Howard Ross v. Landlord Legal Inc. and Paul Smith, 2015 HRTO 989

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Howard Ross

Applicant

-and-

Landlord Legal Inc. and Paul Smith

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: July 24, 2015

Citation: 2015 HRTO 989

Indexed as: Ross v. Landlord Legal Inc.

APPEARANCES

Howard Ross, Applicant

Self-represented

Landlord Legal Inc. and Paul Smith, Respondents

C. April Stewart, Paralegal

Introduction

1This Application alleges reprisal and discrimination with respect to accommodation (housing) because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant attached to his Application multiple pages related to matters and proceedings between himself and his landlord who owned the residential unit in which the applicant lived until the Autumn of 2013. The corporate respondent is the paralegal firm that represented the applicant’s landlord in eviction proceedings at the Landlord and Tenant Board (“LTB”). The personal respondent is a subcontractor who was retained by that paralegal firm to document the contents of the applicant’s home prior to the firm filing an eviction application at the LTB.

2After a review of the Application, the Response and Reply, the Tribunal issued a Case Assessment Direction (“CAD”), noting that the applicant may be unable to prove a link to the grounds and social areas alleged. Also in the CAD, the Tribunal noted that the Tribunal has held that a paralegal who is representing a party adverse in interest to a tenant is not providing or offering accommodation within the meaning of the Code. (See Crawford v. 2176534 Ontario, 2009 HRTO 1028 at para. 15 (“Crawford”)). The CAD therefore directed a summary hearing for the parties to speak to both issues.

3A summary hearing by telephone conference call was held on January 21, 2015, and the applicant was directed to summarize what exactly in the narrative describing allegations was discrimination, harassment or reprisal as defined by the Code. Even though he was represented at the teleconference hearing, it became apparent that his oral submissions were going to be unnecessarily lengthy, and the Tribunal adjourned the matter. It directed that the applicant file written submissions with numbered paragraphs which chronologically list and describe each incident he alleges in the Application breaches the Code, explaining why each incident constitutes a breach of the Code, and what evidence the applicant intends to rely upon to prove the alleged discrimination, harassment or reprisal. The Tribunal confirmed the directions in a Case Assessment Direction issued the next day, January 22, 2015.

4The applicant, through his representative at the time, did not comply with the directions. Instead, through his representative at the time, the applicant filed an “Amended Application, Schedule ‘A’”, which describes events in chronological order, but does not explain why each event constitutes a breach of the Code.

5The continuation of the summary hearing by teleconference was held on May 4, 2015. The applicant represented himself this time.

the allegations

6At the summary hearing, the applicant confirmed that his allegations are as follows:

1. The applicant alleges discrimination because the respondents attached unsealed documents to his door so that passers-by, including neighbouring tenants, could read them. One of the documents attached to his door was a letter dated May 23, 2013, which indicated that the corporate respondent had been retained by the applicant’s landlord to investigate and resolve “serious issues” which included a concern that the applicant had altered his rental unit [to grow his marijuana] without authorization and that he “may be involved with illegal activity involving drugs”. In addition, the top document stated, “We require a copy of a current Health Canada Personal Use Production License (Dried Marihuana for Medical Purposes)…” The applicant argued that this disclosure to the public of his medical circumstances constitutes a breach of his privacy and discrimination because of disability given that he medically required the marijuana which the federal government permitted him to grow to deal with his disability.

2. The applicant alleges discrimination because the respondents also attached to the applicant’s door a notice that the personal respondent was an authorized agent of the landlord, and that he was going to enter the next day. The purpose indicated was “Routine inspection of premises, with photos, to determine if premises are in compliance with S.20 of the [Residential Tenancies Act]”. The personal respondent went into the applicant’s home on May 24, 2013, and took photographs of his personal papers in his personal office space, and of the marijuana plants the applicant legally grew for medical reasons. The applicant explained that he was so worried about his security after the notices and the inspection that he went to the police, who knew he was growing medical marijuana, and asked them to increase security for him. The applicant argued that the inspection was an invasion into his privacy related to disability, and constitutes harassment and discrimination contrary to the Code.

3. The applicant alleges discrimination because the owner of the corporate respondent contacted the police and showed them the photographs from the inspection, making false allegations that the applicant was illegally growing marijuana in his rental unit. The applicant argued that because he medically required the marijuana for his disability, and because his production and use of it were legal, the corporate respondent’s report to the police constitutes harassment and discrimination because of disability.

4. The applicant alleges discrimination on the basis that the corporate respondent commenced eviction proceedings at the LTB. Because one of the reasons cited for the eviction was that the applicant did not provide proof that he is permitted to grow marijuana in his rental unit, the applicant alleges that the eviction attempt was because of his disability.

5. The applicant alleges discrimination against the corporate respondent because, through procedural errors and intentional tactics, the corporate respondent stalled and delayed proceedings at the LTB and in other civil proceedings, where the applicant, the landlord and/or the corporate respondent are participating in a range of matters, including defamation, breaches of professional conduct and privacy.

6. The applicant alleges reprisal because the applicant’s landlord hired the corporate respondent to represent the landlord and “to go after” the applicant immediately after the applicant filed a tenant application against the landlord at the LTB on May 7, 2013. It alleged substantial interference by the landlord with the applicant’s reasonable enjoyment of the rental unit because the landlord discussed the applicant’s medical circumstances with another tenant. The LTB granted his Application to the extent that it ordered the landlord not to breach the applicant’s right to keep his medical circumstances private. The applicant further clarified that he is alleging that all of the legal proceedings initiated by the corporate respondent amount to harassment because he uses medical marijuana.

the respondents’ role providing legal representation for the landlord

7One of the issues before me is whether the respondents, who were retained by the applicant’s landlord to deal with him on the landlord’s behalf, are liable under the Code.

8Section 2 of the Code states:

(1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. [emphasis added]

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. [emphasis added]

9In Crawford, the Tribunal dismissed allegations of discrimination in accommodation against Mr. Fine, the paralegal who represented the landlord. The decision in Crawford reviewed another Tribunal decision, Cooper v. Pinkofskys, 2008 HRTO 390 (“Cooper”), which involved an allegation of discrimination in services. The Tribunal in Cooper dismissed allegations against a defence lawyer who the applicant in that case, a Crown witness, alleged was discriminating against him in a trial. The Tribunal decided that the defence lawyer represented the party adverse in interest to the Crown witness, and could not be said to be providing any service to the Crown witness. In Crawford, the Tribunal found that Mr. Fine, unlike the landlord, was neither providing nor offering accommodation to Mr. Crawford, but was simply obliged to act in the interests and on the instructions of his client in proceedings before the Landlord and Tenant Board. The Tribunal concluded that the paralegal’s participation in those proceedings, including his discussion of settlement, did not fall under s.2 of the Code.

10In this case, however, where no evidence was adduced at the summary hearing, it is not clear to me that the alleged actions of the respondents were within the scope of their paralegal duties to represent the applicant’s landlord in legal proceedings against the applicant. I also note that the phrase, “with respect to”, in section 2 of the Code should be given a broad and liberal interpretation. (See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 33; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. at para. 44; Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114 at 1134; and Contini v. Rainbow District School Board, 2011 HRTO 1340). The phrase “with respect to accommodation” does not require that there be a landlord and tenant relationship between the applicant and the respondents.

no reasonable prospect of success

11The issue before me is whether the Application should proceed or whether it should be dismissed as having no reasonable prospect of success. The Tribunal’s Practice Direction on Summary Hearings states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

12At the summary hearing stage, the Tribunal does not hear evidence, and a finding that an Application should not be dismissed as having no reasonable prospect of success means only that the Application will continue to be processed. It is not a finding that there is a reasonable prospect of success.

13Rule 19A.6 of the Tribunal’s Rules of Procedure states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. In this case, I am satisfied that the Application cannot be dismissed as having no reasonable prospect of success.

next step

14The Tribunal will continue to process the Application. Given that the Application indicates a willingness of the applicant to try mediation at the Tribunal, the respondents are directed to indicate whether they are also willing to try mediation.