Lewis v. Riverdale Housing Co-operative, 2015 HRTO 1327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terri-Ann Lewis

Applicant

-and-

Riverdale Housing Co-operative, Co-op Housing Federation of Toronto, and Yvette Burke

Respondents

DECISION

Adjudicator: Laurie Letheren Date: October 6, 2015 Citation: 2015 HRTO 1327 Indexed as: Lewis v. Riverdale Housing Co-operative

WRITTEN SUBMISSIONS

Terri-Ann Lewis, Applicant Joseph Kary, Counsel

Riverdale Housing Co-operative, Co-op Housing Federation of Toronto, and Yvette Burke, Respondents Luke J. Saites, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is alleging that she experienced discrimination in her housing on the basis of her disability and that she experienced reprisal.

OVERVIEW

2In a Case Assessment Direction (“CAD”) issued on January 7, 2015, the Tribunal directed that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an 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. The CAD advised the applicant that during the summary hearing she should be prepared to explain what evidence she proposes to present at a hearing to demonstrate that her alleged experiences with her housing provider and housing organizations are connected to her disability or that she experienced reprisal by the respondents.

3The summary hearing was held on July 9, 2015. At the commencement of the teleconference hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated.

4During the summary hearing, I heard submissions from the applicant’s counsel, the applicant and from counsel for the respondents. The applicant and her counsel and the respondents’ counsel also answered questions that I put to them.

5The applicant is a member of the respondent housing co-operative. The housing co-operative offers subsidized units to those members who qualify. As part of the housing co-operative’s agreement with Canadian Mortgage and Housing Corporation, the housing co-operative requires members who wish to qualify for a subsidy to provide documentation to verify their income. If this documentation is not provided or if the member’s income is outside of the qualifying limits, the member may lose or be denied a subsidy.

6The applicant’s allegations of discrimination are based on Notices to Appear that she received from the respondent housing co-operative’s board of directors in November and December 2013. These Notices informed the applicant of the date and time of board meetings; that the board would be considering whether to end the applicant’s membership and occupancy rights; and, the proposed date that the decision to end the applicant’s membership and occupancy rights would become effective.

7The November 2013 Notice indicates that the reasons why the board was considering a termination her membership and occupancy rights were because she was in arrears; had been persistently late in paying her housing charges; and had violated the housing co-operative’s by-law that prohibited members from unreasonably disturbing other co-operative members or members of the larger neighbourhood community.

8A grievance was filed by an employee of the housing co-operative, it alleged that the applicant was harassing staff and creating a toxic work environment for staff was attached to the November 2013 Notice. The grievor alleges that the applicant complained about her to a pest control person who had attended at the applicant’s unit.

9The December 2013 Notice indicates that the reason for considering a termination of the applicant’s membership and occupancy rights was that she had disturbed other members.

10Under the “What Happened” section of the Application, the applicant has written about the Notices to Appear with the grievance attached that she received. The applicant did not provide any details in this narrative about how the receipt of these Notices is connected to her disability or any details of how the delivery of these Notices could be an act of reprisal against her for enforcing or attempting to enforce her Code rights.

11In their Response, the respondents claim that while it is clear that there was a dispute between an employee of the housing co-operative and the applicant, this dispute does not constitute a Code breach. The respondents claim that the board was within its right to enforce its own by-laws when it issued the Notices to Appear and that this action was not a breach of the Code.

12In her Reply, the applicant details a series of events that took place around the removal and recalculation of the amount of her subsidy. The Reply details the requests that she received from the respondent housing co-operative that she provide information about her sources of income and the various complaints she made regarding the calculation of the subsidy. The Reply does not provide any details of how her experiences through the subsidy calculation process or the process the respondent housing co-operative followed in considering the termination of membership and occupancy could be found to be discrimination on the basis of her disability. As well, the Reply does not provide any details of evidence that she may have to demonstrate how the issuing of these Notices could be an act of reprisal against her for enforcing or attempting to enforce her Code rights.

Analysis and Decision

13At various points during the summary hearing, I reminded the applicant of the purpose of this hearing. I directed the applicant to indicate the evidence that she has or will have to present at a hearing of the merits that could establish the link between the respondents’ treatment of her and her disability or to establish how the treatment could be found to be acts of reprisal under the Code.

14The applicant submitted that the respondent co-operative is funded through the Canadian Mortgage and Housing Corporation (“CMHC”) and must provide a certain number of subsidized units. Since a high proportion of persons who occupy the subsidized units are persons with disabilities and, in particular, mental health disabilities, the respondents’ rules and process for income verification and calculation have a discriminatory impact on people with disabilities and had a discriminatory impact on the applicant as a person with a disability.

15When asked about the evidence the applicant would have to support these allegations, applicant indicated that this was well known since CMHC has been constantly found it have miscalculated or wrongly applied the subsidy calculation rules. The applicant submits that there could be evidence of these mistakes in the CMHC records.

16The applicant submits that the proof of the discriminatory impact on her would be in her file at the respondent co-operative and that the proof comes from the fact that she still occupies her unit in the respondent co-operative. She submits that if the respondent co-operative were right about the subsidy calculations and the arrears, she would not be there any longer. The applicant could not provide any indication of what the evidence of the discrimination based on her disability would be.

17The applicant also referenced a letter that she alleges she received during a 2011 election for the board of the respondent co-operative. She alleges that this letter warned her that as a person with a mental health disability, she should not attempt to be on the board because she is not stable. The applicant does not have a copy of this letter, does not have other evidence to verify its contents and does not have evidence to prove that the source of this letter is one of the respondents.

18While the applicant’s documents include numerous pieces of correspondence in which she is making complaints about the requests for further information about her income and complaints about the mistakes made in the calculations and the notices she received, there is nothing to indicate that the applicant had advised the respondents that she was a person whose disability needed to be accommodated by the respondents or who was being unfairly impacted by these requests because of her disability. When asked whether she had requested that her disability be accommodated, the applicant confirmed that she had not. She submitted that there was no need to ask for an accommodation of her disability because the co-operative was asking for illegitimate requirements.

19She explained that the illegitimate requirements were that she was a seasonal worker and that the information she was required to give was beyond what the guidelines required for a seasonal worker.

20The applicant submits that she experienced reprisal after she filed her Application when the co-operative proceeded to harass her by withdrawing the subsidy. The documents filed as part of the Response and as exhibits to the Reply indicate that the applicant’s subsidy was removed when she failed to provide the information that the respondent co-operative requested as verification of her 2013 income. In a letter dated January 30, 2014, the respondent co-operative advised the applicant of the income verification information that she was missing. Another letter with the same date states that because the co-operative had not received the information, the by-laws required the applicant to pay the full market housing charge. In addition, a letter that the applicant received from The Agency of Co-operative Housing, to which she had complained following the loss of the subsidy, indicates that a review of the applicant’s file confirmed that the subsidy was stopped because she had not provided all the required information. The letter also confirmed that the information that she is being asked to provide had been required of seasonal workers over the previous three years following a CMHC audit.

21The applicant did not counter or provide details of the evidence she had to counter the respondents stated reasons for the subsidy removal and to demonstrate that the subsidy was removed in retaliation for filing this Application. In fact, near the end of the hearing when the applicant herself asked to speak, she stated that the co-operative made mistakes because of her type of work and that is why it removed the subsidy.

22The respondents submit that the purpose of the summary hearing was to allow the applicant an opportunity to provide further details of the evidence she has to demonstrate that she has a reasonable prospect in succeeding in demonstrating that the respondents breached her Code rights. The respondents submit that the applicant provided no details of such evidence. There must be evidence that goes beyond applicant beliefs.

ANALYSIS

23Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

24In Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

25I find that the applicant does not have a reasonable prospect of proving that her rights under the Code have been violated by establishing a link between the respondents’ actions and her disability or by proving that the respondents’ actions were acts of reprisal for attempting to assert her rights under the Code.

26As I indicated to the parties at the commencement of the summary hearing, the Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds: see Dabic, above. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

27The applicant’s allegations of discrimination as set out in the Application relate to the two Notices to Appear she received from the respondent co-operative. In the Application it is written, “To strengthen the grounds of eviction, housing manager included $583.00 arrears that was already pardoned.” Although the grounds of disability and reprisal were checked off, there were no details in the Application to connect the receipt of the Notices to the ground of disability or to explain how the delivery of these Notices was reprisal.

28During the summary hearing the applicant attempted to link the delivery of the Notices to her disability through the submissions about Rent Geared to Income (“RGI”) units and the rules that govern those that occupy these units. She submitted that there are a large number of people with disabilities who occupy RGI units and that the rules imposed by CMHC and co-operative by-laws create barriers for people with disabilities. She also submitted that the CMHC is known to make many mistakes. However, the applicant did not provide any details of evidence of how the issuing of the Notices could be linked to her disability in the Application, Reply or during the summary hearing.

29While I appreciate that the applicant would think that it is unfair that she be the subject of a review of her membership and occupancy by the co-operative’s board following a disagreement she had with employees of the co-operative, she has pointed to no evidence or prospective evidence to show that her disability was a factor in the respondents’ decision to issue the Notices to Appear and review her membership and occupancy rights in the co-operative.

30The two Notices were the only basis for the allegations made in the Application as filed. Although reprisal was checked off as a ground in the Application, there were no details in the Application on how the issuing of the Notices could be proven to be reprisal under the Code.

31In the Reply, the applicant makes new allegations of reprisal by stating that the removal of her rental subsidy was reprisal for filing the Application. The respondent submits that the subsidy was removed because the applicant had not provided the information that was required in order to verify her income. The documents filed with the Response and Reply appear to support the respondents’ position on the reason why the subsidy was removed. The applicant may believe that her subsidy was removed in retaliation for the fact that she filed this Application; however, she has provided no evidence or indicated what evidence she intends to have to counter the respondents’ position that it was removed for entirely legitimate reasons.

32The alleged treatment must be linked in a substantive way to a Code ground. As the Tribunal stated in another decision on a summary hearing, Villella v. Brampton (City), 2011 HRTO 1085, at para. 10:

The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

33Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed in whole or in part and the Application is therefore dismissed.

ORDER

34The Application is dismissed.