Flegg v. Beckers, 2015 HRTO 267

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sherry Flegg Applicant

-and-

Albert Beckers Respondent

DECISION

Adjudicator: Mark Hart Date: March 5, 2015 Citation: 2015 HRTO 267 Indexed as: Flegg v. Beckers

APPEARANCES

Sherry Flegg, Applicant Self-represented

Albert Beckers, Respondent Self-represented

1This is an Application filed on April 4, 2014 alleging discrimination and harassment with respect to the occupancy of accommodation because of disability, receipt of public assistance and association with a person identified by a protected ground, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction ("CAD") dated August 25, 2014, the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis of delay or on the basis that there is no reasonable prospect that the Application will succeed.

3The summary hearing was held by teleconference on January 5, 2015, and I heard oral submissions from the applicant and the respondent. Also present on the teleconference was the applicant's case manager from the Canadian Mental Health Association, and the applicant's landlord. While the applicant previously had filed a request to add her landlord as a respondent to the Application, this request was subsequently withdrawn. However, as Tribunal hearings are open to the public and as the landlord has an interest in this proceeding, he remained in attendance for the hearing.

4Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

6The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent's alleged actions and a Code ground.

7With regard to the issue of delay, section 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8The applicant has lived in the same apartment building since 2003. In or about November 2004, the respondent became the superintendent for the building. The applicant's allegations of discrimination and harassment against the respondent extend back to October 2005 when she was served with an eviction notice. This is some eight and a half years prior to the filing of her Application with this Tribunal.

9In order to address the issue of the timeliness of the applicant's allegations, I first need to consider whether there is an alleged incident of discrimination or harassment that occurred within one year of when the Application was filed. While the applicant has raised a number of alleged events that occurred within this one year period, I need to assess whether the applicant has a reasonable prospect of success in establishing a link between the respondent's alleged actions and a ground protected under the Code. It is only if the applicant is able to establish such a link that I would be able to find that there was an alleged incident of discrimination or harassment within the one year period.

10There are a number of alleged incidents within this one year period which are raised in the Application, which I will address chronologically from the first incident to the last.

11First, in June 2013, the applicant was hammering nails in her apartment at 8:30 p.m. and the respondent came to her apartment door to ask her to stop banging. In my view, this does not appear to be anything more than a fairly typical exercise of a superintendent's responsibilities and cannot reasonably be regarded as discrimination or harassment.

12Second, the applicant states that on July 16, 2013, the respondent went to the local Ontario Disability Support Program ("ODSP") office with a notice of rent increase for the applicant's apartment and told the ODSP worker that the applicant owed this rent increase for the past three months. At this time, the applicant had directed the ODSP office to pay her rent directly on her behalf. There is a dispute between the parties as to when a notice of rent increase can be applied to the applicant's apartment, which is not a matter within this Tribunal's jurisdiction. The applicant alleges that the respondent was discriminating against her because she is in receipt of public assistance by going behind her back to the ODSP office to deliver a false notice of rent increase, after she says that he had told her that no rent increase would be applied at that time. The applicant states that this made her feel like a "non-human being".

13The issue before me is whether the applicant has a reasonable prospect of success in establishing that the respondent's actions amount to discrimination or harassment against her because she is in receipt of public assistance. In my view, the respondent's actions need to be considered in the context of ODSP paying the applicant's rent on her behalf. Whether or not a notice of rent increase is valid and/or whether or not any such notice needs to be served on the tenant directly as opposed to an organization paying rent on the tenant's behalf are not issues within this Tribunal's jurisdiction. In this specific context, and absent any other evidence that the applicant could point to that would support the allegation that the respondent's actions were taken because of the applicant's receipt of public assistance, I find that the applicant has no reasonable prospect of success in establishing before this Tribunal that the respondent's actions in delivering a notice of rent increase to the ODSP office amount to discrimination or harassment against her because she is in receipt of public assistance.

14Third, the applicant states that on August 16, 2013, a neighbour of the applicant was walking by and was about to come up to talk to the applicant who was outside on her balcony. She states that the respondent made a motion with his hand to signal to this neighbour to "get lost". This alleged incident is part of her allegation of discrimination because of her association with a person identified by a protected ground, as the applicant states that this individual is deaf. The applicant states that the respondent previously had made derogatory comments to or about this neighbour, and she believes that the respondent was trying to interfere in her relationships with other people. Whether or not that is the case, and while motioning to a person to get lost may not be a very nice thing to do, I do not see anything in the respondent's alleged actions to connect or link this alleged conduct to discrimination against the applicant based on association with someone identified by a ground protected under the Code.

15Fourth, the applicant states that her key to open the front door to her building does not work properly. She states that in September 2013, she informed the respondent about this, and he told her that she needed to be gentle in inserting the key and to find the "sweet spot". I see nothing in this exchange that would give rise to discrimination or harassment.

16Fifth, in September 2013, there was a loud domestic dispute between a tenant and her boyfriend in the unit below the applicant's apartment. The applicant states that the tenant who lives above the applicant's apartment called the police about this dispute, to which the police responded. The applicant states that the police knocked on her door to inquire about this incident. The applicant believes that she had been identified to the police as the source of the disturbance. The applicant acknowledged that she does not know whether the respondent was responsible for telling the police that she was the cause of the disturbance. She states that after the incident, the respondent said to her: "it wasn't you, it wasn't you". She interprets this as meaning that the respondent thought that she had been responsible for the disturbance. In the absence of any basis to indicate that the respondent had been responsible for sending the police to the applicant's apartment, I fail to see any proper basis for attributing this incident to the respondent.

17Sixth, the applicant states that on October 15, 2013, she had asked the respondent to repair a closet door in her apartment but the respondent did not repair it properly. The applicant also objects to the respondent asking her to empty a closet shelf before he attempted to repair the closet door. In my view, this is a maintenance issue that does not rise to the level of discrimination or harassment, and there is no discernable link to a protected ground under the Code.

18Seventh, the applicant states that on February 9, 2014, the respondent tapped on her window with a snow shovel and said that tenants had been complaining that her music was too loud. The applicant denies that her music was loud, and expresses doubt as to whether there were even any tenant complaints. The applicant regards this as an example of the respondent using every opportunity to interfere with her. In my view, this is an example of the respondent doing one of the things that building superintendents do, which is to raise noise issues with tenants. The last prior issue of the respondent raising a noise issue with the applicant was some seven months earlier, in June 2013, when the respondent asked her to stop hammering nails. I fail to see how a superintendent addressing noise issues with a tenant, whether or not as a result of other tenant complaints or his own observation, at a seven month interval could properly be regarded as discrimination or harassment within the meaning of the Code.

19Eighth, the applicant states that on January 31, 2014, the respondent once again went to the local ODSP office with notice of a rent increase. The applicant states that she contacted Municipal Affairs and Housing about this, and that they in turn contacted the respondent to tell him to withdraw the notice. The respondent subsequently gave the applicant a note saying that he had made a mistake in giving the notice of rent increase to the ODSP office. From this point forward, the applicant started paying her rent directly rather than through the ODSP office. The applicant regards this as the respondent lying and trying to get her money behind her back when he knew that the notice of rent increase was invalid.

20Once again, the issue of the validity of the notice and to whom it ought to have been given are not matters within this Tribunal's jurisdiction. As I indicated previously, this in my view is another example of an ongoing dispute between the parties about rent increases and, in the context where the applicant's rent at the time was being paid by ODSP, I do not believe that the applicant has any reasonable prospect of success in establishing that the respondent's actions in giving the notice to ODSP amount to discrimination or harassment against her because of receipt of public assistance or any other ground cited in the Application.

21The applicant situates the events of the past year in the context of the lengthy history of her tenancy in the building and a litany of disputes between her and the respondent, the most serious of which were the respondent's past attempts to have the applicant evicted. The applicant's view is that these disputes are all connected to the respondent's knowledge of her past drug abuse (she is now in recovery) and the fact that she is in receipt of public assistance. The applicant believes that, due to these factors, the respondent does not like her and is trying to get rid of her from the building.

22As the primary basis for this belief, the applicant points to a Notice of Eviction issued by the respondent in October 2005, in which, as part of the reasons for giving the Notice, the respondent alleges that the applicant had used an illegal substance in the presence of the landlord's agent, that the applicant had boasted of using illegal substances to other tenants, that the applicant was constantly in the company of known drug users, that the applicant had shown signs of drug intoxication, and that she had caused disruptions and endangered other tenants. These allegations are disputed by the applicant, who refers to them as "lies". This issue never was addressed before the Landlord and Tenant Board, as the landlord did not ultimately file an application to evict the applicant as a tenant.

23This Notice, in my view, needs to be viewed in its proper context. Under the Residential Tenancies Act, there are a limited number of reasons for which a tenant can be evicted. One of these reasons is that the landlord believes that the tenant or a guest has committed an illegal act or is carrying on an illegal business at the residential complex. The allegations raised in the Notice are in support of the respondent's contention at the time that the applicant and her guests had committed illegal acts in her apartment or the building as a basis for evicting her. I appreciate that the applicant disputes these allegations. But, had the landlord proceeded with the eviction, that would have been a matter for the Landlord and Tenant Board, not for the Human Rights Tribunal. Alleging that a tenant has engaged in an illegal activity such as drug use as a basis for eviction does not, in and of itself, amount to discrimination because of disability in violation of the Code. Rather, it amounts to the landlord seeking to rely on grounds for eviction that are directly relevant to the statutorily permissible reasons for which a tenant can be evicted.

24The applicant's perspective is that the respondent's knowledge of her past drug abuse and the fact that she is in receipt of public assistance have coloured their relationship and interactions over the years, as evidenced by what she regards as a longstanding pattern of discrimination and harassment against her. From my review of the events that occurred within the one year prior to the filing of the Application, it is not clear to me that the applicant is able to establish that this is the case. I appreciate that, over the course of time, there have been issues of contention between these two parties. These parties have appeared on numerous occasions over the years before the Landlord Tenant Board regarding various disputes, most recently on May 31, 2012. But not every issue between a tenant and a building superintendent rises to the level of discrimination or harassment in violation of the Code, particularly where the applicant is unable to demonstrate a link or connection between the respondent's actions and a protected ground as opposed to occasional frictions that arise from time to time in the relationship between tenants, landlords and building superintendents.

25In my view, the most recent Notice of Eviction served on the applicant on December 7, 2012 is illustrative. The applicant had left a male friend alone in her apartment for three days. There is no dispute that this male friend had invited some friends over to the applicant's apartment, there is no dispute that they were loud, and there is no dispute that at least one of these individuals smoked a joint in the applicant's kitchen. In the Notice, an issue also was raised by the respondent regarding the rear entrance door glass having been broken on the night of December 6, 2012, which is accompanied by the statement: "I'm sure you don't know anything about that do you?" The applicant points to this as an example of the way the respondent communicates with her, and blames her for things for which she says she is not responsible. What the applicant fails to acknowledge here, in my view, is the disruption caused to other tenants as a result of her decision to leave this male friend unsupervised in her apartment for an extended period of time. In this context, in my view, it is not unreasonable for the respondent to have taken steps to address the situation. I further note that, in the end, no eviction application was filed with the Landlord Tenant Board arising out of this incident, and the applicant continues to reside in the unit.

26Having found that the applicant has failed to demonstrate that she has a reasonable prospect of success in establishing any of the alleged events within one year of the filing of the Application can be linked to discrimination or harassment because of a protected ground in violation of the Code, I next need to consider whether the delay by the applicant in raising allegations regarding events that occurred more than one year prior to the filing of the Application was "incurred in good faith" within the meaning of s. 34(2) of the Code.

27The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 ("Miller"), this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires applicants to act with due diligence when they seek to pursue a human rights claim.

28The applicant states that she did not file a human rights application at an earlier point in time for two main reasons. First, she states that she did not know about her human rights and the law under the Code. This Tribunal has found that ignorance of one's rights under the Code and a failure to make inquiries about one's rights are not sufficient to establish that delay was incurred in good faith; the applicant must establish that she had no reason to make enquiries about those rights: see Lafleur v. Kimberley Scott, 2009 HRTO 1141. In my view, the applicant has failed to establish that she had no reason to make enquiries about her rights under the Code.

29Second, the applicant states that she was overwhelmed and distressed. While the Tribunal has accepted that delay may be incurred in good faith because of an applicant's disability, it has consistently ruled that it requires medical evidence that any such disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317. In the instant case, the applicant did not link her feelings of being overwhelmed and distressed to any disability, has not alleged that these feelings were so debilitating as to prevent her from filing an application, and has not submitted any medical evidence.

30On this basis, I find that the applicant has failed to provide a reasonable explanation for the delay in raising allegations of violations of the Code based on events that occurred more than one year prior to the filing of the Application, and therefore has failed to establish that this delay was incurred in good faith. As a result, I do not need to address the issue of whether any substantial prejudice has been caused to anyone affected by the delay.

31For the reasons set out above, I find that the applicant has no reasonable prospect of success in establishing that the alleged events within one year of the filing of her Application are linked or connected to a ground protected under the Code as cited in the Application, and I further find that the remaining allegations should be dismissed for delay.

32Having said that, I note that there certainly appear to be issues in the relationship between the applicant and the respondent that are worthy of being addressed, whether or not these issues engage the protection of the Human Rights Code. Given that the landlord was in attendance at the hearing and heard the applicant's issues and perspective, I encouraged him to speak to both parties to explore whether any steps could be taken to improve their relationship or at least to reduce the friction between them. In my view, it is not in any party's interest to proceed with continued litigation if issues can be addressed and resolved in a more satisfactory manner. It is my sincere hope that, with the intervention and assistance of the landlord, ways may be found to address these longstanding issues.

ORDER

33For all of the foregoing reasons, the Application is dismissed.