asked if he met Ms. McMahon before he met with her regarding the main floor unit. He testified that he met with her before “the situation”. He also testified that he had tenants who lived upstairs who were from Asia, and that there was one white female in the basement, where there were two rooms.

ANALYSIS AND DECISION

Relevant Code provisions

45Sections 2, 9, 10 and 12 of the Code provide, in part, as follows:

2(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of… sexual orientation, gender identity, gender expression… 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 sexual orientation, gender identity, gender expression… or the receipt of public assistance.

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10 (…) “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

12 A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

Assessment of credibility

46To the extent that this Decision turns on my assessment of the credibility of the witnesses, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354, at paras. 356-357:

(…) 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.

47I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: 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 as to the manner in which the witnesses gave their evidence.

48I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205 with respect to assessing the credibility and reliability of testimonial evidence:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Were either or both of the applicants subjected to discrimination by the respondent, contrary to the Code?

The applicants’ position

49At the hearing, the applicants submitted that they were subjected to discrimination on the basis of sexual orientation when the respondent did not permit them to reside together as a same-sex couple in the second floor unit that Ms. Vetira was renting from him, because the other tenants on the floor would not feel comfortable.

50The applicants also submitted that they were subjected to discrimination on the basis of sexual orientation and gender identity when the respondent did not permit them to rent a unit on the main floor of the building in which Ms. Vetira resided. More particularly, they submitted that the reason the respondent did not give them the unit on the main floor was the gender identify of Ms. McMahon, and the applicants’ relationship. They submitted that the main factor was the gender identity of Ms. McMahon, which, by association, affected Ms. Vetira. They also submitted that they had money to pay, and there was no evidence that there were any other tenants in competition for the unit. They submitted that the respondent did not rent the unit to them because he saw Ms. McMahon’s ID, and saw that she was a trans woman, and that he also asked Ms. Vetira if Ms. McMahon was transgendered.

51The applicants submitted that the respondent does not deny that he had discussions with Ms. Vetira about the main floor unit. They also submitted that he did not satisfactorily explain his March 31, 2013 email reply to Ms. Vetira, where he states that his thoughts on the situation with Ms. McMahon remain the same, after Ms. Vetira raised the issue of discrimination with him. They submitted that the respondent simply denies discrimination.

The respondent’s position

52The respondent submitted that there was no verbal agreement that both applicants could rent a room on the second floor, and it would be overcrowding. He also submitted that there was no verbal agreement to rent an apartment on the main floor to the applicants. With respect to the applicants’ allegation that he would not allow them to share a room on the second floor because the other tenants on the second floor were Asian, the respondent submitted that if they were going to move on to the main floor, there is another apartment directly next to it and there is just one entrance, so it makes no difference if one is sharing a room on the second floor or ground floor.

53The respondent submitted that neither he nor his wife could understand Ms. Vetira’s March 30, 2013 email, where she states that he was discriminating against Ms. McMahon. He submitted that his wife assumed that Ms. Vetira meant because Ms. McMahon is not from Japan, and his position is the same on the situation.

54The respondent submitted that he offered Ms. Vetira the option of staying in the basement, and she did not want it but changed her mind several times.

55The respondent submitted that there is no evidence that he asked if “someone” was transgendered, and queried why he would. He submitted that he found it baffling and that it seems like a really bizarre question to come out with in a conversation. He questioned why he would congratulate the applicants on their relationship, and yet discriminate based on sexual orientation. He also submitted that he previously rented to tenants who were in receipt of OW.

Findings with respect to the second floor unit and the respondent’s comments

56It is not clear to me that the applicants were subjected to discrimination on the basis of sexual orientation, contrary to the Code, in not being allowed to reside together in Ms. Vetira’s second floor unit, as alleged.

57I understand from the evidence that Ms. Vetira asked the respondent if he “could allow two girls to share a room”. At the hearing, there was no dispute that the respondent congratulated Ms. Vetira on her relationship with Ms. McMahon. I also understand from Ms. Vetira’s evidence, which was not disputed, that, instead of Ms. McMahon moving into her room on the second floor, the respondent offered them another room on the main floor.

58I also understand from Ms. Vetira’s evidence that the reason the respondent gave her for offering her the main floor unit, instead of the applicants residing together in Ms. Vetira’s second floor room, was that he thought the “other girls” upstairs would be uncomfortable with two women in her room. In her February 12, 2013 written message to Ms. McMahon, Ms. Vetira states that the respondent thought that two girls in the same room might make the other girls uncomfortable, so it would be better if they had their own room. The respondent did not deny making such comments to Ms. Vetira, and I find that he told Ms. Vetira that he thought having two girls in the same room might make the other girls uncomfortable so it would be better if they had their own room. I also find that the respondent made this comment because he was aware that the applicants were in a same-sex relationship. In the circumstances, I find that the applicants’ sexual orientation was a factor in the respondent’s decision to offer them a main floor unit, instead of residing together in Ms. Vetira’s second floor room.

59The respondent testified, however, that the reason he was not comfortable, and did not think it was right, to rent the room on the second floor to the applicants was purely and mainly for overcrowding reasons, with three people already renting on the second floor. He testified that the shared kitchen on the second floor is absolutely tiny.

60In cross-examination, Ms. Vetira agreed that the kitchen was pretty small and that the working space was maybe 2 by 3.5 feet. She clearly agreed that four people living on the second floor would be overcrowded. In the circumstances, although I have found that the applicants’ sexual orientation was a factor in the respondent offering them a unit on the main floor, instead of the second floor room, I find that it is more likely than not that the respondent would not have permitted Ms. McMahon to rent on the second floor, regardless of the applicants’ sexual orientation, because it would have been too crowded.

61In addition, Ms. Vetira testified that she wanted to move to the main floor unit, and she was happy because the main floor unit had a kitchen and a bathroom, and it was bigger. Upon learning that the respondent could offer them a room on the main floor that had a kitchen and a bathroom, Ms. McMahon’s written response to Ms. Vetira was, “Nice!” Ms. McMahon testified that she was very excited about moving in together with Ms. Vetira.

62In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 74, the Court of Appeal held that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage. As it is not clear to me that the applicants experienced any disadvantage at the time, in terms of being offered a unit on the main floor, as opposed to sharing Ms. Vetira’s room on the second floor, it is not clear to me that they were subjected to discrimination within the meaning of the Code in terms of not being actually permitted to reside together in a room on the second floor, and I do not find that they were.

63Rather, it seems to me that the real issue in the circumstances is whether or not the respondent’s comment that he thought that having two girls in the same room might make the other girls uncomfortable, so it would be better if they had their own room, was discriminatory. This comment of the respondent’s was conveyed to Ms. McMahon in Ms. Vetira’s written message to her on February 12, 2013. At the hearing, Ms. McMahon testified that she was so excited to move in that the comment did not even “register” at the time, but it is very biased. There is no evidence before me that Ms. Vetira conveyed to Ms. McMahon that the respondent made any other such comments, or that Ms. McMahon heard any other such comments directly from the respondent.

64The Tribunal has accepted that a single comment can amount to a breach of the Code. Considering all of the circumstances, while I find that the respondent’s comment conveyed to Ms. McMahon in Ms. Vetira’s February 12, 2013 written message is inappropriate, I do not find that this single comment is sufficiently egregious to amount to discrimination as against Ms. McMahon. See Gubrenko v. T.O.J. Empire Auto, 2014 HRTO 1232 at para. 38.

65Ms. Vetira testified that she felt a little offended by the respondent’s comment that the other girls might not feel comfortable. She also testified that the respondent told her that it was not “comfortable” because the other tenants were “Asian girls” and not used to seeing “such things”. Ms. Vetira also testified that the day after the respondent denied the applicants the main floor unit, he texted her and said he had the basement if she wanted a basement. She also testified that he told her that the basement was more comfortable for the applicants because it was a two-bedroom apartment, and the “other girl” who took the other room is a “Canadian girl”, so she would be okay with the applicants sharing the room, because she is used to seeing same-sex couples.

66The respondent did not deny making the above comments to Ms. Veteira, and I find that he made these comments to her. I also find that these comments, taken together, about what other tenants in the building in which Ms. Vetira resided might have felt about her relationship with Ms. McMahon, including tenants with whom she shared a kitchen and a bathroom, were vexatious and ought reasonably to be known to be unwelcome. In particular, I find that a reasonable person in the applicant’s position would find the comments unwelcome, and a reasonable person in the respondent’s position would understand that to be the case. See Gubrenko at para. 34, referring to Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras 43 – 48. As the comments concerned Ms. Vetira’s relationship with Ms. McMahon, I find that the comments amount to harassment and discrimination against Ms. Vetira on the basis of sexual orientation, contrary to the Code.

Findings with respect to the main floor unit

67With respect to the applicants’ allegation that they were subjected to discrimination when the respondent did not permit them to rent a unit on the main floor of the building in which Ms. Vetira resided, I prefer the applicant’s evidence as compared to the evidence of the respondent which was very limited.

68Ms. Vetira testified that the respondent offered her and Ms. McMahon a room on the main floor of the building in which she lived, and she was agreeable to moving to the main floor. She confirmed in a written message to Ms. McMahon on February 12, 2013, after she spoke to the respondent, that he said he had a room on the main floor that has a kitchen and a bathroom that he could offer her. Referring to the February 12, 2013 messages between her and Ms. Vetira, Ms. McMahon testified that the respondent offered them a room on the main floor. In further written messages, Ms. McMahon also clarified with Ms. Vetira that the room was on the main floor. Ms. McMahon testified that she was very excited about moving in together with Ms. Vetira. While Ms. McMahon did not speak directly to the respondent at the time, she testified that she later met with the respondent, along with Ms. Vetira, and saw the unit.

69Ms. Vetira also testified that she spoke to the respondent personally and agreed to the main floor unit he proposed. She testified that they were supposed to sign a lease and move into the unit in February 2013, and that the respondent said, “Okay, fine”, and that they could come and pay “first and last”. She then met with the respondent to see the unit and pay “first and last”. She testified that she saw the main floor unit, but they did not sign a lease. Ms. McMahon testified that she and Ms. Vetira met with the respondent around March 2013, and the respondent showed them the room, and she brought rent money with her as the idea was they were going to pay the respondent. Although it is not entirely clear, there is no indication that the applicants actually paid the respondent any rent money for the main floor unit.

70Ms. Vetira testified that the respondent texted her the next day and said that he thought about the applicants renting the place, and he thought that they should find another place, and he was not going to give them the place. She testified that he did not really mention why, but said that he thought they could find another place that could suit both of them.

71The respondent did not deny, in either his evidence or his submissions, that he told Ms. Vetira that he had a main floor unit that he could offer her, or that they spoke and she agreed to a main floor unit he proposed, and he said the applicants could come and pay first and last month’s rent. He also did not deny that he met with the applicants and showed them a main floor unit, or that he texted Ms. Vetira the next day and indicated that he was not going to give them the place. In fact, he made no mention of a main floor unit in his evidence at all. When asked in cross-examination if he met Ms. McMahon before he met with her regarding the main floor unit, he testified that he met with her before the “situation”. Again, he did not deny that he met with the applicants regarding a main floor unit.

72The respondent did testify that there is no clear evidence whatsoever that states that he agreed to rent “the room or apartment” to the applicants. He also submitted in final submissions that there was no verbal agreement to rent an apartment on the main floor to the applicants. I note that the applicants allege, however, that they had a “prospective” tenancy agreement with the respondent, contingent on the respondent meeting Ms. McMahon and the applicant’s review of the unit.

73Whether or not there was a final agreement that Ms. Vetira and Ms. McMahon would rent a main floor unit from the respondent, I find that it is undisputed that the respondent had a main floor unit available, that he conveyed to Ms. Vetira that he could offer it to her, and that there was a contingent agreement that the applicants would rent the unit. I also find that it is undisputed that the respondent met with the applicants and showed them a main floor unit. There is also no indication that the applicants were in competition with anyone else for the main floor unit.

74I also find that there is sufficient evidence before me to draw an inference that the fact that Ms. McMahon is transgendered was a factor in the respondent ultimately not renting the main floor unit to the applicants. Ms. Vetira testified that when the respondent saw Ms. McMahon’s ID, he then seemed really nervous. She also testified that the respondent said that he wanted to talk to his wife about it and that he wanted to think about it, so they did not sign a lease on that day. Ms. McMahon testified that it was fine when they met with the respondent, until he saw her ID. She testified that there was an awkward pause, probably because her ID still says “male”. She also testified that, before the respondent saw her ID, he did not show her any disrespect, and they got along fairly well.

75The respondent also did not deny that he asked to see Ms. McMahon’s ID, or that he observed that her ID states “male”, when they met regarding the main floor unit. In the circumstances, I prefer the evidence of Ms. Vetira and Ms. McMahon, and I find that the respondent observed that Ms. McMahon’s ID refers to her as “male” when they met about the main floor unit. I also accept their evidence, which was not disputed, that the respondent’s attitude towards the applicants renting the main floor unit essentially changed upon the respondent observing Ms. McMahon’s ID.

76Ms. Vetira also testified that when she met with the respondent about the main floor unit, he asked her if Ms. McMahon is transgendered and she confirmed that Ms. McMahon is transgendered. While the respondent did not deny in his evidence that he asked Ms. Vetira if Ms. McMahon is transgendered, he essentially did so in his final submissions when he submitted that there is no evidence that he asked if someone is transgendered, and queried why he would. I find that Ms. Vetira was very clear in her evidence, both in chief and in cross-examination, that the respondent asked her if Ms. McMahon was transgendered. Considering all of the evidence, including my finding above that the respondent observed that Ms. McMahon’s ID refers to her as “male”, on a balance of probabilities, I also find that the respondent asked Ms. Vetira if Ms. McMahon is transgendered when they met about the main floor unit, and that Ms. Vetira confirmed to the respondent that Ms. McMahon is transgendered.

77The respondent has provided no reason whatsoever for not renting the main floor unit to the applicants. At the hearing, he essentially avoided the issue of the main floor unit, and did not address the applicants’ evidence that he met with them and showed them a main floor unit. In light of my findings above that the respondent observed that Ms. McMahon’s ID refers to her as “male”, that his attitude towards the applicants renting the main floor unit essentially changed upon observing Ms. McMahon’s ID, and that Ms. Vetira confirmed to the respondent that Ms. McMahon is transgendered when he asked her, I find that the applicants have established, on a balance of probabilities, that Ms. McMahon being transgendered was a factor in the respondent not renting the main floor unit to them.

78As such, I find that Ms. McMahon was subjected to discrimination on the basis of gender identity, and that Ms. Vetira was subjected to discrimination on the basis of association with a person identified by a Code ground, contrary to the Code, when the respondent did not rent the main floor unit to them. As it appears from the evidence that, prior to learning that Ms. McMahon is transgendered, the respondent was prepared to rent the main floor unit to the applicants, it is not clear to me, and I do not find, that sexual orientation was also a factor.

79While the applicants checked off the ground of marital status in their Applications, they did not submit at the hearing that they were subjected to discrimination on the basis of marital status. In the circumstances, I decline to determine whether or not either of the applicants was also subjected to discrimination on the ground of marital status.

80With respect to the ground of receipt of public assistance, the applicants submitted at the hearing that they were not adamantly arguing that they were subjected to discrimination on the basis of receipt of public assistance when the respondent did not rent the main floor unit to them. The respondent was quite clear in his evidence that he has rented to people who are in receipt of OW, and that it is not a problem to him at all. His evidence in this regard was not challenged in any way. In the circumstances, I do not find that the applicants were also subjected to discrimination on the basis of receipt of public assistance by the respondent.

REMEDY

81The Tribunal’s remedial powers are set out in s. 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation and restitution for loss arising out of the infringement, including compensation and restitution for injury to dignity, feelings and self-respect. The Tribunal may also direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

82At the hearing, the applicants indicated that they were seeking monetary compensation in a total combined, holistic amount of $5,000. They also submitted that this amount should include $1862, which was the total combined difference they paid in rent, greater than what they would have paid had the respondent rented the main floor unit to them, over a 12-month period following being denied the unit. They submit that a request for $5,000 is reasonable.

Difference in rent

83While the applicants’ evidence at the hearing was that the proposed rent for the respondent’s main floor unit was $550 per month, they allege in their Applications that it was $580. Ms. Vetira’s evidence was that, at the time they were denied the main floor unit, which I understand to be in or around February or March 2013, she was paying $470 per month for a room on the second floor of the respondent’s building. Ms. McMahon’s evidence was that she was paying $130 in rent at the time. Although there is no actual evidence before me, I understand from the applicants’ submissions that, commencing April 1, 2013, Ms. Vetira moved to a new location with a different landlord and paid $450 per month in rent. At the time, they submit that they were paying a total of $30 more per month in rent than they would have paid had the respondent rented the main floor unit to them. I understand from Ms. McMahon’s evidence and their submissions that this continued until September 1, 2013, when Ms. McMahon’s rent was increased, and that they moved in together in January 2014.

84Ms. Vetira testified that she ended up terminating her tenancy by agreement with the respondent, and she moved to another location with a different landlord. She explained that she did not move to the new location with Ms. McMahon because she was disappointed and really stressed out, and just had to move. She found a place right away, but they did not move in together at the time because it was so small. She testified that she just moved so they could decide where to move after that. The applicants, however, did not provide any evidence at the hearing regarding any efforts they made to find alternate rental accommodation together, and reduce their rental costs, after they were denied the respondent’s main floor unit. In the absence of any evidence that the applicants attempted to mitigate increased rental costs after they were denied the respondent’s main floor unit, I do not find that it is appropriate to award compensation for any increased rental costs. See Duliunas v. York-Med Systems, 2010 HRTO 1404, at paras. 92-97. In addition, the total rent that the applicants paid per month, for approximately six months after they were denied the respondent’s main floor unit, appears to be similar to what they would have paid had they been permitted to rent the respondent’s main floor unit.

Injury to dignity, feelings and self-respect

85Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified the relevant criteria to be used in assessing the appropriate award of damages to compensate for the infringement of rights enumerated in the Code which have an intrinsic value and for mental anguish. See Sanford v. Koop, 2005 HRTO 53. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See S.H. v. M(...) Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

86In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:

(…) 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.

87In Taranco v. Michedes, 2010 HRTO 128, the Tribunal found that the respondent refused to consider the complainant’s application for tenancy because of his age and sex, when he met with the respondent in front of the building in which the apartment was located in order to view the unit. The Tribunal found that the respondent stated his preference for a young female tenant, and also told the complainant that he was “too old”. The Tribunal awarded the complainant $5000.00 for the infringement of his right to be free from discrimination.

88In Devoe v. Haran, 2012 HRTO 1507, the Tribunal found that the applicant was subjected to discrimination when the respondent refused to consider her for a vacant main floor unit, in the building in which she resided, because of her disability. The Tribunal found that the respondent’s discriminatory treatment of the applicant was moderate on the spectrum of seriousness, and that $4,000 was an appropriate award of compensation for injury to dignity, feelings and self-respect.

89In the present case, I have found that Ms. McMahon was subjected to discrimination on the basis of gender identity, and that Ms. Vetira was subjected to discrimination on the basis of association with a person identified by a Code ground, when the respondent did not rent the main floor unit to them after meeting with them to show them the unit. I have also found that the respondent made comments to Ms. Vetira that amount to harassment and discrimination against her on the basis of sexual orientation, contrary to the Code.

90Ms. Vetira testified that she was really disappointed and really hurt when the respondent informed her that he was not going to give her and Ms. McMahon the main floor unit. She testified that she felt really bad and, after that, she just told him she was going to find another place.

91Ms. Vetira also testified that after her tenancy agreement with the respondent was terminated and she moved to a new location, she did not “say anything” to the new landlord because she thought that maybe the new landlord might not accept her and Ms. McMahon. She testified that she filed her Application because she was hurt and just really felt so disrespected and discriminated against. While Ms. Vetira testified that she felt a little offended by the respondent’s first comment that the other girls might not feel comfortable with two girls in the same room, she testified in cross-examination that she was really hurt by the whole situation, at the point she moved out of the respondent’s building, and referred to conversations and correspondence with the respondent, including email and text messages.

92Ms. McMahon testified that she wanted to continue with her Application because, at the time, she was humiliated and wronged and could not move in with her wife. She testified that, at the point the respondent offered them a room in the basement, they were so angry and humiliated that they did not want to live there, and she felt like the respondent was attacking her, and discriminating. She also testified that it was pretty clear to her and Ms. Vetira that the respondent did not want her moving in, or her and Ms. Vetira living together, and that he does to like her for no good reason.

93At the hearing, the applicants were clear that they were seeking a total combined, holistic amount of $5,000 in monetary compensation. In all of the circumstances, I find that it is appropriate that each applicant be awarded $2,500 for injury to their dignity, feelings and self-respect.

ORDER

94The Tribunal orders as follows:

1. Within 30 days of the date of this Order, the respondent shall pay each applicant $2,500.00 for injury to dignity, feelings and self-respect;

2. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act.