Arseneault v. Landlord and Tenant Board, 2015 HRTO 726

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Arseneault

Applicant

-and-

Landlord and Tenant Board

Respondent

DECISION

Adjudicator: David Muir

Date: June 2, 2015

Citation: 2015 HRTO 726

Indexed as: Arseneault v. Landlord and Tenant Board

APPEARANCES

Pierre Arseneault, Applicant

Self-represented

Landlord and Tenant Board, Respondent

Meagan Williams, Counsel

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 accommodation because of disability. Although framed as discrimination in the provision of housing, it is clear from the allegations that the claimed discrimination is in the provisions of services by the respondent, Landlord and Tenant Board (“LTB”).

2In his Application the applicant alleges that on June 26, 2014, he attempted to file four Applications with the LTB and asked that his cases be scheduled on separate days because of his disability-related needs. The applicant alleges that his request was denied. In particular the applicant alleges because of some cognitive impairments he required that his hearings be heard separately from each other and on different days perhaps.

3A hearing was held in this case on February 24, 2015, in Ottawa. All parties participated. At the outset of the hearing the applicant excused himself for wearing his hat during the hearing and stated that he required it as an accommodation of a disability. Without enquiring further I indicated that he could wear his hat if he wished.

4I heard the evidence of the applicant as well as Jim Murchison and Cora Marchand for the respondent. At the conclusion of the hearing the parties made submissions. The applicant requested and was allowed the opportunity to make submissions in response to the cases filed by the respondent at the hearing. An audio recording of what appears to be a hearing before the respondent was reviewed. The applicant did not provide further submissions.

5The Application is dismissed. I find that while the response of the respondent to the applicant’s request for accommodation was deficient in some respects, at the end of the day I agree with the respondent that the applicant did not allow the process to be completed when he withdrew his applications before the hearing took place. In the circumstances, I find that the applicant did not experience any adverse impact as a result of the manner in which the respondent chose to initially respond to his request. By withdrawing his Applications before they came before the respondent tribunal, he prevented the determination of his request in a situation where ultimately the decision was by its nature an adjudicative one. I also find that the applicant was aware of his ability to ask for accommodation from the hearing adjudicator, something he did when appearing in this case and at the LTB on at least two occasions.

6By way of background, a preliminary hearing in this case constrained and informed the issues in dispute before me. In its response, the respondent had asserted that the decision with respect to the applicant’s requested accommodation was made by an adjudicator. A preliminary hearing was held and evidence was led focussing on the question of who made the decision to consolidate the applicant’s applications. The Tribunal concluded that the decision about the applicant’s request was made by LTB staff and was therefore not protected by adjudicative immunity.

The Facts

7The following facts are not in dispute. The applicant attended at the respondent’s premises on June 25, 2014 with two Applications which were accepted and scheduled to be heard on two separate dates. The applicant re-attended on June 26, 2014 and filed two further Applications. He also made a written request for accommodation on that date.

8The written request is vague and general. It asks for no particular accommodation. However, the respondent acknowledges that it understood that the applicant was seeking to have his cases heard separately because of some not-well-identified disability-related need.

9There is a dispute about whether or not Mr. Murchison and the applicant spoke on June 26, but the documentary records clearly establish that the applicant attended the respondent’s offices that day and that Mr. Murchison was also on counter duty that day. The applicant also appears to have had a hearing at the same location on June 26. The applicant provided a recording that he made of the proceedings that day. The applicant is heard to be in attendance at roll-call. He is asked by the adjudicator to remove his hat. The applicant makes a request for accommodation – that he be allowed to wear his hat in the hearing room. The request was granted. However the recording does not establish what the applicant relies on it for – that because he had a hearing on June 26 he could not have also attended at the counter and have a conversation with Mr. Murchison.

10It is also agreed that the applicant was told by someone, probably Mr. Murchison, there might be issues with his filing multiple Applications. And it is agreed that the applicant was advised on June 26 by telephone that his cases would all be scheduled to be heard together.

11The telephone message was transcribed.

12It is also agreed that the applicant attended the respondent’s office on June 28, 2014 and asked for information about who had made the decision about his accommodation request. This conversation was recorded by the applicant and a transcript prepared by the applicant.

13The applicant subsequently withdrew his applications before the LTB hearing took place.

14There are a number of factual issues in dispute, but only one that is at all material. The respondent asserts that the decision to consolidate the applicant’s four applications was not final and that the applicant was told by Mr. Murchison that he could raise the matter with the adjudicator hearing his case. The applicant denies that he was told this at any time. The respondent alleges that there was a conversation between the applicant and Jim Murchison on June 26, 2014 about his request for accommodation during which the respondent asserts that the applicant was told that the decision was not final and that he could raise the issue again at the hearing when all parties would be present. The applicant denies that this conversation took place.

15In general terms I prefer the evidence of the respondent, in particular that of Mr. Murchison, over that of the applicant. Although the applicant was making an effort to faithfully recollect these events, it was evident that he had incomplete recollection of what happened and when. For example, in his Application he asserted that he filed four Applications on June 25, 2014. That is clearly not the case as was agreed at the hearing.

16At the hearing, the applicant’s evidence with respect to the events in question was stated baldly and related as practiced statements of his position rather than as a narration of what had actually occurred. On more than one occasion, he testified that he could not remember exactly what was said by him or by the employee of the respondent he was dealing with. In general terms, his evidence appeared to be informed more by his feeling that he was being treated unfairly than by an actual recollection of the real events.

17The applicant contradicted himself at times. The applicant testified at the preliminary hearing that he made surreptitious recordings of his dealings with officials. In that regard the respondent requested and I ordered that the applicant produce any recordings he had of the June 25 and June 26, 2014 interactions with the respondent’s staff. The applicant indicated that there were no other recordings and said that he had no reason to record staff. It is clear that the applicant has recorded LTB staff and hearings from time to time and yet he testified in the hearing that it was only after he received the telephone message from Mr. Murchison on June 26 that he went out and purchased a voice recorder. This evidence was offered to explain why he had a recording of the June 28 conversation but not the prior interactions with staff on June 25 and June 26.

18Mr. Murchison on the other hand gave his evidence in a way that suggested a recollection of real events. He admitted to mistakes in the manner in which he handled the applicant’s request and in particular the manner in which he communicated the initial decision to the applicant. Mr. Murchison’s evidence was also informed by his abiding belief that the decision with respect to the applicant’s request was an adjudicative one made by a member of the LTB and that he was merely communicating the decision to the applicant. He was clearly uncomfortable with the decision which had been made at the preliminary hearing.

19Mr. Murchison was able to provide detail and context. So for example he testified that he remembers meeting the applicant as he came off the elevator on June 28, 2014, and heard the applicant calling his name. His evidence was consistent with the documentary record that exists and is not contradicted by any contemporaneous records.

20For these reasons I accept the evidence of Mr. Murchison on the central factual issue in dispute and I find that the applicant was told that he could raise his accommodation needs with the hearing adjudicator at some point, most likely on June 26 in the conversation I find took place between the applicant and Mr. Murchison when he completed the request for accommodation form. Equally importantly I find, and it is clear from the material, that the applicant knew that he could request accommodation for any disability-related needs from the hearing adjudicator but chose not to do so and instead withdrew his applications.

21I also find that there is insufficient evidence to establish that that the applicant was a person with a disability and in need of an accommodation. More precisely, while the applicant may indeed be a person with one or more disabilities, there is no evidence before me, other than the assertion of the applicant, that he required the accommodation he requested of the respondent. I find that the evidence of the applicant is insufficient to establish that the accommodation he requested was necessary for him to participate in the hearing process.

22In the end the evidence establishes that the respondent handled the applicant’s request quite badly and failed in its communications with him, but in the circumstances of this case I find that the applicant experienced no adverse impact from the way in which the respondent dealt with the issue. At worst, even on the applicant’s version of events, he was told that his request had been denied administratively but he knew that ultimately the decision was for the hearing adjudicator because he had requested accommodations in the past. He chose not to exercise that right and in the particular circumstances of this case I am unable to find that there has been a failure to accommodate the applicant’s alleged disability related needs.

23For these reasons, the Application is dismissed.