Chester v. City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company, 2015 HRTO 785

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Penny Chester

Applicant

-and-

City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: June 12, 2015

Citation: 2015 HRTO 785

Indexed as: Chester v. City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company

APPEARANCES

Penny Chester, Applicant

Self-represented

City of Toronto Economic Development Corporation c.o.b. as Toronto Port Lands Company, Respondent

Andrew Pinto, Counsel

1In her Application, the applicant alleged that the respondent discriminated against her because of race, colour, ethnic origin and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In particular, the applicant alleged that the respondent discriminated against her when she sought to lease property from it.

2The respondent required that the rent arrears of the company the applicant had previously worked for, Eastern Marine Services (“EMS1”), be paid before the respondent would enter into a lease with the applicant and her husband. The applicant claimed that the respondent discriminated against her when it did not impose the same condition on the owner and president of EMS1 when he subsequently leased property from the respondent for his new company, Eastern Marine Services (“EMS2”). The owner of EMS1 and EMS2 is a White man. The applicant believes that the respondent wanted to impose the lease condition on her to prevent Black people from leasing property in Toronto’s port lands.

3At the hearing, I heard evidence from the applicant and her husband, Cleveland Chester. I also heard evidence in support of the respondent’s case from Alan Kearsey, a senior property manager employed by the respondent as well as Paul Gales, the owner of EMS1 and EMS2.

4For the reasons that follow, I find that the applicant has not established discrimination on a balance of probabilities.

Prior summary hearing

5The Tribunal held a summary hearing in this case to determine whether the Application should be dismissed as having no reasonable prospect of success. In Interim Decision, 2014 HRTO 998, the Tribunal directed that the Application should continue in the Tribunal’s process because the Tribunal could not determine at that stage that the Application had no reasonable prospect of success.

6The Tribunal noted that the respondent had disclosed, for purposes of the summary hearing, the license agreement that the respondent had entered into with EMS2. It also disclosed a copy of a cheque dated October 24, 2012 that bore the notation “12 Leslie”. The Tribunal noted that the license agreement did not indicate whether Mr. Gales/EMS1/EMS2 had met any preconditions for renting from the respondent. The Tribunal also found that it was not clear who the October 24, 2012 cheque was from or the purpose for which it was issued. For this reason, the Tribunal stated that it was unable to find that the cheque was in payment of EMS1’s rent arrears on the material before it. As such, the Tribunal found that the Application should proceed to a merits hearing at which the Tribunal would hear oral evidence on this issue.

preliminary evidentiary rulings and procedure

7I made the following oral rulings on evidentiary issues at the outset of the hearing.

8Two days before the hearing, the respondent sought production from the applicant of a statement of claim issued against her in a civil claim seeking payment for certain building supplies. The respondent also sought to rely upon a statement of defence that the applicant herself had filed in the civil claim. At the outset of the hearing the applicant consented to producing the statement of claim. As it turned out, neither party sought to admit the statement of claim into evidence as an exhibit. The applicant objected to the respondent’s reliance upon the statement of defence at the hearing due to the fact that it was disclosed after the Tribunal’s pre-hearing disclosure deadline. I ruled that the statement defence was admissible as evidence as it was relevant to the issues in the proceeding and there was no prejudice to the applicant from the late disclosure since she was already familiar with the document as she had drafted it.

9At the outset of the hearing, the applicant also objected to the respondent calling Martin Da Silva as a witness since it filed Mr. Da Silva’s witness statement after the Tribunal’s pre-hearing disclosure deadline. The disclosure deadline for witness statements was March 31, 2015 and the respondent filed the Da Silva witness statement on April 24, 2015. The hearing took place May 15, 2015. The witness statement was just over two pages in length.

10I ruled that Mr. Da Silva would be permitted to testify since, notwithstanding the late filing, the applicant had ample time to review the witness statement before the hearing. I advised the applicant that, although the Tribunal’s Rules of Procedure contain deadlines for pre-hearing disclosure, the Tribunal may permit late filings if there is no prejudice to the other party. On this point, see for example Vigneault v. Aramark Canada Ltd., 2014 HRTO 877 at para. 4. As it turned out, the respondent did not call Mr. Da Silva as a witness.

11At the outset of the hearing, I also made a witness exclusion order. Accordingly, Mr. Chester and Mr. Gales were excluded from the hearing room before they were called to testify. Since Mr. Kearsey was the respondent’s instructing client, I permitted him to remain in the hearing room during the testimony given by the applicant and her husband. However, I directed the respondent’s counsel to call Mr. Kearsey as his first witness. This ruling allowing an instructing client to remain in the hearing room is consistent with the Tribunal’s practice and case law on this issue: Vanstone v. Mid-Huron Landfill Site Board, 2012 HRTO 694 at para. 12-15; Capocci v. York Catholic District School Board, 2009 HRTO 1956 at para. 39.

12The applicant was self-represented in these proceedings. For her evidence-in-chief, I provided her with the option of making a statement or else having me guide her through her evidence by asking questions. She indicated that she preferred answering questions. As a result, I asked her open-ended questions aimed at eliciting the information contained in her Application, Reply and witness statement. I also provided her with the opportunity to add any other relevant information at the end of her evidence-in-chief.

Factual Background

The Parties

13The applicant described herself as a Black woman from South America. Until the end of June 2012, she was employed by EMS1, a company that sold marine parts and services. She resigned her employment at the end of June 2012 when EMS1 was being wound up as a company.

14EMS1 leased premises from the respondent at 12 Leslie Street in the Lake Ontario port lands in Toronto. Around the time that the applicant’s employment with EMS1 ended, she and her husband decided to open their own business selling marine parts and accessories. They sought to lease from the respondent a portion of the location at 12 Leslie that had previously been leased by EMS1.

15The respondent is the largest property owner in the port lands of Toronto. It is wholly owned by the City of Toronto. Among other things, it manages and leases its properties and facilitates development in the port lands.

Applicant’s Role at EMS1

16The parties gave divergent evidence as to the nature and scope of the applicant’s role while she was employed by EMS1.

17The applicant testified that she was employed by EMS1 for approximately 20 years as an office manager. She was in charge of the bookkeeping, rental payments, etc. She testified that she played a strong management role. She stated that, in a small company such as EMS1, an office manager takes care of just about everything around the office.

18Mr. Kearsey, a senior property manager with the respondent, testified that he saw the applicant as “the face of EMS”. He testified that he dealt with the applicant much more often than he ever dealt with Mr. Gales, the owner of EMS1. Mr. Kearsey testified that he always saw the applicant as a principal of EMS1. He stated that the applicant was involved in negotiating lease extensions and amendments and that she was involved in the payment of rent to the respondent.

19EMS1’s corporate profile listed the applicant as an officer and the Treasurer of EMS1. The applicant testified that the title did not mean very much. She noted that Mr. Gales’ brother was also listed as an officer on EMS1’s corporate profile when he had no longer been employed by the company for several years. Meanwhile, Mr. Kearsey testified that the applicant’s title of Treasurer supported his view that she was a principal of the company.

Overview of Lease Negotiations Between EMS1 and the Respondent

20The respondent and EMS1 first signed a lease in March 2001. The term of the lease was extended three times. The parties entered into the third and final lease extension on June 30, 2009. On that date, the parties agreed to an amendment of the lease and an extension for three years until June 30, 2012. This Third Lease Extension and Amending Agreement was signed by two representatives of the respondent as well as Mr. Gales and the applicant. The applicant was listed as “Treasurer” on the document. In addition, the Agreement stated that Mr. Gales and the applicant had authority to bind EMS1.

21EMS1 and the respondent also entered into a Lease Amending Agreement on September 1, 2011. This agreement was signed by the same two representatives of the respondent as well as Mr. Gales for EMS1. The applicant did not sign this agreement.

22It was not disputed that EMS1 owed rent arrears to the respondent from 2011 until the end of its lease in June 30, 2012. The September 1, 2011 Lease Amending Agreement included a schedule of minimum monthly payments that EMS1 had to pay prior to the expiry of its lease. The respondent also delivered notice to EMS1 on April 12, 2012 that it still owed rent arrears which needed to be paid within 15 days.

23On April 30, 2012, EMS1 sent a letter to Mr. Kearsey advising him that it would not renew its lease and would be winding up its operations by June 30, 2012. Mr. Gales signed the letter but the applicant wrote it. The letter stated that EMS1 intended to settle the outstanding rent arrears by June 30, 2012. At the top of the letter is the company’s name “Eastern Marine Systems Inc.” as well as its street address on 12 Leslie Street. In addition, the letter includes a website URL, an e-mail address, a phone number and a fax number. The website and e-mail address contain the name “eastmar” which is a domain name that the applicant had registered for herself. As discussed below, Eastmar is also the name of the new company formed by the applicant when EMS1 went out of business. The telephone number listed for EMS1 on the April 30, 2012 letter was the applicant’s home phone number. She testified that this must have been an error on her part since EMS1’s phone number should have appeared on the letter. I will come back to the relevance of this contact information below.

Applicant’s Attempt to Sign Lease with Respondent

24In June 2012, the applicant approached the respondent to lease a portion of the property that EMS1 rented at 12 Leslie Street in Toronto. The applicant testified that she initially approached Martin Da Silva, a property manager for the respondent. Mr. Da Silva told the applicant that her request would fall under Mr. Kearsey’s purview. He also told the applicant that she would need to submit a business plan. Mr. Kearsey testified that he had no role in requesting the business plan. When I asked him why a business plan was required, he indicated that Mr. Da Silva may have requested it because the respondent had no previous relationship with the applicant’s new company.

25The applicant prepared an application and business plan which she submitted to Mr. Kearsey on or around June 5, 2012. When the applicant had not received a response from Mr. Kearsey, the applicant’s husband followed up and left messages for him. Finally, on June 14, 2012, Mr. Kearsey sent the applicant and her husband an offer to license the property.

26For purposes of clarity, I note that the respondent treats a license agreement as being similar to a lease. A lease of a year or less is referred to as a license agreement, whereas leases for a term greater than a year are referred to as leases.

27The one year license proposal that Mr. Kearsey sent to the applicant contained various terms and conditions including the following condition:

This proposal is subject to and conditional upon full payment of all arrears currently owed by Eastern Marine Systems Inc. at its leasehold at 12 Leslie Street, Toronto by no later than June 30, 2012, otherwise this proposal is null and void.

28Since the license proposal was addressed to the applicant and her husband, the applicant interpreted this clause to mean that she and her husband had to pay EMS1’s rent arrears before the respondent would enter into a license agreement with them. The applicant testified that she found this condition to be outrageous as she was simply the office manager for EMS1.

29Mr. Kearsey testified that his intention was not necessarily to require the applicant and her husband to pay EMS1’s rent arrears but simply to require that these arrears be paid before the respondent would enter into a license agreement with the applicant’s new company. Mr. Kearsey testified that the condition regarding rent arrears was a precaution because it appeared to him that EMS1 might be attempting to circumvent its obligation to pay arrears by operating a similar business under a different name through the applicant.

30The applicant objected to the condition regarding the payment of EMS1’s rent arrears. She and her husband ended up renting a different location for their business.

31The parties provided divergent evidence as to whether the applicant claimed the lease condition was discriminatory at the time. The applicant claimed that she told Mr. Kearsey that the condition reminded her of the days of slavery when slaves were required to fight in order to purchase lands when they were finally free. She testified that Mr. Kearsey responded by telling her not to think like that. According to the applicant, he said that his only concern was what might be said in the newspapers if the respondent rented EMS1’s property to somebody closely related to EMS1 without the rent arrears having been paid. Mr. Kearsey testified that he did not recall the applicant making an analogy to slavery. In cross-examination, he testified that maybe the applicant did make the comment about slavery but he did not recall it. He then said that he perhaps remembered Mr. Da Silva saying something about a reference to slavery.

32In his examination-in-chief Mr. Kearsey testified that the first “inkling” he had that the applicant felt discriminated against was when he received her Tribunal Application. When I asked him how this could be the case if Mr. Da Silva had mentioned the applicant’s analogy to slavery, Mr. Kearsey claimed that he misspoke in his evidence-in-chief. He stated that he may have known that she felt discriminated against earlier but the first inkling he had that she felt discriminated against by him personally was when he received the Tribunal Application. I discuss below credibility concerns I have with regard to Mr. Kearsey’s evidence on this point.

33The applicant claimed that she later found out that the respondent rented the same location at 12 Leslie to Paul Gales, the owner and president of EMS1. At the hearing, the applicant testified that she did not know the terms of the arrangement between the respondent and Mr. Gales’ new company. In her Application, she based her discrimination claim on the fact that the respondent did not impose the condition on Mr. Gales who “still owes TPLC [the respondent] rental arrears”.

34Mr. Gales and Mr. Kearsey testified that Mr. Gales paid off EMS1’s rent arrears at the end of October 2012, prior to entering into lease negotiations for Mr. Gales’ new company, EMS2. Mr. Gales testified that he paid the last arrears installment by cheque dated October 24, 2012. He testified that he had to pay the last of the arrears from his personal bank account since the applicant had controlled all rent payments and retained EMS1’s left over cheques.

35The respondent and Mr. Gales’ new company, EMS2, entered into a License Agreement on November 16, 2012. The License Agreement does not include a condition requiring the payment of EMS1’s arrears. Both Mr. Kearsey and Mr. Gales testified that this was because, as noted above, Mr. Gales had paid off EMS1’s arrears at the end of October 2012. Mr. Kearsey testified that he would have imposed the same condition on Mr. Gales/EMS2 as he had proposed to the applicant if the EMS1 rent arrears had not been paid before the respondent negotiated the license agreement with EMS2. Mr. Gales similarly testified that it had always been his understanding that EMS1’s rent arrears had to be paid before the respondent would enter into another lease or license agreement with him or one of his companies.

Applicant’s Interactions with Mr. Kearsey

36The applicant testified that, after she submitted her application and business plan to Mr. Kearsey, she told her husband that she felt like Mr. Kearsey would discriminate against her because of her race and gender. When I asked the applicant why she felt that way, she said that she and Mr. Kearsey had not spoken in the two year period before May 2012. She testified about a day in May 2012 when Mr. Kearsey came by the EMS1 office and the applicant noticed that Mr. Gales was ignoring Mr. Kearsey. The applicant testified that she told a fellow employee to let Mr. Kearsey come to her office and Mr. Kearsey did so. The applicant did not point to anything that occurred in that interaction that was discriminatory or that made her uncomfortable. However, she testified that she and Mr. Kearsey had not spoken for two years prior to that interaction. I note that this testimony conflicted with Mr. Kearsey’s testimony in which he stated that he had frequent dealings with the applicant either on the phone or in person.

37The applicant also testified that Mr. Gales had told her that Mr. Kearsey made a comment about how she “added colour to a room”. According to the applicant, Mr. Gales once told her that he and Mr. Kearsey had attended a city ward meeting and that Mr. Kearsey told Mr. Gales that he was glad the applicant did not attend to “add colour to the room”. In his testimony, Mr. Gales denied making this comment. He testified that it was the applicant who had told him that she added colour to the room at city ward meetings.

38In her cross-examination, the applicant also said that Mr. Kearsey once made a comment about her “always trying to get what she wants because of who she is”. In her Reply filed with the Tribunal, the applicant provided a slightly different version of the comment. She stated that she once overheard Mr. Kearsey state “Penny always tries to get what she wants”. In her Reply, she attributed the comment to the fact that she was a vocal community advocate at city ward meetings and that this bothered Mr. Kearsey. The applicant testified that she formed a negative impression of Mr. Kearsey when she overheard his comment about her trying to get what she wants. When asked when this comment was made, the applicant said it would have been more than two years before June 2012.

39Finally, the applicant testified that the respondent has no other Black tenants in the port lands or on the waterfront. When asked about this in cross-examination, Mr. Kearsey could only think of one other Black or racialized tenant, an individual who owns a restaurant on the waterfront.

40As I discuss below, even if I accept the applicant’s evidence on the above points, I find that this evidence is insufficient to support an inference of discrimination in the circumstances of this case.

applicable law

41Under s. 1 of the Code, every person has a right to equal treatment with respect to services without discrimination because of a number of grounds including race, colour, ethnic origin and sex. I note that, although the applicant selected the ground of “gender identity” on her Application, her claim is more properly considered as one involving the ground of sex. The ground of gender identity generally applies to transgender and gender non-conforming individuals (see Ontario Human Rights Commission Policy on Preventing Discrimination Because of Gender Identity and Gender Expression). The applicant’s claim was that she was discriminated against for being a Black woman.

42The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that one or more Code grounds were a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109.

Credibility

43In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. As such, I have considered the extent to which each witness’ testimony was in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.

44I am also mindful of the Ontario Court of Appeal’s comments about the distinction between credibility and reliability in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

45I had some concerns with the reliability of portions of the applicant’s testimony and concerns regarding the credibility of some parts of Mr. Kearsey’s testimony. The applicant made a number of comments during the hearing that raised concerns about her ability to perceive events in a fair and accurate way. For example, early in the hearing, the applicant claimed that I was discriminating against her as a result of the procedural rulings I made at the outset of the hearing (see paras. 7-11 above). I sought to assure the applicant that these ruling were consistent with the Tribunal’s usual practice and case law but she did not appear to accept that this was the case.

46The applicant also commented twice during the hearing that she was the only person “adding colour to the room”. She appeared to be suggesting that she would not receive a fair hearing because she believed that she was the only racialized person in the hearing room. There was no basis for this concern and in my view it illustrates problems with the applicant’s ability to fairly and accurately perceive events.

47As another example, the applicant charged the respondent’s counsel with making racially discriminatory submissions when it was clear that she had misunderstood his argument. In response to one of my questions, the respondent’s counsel submitted that it was reasonable for the respondent to ask the applicant for a business proposal because she was seeking to open a business with her husband and the respondent had had no previous business relationship with him. The applicant responded to this submission by saying that the respondent’s counsel in essence was saying that it was reasonable for the respondent to be concerned due to the involvement of her husband as a Black man. It was clear that the respondent’s counsel was not suggesting that the respondent was justified in asking for a business proposal because the applicant’s husband is a Black man. He was clearly making the argument that the respondent was justified in asking for a business proposal as it had no previous business relationship with the applicant’s husband. Nevertheless, the applicant misinterpreted the remarks from the respondent’s counsel by reading in a racial connotation that, on any fair and objective reading, was simply not there. All of these comments by the applicant at the hearing caused me some concern about her ability to perceive and describe events in a fair and accurate manner.

48I also had concerns with the credibility of portions of Mr. Kearsey’s testimony. As noted above, the applicant and Mr. Kearsey gave divergent testimony on whether the applicant had compared the clause proposed by the respondent to the obligations imposed upon former slaves. The applicant gave clear, and I believe credible, testimony that she made this statement to Mr. Kearsey in a phone call in June 2012. As noted above, Mr. Kearsey initially said he had no recollection of the applicant saying this. He then stated, in cross-examination, that she may have said it but he did not recall it. Then he said that Mr. Da Silva may have made some sort of comment about the applicant mentioning slavery.

49I found Mr. Kearsey’s testimony on this point to lack credibility. In my view, it was clear that he was adjusting his testimony over the course of the cross-examination. As noted above, when I pointed out that his testimony about only becoming aware of the applicant’s racism allegation when he received the Tribunal Application was inconsistent with being told about the applicant’s slavery analogy by Mr. Da Silva, Mr. Kearsey sought to distinguish between knowing about racism allegations against the respondent versus allegations against him personally. On the basis of the parties’ testimony, I find it more likely than not that the applicant did make racism allegations and analogies to the treatment of former slaves in her call with Mr. Kearsey at the end of June 2012.

50From a legal point of view, whether the applicant charged Mr. Kearsey with racism during the phone call or not has no relevance to my determination in this case. My determination of this case is based on the evidence relating to the reasons why the respondent required the payment of EMS1’s rent arrears before it would enter into a lease with the applicant. The fact that the applicant charged Mr. Kearsey with racism does not make it more likely that the clause was discriminatory. Likewise, if the applicant had not charged Mr. Kearsey with racism, it would not have made it less likely that the clause was discriminatory. Put simply, whether or not the applicant charged Mr. Kearsey with racism has no relevance to the legal determination of this case.

51However, I was concerned by the fact that Mr. Kearsey would deny something that I believe did occur despite the fact that it bears no relevance to the legal determination of this case. His denial lacked credibility and it caused me to approach the rest of his testimony with a degree of caution.

analysis

52On the evidence before me, I find the applicant has not met her onus of proving discrimination on a balance of probabilities. The applicant’s case turns on her claim that the respondent required her to pay off EMS1’s rent arrears as a precondition to signing a license agreement with her whereas it imposed no such precondition on Mr. Gales, a White man. The applicant believes that the respondent treated her differently and that this was because it did not want to have Black tenants on the waterfront, or at least that it did not want to have Black tenants operating marine businesses on the waterfront.

53The applicant submitted twice during the hearing that the case may have been different if she had been seeking to open a hair dressing salon or a restaurant. Her point appeared to be that, while it is accepted that racialized persons may operate these sorts of businesses, there is still resistance to the idea of a racialized person operating other kinds of businesses such as the marine parts and supplies business that the applicant and her husband operate.

54I have no difficulty accepting the applicant’s claim that the marine parts and supplies business is largely male dominated and does not include many racialized individuals. There was no evidence at the hearing to suggest that the applicant’s claim in this regard was not accurate. In addition, the evidence in the case supported the applicant’s claim that the respondent has practically no Black tenants. As a final point, I have no difficulty accepting the applicant’s claim that, despite the acceptance of racialized persons in certain fields, inequality, prejudice and discrimination persist in relation to their participation in a great many other fields of activity. All of this I readily accept.

55However, this case is not about the wider social and economic reality facing racialized persons. It is about the applicant’s particular interactions with the respondent over her application to lease a property for her business. I find the evidence admitted in this case does not support the applicant’s claim that it is more likely than not that her race and/or sex were factors in the respondent’s requirement that EMS1’s rental arrears be paid before it would enter into a license agreement with her.

56To begin, although the applicant interpreted the clause set out in para. 27 above as requiring her and her husband to pay EMS1’s rent arrears, this is not what the clause says. I understand the applicant’s view that the clause was in a letter addressed to her and her husband and therefore she interpreted it to mean that they were the ones who had to pay off EMS1’s rent arrears.

57However, a plain reading of the clause in the context of the other clauses in the proposal demonstrates that the clause did not require the applicant to pay EMS1’s rent arrears but instead required that the arrears be paid. The clause does not impose this obligation on the applicant or her new company. Other clauses in the licensing offer imposed obligations on the applicant, as Licensee, using the phrasing “the Licensee will...” or “the Licensee shall...” The clause addressing the payment of rent arrears did not use this phrasing. Instead, it stated that the proposal was conditional “upon full payment of all arrears owed by” EMS1.

58The fact that the clause does not specifically require the applicant or her new company to pay the arrears does not end the matter, however. The applicant’s claim, as I understand it, is that even simply requiring that EMS1’s arrears be paid off was discriminatory since, in her view, she was simply an office manager and not a principal of EMS. The applicant believes that the condition was a pretext for discrimination. She believes that Mr. Kearsey latched onto the condition as a way of blocking her and her husband from opening a business in the port lands.

59The applicant’s concern may have been reasonable on the information she was privy to at the time she filed her Application. At the time she filed this Application, the applicant had been provided with the licensing proposal requiring payment of EMS1’s rental arrears. At that time, she also knew that the respondent had entered into a new lease with Mr. Gales’ new company, EMS2. According to her Application, she was under the impression that Mr. Gales still owed rent arrears to the respondent.

60While the applicant’s concerns may have been reasonable based on the information available to her at the time that she filed this Application, a good deal more evidence has come to light over the course of these proceedings. Based on the evidence admitted at the hearing, I find that the respondent proposed the condition in question because it wanted to ensure that EMS1’s rent arrears were paid off before it would enter into a new lease with a principal of EMS1.

61While the applicant found it difficult to accept that Mr. Kearsey would see her as “the face of EMS”, the evidence admitted at the hearing shows that it was reasonable for him to think so. It is unclear whether Mr. Kearsey had seen EMS1’s corporate profile before he sent the license proposal to the applicant. However, even if he had not, there were other factors that would have made it reasonable for him to view the applicant as a principal of EMS1. The applicant had been active in the negotiations between the respondent and EMS1 to renegotiate EMS1’s lease. Significantly, along with Mr. Gales, the applicant signed the third and final renewal of EMS1’s lease as Treasurer of EMS1. The document specifically stated that both the applicant and Mr. Gales had authority to bind the corporation. While the applicant sought to minimize the significance of her being Treasurer of EMS1, the fact remains that it was reasonable for the respondent to form the impression that she was in fact a principal of the company.

62I also find that it was reasonable for Mr. Kearsey to think there may be a relationship between the applicant’s new business and EMS1. The proposed name for the applicant’s new company, Eastmar Marine, used the same name (“Eastmar”) used in the website URL and e-mail address used by EMS1 on the April 2012 letter in which it advised the respondent that it would not renew its lease. The phone number on the applicant’s lease application was the same as the phone number contained on EMS1’s April 2012 letter. Finally, the new business that the applicant sought to open at 12 Leslie Street was substantially the same type of business that had been operated by EMS1.

63While Mr. Kearsey may have been wrong in thinking that the applicant was a principal of EMS, or he may have thought she played a greater role within the company than she did, it was reasonable for him to believe that she was an officer who played a key role within the company for the reasons set out above.

64The evidence admitted in the case shows that the respondent took the same approach with both individuals who it reasonably understood to be principals of EMS1 – that is, the applicant and Mr. Gales. Based on the evidence admitted at the hearing, it is clear that Mr. Gales personally paid off EMS1’s rental arrears on October 24, 2012. It is true that the respondent did not impose the same condition regarding the payment of rent arrears on Mr. Gales. However, the reason for this is that he had already paid off the arrears by the time that he entered into a license agreement with the respondent.

65I understand that the applicant truly and strongly believes that Mr. Kearsey sought to impose the rent arrears condition on her as a way of preventing her, as a Black woman, from renting space in the port lands. However, the evidence before me does not support her claim.

66The reasons the applicant provided to explain why she felt that Mr. Kearsey would discriminate against her cannot reasonably support an inference that her race and/or gender were factors in the respondent’s actions. Even if I were to accept her testimony regarding the frequency of contact she had with Mr. Kearsey and the comments he allegedly made, this evidence is insufficient to support an inference of discrimination.

67First, even if I were to accept the applicant’s testimony that she had little contact with Mr. Kearsey between 2010 and 2012, this lack of contact, without more, does not give rise to an inference of discrimination. There was no evidence at the hearing that Mr. Kearsey was avoiding the applicant due to her race and/or gender.

68Second, even if I were to accept that Mr. Kearsay made a comment about the applicant trying to get what she wants, this too, without more, does not give rise to an inference of discrimination. The comment does not necessarily point to discriminatory views on Mr. Kearsey’s part. The applicant herself in her Reply attributes the comment to the fact that she is an outspoken advocate on community issues and that Mr. Kearsey may have not liked this.

69Third, the applicant and Mr. Gales gave divergent evidence as to whether Mr. Kearsey had made a comment about the applicant adding colour to city ward meetings. The applicant testified that Mr. Gales told her that Mr. Kearsey made that comment. Meanwhile, Mr. Gales testified that it was the applicant herself who said that she added colour to the room at city ward meetings. I am unable to conclude that Mr. Kearsey did in fact make the comment. I was struck by the fact that applicant commented at the hearing that she was the only person adding colour to the hearing room. On balance, I find it more probable than not that it was the applicant herself who made the same comment that she added colour to the room at city ward meetings. As noted in her Reply, she may have believed that Mr. Kearsey did not like the fact that she was vocal at ward meetings. However, I find it more probable than not that it was the applicant herself and not Mr. Kearsey who made the comment about the applicant adding colour to the room at ward meetings. Even if I am wrong and Mr. Kearsey did make this comment, the comment, on its own, is insufficient to support an inference of discrimination in this case. This is especially so given the clear evidence that supported the respondent’s position that its concern was with not permitting principals of EMS1 to lease property unless the company’s arrears were paid.

70Finally, I have considered whether the fact that the respondent required the applicant to submit a business proposal might support an inference of discrimination since it required no such proposal from Mr. Gales. It bears noting that the person who asked the applicant for a business proposal was not Mr. Kearsey but Mr. Da Silva. On balance, I cannot find that the fact that Mr. Da Silva asked the applicant for a business proposal can reasonably support an inference that Mr. Kearsey was motivated by racial animus against the applicant, as she claims. Mr. Kearsey gave uncontradicted testimony that he played no role in requesting the business plan. Also, while the respondent understood the applicant to be a principal of EMS1, the respondent knew that she was not the owner. Therefore, I find it credible that the respondent would want more detail regarding the applicant’s intentions for her new company. On balance, I cannot find that the fact that Mr. Da Silva asked her for a business proposal is sufficient to support an inference of discrimination in this case.

71For all the reasons set out above, I find that it is more likely than not that the applicant’s race, colour, ethnic origin and/or sex were not factors in the respondent’s actions in this case. I find that the sole reason for the lease condition was the respondent’s concern that EMS1’s rent arrears were paid off before it would enter into any new leases with any principals of EMS1. The reason it did not impose the impugned condition on Mr. Gales was because he had in fact paid off these rent arrears by the time he entered into a license agreement with the respondent.

order

72For the reasons set out above, the Application is dismissed.