HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marina Ross
Applicant
-and-
City of Ottawa
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Ross v. Ottawa (City)
APPEARANCES
Marina Ross, Applicant
Self-represented
City of Ottawa, Respondent
David Patacairk, Counsel
1This Application alleges discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In a Case Assessment Direction dated April 21, 2015, the Tribunal directed that a preliminary hearing be held to determine two issues. The first issue is whether the Application was filed in time and the second issue is whether the Application should be dismissed as having no reasonable prospect of success. The preliminary hearing was scheduled for June 18, 2015 as a telephone conference call hearing. The hearing could not be completed on that day because of technical difficulties and it reconvened on June 24, 2015.
3For the reasons set out below, I conclude that the Application was filed in time and that it should not be dismissed at this time as having no reasonable prospect of success.
Background
4The applicant is a person with a disability who receives benefits from the Ontario Disability Support Program (“ODSP”). After paying her rent and other fixed costs she is left with very little money. She has used up savings and is worried that she may become homeless. The applicant lives in the City of Ottawa and the ODSP staff have advised the applicant to apply for subsidized housing from the respondent. There is unfortunately a lengthy waiting list and the applicant says she has been on the list for six years.
5One factor that is important in this case is that there is evidence that the applicant is limited in terms of her ability to move out of the unit where she is living because of her disability. The applicant has provided a letter from a treating physician to this effect.
6The respondent notes that the applicant’s original application for subsidized housing did not stipulate that she could only live in the unit in which she currently lives. She instead indicated that she could only live in a narrow geographic area.
7I note that the applicant's requests for special accommodation, which are discussed in more detail below, were made on the basis that her disability means that it would be very difficult for her to move to a different unit and that the accommodation she is seeking is that her unit be converted to a subsidized unit so that she can continue to live in it.
8For the purpose of deciding this preliminary hearing, I am assuming that the applicant has a disability which makes it very difficult to move to a different unit. At a hearing on the merits, the applicant will have to provide enough evidence to prove her disability-related need for the accommodation she is seeking.
9The respondent has a number of different subsidised housing programs. Many of the programs are operated in conjunction with other levels of government. One program features new construction units. Another program allows a landlord to apply to the City to convert an existing unit into a subsidized unit. According to information provided by the respondent’s counsel at the hearing, this conversion can only happen if the unit in question is vacant. Counsel advised that under the program, the applicant’s landlord could not apply to convert the applicant’s unit to allow her to remain in the unit because the unit would not be vacant.
10In addition, counsel emphasized that the respondent subsidizes the rent for the unit and so pays the subsidy to the landlord and not the tenant. Once a unit has been converted under the program, a tenant is found from the people on the subsidized housing waiting list. Accordingly, under the terms of the program, the applicant would not be eligible to be the tenant even if her unit was vacant and if her landlord applied, unless she happened to be at the top of the list at that time.
11In 2011, the respondent did have a program referred to as an “In Situ” subsidy program. Under that program, a unit where a person who required subsidy was living could be converted to a subsidized unit and the person could remain in the unit. Such an arrangement could have worked for the applicant. However, according to the respondent, that program was a one-time only program and is no longer available. The applicant’s research of the respondent’s website suggests to her that this is not true and that the in situ program might still be available to assist her.
12The applicant said that her landlord is a large landlord with many properties. She believes that the landlord owns a number of units that are subsidized units. She believes that her landlord would be willing to apply to convert her unit to a subsidized unit. She has not asked the landlord to apply because based on the information she has received from the respondent about its programs, there would be no point.
13In September 2013, the applicant wrote to the Manager of the respondent’s rent supplement program. She explained that for various reasons related to her disability, she was asking to be considered for a subsidy that would permit her to stay in her unit. The Manager replied on September 18, 2013 and advised that since the applicant had stated in her original application to the program that she could only live in a small geographic area and since there were only limited units available in that area, she would likely have to wait a very long time in order to get a subsidized unit. She was advised to consider expanding her criteria to include more geographic areas and housing providers.
14On September 10, 2014, the applicant wrote to the Manager again. In this letter, she enquired about the “In Situ” subsidy program, referred to above, and asked to be considered under that program. She also provided medical information about her disability. The Manager replied to the applicant on September 30, 2014. He advised that, as he had said the year earlier, the main problem was that because the applicant has restricted the geographic area that she can consider, it may be several more years before a unit comes available. He advised that the In Situ program was developed in 2011 and that he did not anticipate that any new in situ rent supplements would be available in the near future. He acknowledged the medical information the applicant provided and indicated that it would be placed in her file. She was again encouraged to expand her geographic area.
Timeliness
15Section 34 of the Code provides:
- (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.
16The Application was filed on November 6, 2014. The one year period before the Application was filed was therefore the period from November 6, 2013 to November 6, 2014. In that period, the applicant sent her second letter to the Manager of the respondent’s subsidy program. The first letter, dated September 10, 2013, was not sent within that one year period.
17The respondent argues that the alleged discrimination in this case is denial of the applicant’s request for an in situ subsidy. The respondent submits that this request was dealt with in September 2013, and that the applicant’s second letter and the response to it cannot be seen as a new incident of alleged discrimination but only a continuing alleged discrimination.
18On this point, I am satisfied that for the purpose of section 34 the applicant's September 2014 letter to the Manager and the Manager’s reply are not simply a continuation of the letters exchanged in 2013. In the 2014 correspondence, the applicant requested assistance under a specific program that she did not ask about in 2013, and she provided medical evidence is support of her request for accommodation.
19I find that for the purpose of section 34, the September 2013 request is the first in a series of two alleged discriminatory incidents.
20For these reasons, I find that the Application is timely.
Should the Application be dismissed as having no reasonable prospect of success?
21Leaving the In Situ program aside, it appears that as a result of the applicant's situation, she will never be eligible to have her current unit converted into subsidized housing from the respondent as she alleges is required to accommodate her disability. Under the operation of the subsidized program as described by the respondent, there is no possibility that the applicant's unit could be converted to a subsidized unit unless it was vacant. Even if it were converted, it would be offered to the next person on the waiting list and not to the applicant.
22Section 11 of the Code provides as follows:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
23In the context of this case, the respondent’s subsidized housing program has a requirement that a person whose name comes up on the waiting list must be able to move when their name comes up on the waiting list so that they can move into a subsidized unit. This is a requirement that is not discrimination on a prohibited ground.
24Assuming again, for the purpose of this preliminary hearing, that the applicant’s disability means that she cannot move to a different unit, it appears to me that there is an argument that the result of the seemingly non-discriminatory requirement that a person be able to move when a subsidized unit comes available, is that the applicant is excluded from the program because of her disability.
25The In Situ program might provide a solution to this, but the respondent has advised the applicant that this was a one-time program and that no new units will become available in the near future.
26For these reasons, I conclude that the Application cannot be dismissed as having no reasonable prospect of success at this time.
NEXT STEPS
27At the hearing, the applicant indicated that she would be prepared to try mediation at the Tribunal if the Application were to continue past the preliminary hearing. Counsel for the respondent indicated that he did not have instructions about this. He also indicated that he was concerned about whether mediation would be productive given his understanding of the operation of the respondent’s programs.
28Counsel understood that there is some urgency to the applicant's situation, and undertook to provide her with contact information for agencies she might be able to contact for assistance.
29Within one week of the date of this Interim Decision, the respondent shall advise if it is willing to try mediation at the Tribunal. If so, the Tribunal will schedule a mediation session as soon as possible.
30If the respondent does not wish to try mediation, the Tribunal will schedule a one-day hearing to deal with the Application.
Dated at Toronto, this 25th day of June, 2015.
“Signed by”
Brian Cook
Vice-chair