Dhir v. Maclean, 2015 HRTO 1039

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Poonam Dhir

Applicant

-and-

Maureen Maclean

Respondent

DECISION

Adjudicator: David Muir Date: August 6, 2015 Citation: 2015 HRTO 1039 Indexed as: Dhir v. Maclean

APPEARANCES

Poonam Dhir, Applicant ) Sanja Mavrak, Counsel

Maureen MacLean, Respondent ) Kathleen Lovett, Licenced Paralegal

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of disability. A hearing in respect of this Application was held on June 17, 2015 in Toronto. I heard from the applicant and the respondent. I also heard from three other witnesses whose evidence was considered but is of little significance.

2At the outset of the hearing the respondent made a preliminary objection to my jurisdiction arguing that this case was in essence a landlord tenant dispute and accordingly the Landlord and Tenant Board (“LTB”) had exclusive jurisdiction to deal with the matter. I heard the submissions of the parties and ruled orally at the hearing that the hearing would proceed. While this case could have been taken to the LTB, I was not persuaded that fact deprived the Tribunal of jurisdiction over the human rights issues raised by the applicant.

3The respondent relied on section 168 of the Residential Tenancies Act 2006, S.O. 2006, c. 17 (“RTA”) which provides:

168. (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French.

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

4If the applicant had tried to bring an Application under the RTA before the Human Rights Tribunal of Ontario (HRTO) I would agree with the respondent. Similarly if the applicant had filed an application under the RTA concurrently with this Application the HRTO would almost certainly have deferred it pursuant to section 45 of the Code and once a decision was made by the LTB considered the human rights application’s dismissal pursuant to section 45.1 of the Code. However the fact is that the applicant did not bring an application under the RTA but chose instead to file this Application.

5The fact that the LTB has exclusive over applications made under the RTA is not the same thing as saying that the LTB has exclusive jurisdiction over all disputes that arise between landlords and tenants. To oust the HRTO’s jurisdiction over the disputes arising in the context of a landlord/tenant relationship the RTA would, at minimum, have to contain much more specific language which made it clear that the LTB had exclusive jurisdiction over all disputes between landlords and tenants and not only applications under the RTA. Additionally, section 2 of the Code gives jurisdiction to the HRTO to determine allegations of discrimination with respect to occupancy of accommodation (generally landlord and tenant disputes). In light of the general rule of statutory interpretation that legislation should be read harmoniously, unless there is a direct conflict, that is a further reason for rejecting the interpretation of s. 168 of the RTA as urged by the respondent.

6Having made my determination in this case I note that the Tribunal recently wrote on a not-dissimilar issue in Ontario Public Service Employees Union v. Liquor Control Board of Ontario, 2015 HRTO 766 and held that the mere fact that an application could be made under another statute as well as the Code did not deprive the Tribunal of jurisdiction.

Evidence and Analysis

7For the reasons that follow, the Application is dismissed.

8At the centre of this dispute are related allegations of the applicant that the respondent did not provide her with a proper mattress, first which she alleged she requires for a back problem, and later in relation to an allegation that she suffered an allergic reaction to a mattress. As explained below, the applicant was a tenant of the respondent landlord, who provided furnished accommodation to the applicant. It was not disputed, and I accept for the purposes of this decision, that the provision of a mattress was contemplated under this tenancy arrangement and so falls within the scope of the right to equal treatment with respect to occupancy of accommodation under s. 2 of the Code.

9A central question in this case is whether the applicant’s requests relating to her mattress or mattresses were identified as arising from a disability related need or needs. If they were, when did the applicant request accommodation of this disability related need or needs and if she did so whether or not the respondent appropriately responded to her requests.

10On this point it is clear from the evidence of both the respondent and the applicant that there were issues about mattresses and beds in the applicant’s room. After hearing the evidence it remains somewhat unclear just how many beds/mattresses were moved in and out of the applicant’s room. The respondent understood these movements to be related to comfort issues for the applicant and just others in the applicant’s lengthy list of requests of various kinds. The applicant asserts that she made explicit requests for accommodation which were essentially ignored by the respondent.

11In addition to her alleged back problems, the applicant also alleges that a mattress that was provided to her and which she used for many months eventually aggravated or caused a serious allergic reaction in her which was significantly damaging to her health. The applicant further alleges that she raised her concerns about an alleged allergic response to the mattress with the respondent who failed to adequately respond. It is undisputed that the applicant did raise this issue with the respondent in an email sent in late May 2013 and did claim at the time that she was a person with a disability and the source of the allergic reaction was the mattress. The respondent asserts that while the applicant did complain about the mattress and connect it to an allergic reaction, there was no evidence then and none to date to establish that the mattress was the cause of the applicant’s symptoms. The respondent also argues that when she did not immediately respond positively to the applicant’s May 2013 email demand for a new mattress the applicant broke her lease. The respondent asserts more generally that the origin of this dispute was the applicant’s anger and disappointment when new furniture which arrived at the residence in mid-May 2013 was denied to her and has very little to do with the Code.

12I have very little medical evidence to support the applicant’s claim of a back disability that required accommodation. The applicant called no medical witnesses but relied on a number of medical documents, some of which post-date the events giving rise to this Application. The medical documentation is of little use in resolving the issues in this case because none of it provides a medical basis for the applicant’s claims either that she required a particular accommodation for her back issues or that the mattress was the source of her allergic reactions. I note that the medical documentation relates to both pre-existing back and neck problems. One document suggests that the applicant’s pain in her neck is myofascial and not related to degenerative disc disease (DDD) of her cervical spine. It is not possible to draw any definitive conclusions from the medical documents provided other than that the applicant was treated for neck and back issues beginning in 2009, initially with some apparent success but that she began to report difficulties again in mid-2012.

13At the conclusion of the evidence and submissions I asked that the parties provide written submissions with respect to liability and remedy if I concluded that the only issue was whether or not the respondent had appropriately responded to the applicant’s complaint that the mattress she had been using since the prior September was the source of her alleged allergy symptoms.

Background

14The respondent rents out accommodation in one or more residences in Mississauga. The residence in question was built as a single family dwelling and is rented out as furnished, shared accommodation to women only. The respondent’s primary clientele are students and faculty at a nearby University. Most leases are short-term for periods of four or 8 months. The respondent is employed full time at the University.

15The applicant moved into the respondent’s residence on January 1, 2012 with a four month lease which was renewed several times. The applicant sought an unusually lengthy lease in early 2013 and on February 5, 2013 the parties entered into a lease running from May 2013 to June 2014. The applicant broke her lease in May 2013 and left on June 30, 2013. The applicant was apparently diagnosed with DDD in 2009 and successfully treated. A number of medical documents were filed and admitted as business records.

Evidence and Analysis

16To some degree the resolution of this dispute requires that I make an assessment of the credibility and/or reliability of the various witnesses, primarily that of the applicant and respondent because the other witnesses had little to add to the relevant narrative. In doing so I have considered the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 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 demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

17For the reasons that follow on several of the key factual disputes I accept the evidence of the respondent over that of the applicant.

18The applicant’s case as it relates to her claim that the respondent failed to provide accommodation for an alleged back problem depends to some degree on my accepting that she articulated a Code related need for accommodation of an alleged back problem. I do not accept the applicant’s contention that she articulated a Code related need for accommodation of an alleged back problem.

19A significant consideration in coming to this conclusion is that the applicant’s contention that the respondent effectively ignored her repeated requests for accommodation is significantly at odds with the other evidence about this landlord/tenant relationship. The applicant was a tenant for over two years. She made many, many requests of the respondent, most of which were responded to favourably. On two occasions she requested and was given a rent reduction or the equivalent. The respondent asks why, if the applicant had made a request for accommodation, would she not have responded to it when it is clear from the email record and the evidence of the parties that the respondent was quite responsive to the applicant’s many other requests.

20The applicant also sought renewal of her lease on four occasions and in February 2013 renewed her lease for a further 14 months, something the respondent had never done before. In none of the communications with respect to the renewal of the lease does the applicant raise any disability related concerns although she raises other issues including her requests for a rent reduction and other requests with financial consequences for the parties.

21It is also notable that although the bulk of the communication between the parties was by email the applicant did not until the very end of her tenancy ever make a request for accommodation by email. It is also clear that the applicant was not shy about making requests of the respondent. However the email record is notable for the absence of any communication about a mattress or a Code related need for accommodation until May 21, 2013. There are many requests made about many things which the applicant would like remedied but there is only one reference to a mattress and that is a thank you for the respondent having dropped off a mattress in April 2012. The applicant had no explanation for the absence of any email documentation of what the applicant (prior to May 2013) of what she described before the Tribunal as an ongoing serious concern about her need for an orthopedic mattress.

22The applicant’s evidence was often surprisingly detailed and had a rote like quality at times, particularly when she was testifying about what she told the respondent about her needs. Her evidence also at times had the feel of a recitation of her position and more importantly her feelings of being treated unfairly by the respondent rather than real events.

23On the other hand the respondent’s evidence was given in a straightforward and forthright manner. There was much of the narrative with respect to the moving of beds and mattresses which the respondent could not remember but in the circumstances this bolstered the general credibility if not her reliability because for the respondent the issue of the bed and or mattresses were just more requests made by the applicant and not requests for a disability related accommodation.

24For these reasons I have generally accepted the evidence of the respondent over that of the applicant.

25In coming to the conclusions below I have assumed that the applicant has DDD of her cervical spine and this may cause her discomfort from time to time. I make this assumption despite the limited medical evidence which may suggest other diagnoses. I have assumed that the applicant was a person with a back disability for some period of time during her tenancy. However I do not accept that she ever made a request for a Code related accommodation of a disability with respect to her back. Further I find that even if she had done so it appears that the respondent provided appropriate mattresses that appeared to meet her somewhat unclear needs for accommodation of a back issue.

Allegations regarding Mattress for Back Problems

26The applicant alleges that she made the respondent aware of a specific Code related need for accommodation of a significant back problem on two specific occasions. The applicant alleges that at the end of March 2012 she told the respondent that she had been to the acupuncturist and she was having back pain. She testified that she told the respondent that she had been diagnosed with degenerative disc disease and had been treated in 2009 for numbness. I do not accept that the applicant made a clear request for an orthopedic mattress as an accommodation for the alleged back problem in March 2012. It is more likely that, as the respondent testified, there were complaints about the bed and the applicant asked the respondent to provide her with another mattress or bed. There clearly was a discussion about a bed or mattress in this time period as the email record indicates that the respondent dropped off a mattress on April 23, 2012 for which the applicant thanked the respondent in an email on April 24, 2012. In any event the mattress which was provided was acceptable to the applicant for several months. The applicant also alleges that she made a specific request for a Code accommodation on September 11, 2012. The applicant alleges that she had been having back problems and had just returned from a medical appointment and had her medical files with her when she ran into the respondent in the driveway. The applicant alleges that she gave the respondent a detailed account of her medical needs, her prior diagnosis from 2009, her treatments, etc. and provided the respondent with a photocopy of a medical note from an acupuncturist who treated her in 2009/2010.

27The respondent denies that this conversation took place. She denies that she received the medical documentation that the applicant testified she received. The respondent testified as well that she has a day job and is not at the residence during the day except on rare occasions.

28I accept the evidence of the respondent on this point. This encounter as described by the applicant seems unlikely. The respondent has a day job and is rarely at the residence during business hours. September 11, 2012 was a working day for the respondent. It also seems unlikely that the applicant would have had a photocopy of one medical note which she could give to the respondent at that time. When asked, the applicant could not explain why she would have had a photocopy of this one document. I would also observe that the medical note in question describes a successful course of treatment to resolve various issues with the applicant’s neck and back from the period 2009/2010, and so even if it had been presented in the driveway in 2012 it wouldn’t have shed much light on the applicant’s needs in 2012 – let alone with respect to an alleged need for an orthopedic mattress.

29In any event even if I am wrong and the applicant had made a specific request for an orthopedic mattress for a Code-related reason (and not just for a different or better mattress) she was provided with one out of storage that day or the day after and was content with it for some time. I also observe that there is no medical evidence that it was not adequate for whatever her back related needs might have been at that time.

30The applicant testified that this bed was not ideal but made no claim that it was not adequate for her back problems, instead she said merely that the bed was unstable.

31In my view there is no merit to this Application as it relates to the alleged failure of the respondent to adequately accommodate an alleged back disability and accordingly that aspect of the Application is dismissed.

Allegations Regarding Desk and Chair

32The applicant also alleges that the respondent failed to accommodate her by not providing her with an appropriate desk and chair – presumably in relation to her neck and back problems. Prior to the hearing I had indicated that it was not clear what the basis of this claim was but it continued to be advanced at the hearing. There is no evidence that the applicant ever made a request for accommodation of any disability in this regard. There are numerous emails about a desk chair and other furnishings in her room, but not a hint in any of the emails or in her evidence at the hearing that the applicant required a particular desk or chair for any disability related need. This aspect of the Application is dismissed as well.

Allegations regarding Allergic Reaction to Mattress

33According to the applicant she developed an allergic reaction to a mattress. The applicant alleges that she raised this with the respondent in May 2013 and that the respondent did not accommodate her needs.

34The applicant began to express concerns to the respondent about an alleged diagnosis of sinusitis (or sinus infection) in March 2013. This caused the respondent to investigate the furnace and humidifier in the residence at the request of the applicant. This did not solve the problem. There is a dispute about whether or not the respondent incurred any expenses to have this work done. The respondent asserts that it did cost her something. The applicant relies on hearsay from the maintenance person. I find that the respondent made an attempt to respond to the applicant’s concerns in a timely and appropriate way.

35According to the applicant the repairs of the furnace and humidifier did not resolve her issues but she did not raise the issue again until late May 2013.

36The applicant testified that on May 20, 2013 she moved the mattress out of her room and slept on the floor. This is the same mattress that she had been sleeping on since mid-September 2012. She testified that her symptoms cleared up. It is on this basis that the applicant concluded that it was the mattress which was causing the problem.

37The applicant saw her family physician who provided a medical note dated May 30, 2013 which provided as follows:

This is to certify that the above patient is experiencing symptoms consistent with an allergic reaction, which she has identified to be triggered by her mattress.

It is advised that she be isolated from her allergy trigger. Allergy testing is pending.

38This note was provided to the respondent shortly after it is dated.

39The applicant first identified the mattress as the potential source of her allergic reactions on May 21, 2013 in an email to the respondent. In this email she claims to have been sick for three weeks. This email was inconsistent with the applicant’s assertion in her oral evidence that “two days back” she slept without the mattress and “the first night when I felt better”. In the email the applicant also states that the “night before” she “put a plastic sheet on them, sealed them with tape and covered my mouth with face mask and slept reasonably well for the first time in three weeks or so”. This is inconsistent with the applicant having raised concerns about allergic reactions as far back as March 2013. In addition to the issues canvassed above I find that these important differences in her versions of when and how she dealt with the alleged problems associated with the mattress – i.e. as between sleeping without the mattress and sleeping on it after sealing it with tape and with a face mask - raise further questions about the applicant’s reliability and credibility.

40However it is clear that in this email the applicant made a formal request for a new mattress because she believed that it was the mattress that was causing the allergic reaction.

41On May 23, 2013 the respondent wrote back and reminded the applicant that when she signed her first lease she had been required to purchase a waterproof mattress protector. The respondent suggested that if she did this it might help. The respondent also questioned whether or not it was the mattress and reminded the applicant of her various past efforts to accommodate her as regards the mattress. The respondent also suggested that the applicant could bring a mattress from her home or find her own mattress to ensure her comfort.

42Later the same day the applicant responded. The applicant took issue with the respondent’s suggestion about a plastic cover. The applicant also advised the respondent that she had seen her “doc” the day before and that he had advised her to remove herself from the situation. The applicant advised the respondent that she was breaking her lease and leaving as soon as possible for health reasons. In this email the applicant took the position that she was entitled to do so because the respondent had failed to properly respond to her health concerns.

43On May 24, 2013 the respondent responded and claimed to have attempted to accommodate the applicant. The respondent also noted that the applicant was not going to give the required 60 day notice and suggested that they agree that the applicant would move out on June 30, 2013.

44On May 25, 2013 the applicant responded and advised the respondent that the applicant’s health should have been accommodated “unconditionally and without limit”. The applicant asked that the respondent return the post-dated cheques for June 1, 2013 to June 1, 2014 for the most recently negotiated lease. The applicant also asked the respondent when she would receive her deposit.

45A few days later on May 30, 2013 the applicant wrote to the respondent again by email and asked her to reconsider her position and provide an appropriate accommodation of her disability related needs. The applicant asserted in this email that the respondent had only provided her with one option – that she leave the residence. As can be seen from the respondent’s email of May 23, 2013 that is not the case.

46Later the same day the respondent replied stating that on the basis of the applicant’s instructions with respect to the termination of the lease the respondent had found a tenant who had paid for the room from July 1, 2013. While not explicit in this reply, I find that the respondent was implicitly maintaining its position that she did not believe the applicant required a new mattress as accommodation of a disability related need. From this follows the view that the respondent remained at liberty to accept the applicant’s termination of the tenancy, that she was not liable on a constructive basis for the termination (i.e. for failure to accommodate) and that she had no short term obligation to accommodate the applicant during the remaining duration of the tenancy.

47The applicant saw an allergist at some later date. The test results were available to her in August 2013 and indicate that she has a number of allergies including an allergy to dust. The applicant claims that it was dust from the mattress that was the cause of her allergic reaction. In my view these results do not establish much in relation to this dispute other than that it is possible that there was something in the environment in this house that may have triggered an allergic reaction. There is no evidentiary basis to conclude on a balance of probabilities that it was dust from the mattress that was the cause of the applicant’s allergic reaction.

48At the hearing the respondent conceded that she did not believe that the mattress was the source of the applicant’s allergy. She believed at the time and continues to assert that the applicant was unhappy about new furniture going to another resident. Although the respondent had made this allegation in her pleadings the applicant did not respond directly to it in her evidence. The applicant did testify that there was new furniture in storage and that sometime in June 2013 she asked the respondent to use the new mattress from storage; a request that was denied, according to the applicant. However in her Application the applicant had alleged the new furniture had arrived throughout the spring and early summer of 2013 as the respondent was upgrading several bedrooms in the residence.

49The respondent testified that new furniture would have arrived in May 2013 and it was destined for another room in the house. She recalled a conversation with the applicant about this furniture. The applicant wanted the new furniture according to the respondent and was upset when it was denied to her. The respondent recalls this conversation as being in May 2013 because then, very shortly thereafter, the applicant claimed for the first time that the mattress she had been sleeping on since September was making her ill. The respondent testified that she did not believe the applicant about this request because of the more or less contemporaneous dispute about the new furniture.

50In light of my general assessment of the credibility of the applicant and respondent I am inclined to accept the respondent’s version of this interaction. However for the reasons set out below I am not persuaded that it matters much which of these two accounts I find is the most accurate.

51The applicant testified that after she left the residence her allergies alleviated.

52I also heard evidence of the impact of these events on the applicant.

53As indicated earlier at the conclusion of the evidence I directed the parties to provide written submissions with respect to liability and remedy if I concluded that the only request for accommodation made by the applicant was the one clearly made in the email of May 21, 2013.

54The applicant’s theory of liability relies on those cases that have concluded that there may be a finding of liability for a breach of the procedural duty to accommodate. The respondent reiterated her position that after the applicant indicated that she was breaking the lease agreement the applicant provided no evidence to support her claim that the mattress was the cause of her allergic reaction and made no other specific request for accommodation.

55Assuming without deciding that there is liability for a violation of a procedural component of the duty to accommodate, in my view in the particular circumstances of this case the respondent met her obligation which must by its nature take into account the context in which the issue arises. In some cases, whether or not the respondent is required or able to accommodate, a request for accommodation will be obvious and does not require much inquiry.

56In this case the respondent had taken a number of steps to accommodate the applicant’s complaints with respect to what I will call air quality issues. So when the applicant first raised concerns about air quality in relation to the furnace/ humidifier the respondent took steps to fix the problem. This does not appear to have worked but the applicant did not complain about it until her May 21, 2013 email. The request was made in the context of the applicant being upset that her room was not scheduled to receive new furniture. The respondent’s skepticism about the request was not entirely unreasonable in the context. In any event the respondent made it clear that she had no reason to believe that the mattress was the source of the problem but made suggestions to the applicant. It is not accurate as the applicant has suggested that the only option provided to her by the respondent was that she leave the residence. The applicant chose as her immediate response to break her lease and demand that the respondent take immediate steps to formalize the end of the tenancy. The respondent acted on the applicant’s clearly stated intentions and when the applicant had a change of heart on May 30, 2013 the room was gone. The applicant made no particular request after that and did not provide any further information to the respondent which would substantiate the applicant’s suspicions that the mattress was the source of her allergic reaction.

57For all of these reasons the Application should be dismissed.