Bellon v. Donauschwaben Park Waldheim Incorporated, 2016 HRTO 1072

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marga Bellon

Applicant

-and-

Donauschwaben Park Waldheim Incorporated

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: August 11, 2016
Citation: 2016 HRTO 1072
Indexed as: Bellon v. Donauschwaben Park Waldheim Incorporated

APPEARANCES

Marga Bellon, Applicant Michael Bellon, Representative

Donauschwaben Park Waldheim Incorporated, Respondent Walt Lackner, Representative

Introduction

1The 81 year old applicant filed an Application on October 19, 2015 alleging reprisal and discrimination in housing on the basis of age contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed or that the allegations are untimely.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence in her possession or that may be reasonably available to her beyond her own suspicions that the respondent discriminated against her on the basis of age, or that it reprised against her.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10This Application arises out of a property dispute. The applicant alleges discrimination on the basis of her age and reprisal under the Code. She is 81 years old.

11In 1966, the respondent bought a former farm and divided it into lots for members. The applicant’s husband was one of those members. Members could construct a cottage on the lot allocated to them, although the applicant’s husband did not do so. The applicant’s husband did use the lot and the common facilities.

12Sometime after the applicant’s husband’s death in 2003, because of litigation by some members requesting deeds to the lands be allocated to them, the respondent decided to form a condominium corporation and sell the allocated lots to the individual members. On September 20, 2011, a plan of subdivision was registered on the land. The applicant’s lot was designated as open space, meaning a cottage could not be constructed on it. The applicant’s son requested the designation be changed. He was informed it would cost $80,000 to $100,000 for construction of a culvert.

13The applicant’s son then requested that the respondent buy the applicant’s lot for fair market value. The respondent took the position it would transfer ownership of the lot to the applicant when she paid any arrears of maintenance fees. Ultimately the applicant’s membership was terminated. The applicant admits she did not pay her maintenance and trust fund fees to the respondent because she wanted to get the respondent’s attention so she could get requested information from it.

14The applicant alleges that instead of supporting her, the respondent instead sent her collection letters, thereby failing to live up to its mandate.

Court Action

15In December, 2013 the applicant started a court action against the respondent requesting damages. This action was settled by Minutes of Settlement and a Release, signed by the applicant on June 14, 2015. The applicant alleges she signed the Minutes of Settlement and Release under duress because she could not afford to continue the action. The applicant alleges the respondent created a hostile environment for her by talking about the number of hours and amount of money the court action would consume. When asked how this was connected to the applicant’s age, the applicant stated that old people cannot endure this and that they always are exposed to abuse.

16The applicant commenced this Application on October 19, 2015 alleging that since her husband’s death in 2003 the respondent treated her with abuse, negligence and injustice, ultimately culminating in the respondent terminating her membership, and did this to her because of her age.

17The applicant alleges she did not have the energy or stamina to deal with this issue with the respondent, and normally her husband would handle such things. She alleges she had no way of getting information at her age. In addition, she alleges she guesses the respondent thought it could push the applicant around and get rid of her because of her age. She alleges most elderly people are treated that way, and this is a classic case. In her view, the Board took advantage of her because she either would die soon or lose her mind.

18The respondent made few submissions. The respondent’s representative submitted it did not understand the allegations of age discrimination. He submitted that in order to remain a member, the member must pay dues, which the applicant failed to do. Collection notices were sent, and ultimately the applicant’s membership was terminated.

19The respondent also pointed out that it had the applicant sign the release and Minutes of Settlement because it thought it would bring the claim to a close.

Reprisal

20With respect to the applicant’s claim of reprisal, she was unable to explain what Code ground the applicant asserted that gave rise to the alleged reprisal by the respondent, although she submitted her age had a lot to do with the reprisal.

21The respondent’s representative submitted that the applicant made no submissions that would support a claim that the respondent intentionally targeted the applicant.

Findings

22Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code.

23As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence in her possession or that may be reasonably available to her, beyond his or her own suspicions that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

24The applicant pointed to no evidence beyond her suspicion that the respondent took the alleged actions, including how they handled the court action, because of the applicant’s age.

25With respect to the termination of the applicant’s membership, the undisputed evidence is that the applicant intentionally did not pay her fees in order to get the respondent’s attention, and the respondent terminated her membership because of the non-payment. This has no connection to the Code and the allegation of discrimination on the basis of age has no reasonable prospect of success.

26With respect to how the respondent handled the court action, the applicant was unable to point to any evidence that the court action was handled in the manner it was because of the applicant’s age. Even if true, the fact that the applicant signed the Minutes of Settlement and release because she could not afford to continue the court action, there is no connection to a Code ground and this allegation has no reasonable prospect of success.

27The applicant also was unable to point to any evidence in her possession or that may be reasonably available to her that the other issues of land ownership, a disputed designation of the applicant’s lot as open space and the respondent’s apparent refusal to buy the lot from the applicant have any connection to the Code and they also have no reasonable prospect of success.

28With respect to reprisal, the applicant failed to satisfy the first requirement to prove reprisal, as she was unable to explain how or when she asserted a right under the Code which resulted in the alleged reprisal. As such, the applicant’s reprisal claim has no reasonable prospect of success.

29Because of my decision that this Application has no reasonable prospect of success, I need not determine the timeliness issue despite the parties having made submissions.

Order

30For the above reasons, the Application is dismissed.