Thomas v. Haque, 2016 HRTO 1012

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roxanne Thomas Applicant

-and-

Md Nazmul Haque Respondent

DECISION

Adjudicator: Sheri Price Date: July 29, 2016 Citation: 2016 HRTO 1012 Indexed as: Thomas v. Haque

APPEARANCES

Roxanne Thomas, Applicant Brenda Culbert, Counsel

Md Nazmul Haque, Respondent Self-represented

Introduction

1This is an Application under s. 34 of the Human Rights Code R.S.O. 1990, c. H.19, as amended (“the Code”) alleging that the respondent landlord discriminated against the applicant because of her race, colour, place of origin and/or ethnic origin. In particular, the applicant alleges that the respondent landlord refused to rent or show an apartment to her on March 20, 2014 because she told him, when asked where she was from, that she was from the Caribbean.

2For his part, the respondent denies that he discriminated against the applicant because of her place of origin or any other Code ground. The respondent agrees that, on March 19, 2014, he and/or his wife arranged for the applicant to come the following day to see a bachelor apartment that the respondent had available for rent. The respondent also agrees that when the applicant arrived to see the apartment, he did not show it to her and told her that the apartment was no longer available. However, the respondent denies that his decision not to rent or show the apartment to the applicant was linked to the fact that she told him that she was from the Caribbean. Rather, the respondent contends that he did not show or rent the apartment to the applicant because he decided to sell the property in which the apartment was situated the day that the applicant came to see it.

3The hearing of the Application was held over the course of a number of days. The applicant testified on her own behalf and also called her boyfriend, Daniel Furlotte, as a witness. The respondent testified on his own behalf and did not call any other witnesses. A number of documents were also entered into evidence.

4I made an order excluding witnesses at the commencement of the hearing.

Background

Applicant’s evidence

5The applicant testified that she came to Canada to live with her aunts when she was 13 years old, after the grandfather, with whom she and her siblings had been living in St. Vincent and the Grenadines, passed away.

6The applicant testified that she was 19 years old and approximately seven months pregnant on or about March 19, 2014 when she and her boyfriend learned that they could no longer stay with the applicant’s cousin and that they needed to find another place to live by April 1, 2014.

7The applicant testified that she started looking for apartments on craigslist and kijiji right away and found an advertisement on kijiji for a bachelor apartment at 3666 St. Clair Avenue East (“3666 St. Clair”) for $500 per month. The applicant testified that she called the telephone number on the advertisement on March 19, 2014 and spoke with the respondent’s wife who confirmed that the apartment was still available. The applicant testified that the respondent’s wife asked her who the apartment was for and the applicant responded that she was looking for herself and her boyfriend and that they were expecting a baby. The applicant testified that the woman told her “okay” and then passed the phone to the respondent. The applicant testified that the respondent also asked who the apartment would be for, and the applicant repeated that it would be for her, her boyfriend and their baby. The applicant testified that the respondent replied that the apartment was small. However, the applicant testified that she told the respondent that that was okay, because it was what they could afford at that time. The applicant testified that she then arranged with the respondent to go and see the apartment the following morning, March 20, 2014, at 9:00 a.m.

8However, the applicant testified that she got up a little late the next morning, and so, after trying unsuccessfully to reach the respondent by telephone, she sent a text at approximately 10:00 a.m. to let the respondent know that she was leaving shortly to go and meet him. The applicant testified and documents submitted into evidence show that the applicant received a text back from the respondent’s number at 10:42 a.m. telling her to come to the apartment at 12:30 p.m. At 11:51 a.m., the applicant texted back that she was on her way.

9The applicant testified that she took a bus to the apartment and texted the respondent’s number at 12:48 p.m. to say that she had arrived. The applicant testified and her telephone records show that the applicant also tried to call the respondent’s number. However, the applicant testified that she could not reach anyone and so she texted again, at 12:50 p.m., asking the respondent and/or his wife to call her back because she could not get through to them.

10The applicant testified that she felt very unwell while waiting for the respondent to arrive to show her the apartment. In addition to the fact that she had a very difficult pregnancy, generally, with a lot of nausea, the applicant testified that she was in a lot of pain and that it was very cold outside on the day in question. Accordingly, at 12:54 p.m., the applicant testified that she texted the number in the respondent’s advertisement again, asking “How long will it take you to get here, it’s really cold.”

11At 1:03 p.m., the applicant testified that she received a telephone call from the respondent’s wife, telling her that the respondent was not home at the moment and that she was trying to get a hold of him so that he could come and show the applicant the apartment. The respondent’s wife asked the applicant to wait for the respondent at a pizza restaurant across the street. The applicant testified that she was waiting at the pizza place when she received another call from the respondent’s wife, at 1:10 p.m., telling her that the respondent was on his way.

12The applicant testified that she received a phone call from the respondent himself at 1:31 p.m., from the same telephone number listed in his advertisement for the apartment. The applicant’s telephone records also reflect such a call. The applicant testified that the respondent told her that he had arrived at the house and that the applicant should come across the street to the house and he would let her in through the front door.

13The applicant testified that she crossed the street and was waiting in front of the house when she received a second call from the respondent at 1:33 p.m.. In that telephone conversation, the applicant testified that the respondent said that he wanted to ask her a question before he let her in to see the apartment and that he then asked the applicant where she was from. The applicant testified that she replied that she was from the Caribbean, but her boyfriend was Canadian. The applicant testified that the respondent immediately said that he could not rent the place to the applicant, that it was not available, and hung up on the applicant before she had an opportunity to say anything. The applicant testified that she tried to call the respondent back three or four times, but he did not answer the phone.

14The applicant’s telephone records reflect that the applicant received a call from the respondent’s number at 1:33 p.m. and that the applicant called the respondent’s phone at 1:35 p.m.

15The applicant testified that she believed that the fact that the respondent suddenly decided not to show or rent her the apartment immediately after finding out that she was from the Caribbean revealed that the respondent’s decision was discriminatory. The applicant testified that she felt shocked and in a state of disbelief when the incident with the respondent occurred. She testified that she could not believe that someone would treat her that way while she was standing right at his door, having travelled some distance in the cold to see the apartment.

16At 1:36 p.m., the applicant texted the respondent’s number again, “Ur husband said he can’t give it to me and I did not even see it yet” and, at 1:39 p.m., “I’m gunna call Toronto housing cause that’s wrong.” The applicant testified that she called “311” at 1:39 p.m. to make inquiries about complaining to “Toronto housing” about the respondent, which call is also reflected in the documents. The applicant testified that the respondent’s actions put “a ton of stress” on her, given that she had such a short time to find an apartment, and she was crying as a result of what happened. She also testified that when she got home, she could not eat because she was so stressed out and was throwing up on an empty stomach.

17Later that same day, at 2:11 p.m. on March 20, 2014, the applicant testified that she received a text from the respondent’s number stating, “My husband putting the house for sale. So he is not renting anymore.” The applicant testified that she also received an automatically generated text message at approximately 6:00 p.m., advising her that someone had attempted to call the applicant from the respondent’s number, without reaching her.

18On the following day, March 21, 2014, the applicant and her boyfriend went together to see an apartment that another landlord had available for rent, but were told by that landlord that they were too young and that the apartment would be too small for the applicant, her boyfriend and their baby.

19The applicant testified that she continued to be very upset on March 21, 2014 about what had transpired with the respondent the day before. She testified that she did not believe the respondent had been telling the truth when he said that the apartment was no longer available because, as soon as he found out where the applicant was from, he just hung up the phone and then would not answer. The applicant testified that she asked her boyfriend to call the respondent to see if the apartment she had gone to see the previous day was still available.

20The applicant testified that she was with her boyfriend in a restaurant on March 21, 2014 when her boyfriend called the respondent from his own cell phone. The applicant testified that she could tell it was a man’s voice on the other end of the phone, but could not hear what the man said. She testified that she heard her boyfriend say that he was “from here”. She testified that she also heard him explaining that he was a student and that he had “OSAP” and support from his parents. The applicant testified that when her boyfriend got off the phone, he told the applicant that the respondent still had the apartment available for rent, but was not willing to rent to the applicant’s boyfriend, because he did not accept students as tenants.

21As noted above, Mr. Furlotte also testified at the hearing. Mr. Furlotte testified that he called the respondent on March 21, 2014, either from the applicant’s phone or his phone, but most likely from the applicant’s phone, because she would have had the respondent’s number saved in her phone. He testified that when the respondent answered, he asked if the $500 basement apartment that had been advertised on kijiji was still available. Mr. Furlotte testified that he did not specify the address of the apartment he was inquiring about. Mr. Furlotte testified that the respondent asked him who would be renting the apartment and Mr. Furlotte answered that it would be for him and his girlfriend, who was pregnant. Mr. Furlotte testified that the respondent then asked him where he was from, to which Mr. Furlotte replied that both he and his girlfriend were from Canada. When asked how he would pay for the apartment, Mr. Furlotte testified that he told the respondent that he was receiving OSAP and had financial support from his parents. Mr. Furlotte testified that the respondent replied that he did not rent to students and hung up the phone.

22On a subsequent hearing date, Mr. Furlotte was recalled, with no objections, to address some documents that were produced after his initial testimony, in particular, his cell phone records. Mr. Furlotte’s testimony when he was recalled was inconsistent with his earlier testimony in certain respects. Specifically, contrary to his initial evidence that he thought he had called the respondent from the applicant’s cell phone and reached him, Mr. Furlotte later testified and his cell phone records show that Mr. Furlotte actually called the respondent from his own cell phone, and the respondent called him back. Mr. Furlotte testified that he did not initially remember this, but his memory had been jogged by the documents. Also, when he was recalled, Mr. Furlotte testified that he had asked the respondent if he had a basement apartment available for $650 per month, whereas he originally testified that he inquired about a $500 apartment. Finally, in addition to financial support from his parents, Mr. Furlotte testified that he could not remember if he told the respondent that he had OSAP or income from his job at a fast food restaurant. However, he testified that he thought he had most likely told the respondent that he had a job.

23The applicant testified that after her boyfriend got off the phone with the respondent, she sent another text to the respondent’s wife. That text, sent around noon on March 21, 2014, was in response to the text that had apparently been sent by the respondent’s wife the previous day, indicating that the respondent was not renting the apartment because he was going to sell the house. The applicant’s text read:

That’s a lie. My boyfriend just call and ur husband is still. Renting (sic) the place. What he did yesterday was discrimination. I’m reporting it.

24The applicant testified that after her boyfriend’s conversation with the respondent she felt just as “stressed out” as the day before because then she knew for sure that the respondent’s actions were because she had told him that she was from the Caribbean. She testified that she was concerned that the stress she was feeling would affect her baby, so she tried not to feel “too stressed”.

25A few hours later, at 5:58 p.m., someone texted the applicant back from the respondent’s number, “Hey. If u don’t trust next week you can see house in listing.”

26The applicant testified that, after the experiences of March 20 and 21, 2014, she and Mr. Furlotte decided that they would have a better chance of finding an apartment if Mr. Furlotte, who is white and from Canada, went to look for apartment without the applicant, who is black and from the Caribbean. The applicant testified that her boyfriend did find an apartment for them, which they moved into by April 1, 2014. The applicant’s evidence on these points was confirmed by Mr. Furlotte.

27The applicant testified that when she was in the process of filing her Application with the assistance of a counsellor at a not-for-profit organization in Toronto, she could not find an advertisement for the respondent’s apartment on kijiji. Instead, she found an expired advertisement on craigslist, advertising the apartment she had gone to see for $700 per month. The applicant attached a copy of such advertisement to her May 7, 2014 Application to the Tribunal.

Respondent’s evidence

28As for the respondent, he initially testified that he did not remember talking to the applicant at all. He then suggested that he did not talk to the applicant and that she must have dealt with his wife. (The respondent testified that the number he provides in his advertisements is actually his wife’s number because it is easier for her to pick up the phone and get in touch with the respondent as required. Accepting this to be true, for ease of reference, I nonetheless refer in this decision to the telephone number listed in the respondent’s advertisement for the apartment at issue in this case as “the respondent’s number”.) Still later, the respondent testified that he did not remember talking to the applicant, but he did not dispute her evidence about her conversations with him and accepted it as accurate. Finally, on the last day that he gave evidence, the respondent testified that he did remember talking to the applicant and telling her that he was not going to rent her the apartment. He also maintained that it had been his earlier evidence that he remembered talking with the applicant.

29In any event, the respondent ultimately agreed with the applicant’s evidence on many key points. Specifically, the respondent agrees that he arranged for the applicant to come see the vacant bachelor unit at 3666 St. Clair on March 20, 2014. The respondent also does not dispute that he went to the house to show the applicant the apartment, but ultimately did not show it to her. Moreover, the respondent does not dispute the applicant’s evidence about his two telephone conversations with her after he arrived at the house. The respondent testified that he could not remember if he asked the applicant where she was from and then hung up when she said she was from the Caribbean. However, at another point, he testified that he was “not sure” if he asked the applicant where she was from, but he did not believe he had done so. The respondent testified that he does ask prospective tenants where they are from, just to get to know them. When asked why he did not answer the phone when the applicant called him back, the respondent initially stated that maybe he was at work when the applicant called him back, even though it was only two minutes after he had spoken to her while at the house. The respondent then testified that he thought he had been driving when the applicant called him back and that was why he did not answer the phone.

30Whether or not he asked the applicant where she was from before telling her the apartment was not available, the respondent denies that his decision not to show or rent the apartment to the applicant was because he found out that the applicant was from the Caribbean. The respondent testified that he has two black tenants in his National Street house, and he submits that this shows that he does not discriminate based on race or place of origin. The respondent testified that his actions were based solely on the fact that he decided on March 20, 2014 to sell the house at 3666 St. Clair.

31The respondent testified that, in March 2014, he had a total of nine rental housing units, in three houses. Two of the houses were located next door to one another at 3664 (“3664 St. Clair”) and 3666 St. Clair. The respondent testified that he and his family resided in one of four units in a third house he owned on nearby National Street, and that he rented out the other three.

32The respondent testified that he purchased the houses on St. Clair Avenue East as an investment in 2012, although the property at 3664 St. Clair was purchased in his wife’s name, with the respondent as guarantor on the mortgage loan. The respondent testified that he had owned other rental properties in the past, that he had been a landlord for five years, and had had between 30 and 35 tenants over the years. The respondent also testified that he became licensed as a real estate agent in May 2012.

33The respondent testified that the property at 3664 St. Clair had three units, which were fully rented in March 2014 for a monthly rental income of $2700, which the respondent testified covered the mortgages (although I note that the respondent indicated that the two mortgages were approximately $3100 per month).

34The respondent testified that the property at 3666 St. Clair also had three rental units, two of which were rented out in March 2014:

a. a “ground floor” bachelor unit, which was rented out for $700 per month on a month-to-month basis to a “Thomas” (the respondent testified that he could not remember his last name);

b. a third floor three-bedroom unit which was rented out for $1350 per month, also on a month-to-month basis, to a “Nasir”; and

c. a vacant “main floor” (i.e. second-storey) bachelor unit, which the applicant had come to see and which had been advertised for $650 per month.

35During the hearing, the respondent was ordered to produce, and subsequently did produce, copies of two leases he had with tenants at 3666 St. Clair in March 2014. Those leases, which the respondent testified were drafted by a law firm, show that the respondent rented a unit at 3666 St. Clair to a “Nasir” for $1400 per month, not on a month-to-month basis, but for the one-year period from May 1, 2013 to April 30, 2014. The other lease, entered into on February 28, 2014, shows that the respondent started renting a unit not to a “Thomas” but to a “Nikhila” for $650 per month on March 1, 2014. That lease was on a month-to-month basis.

36The respondent testified that there were two mortgages on the rental property he owned at 3666 St. Clair and that he was under tremendous pressure to meet his financial obligations in March 2014. In particular, the respondent testified that, at that time, he was getting pressure from the “second mortgage guy” and that he “had to rent” the vacant unit at 3666 St. Clair or else he was going to have to sell the house. He also testified that he was waiting to get a final answer from the first mortgagee, the bank, as to whether he could get refinancing that would allow him to pay off the second mortgage and continue renting the units at 3666 St. Clair. He testified that if he could not get refinancing, he would have to sell the house in order to pay off the second mortgage.

37The respondent testified that March was the “busiest time” for tenants and that there were “lots of people” coming to see the vacant apartment in March. (He initially proffered this as the reason that he could not remember the applicant.) However, notwithstanding this, and notwithstanding the respondent’s earlier testimony that he wanted to keep the house and continue renting it out, the respondent testified that, because of the financial pressure he was under, he decided on the very day the applicant came to see the vacant unit in 3666 St. Clair to sell the house. Indeed, the respondent testified that he took the decision to sell the house at the very “moment” that the applicant was crossing the street to come see the apartment. The respondent testified that, as a result of his decision to sell the house at 3666 St. Clair, he could no longer rent out the vacant unit at 3666 St. Clair to anyone.

38The respondent testified and a number of documents he submitted at the hearing confirm that the house at 3666 St. Clair was listed for sale on April 8, 2014, and sold on April 15, 2014, with a June 1, 2014 closing date. The sales listing for the house states in part:

(2 Bachelor Unit) Rent for $1300 Per Month) Let The Tenant Pay Your Mortgage While You Live In The 3 Bedroom House.

39During his testimony, the respondent was asked about the fact that the rest of the units at 3666 St. Clair were fully tenanted at the time the respondent said that he could not rent to the applicant because he was selling the house. At that point, the respondent indicated, for the first time, that on April 1, 2014, he gave his sitting tenants – Nasir and Thomas – written notice that they had to vacate their units by May 31, 2014. Under cross-examination, the respondent maintained that his decision to sell 3666 St. Clair was a legal basis to evict his sitting tenants.

40When asked whether he could produce copies of the written notices he testified that he had given to Nasir and Thomas, the respondent asked why he would have bothered to keep “this paper” and suggested that there had been no need for him to do so. At the applicant’s request, I directed the respondent to produce copies of the written notices to his sitting tenants to the applicant on the basis that they were arguably relevant. However, the respondent did not produce copies of the such notices prior to the next hearing date. Moreover, when the respondent resumed testifying on the next hearing date, the respondent testified that he had given his sitting tenants verbal notice that they had to vacate their units, and not written notice. The respondent testified that that was the reason that he could not produce the written notices.

41On the very last day of hearing, right before final argument, the respondent sought to put into evidence a text message exchange between himself and an individual identified in his cell phone as “Indian tenant”. The respondent testified that the text message exchange was with Nikhila, the tenant who, according to the lease documents, starting renting a unit at 3666 St. Clair on March 1, 2014. (The applicant objected to the respondent submitting the text message exchange at that stage of the hearing. However, I permitted it on terms set out in a June 26, 2015 Case Assessment Direction.)

42The respondent testified that the individual who purchased 3666 St. Clair from him on April 15, 2014, asked the respondent, on May 1, 2014, if “the tenant” could continue renting and the respondent said that he would ask her. Accordingly, the respondent testified that he texted Nikhila as follows:

Hey r u guys moving out end of May or want to stay more. If u want to stay longer u can. New owner wants to rent to u guys. But u have to pay rent for the month of May tomorrow. But if u want to move out at the end of may then u don’t have to pay rent for may. I need ur answer tonight. Coz I sent ur husband text last week but he did not respond me. So can u answer me tonight? Plz. it is urgent for me

43The respondent testified, and the respondent’s document confirms, that Nikhila replied on May 1, 2014, “Yes we r moving out because this is too much to pay.”

44I note that, although the respondent testified that the person who bought 3666 St. Clair asked him on May 1, 2014 if “the tenant” could stay, the above-noted text message from the respondent to “Indian tenant” is actually dated April 30, 2014. In addition, the respondent’s April 30, 2014 text suggests that the respondent knew that the new owner wanted the tenants to stay some time earlier than that. Specifically, the respondent’s text indicates that he asked the tenants if they wanted to stay the week before April 30, 2014 (“Coz I sent ur husband text last week…”). The respondent did not provide his earlier text message to Nikhila’s husband.

45As it turned out, on May 7, 2014, the respondent testified that he received an email informing him that the sale of his house was not going to go through, because the buyers were unable to arrange financing. The respondent testified that the buyers were seeking to be released from the deal. However, the respondent did not agree and ultimately the buyers brought a civil action against the respondent making various allegations. The respondent testified that he made a counterclaim against the buyers, based on the rental income he allegedly lost as a result of the sale of 3666 St. Clair. Specifically, the respondent testified that he would not return the buyers’ deposit because he “had to keep the house empty” as the result of the sale.

46In this regard, the respondent testified that it was “his job” to give the house to the new owners vacant. He also testified that, once he decided to sell the property, he had “no choice” but to refuse to rent to the applicant and to give his sitting tenants notice to vacate. Later, however, during cross-examination, the respondent agreed that he could have put the house up for sale and continued renting units, provided that he gave his tenants 24 hours’ notice (presumably that prospective buyers would be viewing the property).

47The respondent was ordered to produce certain documents from the civil proceeding, but he only partially complied with the production order. For example, the respondent produced a copy of the claim against him and documents confirming that the civil action was eventually settled. However, he did not produce a copy of his defence and counterclaim. Although he had been advised by me that he could obtain copies of any missing documents from the civil proceeding from the court file, the respondent stated that he did not have time to go to the court to obtain such copies. This was notwithstanding the fact that I had previously explained to the respondent that the failure to provide relevant documents could result in my finding that there were gaps in his evidence and impact my assessment of his credibility.

48The respondent testified that, after his sitting tenants vacated his house at 3666 St. Clair on May 31, 2014, the house was empty until October 1, 2014, at which time he got “a” tenant to move in on a month-to-month basis for six months. The respondent testified that he had to borrow $8000 from his “very close friend”, “Rayhan”, to cover his mortgage payments while the house sat empty. On the next hearing date, the respondent testified that it was actually $10,000 in total that he borrowed from Rayhan: the initial $8000 that was related to this “situation” and another $2000 some months afterwards. When asked his friend’s last name, the respondent testified that he did not know it. The respondent testified that he could not produce any documents to substantiate that he had received a loan from Rayhan to cover his mortgage because the loan was in cash.

49On the second last hearing date, the respondent provided a number of documents from his craigslist account. The respondent testified that during the relevant time period, he advertised his apartments only on craigslist. He testified that he did not start advertising his apartments on kijiji until early 2015.

50One of the documents submitted into evidence is a summary of all of the respondent’s craigslist postings from 2012 onwards. For each posting or advertisement listed on the summary document, there is a “posted date” which the respondent testified was the date on which he posted the advertisement online. Some advertisements also have a “renewed” date, which the respondent testified was the date he renewed the posting. (Some postings were not renewed.)

51Two of the postings for a bachelor apartment have a “posted date” of March 23, 2014, which was just three days after the applicant went to see the apartment. Those postings show a “renewed” date of April 18, 2014. When the respondent was asked during cross-examination if these were advertisements for the apartment the applicant had gone to see, he initially testified that he was “pretty sure” it was not 3666 St. Clair, but it could be 3664 St. Clair. However, the respondent subsequently testified that it was for neither of these, that he had not advertised any bachelor apartment on March 23, 2014, and that the March 23, 2014 date had somehow been automatically generated by the computer in error. He testified that both of the advertisements in question were for a bachelor apartment at 3664 St. Clair that became available some time in April 2014 for May 1st.

52The applicant points out that the five advertisements for apartments at 3666 St. Clair and National Street that the respondent posted and/or renewed on craigslist between February 4, 2014 and March 12, 2014 all provided the street addresses of the apartments in question. However, the eight advertisements posted and/or renewed between March 23, 2014 and May 31, 2014 do not. For the eight advertisements with a “posted date” or renewal date on or after March 23, 2014, it appears that the respondent ticked the box to “show [the apartments] on maps”, but did not opt to show the street addresses for the apartments. On cross-examination, the applicant put it to the respondent that he changed his practice of providing street addresses in his postings in an attempt to conceal the fact that he was still trying to rent the vacant bachelor at 3666 St. Clair, after the applicant threatened to report him for discrimination. The respondent denied this and maintained that the failure to include street addresses in the later postings was unintentional.

53The applicant also points out that the maps for the two advertisements with posted dates of March 23, 2014 and renewal dates of April 18, 2014 appear to indicate that the apartment(s) in question was located right on St. Clair Avenue. However, the respondent testified that the maps are sometimes correct and sometimes not. He testified that the maps are automatically generated “through the internet” to give tenants a general idea of where the apartments are located.

54The craigslist documents also reflect that the respondent posted two advertisements for bachelor apartments on May 24, 2014, and renewed them on May 31, 2014. There were no postings after May 31, 2014 until January 2015.

55Although he had earlier testified that he had to keep 3666 St. Clair empty until October 1, after the craigslist documents were produced, the respondent testified that, after the sale of his house fell through on May 7, 2014, he decided to rent out the two bachelor units at 3666 St. Clair and to keep the three-bedroom unit empty for the new owners. The respondent testified that the May 2014 advertisements for bachelor units, referred to above, reflect his efforts to rent out the units at 3666 St. Clair.

56The respondent testified that he got a tenant in the house on August 1, 2014. He subsequently testified that he thought that he rented out one bachelor unit at 3666 St. Clair in July 2014 and one in August 2014.

57As noted above, the respondent was ordered to provide copies of the leases he entered into with the new tenants. However, he did not do so. The respondent testified that it was his general practice to have his tenants sign written leases that had been drafted by a law firm. However, the respondent testified that he did not require the woman “Alia” who rented the three-bedroom apartment at 3666 St. Clair in October 2014 to sign a lease because she had been referred to him by another tenant, and he trusted her. This was at odds with his earlier testimony that he would have to check “the contract” (presumably, the lease) to find out Alia’s last name.

58Likewise, the respondent testified that he trusted the tenant who started renting one of the bachelor units at 3666 St. Clair in August 2014, “Asad”, because he had been referred by a friend; he testified that he did not require that tenant to sign a written lease either. The respondent testified that the tenant who rented the bachelor unit that the applicant had been interested in, “Sonali”, did sign a written lease. However, the respondent testified that he could not find it and could therefore not comply with the production order. He testified that he had lost the lease because he was dealing with so many issues at the time, such as the fact that the sale of 3666 St. Clair did not go through.

59In addressing Mr. Furlotte’s testimony, the respondent initially testified that it was “impossible” that he had spoken to Mr. Furlotte on his wife’s phone at the time and on the date in question. However, after Mr. Furlotte produced his cell phone records, the respondent agreed that he had probably not answered when Mr. Furlotte called him and then called him back. In any event, the respondent was adamant that he never told Mr. Furlotte that he had a bachelor apartment available for $500 per month (as Mr. Furlotte initially testified) because he never rented the bachelor apartments at any of his houses for less than $650 or $700 per month. Similarly, the respondent denied that he ever indicated that he had a basement apartment available for rent at 3666 St. Clair Avenue East, because there is no basement in that house. According to the respondent, the only part of Mr. Furlotte’s evidence that is true is that the respondent did have a basement bachelor apartment available on March 21, 2014. However, the respondent testified that that was at his house on National Street, not the property at 3666 St. Clair Avenue East. The respondent testified that he would have told Mr. Furlotte about the bachelor apartment he had available at the National Street house because he really wanted to rent it out.

Production of documents

60During the hearing, both parties sought orders requiring the other side to produce certain documents on the basis that they were arguably relevant to an issue to be determined in this case. I note that the respondent was very resistant to the applicant’s request for production and told me that he would not provide some of the documents sought even if I ordered him to, in particular, copies of the tenancy agreements he had with tenants who were renting units at 3666 St. Clair as of March 2014 and copies of tenancy agreements for the new tenants who allegedly rented units at 3666 St. Clair later in 2014. After considering the submissions of the parties, in a Case Assessment Direction dated June 1, 2015, I ordered the production of certain documents by both sides and indicated that I would provide my reasons for that order in this Decision. These are my reasons.

61I ordered the respondent to produce the following things to the applicant on the basis that they were arguably relevant to an issue to be determined in this case:

• Copies of all tenancy agreements for sitting tenants at the respondent’s 3666 St. Clair Ave E. property, as of March 2014;

• Copies of the notices that the respondent allegedly gave tenants at his 3666 St. Clair Avenue E. property, requiring them to vacate their units in the spring of 2014;

• Any and all documents relating to the sale of the 3666 St. Clair Avenue E. property and the dispute that allegedly ended the sale, including, but not limited to, any emails relating to the alleged dispute and the May 7, 2014 fax the respondent allegedly received about it;

• The Small Claims Court Claim and Statement of Defence filed with respect to the alleged dispute relating to the 2014 sale of the respondent’s 3666 St. Clair Avenue E. property;

• Any and all advertisements seeking to rent the units at 3666 St. Clair Avenue E. in the fall of 2014;

• Copies of the tenancy agreements for the new tenants that rented units in the 3666 St. Clair Avenue E. property in 2014; and

• Proof of loan or any documents relating to the alleged loan from the respondent’s friend in the June to October 2014 timeframe.

62The test for the production of documents is arguable relevance on at least one party’s theory of the case. All of the above-noted items were arguably relevant to the respondent’s testimony and/or theory of the case that he refused to rent to the applicant solely because of his decision to sell the property at 3666 St. Clair on March 20, 2014. The respondent’s evidence was that the reason he refused to rent to the applicant was because of his decision to sell 3666 St. Clair; that he gave his sitting tenants at that property notice to vacate because of the decision to sell; and that the rental units at the property, including the unit the applicant was interested in, were kept vacant by the respondent until late 2014. All of these facts were in dispute, and the applicant was entitled to production of the above-noted documents so that she could test the respondent’s evidence.

63Likewise, on consent of the parties, I ordered the applicant to produce the following documents to the respondent on the basis that they were arguably relevant to the applicant’s testimony that she had health problems as a result of the alleged incident with the respondent on March 20, 2014.

• The applicant’s medical records relating to the applicant’s claim that she had health problems and/or sought medical treatment as a result of the alleged incident with the respondent

64However, I denied the respondent’s request that the applicant be required to produce the following documents:

• Any documents relating to another landlord’s alleged refusal to rent a unit to the applicant and her boyfriend on the stated basis that they were a young couple;

• The applicant’s current tenancy agreement; and

• Any documents relating to other human rights applications the applicant may have filed against any other respondents.

65The respondent expressed a great deal of dissatisfaction with my decision not to order the applicant to produce the above-noted items, especially documents relating to other human rights applications the applicant may have filed against other respondents. As I explained to the respondent at the hearing, such documents (if they exist) are not arguably relevant to an issue to be determined in this case. Knowing whether or not the applicant has filed a human rights application against any other party would not assist me in determining the issue in the case at hand, which is whether the respondent refused to show or rent an apartment to the applicant because she was from the Caribbean. Accordingly, I denied this aspect of the respondent’s production request.

66Likewise, the respondent could not explain, and I could not see, why documents relating to another landlord’s alleged refusal to rent to the applicant based on her age are arguably relevant to the issues to be determined in the case at hand. As I understand it, the respondent feels that it is unfair of the applicant to have pursued a human rights application against him, but not the other landlord. Although I can understand the respondent’s point of view, it does not change the fact that another landlord’s alleged discriminatory actions toward the applicant have no bearing on whether the respondent in this case discriminated against the applicant. This aspect of the request was also denied accordingly.

67I also declined to order production of the applicant’s current tenancy agreement, because the respondent could not explain and I could not see how such document is arguably relevant to an issue to be determined in this case. If the applicant were seeking a remedy from the respondent based on her having to rent a more expensive apartment in April 2014, or something of that nature, then I can certainly see why the lease the applicant entered into after being turned away by the respondent would be relevant. However, the applicant is not seeking any such remedy. Nor does the document in question have bearing on liability under the Code (i.e. whether the respondent’s actions on March 20, 2014 were discriminatory). Accordingly I declined to order its production.

Analysis and decision

68In this case, the applicant alleges that the respondent infringed her rights under s. 2 of the Code, which states:

2. (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, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

69In order to make out her discrimination claim, the applicant must establish on a balance of probabilities that the respondent treated her in a disadvantageous manner because of her race, colour, place of origin, and/or ethnic origin. In particular, the issue in this case is whether the respondent landlord decided not to show or rent the applicant an apartment because she is from the Caribbean.

70As I explained at the hearing, in order to succeed in her discrimination claim, the applicant need not prove that her race, colour, place of origin and/or ethnic origin was the sole reason or even the main reason that the respondent did not rent or show her an apartment; it is sufficient for her to establish that a prohibited ground of discrimination was more likely than not a factor in the respondent’s decision not to rent or show her the apartment: Peel Law Association v. Pieters, 2013 ONCA 396, 116 OR (3d) 81 (Ont. C.A.) (“Pieters”) at paras. 111-114.

71At the outset, I need to say that this case has not been easy to decide. There is evidence supporting both sides’ versions of events and I have been required to weigh it carefully in order to determine whether the applicant has established that her race, colour, place of origin and/or ethnic origin was a factor in the respondent’s decision not to rent her an apartment. Notably, the respondent asserts that the sole reason he decided not to rent to the applicant was because he decided, at the very moment the applicant was invited to view the apartment, to sell the house in which the apartment was situated, and he proved through his testimony and documents submitted at the hearing that he did in fact sell the house. The respondent asserts that this should be the end of the matter. However, contrary to the position taken by the respondent, the fact that the respondent decided at some point to sell the house does not exclude the possibility that he refused to rent to the applicant, in whole or in part, because she is from the Caribbean. For example, it is possible that the respondent decided to sell the house after the applicant told him where she was from and/or after she threatened to report him for discrimination. The respondent might have been of two minds as to whether to sell the house and the applicant’s threat to report him for discrimination tipped the balance in favour of his decision to divest himself of the property, and all of the problems associated with it. It is also possible that the respondent had decided to sell the house before the applicant even went to see it and then used the pending sale as a pretext for not renting to the applicant after she threatened to report him. In raising these possibilities, I am not suggesting that these things did happen, nor do I need to determine whether they did in order to decide the issues in this case. It is just to clarify that the real issue in this case is not whether the respondent sold the property at 3666 St. Clair, but whether he decided not to show or rent an apartment to the applicant solely for that reason or whether the applicant’s race, colour, place of origin or ethnic origin played any role in his decision.

72Having carefully weighed all of the evidence, I find that the applicant has made out her case on a balance of probabilities. Ultimately, I find the respondent’s evidence that he had a non-discriminatory reason for not showing or renting the apartment to the applicant is not credible. Moreover, the preponderance of the evidence establishes on a balance of probabilities that the applicant’s race, colour, place of origin and/or ethnic origin was at least a factor in the respondent’s decision not to show or rent an apartment to the applicant. Accordingly, I find that the applicant has established that the respondent discriminated against her because of her race, colour, place of origin and/or ethnic origin. Below are my reasons.

73This case turns largely on credibility. In assessing credibility in this case, I have been guided by the principles articulated in the frequently cited case, Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)), which states in part:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

74As the Supreme Court of Canada has observed,

… [a]ssessing credibility is not a science. It is very difficult … to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events,(…). R. v. Gagnon, 2006 SCC 17 at para. 20.

75However, the Tribunal has identified some of the factors that go into assessing a witness’ credibility as including: the internal consistency or inconsistency of evidence; the witness’s ability and/or capacity to apprehend and recollect; the witness’s opportunity and/or inclination to tailor and/or embellish evidence; the existence of corroborative and/or confirmatory evidence; the motives of the witnesses and/or their relationship with the parties; and the failure to call or produce material evidence. See, for example, A.B. v. Havcare Investments Inc., 2014 HRTO 1087 at para. 44 (“A.B.”).

76The Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey, 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (OCA) at p. 205, are also instructive:

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.

77Central to my decision that the applicant has made out her discrimination claim is my acceptance of the applicant’s evidence about what transpired when she went to see the respondent’s apartment on March 20, 2014 as credible. I find the applicant’s evidence in this regard to be credible because it was clear and consistent, free from exaggeration, rich in detail, and consistent with the preponderance of evidence, including the applicant’s text and cell phone records. In addition, the applicant’s evidence on these points was unchallenged and uncontradicted by the respondent.

78This is not to say that the applicant’s evidence on all points was perfect. There were some minor problems with the applicant’s evidence. For example, the applicant testified at one point that she thought she had called the respondent when she crossed the street on March 20, 2014 to tell him that she was standing in front of the house. However at another point, she testified – and her cell phone records confirmed – that it was the respondent who called her at that time, and then asked her where she was from before telling her that the apartment was no longer available. In addition, the applicant testified that she saw the apartment in question advertised on kijiji for $500, whereas I am satisfied, based on the respondent’s testimony and the records he produced from his craigslist account, that the respondent never rented the apartment in question for less than $650 or $700. At the end of the day, however, these were minor discrepancies that did not diminish the reliability or credibility of the applicant’s evidence about the material facts concerning her interactions with the respondent on March 20, 2014. The applicant also testified that she saw the apartment advertised on kijiji, whereas the respondent testified that he only started advertising his apartments on kijiji in 2015 (although he did not provide documents from his kijiji account to substantiate that testimony, and he presumably could have). I do not find it necessary for me to resolve this factual dispute in order to determine the issues in this case. However, assuming without finding that the respondent is correct and the applicant saw the advertisement on craigslist, not kijiji, as she testified, this again is the sort of minor inconsistency on a non-material fact that one might typically expect when hearing testimony about events that took place almost a year prior to the hearing. It does not cause me to doubt the veracity and reliability of the applicant’s evidence on the key points.

79Based on my acceptance of the applicant’s evidence about her March 20, 2014 interactions with the respondent as credible, I make the following factual findings. On March 20, 2014, the applicant went to see the respondent’s apartment as had been pre-arranged the evening before, and when the respondent was not there, was told by the respondent’s wife to wait for him at a restaurant across the street. Shortly afterwards, the respondent’s wife called the applicant to say that the respondent was on his way to meet the applicant. Approximately 20 minutes later, the respondent called the applicant twice: once, at 1:31 p.m., to say that he had arrived at the apartment and that the applicant should come across the street to see the apartment, and again, two minutes later, to say that before he showed the applicant the apartment, he wanted to know where she was from. When the applicant told the respondent that she was from the Caribbean, the respondent abruptly ended the call, telling the applicant that the apartment was not available and refusing to show her the apartment as planned. The respondent did not take the applicant’s call when she called him back two minutes later.

80In Shaw v. Phipps, 2010 ONSC 3884, at para. 75 to 77, upheld on appeal at 2012 ONCA 155, the Ontario Divisional Court recognised that often there is no direct evidence that an applicant’s colour or race was a factor in the incident in question. Racial discrimination will more often be proven by circumstantial evidence and inference than direct evidence. The Tribunal must draw reasonable inferences from proven facts. Pieters, above, at paras. 94 and 111-112.

81In my view, the logical inference to be drawn from the above-noted facts, in the context of the overall evidence, is that the respondent’s decision not to show or rent an apartment to the applicant was based, at least in part, on the fact that he found out that the applicant was from the Caribbean. In my view, there is no other credible explanation for why the respondent would keep the applicant waiting to see the apartment, take the time and trouble to go there to show it to the applicant, and then make the sudden decision not to show it or rent it to her after all. The respondent’s version of events is that his decision not to show or rent the apartment to the applicant had nothing to do with the fact that she had just told him, in response to his specific question, that she was from the Caribbean, but was solely because he had just decided to sell 3666 St. Clair. However, this explanation is far-fetched and defies credulity. There was no reason for the respondent to make a specific point of calling the applicant a second time while she was standing in front of the house to ask her where she was from unless the applicant’s answer to this question was relevant to him in some way. Put another way, there was no reason for the respondent to call the applicant back just to ask the applicant where she was from if he had truly decided not to rent the apartment after all and was just calling to tell her so. In my view, the most likely explanation for the respondent’s actions, based on the evidence, is that the respondent decided not to go ahead with his plan to show the apartment to the applicant because he discovered that she was from the Caribbean.

82My conclusion in this case is further supported by the respondent’s evidence that he had another bachelor apartment available for rent on March 20, 2014 in his National Street house, but did not offer to show it to the applicant, notwithstanding his testimony that he really wanted to rent that apartment, and notwithstanding that, according to the respondent’s testimony and documents, it was in the same general location as the apartment the applicant had come to see, was about the same size, and was in the same price range. The respondent testified that his National Street house was just a five-minute walk (150 metres) away from 3666 St. Clair. The respondent testified that when he received an inquiry in response to one of his advertisements, his general practice was to direct the potential tenant to whatever apartment he had available. Consistent with this, he testified that sometimes he would place only one advertisement, even if he had two bachelor apartments available. If that is true, however, and if the sole reason the respondent did not want to rent to the applicant was because he decided to sell the house at 3666 St. Clair, then one would have expected the respondent to tell the applicant about other apartment he had available very close by on National Street. However, he did not do so. The respondent testified that he would have told the applicant about the National Street bachelor apartment if she had asked. However, this was not consistent with his testimony that his general practice was to direct people to whichever apartment he had available at the moment.

83The respondent’s failure to tell the applicant about the other bachelor apartment strongly suggests that he did not want the applicant as his tenant. Moreover, the evidence supports the inference that the reason he was not interested in having the applicant as a tenant was because she was from the Caribbean. All of the respondent’s actions up to the point at which he asked the applicant where she was from – arranging for her to come see the apartment the next day, having her wait for him, travelling to the house to show her the apartment, asking her to come across the street to see the apartment – were the actions one would expect from a landlord who was interested in the applicant as a potential tenant. However, there was a dramatic change in the respondent’s behaviour towards the applicant at the precise moment that he learned that the applicant was from the Caribbean. At that point, despite the effort the respondent had put into meeting up with the applicant, he neither went ahead with his plan to show her the vacant apartment at the St. Clair Avenue house nor acted in accordance with his general practice of telling potential tenants about other rental units he had available. In my view, the most probable explanation for the respondent’s change of behaviour towards the applicant after asking – and finding out – where she was from is that he did not want to rent to her because she was from the Caribbean.

84In finding that the applicant has made out her discrimination claim on a balance of probabilities, I have also carefully considered but must ultimately reject the non-discriminatory explanation put forward by the respondent as to why he did not show or rent an apartment to the applicant on the basis that it is not credible.

85The respondent testified at one point under cross-examination that it was his “job” to give the house to the new owners vacant and to let them choose their own tenants. He also asked at one point during the testimony how he could put the house up for sale and continue renting out units, suggesting that such a thing was not possible. However, as the applicant’s lawyer pointed out to the respondent during cross-examination, pursuant to the Residential Tenancies Act, 2006, R.S.O. 2006, c. 17, a tenant can only be evicted if the owner wants his or her unit for personal use. Tenants cannot be evicted simply because the landlord intends to sell the property in which the rental units are located. Accordingly, not only was the respondent not required to sell the house vacant, he was not even legally entitled to evict his sitting tenants, as he suggested. Given that the respondent is not only a real estate agent, but also an experienced landlord who has had 30 to 35 tenants over the years (as well as other rental properties which he testified he has sold), it is not plausible that he believed that a decision to sell his property meant that he could not continue renting out the property, much less that he could evict his sitting tenants.

86The respondent’s evidence that he decided not to rent to the applicant because he was selling the house also makes no sense from a practical perspective. The respondent testified that he was in dire financial straits in March 2014 and had second mortgages on his house at 3666 St. Clair and also on the house that was in his wife’s name at 3664 St. Clair. In my view, the respondent’s evidence that he decided not to rent out the vacant unit at 3666 St. Clair and to evict his two sitting tenants, just because he intended to sell the property, is not credible. The respondent testified that, in March 2014, his sitting tenants at 3666 St. Clair were paying him $2050 per month and he had many people interested in renting the vacant bachelor unit for $650 or $700 per month. In my view, it is implausible that the respondent would have voluntarily opted to give up such income, given his financial circumstances, and given that he had nothing to gain by evicting his sitting tenants. The respondent offered no credible explanation for why he allegedly evicted his sitting tenants and took the risk of having his house sit empty, while he continued to be responsible for paying two mortgages on the property, when he could have just as easily, if not more easily, continued to rent out the units while attempting to sell the property.

87At this juncture, I would add that, even if I had accepted the respondent’s evidence that he decided not to rent the vacant unit at 3666 St. Clair and to evict his sitting tenants because he intended to sell the property, I would still find that he discriminated against the applicant in the circumstances of this case. This is because, at a minimum, and as set out above, the evidence establishes that the respondent failed to show and/or rent the apartment he had available at his National Street house to the applicant because she is from the Caribbean, thereby discriminating against her because of her race, colour, place of origin and/or ethnic origin.

88In any event, I do not accept the respondent’s evidence that he decided not to rent the vacant unit at 3666 St. Clair and evicted his sitting tenants at that location because he intended to sell the property. The only evidence I have that this is what occurred is the respondent’s own testimony, which was inconsistent and contradictory and not credible or reliable. (The text message exchange with Nikhila shows that she was leaving 3666 St. Clair, but it does not establish that the respondent gave all of his sitting tenants notice to vacate, because he intended to sell.)

89At first, the respondent testified that he gave his sitting tenants written notice that they had to vacate their units by May 31, 2014. However, after being ordered to produce copies of such written notices, the respondent changed his testimony, saying that the notices had been verbal and that was why he could not provide copies of them. When it was put to the respondent during cross-examination that it was contrary to the Residential Tenancies Act for him to evict tenants simply because he was planning to sell the property, the respondent changed his testimony again, and stated that he had not required his tenants to leave at all, that they voluntarily left after coming to a mutual agreement with him, and so there had been no violation of the RTA.

90During cross-examination, the respondent testified that the new owners wanted the house empty and seemed to suggest this as further justification for giving his sitting tenants notice to vacate. However, there had been no mention of that previously. Moreover, the respondent’s evidence that the new owners wanted the house empty was inconsistent with his subsequent testimony that they told him sometime between April 15, 2014 when they bought the property and the week or so prior to April 30, 2014 that they wanted a tenant in one of the bachelor apartments to stay.

91In addition, the respondent’s initial testimony that he gave his tenants written notice, but had not bothered to keep copies of such written notices, was not credible. The respondent testified that he made a counterclaim in a civil action based on the fact that he had had to evict his sitting tenants and keep the house vacant, which civil action was not resolved until after the hearing of this Application had commenced. It is not believable that the respondent would not think that documents that substantiated his claim of lost income were important enough to keep. In addition, it is not credible that the respondent would not have thought that it was important for him to keep copies of the notices for the purposes of this proceeding, given that they were documents that allegedly supported his position in this case. I note that, in his Response, the respondent indicated that he received notice of this human rights Application on June 1, 2014, which was just one day after his sitting tenants allegedly moved out.

92The respondent’s failure to produce copies of the leases for the tenants who allegedly moved into the vacated units later in 2014 (again, there were inconsistencies with respect to precisely when they allegedly moved in) further undermined the credibility of the respondent’s evidence. As the Tribunal noted in A.B., above, the failure to produce material evidence is a factor that can diminish credibility. In this case, the respondent not only failed to provide the leases; he told me, when I was hearing submissions on the applicant’s production request, that he would not produce such documents even if he was ordered to do so, and then he did not produce the documents, maintaining that two of the three tenants had never signed leases and he had lost the third tenant’s lease. The respondent’s evidence on these points was also inconsistent and incredible. First, his evidence that “Alia” had never signed a lease was inconsistent with his earlier testimony (before the production order was made) that he would have to check “the contract” to find out her last name.

93Further, the respondent’s evidence that he did not bother to have the tenants he allegedly got at 3666 St. Clair in late 2014 sign the written leases he typically used, and had drafted by a law firm, because they had been referred by his friend and/or another tenant, was inconsistent with his earlier testimony that it is his general practice to have his tenants sign a lease setting out the parties’ mutual obligations. This was implausible and not credible.

94Finally, if it were true that the respondent had diverged from his general practice of having tenants sign leases in late 2014, because he particularly trusted the tenants in question, I would have expected him to tell me this when he was making submissions opposing the applicant’s request that he be ordered to provide such leases. He did not. His failure to produce copies of the leases causes me to doubt the veracity and reliability of his evidence of a non-discriminatory explanation for not renting to the applicant.

95Another factor in my decision is the fact that the respondent made no mention of his intention to sell the house to the applicant at the time that he told her the apartment was no longer available. This was not mentioned until the applicant threatened to report the respondent to Toronto housing for failing to show her the apartment. In my view, given that the respondent had the applicant come to see the apartment and then kept her waiting for almost an hour, if he had had a legitimate reason for his sudden refusal to show the applicant the apartment, one would have expected him to have told the applicant about it. In my view, the respondent’s failure to tell the applicant about his intention to sell the property at the relevant time undermines his evidence that that was the true reason for his refusal to rent or show the applicant the apartment.

96The respondent’s testimony about the March 23, 2014 advertisements on craigslist cast further doubt on the credibility of the respondent’s evidence. The respondent’s evidence that he did not post any advertisement for a bachelor apartment on March 23, 2014 and that this date was somehow automatically generated by the computer was implausible and inconsistent with his testimony about what the “posted date” generally reflected. Based on the overall evidence, including the craigslist documents, I think it is more likely than not that the respondent advertised a bachelor apartment on craigslist on March 23, 2014, most likely the bachelor apartment the applicant went to see on March 20, 2014, given the respondent’s evidence that 3664 St. Clair was fully tenanted in March 2014 and that the postings were not for the National Street apartment either. Accordingly, the March 23, 2014 craigslist postings are consistent with, if not further support for, my finding that the respondent refused to rent to the applicant on March 20, 2014 because she was from the Caribbean and not because he had decided to keep that unit vacant.

97In addition to the above, there were other problems with the respondent’s evidence that lead me to conclude that it was not credible and not reliable in general. There were many inconsistences and contradictions in the respondent’s evidence, and at times I had the impression he was making his evidence up as he went along depending on what he thought would be most advantageous to his case. The respondent’s evidence was also very vague on some key points. Finally, in some respects, the respondent’s evidence was implausible to the point of being incredible. In addition to some of the inconsistences in the respondent’s evidence identified in the description of his evidence in the background section above, the following are some examples of the problems with the respondent’s evidence.

1. Although the respondent initially testified that he had could not continue renting once he decided to put his house up for sale, and had “no choice”, he later acknowledged that he could have continued renting, as long as he provided his tenants’ 24 hours’ notice;

2. The respondent’s evidence that he decided to sell the house at 3666 St. Clair the very day the applicant came to see it was vague and lacking in detail. The respondent made a very general statement that he decided to sell because the bank was pressuring him for money and he needed time to take pictures of the house for the real estate listing. However, he really gave no clear or cogent evidence about what point in the day he reached that decision, how he came to the decision, what his thought process was, or how it was that his decision to sell the house happened to coincide precisely with the applicant’s arrival to see the apartment. I note that the respondent’s evidence that he decided to sell the house on the day in question because the bank was pressuring him for money seems at odds with his evidence that he was still waiting to hear from the bank about whether they would refinance the mortgage.

3. The respondent’s evidence that he could not continue renting out the units at 3666 St. Clair if he was going to sell the house was also very vague. The respondent did not offer any credible explanation or rationale for his alleged thinking on this.

4. Leaving aside the fact that the respondent contradicted himself about whether he remembered his dealings with the applicant (he initially said he had no recollection of her and later said that he did remember talking to her), the respondent’s evidence that he had no recollection of an individual who threatened to report him for discrimination was, in my view, not credible. The texts from the respondent and/or his wife to the applicant, trying to convince her that the decision not to show her the apartment was based solely on the respondent’s decision to sell 3666 St. Clair, also belies the respondent’s alleged inability to recollect who the applicant was. This is particularly so given that the respondent testified he received a copy of the Application on June 1, 2014, which was only two months or so after his dealings with the applicant.

5. The respondent’s evidence that he did not know the last name of his friend who loaned him thousands of dollars was implausible and not credible.

6. Leaving aside that it conflicted with his later testimony that the new owners of 3666 St. Clair wanted at least one of the tenants to stay (and there was no evidence at all about their wishes regarding any other tenant(s)), the respondent’s evidence that the new owners wanted the house empty was extremely vague and lacking in detail.

7. The respondent initially testified that the sale of the house did not fall through until June 1, 2014, the closing date, and that he could not rent out the units before that time, while he had a binding agreement in place. He later testified – only after the craigslist documents were produced revealing he advertised bachelor apartments in May – that he tried to rent out the bachelor apartments at 3666 St. Clair in May 2014.

98All of the above leads me to conclude that the respondent’s evidence is not credible. Accordingly, I cannot rely on it to find that the respondent had a credible non-discriminatory reason for not showing or renting an apartment to the applicant.

99In both Shaw and Pieters, above, the Ontario Court of Appeal confirmed that the ultimate question to be decided in a case like this is whether the applicant has met her burden of proving discrimination on a balance of probabilities by establishing that an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

100In the instant case, for the reasons identified above, I find that the respondent’s non-discriminatory explanation for his actions is not credible on consideration of the totality of the evidence. Rather, I find on a balance of probabilities that it is more likely than not that the respondent decided not to show or rent the apartment to the applicant after she told him she was from the Caribbean, in response to the respondent’s specific question as to where she was from.

101As noted above, the respondent also argued that the fact that he had other black and/or Caribbean tenants shows that he did not discriminate against the applicant because she is black and/or Caribbean. In particular, the respondent testified that he advertised a two-bedroom unit at his National Street house in April 2014, which he later rented to a Kenyan family; and that he rented the basement apartment at the National Street house to a Black woman from Jamaica in April or May 2014. (That was the apartment that the respondent testified was still available when he spoke with the applicant on March 20, 2014 and to Mr. Furlotte on March 21, 2014.) The respondent testified that he also had Caribbean tenants at another property (now sold) that he owned in the past.

102Assuming without finding the respondent’s evidence with respect to his other Black tenants to be credible, the mere fact that the respondent had other Black and/or Caribbean tenants does not in and of itself exclude the possibility that he nonetheless refused to accept the applicant as a tenant because she was Caribbean. This is particularly so in the case at hand, given that the respondent testified that he took on both the Kenyan family and the Jamaican woman as tenants at his National Street house after the applicant told the respondent that she intended to report him for discrimination. It is possible that the respondent rented to these tenants because he thought that having such Black and/or Caribbean tenants would help him defend against the discrimination claim that the applicant had told him was forthcoming. He certainly made a point of raising the existence of these tenants in his Response to the Application and made it clear at the hearing that he believed that was dispositive of the matter. Indeed, at one point, the respondent shouted at me for an extended period of time that he was not racist and should not be required to provide any of the documents that were ordered produced in this case because he had Black tenants. To be clear, I am not saying that the respondent did rent to Black tenants in anticipation of the applicant’s discrimination claim. The point is that the mere fact that the respondent rented units to Black and/or Caribbean tenants after the applicant accused him of discrimination does not foreclose the possibility that he discriminated against the applicant on March 20, 2014.

103In any event, even if this piece of evidence – the fact that the respondent had other Black and/or Caribbean tenants – weighs in the respondent’s favour, in my view, it is outweighed by the other evidence that establishes that the fact that the applicant was from the Caribbean was all or part of the reason the respondent decided not to rent or show her an apartment.

104Finally, to the extent that the respondent suggested that the fact that he himself is racialized – he identified himself as “brown” during the hearing – is a reason to conclude that he did not and/or could not have discriminated against the applicant, I disagree. As the Tribunal explained in McCarthy v. Kenny Tan Pharmacy Inc., 2015 HRTO 1303 at para. 88 to 89, the fact that an individual is South Asian, for example, does not make it impossible or even less likely that he or she discriminated based on race or place of origin. Clearly, people who are not white are also capable of holding and acting upon racist stereotypes and/or beliefs.

105For all of the above reasons, I find that the applicant has proved on a balance of probabilities that all or part of the reason the respondent refused to show or rent her an apartment in March 2014 was because he discovered that the applicant was from the Caribbean. Accordingly, the applicant has established that the respondent discriminated against her because of her race, colour, place of origin and/or ethnic origin, contrary to s. 2 of the Code. Having determined that the respondent infringed the applicant’s rights under the Code, I now turn to the issue of remedy.

REMEDY

106Section 45.2 establishes the Tribunal’s jurisdiction to order a remedy where it finds that one party has infringed another party’s rights under the Code:

45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

107The Tribunal has broad discretion to award remedies that it considers appropriate in the circumstances and which advance the remedial purposes of the Code: Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 80.

108In this case, the applicant requests the Tribunal order the respondent to pay her the sum of $15,000.00 as monetary compensation for the injury to her dignity, feelings and self-respect as a result of the respondent’s infringement of her rights under the Code. The applicant does not seek compensation for any specific monetary losses incurred as a result of her inability to rent an apartment from the respondent as she obtained comparable rental accommodation by April 1, 2016, a few days after her interaction with the respondent.

109The applicant also seeks certain remedies to promote future compliance with the Code and an apology from the respondent.

Monetary compensation

110The applicant testified that she is entitled to $15,000 in monetary compensation because she was emotionally damaged by the respondent’s discriminatory actions. The applicant also testified that such amount ought to be ordered in this case because the respondent’s actions exacerbated a medical condition, namely depression. The applicant testified that she had depression before her interaction with the respondent, but it “got real bad” after the incident with the respondent. The applicant testified that she thought the amount sought was appropriate to cover the cost of any medication she might require in the future to treat her depression.

111The applicant also testified that she had to go to the hospital three times after the incident with the respondent and before she gave birth in July 2014, because she was having contractions and was at a risk for pre-term birth. The applicant testified that her midwife told her this was caused by stress. The applicant testified that she needed to have certain medications in case her baby was born prematurely, and that she was also put on bedrest. Ultimately, the applicant testified that her baby was born two weeks early. She testified that she believes that the stress that was caused by the incident with the respondent and the associated litigation process put her at risk of pre-term birth and caused her to have her baby early.

112When discrimination is found to have occurred, an award of monetary compensation under s.45.2(1) of the Code recognizes that the applicant’s right to be free from discrimination has intrinsic value and compensates the applicant for the infringement of that right and the associated injury to her dignity, feelings and self-respect: Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (“Lane”), upheld 2008 CanLII 39605 (ONSC DC).

113As with other individual remedies, the purpose of ordering that monetary compensation be provided to the applicant is to restore the applicant to the position she would have been in had the discrimination not occurred. Consistent with this, an award of monetary compensation seeks to compensate the victim of discrimination, not to punish the perpetrator.

114The Tribunal has held and the courts have affirmed that the following factors should be considered when determining the amount of monetary compensation that ought to be awarded to remedy a breach of the Code: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness, frequency and duration of the offensive treatment: Sanford v. Koop, 2005 HRTO 53; Lane, above; and Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 at para. 59-62.

115In awarding monetary compensation under s.45.2(1), the Tribunal attempts to arrive at an amount that reflects both the objective seriousness of the discriminatory conduct and the effect of such conduct on the applicant in a given case: Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52-54. In so doing, the Tribunal strives to arrive at an amount of monetary compensation that is fair to both the applicant and the respondent.

116In the case at hand, I have found that the respondent refused to rent or even show an apartment to the applicant based in whole or in part on the fact that she is from the Caribbean. The applicant’s evidence that she felt shocked, hurt and stressed, because of the respondent’s actions was straightforward, clear and consistent, entirely plausible and it made sense. I accept it as credible.

117Housing is clearly of fundamental importance and the experience of being denied rental accommodation because of one’s race or place of origin is a very serious infringement of the Code. In addition, the applicant, being young and pregnant, and under considerable financial and time constraints to find a place for her family to live, was at a vulnerable point during her March 2014 interactions with the respondent. All of this weighs in favour of a substantial award of monetary compensation.

118On the other hand, I am cognizant of the fact that this was an isolated incident between two parties who did not have an ongoing relationship. Another important consideration is that the applicant found suitable and, I understand, comparable accommodation within days of the incident with the respondent. Accordingly, the respondent’s actions had a limited practical impact on the applicant in the particular circumstances of this case.

119In addition, I agree with the respondent that the evidence adduced by the applicant was not sufficient to establish entitlement to a higher amount of monetary compensation than might otherwise be awarded on the basis that the respondent’s actions exacerbated the applicant’s depression or caused other medical problems related to the applicant’s pregnancy. The applicant’s own evidence on this point was limited and somewhat vague. Nor were there any medical documents or other evidence submitted to substantiate the applicant’s claim that an underlying medical condition was exacerbated by the stress caused by the respondent’s conduct. In the circumstances, I am not persuaded that this is a basis to increase the amount of monetary compensation that might otherwise be awarded.

120I would add that, to the extent that the applicant had problems with her pregnancy as the result of stress caused by the litigation process, this, in my view, is not a basis upon which to increase the amount of monetary compensation to be awarded. The purpose of monetary compensation under s.45.2 is to compensate the applicant for the injury to her dignity, feelings and self-respect caused by the infringement of her rights under the Code, which is distinct from the stress undoubtedly associated with commencing and maintaining litigation under the Code.

121Taking all of the above factors into consideration, I find it appropriate to order the respondent to provide the applicant with monetary compensation in the amount of $10,000.00. In my view, this amount appropriately reflects the objective seriousness of the conduct in question, as well as the subjective impact on the applicant.

122I now turn to the applicant’s request for remedies that she submits would promote future compliance with the Code.

Remedies to promote future compliance with the Code

123In terms of remedies to promote future compliance with the Code, the applicant requests that the Tribunal order the respondent to retain an expert to draft a rental policy that complies with the Code. The applicant also asks that the Tribunal make an order requiring the respondent to undergo training on his obligations under the Code as it pertains to residential tenancy matters. The applicant submits that the respondent continues to be a landlord and to interact with tenants and prospective tenants. The applicant argues that the above-noted orders are appropriate in order to promote future compliance with the Code.

124Pursuant to s. 45.2 of the Code, the Tribunal has the power to make an order directing any party to an application to do anything that, in the opinion of the Tribunal, would promote compliance with the Code. Moreover, the Tribunal has the power to make such an order, whether or not requested by any party (s.45.2(2)).

125As a landlord, the respondent is clearly engaged in activities covered by the Code and has an obligation to be aware of and abide by his responsibilities under the Code. In my view, the respondent would benefit from some training on his obligations under the Code. Accordingly, pursuant to the Tribunal’s remedial authority under s. 45.2, I order that, within 30 days of the date of this Decision, the respondent himself and any other individuals who deal with tenants on the respondent’s behalf shall complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” available at: http://www.ohrc.on.ca/en/learning/human-rights-101. In addition, I order the respondent to watch the 20-minute five-part e-learning video on the Ontario Human Rights Commission’s website entitled “Rental Housing and the Code”, which addresses landlords’ rights and responsibilities under the Code. The video is available at: www.ohrc.on.ca/en/learning/human-rights-and-rental-housing.

126However, I am not prepared to order the respondent to retain an expert to draft a rental policy that complies with his obligations under the Code. In my view, the important thing is that the respondent understands and abides by his obligations under the Code. I believe the above-noted training will achieve this, and I do not believe any further purpose would be served by having the respondent have a written policy drafted. It might be appropriate to require a landlord to have a written policy drafted if there were a number of people who interacted with tenants and prospective tenants on its behalf. In a case like this, however, where I have no reason to think that anyone other than the respondent and possibly his wife interact with the respondent’s tenants, I am not persuaded that a written policy is warranted.

Apology

127As noted above, the applicant also seeks an order from the Tribunal requiring the respondent to apologize for discriminating against her.

128The Tribunal has consistently declined to order apologies pursuant to its remedial powers under the Code. In addition to the fact that a forced apology would not be an effective or meaningful remedy, it raises potential freedom of expression concerns: Turnbull v. Famous Players, 2001 CanLII 26228 (ONHRT); Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at para. 110; and Welykyi v. Rouge Valley Co-operative Homes Inc., 2016 HRTO 299.

129Consistent with the Tribunal’s jurisprudence on this point, I am not persuaded that it would be appropriate or effective to order an apology in this case.

ORDER

130In sum, the Tribunal orders the following:

1. Within 30 days of the date of this Decision, the respondent will pay the applicant the sum of $10,000.00 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect as well as infringement of her inherent right to be free from discrimination.

2. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43;

3. Within 30 days of the date of this Decision, the respondent shall:

a. complete the Ontario Human Rights Commission’s free on-line training “Human Rights 101” (available at http://www.ohrc.on.ca/en/learning/human-rights-101) and have anyone else who interacts with tenants or prospective tenants on his behalf also complete such training; and

b. watch the five-part e-learning video on the Ontario Human Rights Commissions’ website, entitled “Rental Housing and the Code” which is available at:

www.ohrc.on.ca/en/learning/human-rights-and-rental-housing.

4. The respondent shall confirm to the applicant’s lawyer within 45 days of this Decision that he has complied with the Tribunal’s Orders regarding training in 3(a) and 3(b) above.