HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Xiaorong Xi
Applicant
-and-
Multi-Area Developments Inc.
Respondent
DECISION
Adjudicator: Sheri D. Price
Indexed as: Xi v. Multi-Area Developments Inc.
APPEARANCES
Xiaorong Xi, Applicant
Imran Qureshi, Representative
Multi-Area Developments Inc., Respondent
David DeSantis, Representative
Introduction
1In this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”), the applicant, who is Muslim, alleges that the respondent home builder discriminated against her because of her creed and sex by failing to provide advance notice that its workers would be doing work on the exterior of the applicant’s home. The Application also alleges reprisal contrary to s. 8 of the Code.
2By Case Assessment Direction dated January 24, 2013, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.
3The summary hearing was also to determine if the Application should be dismissed under s.45.1 of the Code, on the basis that the substance of the Application had been appropriately dealt with in another proceeding before the Licence Appeals Tribunal. The applicant and her husband pursued claims against the respondent with the Tarion Warranty Corporation (“Tarion”), an entity created under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 for the purposes of administering the Ontario New Home Warranties Plan. They subsequently appealed to the Licence Appeals Tribunal from Tarion’s decision denying most of their claims in relation to the new home they purchased from the respondent.
4The applicant herself did not attend the summary hearing, but was represented throughout by her husband, Imran Qureshi. During the summary hearing, the applicant’s representative was given an opportunity to explain how the applicant could prove that the respondent infringed her rights under the Code if the Application were to proceed. The parties were also given an opportunity to address the s. 45.1 issue.
5At the summary hearing, it became readily apparent that there is no basis to dismiss the Application under s. 45.1 of the Code. On February 12, 2014, the Licence Appeals Tribunal issued a decision dismissing the applicant’s (and her husband’s) appeal on the basis that none of their claims were within the jurisdiction of the Licence Appeals Tribunal. Accordingly, there is no basis to conclude that the proceeding before the Licence Appeals Tribunal appropriately dealt with the substance of the human rights Application. Nor did the respondent attempt to persuade me to dismiss the Application under s.45.1 of the Code. Accordingly, I indicated during the summary hearing that I was not dismissing the Application under s.45.1 of the Code.
6Although, in the Application that she filed with the Tribunal, the applicant alleged that the respondent discriminated against her because of her race, colour, ancestry, place of origin, citizenship, and ethnic origin when the respondent’s inspector allegedly remarked, “Whatever you do for these people, they will complain”, this allegation was not pursued at the summary hearing. During the hearing, the applicant’s representative expressly stated that the applicant was not alleging that the alleged comment in question was discriminatory; and clarified that the only discrimination claim that was being pursued was the creed-based claim that the respondent discriminated against the applicant by having workers work on the exterior of the applicant’s house without giving advance notice that they were coming.
7Although the applicant’s representative did not specifically describe the alleged discrimination as being based on creed and sex, since the claim is that the respondent discriminated against the applicant as a Muslim woman, and since “sex” is one of the grounds ticked off in the Application itself, I have considered the applicant’s discrimination claim as being based on both creed and sex.
8I would note that, many times during his submissions, the applicant’s husband made statements to the effect that his rights had been violated by the respondent, particularly his “privacy rights”. I reminded the applicant’s husband that the Application before the Tribunal, and the summary hearing in respect of that Application, relates to the alleged violation of the applicant’s rights under the Code, and not his rights. I also explained that the Code does not enshrine a “right to privacy” per se. Rather, it prohibits discrimination, harassment and reprisal on the basis of the grounds set out in the Code. The summary hearing proceeded on that basis.
9Finally, I note that the applicant’s representative made a request at the outset of the summary hearing to add Tarion as a respondent to the Application. I declined to grant that request for reasons given at the hearing. However, I informed the applicant’s representative that my ruling did not preclude the applicant from filing a separate Application against Tarion if she wished to do so. That said, I explained that I was not making any representations about the applicant’s ability to pursue an Application against Tarion at that point. In particular, I noted that there might be an issue with respect to the timeliness of an Application against Tarion.
background
10The applicant and her husband purchased a new home from the respondent in June 2011. The applicant and her husband allegedly felt that there were many deficiencies with their new home, which they sought to have rectified by the builder. There is no dispute that the respondent sent workers to the applicant’s and her husband’s home many times after June 2011 to address issues that had been raised by the applicant and/or her husband. The applicant asserts that, although the respondent initially notified the applicant and her husband when its workers would be coming, an issue later arose in respect of the respondent’s failure to provide advance notice of worker visits.
11In particular, the applicant alleges that, in mid-December 2011, the respondent sent a worker to the applicant’s home without providing the applicant and her husband advance notice that the worker would be coming. The applicant alleges that her husband sent the worker away without letting him do any work because he had to go out and the applicant, who was home, had morning sickness due to pregnancy. The applicant’s husband contends that he told the worker that, because he and his wife were Muslim, “a male person should be present whenever an unknown person comes to work” and “please always inform us before coming.”
12Some time later, on or about January 13, 2012, the applicant alleges that the respondent sent a worker to repair bricks on the exterior of the house, near the applicant’s second-storey bedroom window, without giving the applicant and her husband advance notice that he would be coming. The applicant, who was still experiencing morning sickness, alleges that she was lying on her bed in her underwear resting when she noticed the worker outside the window. She alleges that she ran out of the bedroom and was extremely upset to have her “privacy exposed” to an unknown person.
13A couple of days later, on January 16, 2012, the respondent sent a roofer to work on the applicant’s house. However, the applicant’s husband sent the roofer away without allowing him to complete the repair in question. According to an email exchange between the respondent and the applicant’s husband later that day, this was because, contrary to the position taken by the respondent, the applicant’s husband did not believe that it was feasible to complete the roof repair while there was still snow on the roof. The applicant’s husband maintains that he sent the roofer away not only because of the snow, but also because he and the applicant were still in a “shocked condition” over what had transpired on or about January 13, 2012.
14On January 17, 2012, the applicant’s husband’s emailed the respondent about the January 13, 2012 incident as follows:
We are giving our concern that hurted (sic) our privacy, safety and property. Last week the worker come to install the diamond stone outside. My wife observed him when he was standing in our window and my wife was on bed. This gentleman did nothing wrong and we have no complaint against him but the organization. It was done before any notice to us. When I went outside of home, the worker mentioned actually we missed these stoned (sic) at the time of constriction (sic). Instead of adding beauty to home, come and see how they down grade the property. Please convey our concern to builder.
15Following the above-noted email, the applicant alleges that the respondent again sent a worker to complete repairs to the roof, without informing the applicant and her husband. The applicant submits that she does not know when the roofer came to work on the house, but maintains that it must have been some time prior to February 6, 2012, which I understand is when the applicant and/or her husband noticed that the work had been completed.
16The applicant filed her Application with the Tribunal on December 2, 2012. In her Application, the applicant identified the January 13, 2012 incident as the last event to which her Application relates.
17However, at the outset of the summary hearing, the applicant’s representative sought to amend the Application to include an allegation that on March 20, 2012 the respondent “hurt” the applicant’s privacy by sending a worker to match the colour of some stones on the house’s exterior without providing advance notice. The applicant alleges that the worker was working outside, near a window, and saw the applicant sitting with her husband and other family members through the window. Although the March 20, 2012 incident was identified in other written materials submitted by the applicant prior to the summary hearing, it was not clear that the applicant was alleging that this incident was discriminatory or how the alleged incident disadvantaged the applicant because of her creed. During the summary hearing, the applicant’s representative took the position that the March 2012 incident constituted discrimination against the applicant because the worker in question allegedly saw the applicant with her hair uncovered, which he submits is against the applicant’s creed.
18Although not set out in any of the written submissions that the applicant’s representative had stated contained all of the amendments he wished to make to the Application, as the summary hearing progressed, the applicant’s representative took the position that there were numerous occasions when the respondent’s workers did see or could have seen the applicant with her hair uncovered through windows and that such incidents were also discriminatory, although he could not say when such additional incidents allegedly occurred.
19In the circumstances, I sought submissions from the parties during the summary hearing with respect to whether the applicant ought to be permitted to amend the Application to include the allegation that the respondent discriminated against her by sending workers to work on the exterior of the house on March 20, 2012 and other unspecified dates who then allegedly did see or could have seen the applicant through the windows with her hair uncovered. I also sought submissions from the parties on whether such allegations, if the applicant was permitted to include them in her Application, had any reasonable prospect of success.
20Another allegation that was not in the Application but was referred to by the applicant during the summary hearing occurred on December 10, 2012, which was shortly after the Application was filed. On that date, the applicant alleges that the respondent sent a bricklayer to the applicant’s house to do some work to the exterior of the applicant’s house, again without prior notice. The applicant alleges that her husband refused the service and sent the worker away because of the lack of advance notice and because he was on his way out and the applicant was “half-asleep” and breastfeeding her baby in the room with the window near which the worker would need to work. Later that day, the applicant’s husband complained to the respondent via email about the fact that the worker had been sent to the house without notice. However, the email did not suggest that there was a need for advance notice, or that any such need was related to the applicant’s creed. Indeed, the email did not mention the applicant or her creed at all. It simply stated:
When I was justing (sic) leaving my home with my daughter, a gentleman came and asked that he wants to clean bricks. There was no information to us about this person (sic) visit.
21On December 11, 2012, the respondent replied that, as the December 10, 2012 visit related to an outside repair item, and it was not necessary to access the home, the respondent did not normally schedule an appointment for such work. The respondent stated that, since the bricklayer was available and not otherwise occupied, the respondent had sent him to the applicant’s house to do the repair in question.
22There is no allegation that the applicant was seen by the respondent’s worker on December 10, 2012.
Whether all or part of the Application ought to be dismissed on the basis that it has no reasonable prospect of success
23As noted above, the applicant alleges that the respondent discriminated against her because of her creed and sex by sending workers to work on the exterior of the applicant’s house in early 2012 without giving advance notice to the applicant. The applicant also alleges that the respondent reprised against her for complaining to Tarion about alleged deficiencies in the house that she and her husband purchased from the respondent.
24In my view, for the reasons set out below, neither the applicant’s discrimination claim nor her reprisal claim has any reasonable prospect of success.
Discrimination Claim
25As noted above, in the Application that she filed with the Tribunal, the applicant alleged that the respondent discriminated against her on or about January 13, 2012 when it sent workers to work on the outside of the applicant’s house without providing advance notice, which resulted in the applicant being seen by the respondent’s worker, through a window, wearing only her underwear. The applicant alleges that being seen in this “unacceptable condition” by an unknown man was contrary to her religious beliefs. She contends that the respondent had a duty to accommodate these beliefs by providing her with advance notice that its workers would be coming and that, by failing to do so, the respondent discriminated against her because of her creed and sex.
26As noted above, the applicant sought, during the summary hearing, to amend the Application to include the allegation that the respondent also discriminated against her when one or more of its workers did see or could have seen the applicant through a window with her hair uncovered while working on the exterior of the applicant’s home on March 20, 2012 and other occasions.
27As noted above, I sought submissions from the parties during the summary hearing as to whether the applicant ought to be permitted to amend her Application to include the allegation that the respondent discriminated against the applicant when its workers allegedly saw her through a window on March 20, 2012 and on other unspecified occasions. Among other things, I directed the parties to address whether the request to amend the Application to include the March 2012 allegation ought to be denied on the basis of delay, given that s.34(1) of the Code generally requires human rights allegations to be brought forward within one year of the last discriminatory incident to which the Application relates and the request to amend was made approximately two and a half years after the March 20, 2012 incident. (See, for example, Arthur v. Canadian Tire Corporation, 2012 HRTO 1904.)
28In support of her request to amend the Application, the applicant submitted that she had expected that the Licence Appeals Tribunal would address the March 2012 and other alleged discriminatory incidents in the proceeding before it. However, as noted above, the Licence Appeals Tribunal refused to address any of the applicant’s allegations on the basis that they did not fall within its jurisdiction. In light of the Licence Appeal Tribunal’s decision, the applicant submitted that she should be permitted to have all of her allegations of discrimination addressed in this proceeding.
29The respondent opposed the request to amend. Among other things, the respondent submitted that there was no valid reason for the applicant not to have included the March 2012 incident in her Application when she filed it in December 2012. The respondent also disputed the bona fides of the March 2012 allegation and submitted that the applicant’s husband was merely “grasping at straws” in an attempt to keep the case against the respondent alive. The respondent submitted that, prior to the summary hearing, the applicant had never raised any issue about being seen with her hair uncovered, notwithstanding extensive correspondence outlining the applicant’s and her husband’s concerns. In addition, the respondent’s representative, Mr. DeSantis, who owns and/or operates the respondent company, stated that he had personally met with the applicant “dozens of times” over the years, always with a prior appointment, and she had never once had her hair covered. The applicant’s husband did not dispute Mr. DeSantis’ account that he had met with the applicant numerous times with her hair uncovered. However, notwithstanding that, while making submissions over the course of several hours, the applicant’s representative had repeatedly stated as a general proposition that the applicant’s creed prevented her from being seen with her hair uncovered, he subsequently took the position that the applicant was only required to cover her hair while she was pregnant or on holy days.
30In any event, in the circumstances of this case, it is not necessary for me to decide whether the applicant ought to be permitted to amend her Application to include the March 20, 2012 or other alleged incidents when she allegedly was seen or could have been seen through windows with her hair uncovered. This is because even if the applicant were permitted to amend her Application to include these additional allegations, I find that she has no reasonable prospect of proving that that respondent discriminated against her because of her creed and/or sex.
31The applicant contends that being seen in her underwear and with her hair uncovered through the windows of her house was contrary to her creed as a Muslim woman. That may be. However, the issue in this case is not whether something happened that was contrary to the applicant’s religious beliefs, but whether the applicant has any reasonable prospect of proving that such an event was an act of discrimination by the respondent.
32The essence of the applicant’s discrimination claim is that she had a creed-based need not to be seen by the respondent’s workers while inappropriately attired and the respondent breached its duty to accommodate this need by sending workers unannounced to make repairs to the exterior of the house. However, it is a well-established principle of human rights law that a respondent cannot be found liable for failing to accommodate Code-related needs unless the respondent knew or ought to have known about the need for accommodation: Davie v. PMA Brethour Real Estate, 2009 HRTO 1523 at para. 26-34; Hum v. Alma Mater Society of Queen’s University Incorporated, 2015 HRTO 300 at paras. 58 and 84; Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570 at para. 65-72; Barnes v. Bruce Stone Enterprises Ltd., 2012 HRTO 1879; Sollitt v. Trillium Lakelands District School Board, 2013 HRTO 1128 at para. 27.
33During the summary hearing, I asked the applicant’s representative to explain how the applicant could establish that the respondent knew or ought to have known that the applicant had a creed-based need to have the respondent provide advance notice that its workers would be coming to work on the exterior of the applicant’s house. In response, the applicant’s husband points to the allegation that he told one of the respondent’s workers in December 2011 that, because he and his wife were Muslim, “a male person should be present whenever an unknown person comes to work” and to the January 17, 2012 email he sent to the respondent about the January 13, 2012 incident. In my view, neither the alleged comment to one of the respondent’s workers (whom the respondent submits was a subcontractor) in December 2011 nor the January 17, 2012 email provides an evidentiary basis upon which the Tribunal might conclude that the respondent knew or ought to have known that the applicant had a creed-based need not to have workers work on the exterior of her house without advance notice. In the circumstances, I find that the applicant’s discrimination claim has no reasonable prospect of success.
34The applicant’s husband maintains that the January 17, 2012 email informed the respondent of the applicant’s creed-based need not to have workers coming to the house without notice. However, as the respondent points out, there is no mention in the January 17, 2012 email about the applicant’s alleged creed-based need not to have workers coming to the house without advance notice, lest they see her through a window with her hair uncovered or otherwise. The primary concern that seems to be reflected in the email is the applicant’s husband’s unhappiness with the quality of the brickwork done on his and the applicant’s house. At any rate, the applicant’s creed is not mentioned in the email at all. Certainly, the email identifies the January 13, 2012 incident as having given rise to a privacy concern. That is understandable. Regardless of creed or sex, many people would undoubtedly feel that their privacy had been violated if they were seen by a stranger in their underwear, however inadvertent. However, as noted above, the Code does not give people a right to privacy per se. It only gives them the right not to be discriminated against because of creed. In my view, the January 17, 2012 email is not a basis upon which the Tribunal could find that the respondent knew or ought to have known that the applicant had a creed-based need not to have workers work on the exterior of her house without prior notice.
35Nor, in my view, could the Tribunal reach such a conclusion based on applicant’s husband allegedly telling a worker in December 2011 that because he and the applicant were Muslim, a male person needed to be present when unknown persons came to the house to work.
36At the outset, I note that it is not clear that telling one of the respondent’s workers (or one of its subcontractor’s workers) about a Code-related need could be taken as advising the respondent itself about the applicant’s Code-related need.
37Leaving that issue aside, in my view, the fact that the applicant’s husband stated that, because the family was Muslim, a male person had to be present whenever an unknown person came to work, if proven to be true, is not a basis upon which the Tribunal might conclude that the respondent knew or ought to have known that sending workers to repair the exterior of the house without advance notice would disadvantage the applicant because of her creed, which would be required for the applicant to make out her discrimination claim. Taken at its highest, the Tribunal might conclude, based on the applicant’s husband alleged statement, that there was a creed-based need for the applicant not to interact with unknown persons herself. However, on the occasions complained of, there is no suggestion that the respondent’s workers attempted to or needed to interact with the applicant (or her husband) in any way when they worked on the outside of the house. In the circumstances, even if the respondent had been aware of the applicant’s husband’s alleged statement to a worker in December 2011 (which I understand is disputed by the respondent), this is not a basis upon which the Tribunal could conclude that the respondent knew or ought to have known that the applicant had a creed-based need not to have unknown people outside her house without notice in circumstances where there was no need to interact with the applicant. In the circumstances, the applicant has no reasonable prospect of establishing that the respondent failed to accommodate her in the manner required by the Code and thereby discriminated against her because of creed and sex.
38Parenthetically, I note that, to the extent that the need expressed was for a male person to be at the house when “unknown persons” came to work, the applicant’s husband was in fact present at the house on both the January 13, 2012 and March 20, 2012 occasions complained of. In my view, this further undermines the applicant’s claim that the respondent failed to accommodate a Code-related need of which it had been made aware, and thereby discriminated against her contrary to the Code.
39In sum, if a requirement, qualification or factor has an adverse effect on a person because of his or her membership in a group identified by a protected ground of discrimination under the Code, then a duty to accommodate the Code-related need arises for the respondent. However, a respondent cannot accommodate a need that it does not know exists and/or ought not to know exists. A failure to accommodate a need that the respondent does not know and/or ought not to know exists does not breach the Code. In this case, there are no facts alleged that, if proven to be true, could provide a basis for finding that the respondent knew or ought to have known that the applicant had a creed-based need for advance notice that workers would be working on the exterior of her house. Accordingly, the applicant’s claim that the respondent discriminated against her by failing to accommodate such alleged need has no reasonable prospect of success. It is dismissed accordingly.
Reprisal claim
40The applicant also alleges that the respondent reprised against her for claiming or enforcing her rights under the Code. In this regard, the applicant pleads:
When we mentioned to the builder’s representative that we were going to complain against his work to Tarion, he tried to stop us by mouth, email and letter. He started to send workers without any notice to do work just in front of the second floor window. I believe sending workers without any notice was to harass me in retaliation to our complaint to Tarion.
41In other words, as I understand it, the reprisal allegation contained in the Application is that the respondent sent a worker without notice to the applicant’s house on or about January 13, 2012 as an act of retaliation for the applicant and her husband having decided to complain to Tarion about the house they had purchased from the respondent. However, during the summary hearing, the applicant’s representative alleged that there were other occasions on which the respondent’s representatives allegedly used demeaning language and gestures when dealing with the applicant’s husband in the applicant’s presence and that these constituted acts of reprisal, contrary to the Code.
42It is not clear that the applicant is entitled to pursue allegations of reprisal that were neither contained in the Application nor in the August 15, 2014 written submissions which contained certain amendments that the applicant sought to make to the Application. However, it is not necessary for me to determine this issue in the case at hand. This is because, assuming without finding that the applicant is entitled to pursue all of her allegations, I find that the applicant has no reasonable prospect of proving that the respondent reprised against her contrary to the Code.
43In order to succeed in a claim of reprisal under s. 8 of the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against her for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.
44In this case, the applicant alleges that the respondent mistreated her in various ways because she complained to Tarion about a number of perceived deficiencies with the house she purchased from the respondent and because she and her husband decided to participate in Tarion’s conciliation process, contrary to the wishes of the respondent. However, even if the applicant were able to prove this, it would not establish that the respondent reprised against the applicant within the meaning of s.8 of the Code. The Code does not prohibit retaliation against someone because they complain to Tarion pursuant to the Ontario New Home Warranties Plan Act. As noted above, in order for retaliatory actions to infringe the right contained in s.8 of the Code, they must be linked to the applicant having engaged in one of the three protected activities identified in s.8 of the Code. In this case, there are no facts alleged that, if true, would allow the Tribunal to conclude that the respondent retaliated against the applicant because she engaged in any of these protected activities. Retaliating against someone because they complained to Tarion, if it occurred, may be unfair, but it is not a violation of the Code. Accordingly, the applicant has no reasonable prospect of success in proving that the respondent reprised against her contrary to the Code. The applicant’s reprisal claim is dismissed accordingly.
45For the reasons outlined above, I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.
Dated at Toronto, this 27th day of August, 2015.
“signed by”
Sheri D. Price
Vice-chair