Polozova v. Vaughan (City), 2016 HRTO 130

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valentina Polozova Applicant

-and-

The Corporation of the City of Vaughan Respondent

DECISION

Adjudicator: Alison Renton

Date: January 28, 2016

Citation: 2016 HRTO 130

Indexed as: Polozova v. Vaughan (City)

APPEARANCES

Valentina Polozova, Applicant Sunday Adeyemi, Counsel

The Corporation of the City of Vaughan, Respondent Nancy Salerno, Counsel

1This Application was filed on March 13, 2015 and alleges discrimination with respect to services because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant self-identifies as a “senior citizen” and provided her birth date.

2The respondent filed a Response denying the allegations against it.

3By Case Assessment Direction dated October 9, 2015 (“the CAD”), the Tribunal determined that a Summary Hearing by conference call would be scheduled to determine whether or not the Application should be dismissed in whole or in part as having no reasonable prospect of success and whether some of the allegations, those more than a year before the Application was filed, are untimely.

4The applicant filed materials, including narrative and photographs, in advance of the summary hearing. Upon review, some of them appear to be in response to the respondent’s Response. The respondent did not file any materials.

5The Summary Hearing took place on January 19, 2016. Both parties participated and made submissions. The pleadings, the applicant’s materials filed in advance of the hearing, the case law referred to during the Summary Hearing, and the parties’ submissions have all been carefully considered.

6For the reasons set out, the Application is dismissed.

The Applicant’s Submissions

7The applicant submits that from 2011 until 2015, officials from the respondent, and one by-law officer in particular (“officials”), harassed, discriminated, and intimidated her on the basis of her age in relation to her house and property. She alleges that officials issued her approximately 20 by-law contravention orders and letters, with threats of fines, for having too many tenants, required her to clean up and remove debris and materials on her property, and required her to make various repairs. Further, she alleges that the officials attended her house in a marked vehicle numerous times, including times she was not home, and failed to respond to her written concerns about this conduct. The conduct of the respondent’s officials affected her so much that it delayed her recovery from surgery that she had in 2013, and, in August 2014, upset by the respondent’s continual conduct, she sold her house, at a reduced price, and moved.

8The applicant submits that she complied with the respondent’s by-laws, the Building Code, and the Fire Code, and received permits for house renovations, but despite this, she continued to receive orders about by-law contraventions from the respondent’s officials. She asserts that she was singled out and punished because of her age and because she was weak and vulnerable and disagreed with her neighbours and officials about repairs that should or should not have been made on her property. She alleges that she was treated differently from her neighbours, who were young and strong and have the time and energy to “confront their excesses”. The neighbours, the applicant alleges, were not treated like she was and had their permits approved, despite them having an excessive number of tenants, an untidy property and violating other by-laws. She told the by-law officer about her neighbours’ infractions, but the by-law officer ignored her and filed false records. She interpreted the lack of response from the by-law officer and other officials as meaning “who are you for me, old woman”, “stop to bother me, old woman”, and “who are you, old woman”.

9The applicant submits that she ought to be given the opportunity to come before the Tribunal and present evidence to demonstrate the discriminatory treatment to which she was subjected by the respondent. In addition to the documentation that she filed, she stated that she would call some of her former tenants as witnesses, who would testify about the discriminatory treatment to which she was subjected when the officials attended her premise.

10During the summary hearing, the applicant was reluctant to identify the names of her potential witnesses, and took the position that such information was not required to be disclosed until later during the Tribunal’s process and closer to the hearing date. When asked by the Tribunal to describe what the potential witness(es) would testify about in relation to the allegations of harassment and discrimination, the applicant submitted that potential witnesses were not lawyers and may not know what was harassment or discrimination. The potential witnesses would testify about what they witnessed during the period when the respondent’s officials came to the applicant’s house and how they treated the applicant. More specific details were not provided as the applicant submitted that she did not want to pre-empt what a witness would come and tell the Tribunal.

11As for the timeliness of the allegations, the applicant submits that all of her allegations are timely. They are all part of a “series of incidents” within the meaning of section 34(1)(b) of the Code, starting in 2011 and continuing to January 6, 2015. Despite given the opportunity to do so by the Tribunal, the applicant declined to make submissions on how the allegations were timely if the Tribunal were not to find that all of the allegations were a “series of incidents” within the meaning of section 34(1)(b) of the Code.

12After the respondent’s submissions were made, during which the respondent stated that the last incident of alleged discrimination was in 2013 and that the subsequent allegations were inquiries, such that the Application was untimely, the Tribunal again asked the applicant to address, in the alternative, the respondent’s position and whether there was any good faith in the delay in filing her Application as asserted by the respondent. The applicant again declined to make submissions about these sections, stating that the allegations were all part of a “series of incidents” within the meaning of section 34(1)(b) of the Code and that the Tribunal would need to hear evidence about this.

The Respondent’s Submissions

13The respondent submits that even accepting all the applicant’s allegations as true, there is no prospect that the Application will be successful as the applicant has not established a link between the events and the Code ground of age. She has not identified how she was treated differently from anyone else on the basis of age.

14The allegations are also, the respondent submits, untimely and outside of the mandatory one year limitation period set out in section 34(1) of the Code. It asserts that the last incident of alleged discrimination occurred in 2013, with the applicant attempting to make inquiries to the respondent subsequent to that. Those inquiries do not extend the limitation period under section 34(1) and the applicant has not provided any good faith to explain the delay. The respondent submitted that it is prejudiced by the delay as there has been a significant turnover in staff from 2013.

15The respondent requests that the Application be dismissed.

law and Analysis

Timeliness

16Subsections 34(1) and (2) of the Code provide:

(1)If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) Within a year after the incident to which the application related; or

(b) If there was a series of incidents, within one year after the last incident in the series.

(2)A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

17Section 34(1) is a limitation period established under the Code. The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

18Upon review of the Application, the materials filed by the applicant in advance of the conference call hearing, and the submissions made by the parties, I find that the Application is untimely and it is dismissed on that basis.

19The Tribunal, in Garrie v. Janus Joan Inc., 2012 HRTO 1955, set out a number of factors that are relevant to its determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”. At para. 30, those factors are identified as:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

20The Divisional Court decision in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), adopted the principle, set out in para. 19 of Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, that:

To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

21The applicant has a number of allegations ranging from 2011 to 2015. However, the question is whether they are separate acts of discrimination to bring them within the definition of “series of incidents” meaning of section 34(1)(b) of the Code. In my view, they do not.

22The applicant’s allegations of harassment and discrimination focus on the conduct of by-law officers, one in particular. From the materials produced by the applicant, and a review of the Application, the last order issued by the by-law officer is dated November 7, 2012. The date of the by-law officer’s last visit to the applicant’s residence is April 2013. Accepting, without finding, that the applicant’s allegations that the by-law officer’s orders and visits constitute a violation of the Code, the last date of the by-law officer’s involvement with the applicant is April 2013. I find that April 2013 is the last incident of alleged discrimination. Since the last incident was in April 2013 and she filed her Application in March 2015, almost two years later, the Application is untimely.

23The allegations that are subsequent to April 2013 pertain to the applicant raising concerns about her neighbours and the by-law officer. This includes: filing complaints with the respondent’s manager, by-law and compliance, and in that department, in December 2013 and August 8, 2014; commencing a small claims court action against the neighbours, which was dismissed by a small claims court judge in November 2014 as having no cause of action; and filing a complaint with the respondent’s mayor in December 2014.

24From the materials filed by the applicant, in May 2014 and January 2015, the respondent’s managing supervisor, Bylaw and Compliance responded to her complaints, although the Tribunal acknowledges that the applicant takes issue with these responses.

25The allegations after April 2013 are a different nature from the allegations about the by-law officer, the orders she issued and her visits to the applicant’s residence. They are allegations about filing complaints, as well as allegations about her neighbours, which are essentially pursuing rights in other forum.

26The Tribunal has held that efforts to pursue one’s rights without filing an Application have not, without more, justified a waiver of the one-year limitation period under section 34(2) of the Code. See Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Miller, above, and Gagne v. Maximum Mining Inc., 2010 HRTO 689 at para. 12. The complaints the applicant raised with the respondent in December 2013, August 2014 and December 2014 do not justify a waiver of the one-year limitation period under section 34(2) of the Code.

27As mentioned above, the applicant declined to make any submissions about what good faith, if any, she had if the Tribunal found that her allegations were not a “series of incidents” within the meaning of the Code. Accordingly, I do not find that there was any good faith for the applicant’s delay in filing her Application and her Application is dismissed because it is untimely.

No Reasonable Prospect of Success

28Although I have found that the Application is dismissed because it is untimely, I also dismiss it as having no reasonable prospect of success.

29Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.

30The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994. At paras. 8 to 10, the Tribunal stated:

In some cases, the issue at the summary hearing may be whether assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

31From reviewing the materials filed by the applicant, and after hearing the parties’ submissions, I accept for the purposes of the summary hearing that the applicant takes issue with the reasons why the by-law officer issued the applicant by-law orders and attended her premises. However, the applicant has failed to establish a connection between the by-law officer’s conduct and the applicant’s age.

32Furthermore, for her post April 2013 allegations, she has failed to establish a connection between those allegations and her age. While she asserts that the respondent failed to address her complaints, she included in her material copies of correspondence that the respondent sent to her following her complaints.

33I accept that there are many situations where there is no direct evidence of discrimination, and that discrimination is often proven by circumstantial evidence and inference. See Shaw v. Phipps, 2012 ONCA 155 at para. 34. However, the applicant has not been able to point to any evidence, direct or circumstantial, to support her allegations of discrimination, and instead her allegations are bald assertions of discrimination. She interprets the conduct of the by-law officer and the manager as being related to her age when she writes that she believed they were saying (as opposed to actually saying) “who are you for me, old woman”, “stop to bother me, old woman”, and “who are you, old woman”. The Tribunal has held in many decisions that bald assertions, genuinely believed by an application, without something more, are not sufficient to allow an application to proceed beyond the summary hearing stage. See, for example, Villella v. Brampton (City), 2011 HRTO 1085 at para. 8; Fairchild v. Newton-Trelawny Property Management Services, 2014 HRTO 1753 at para. 15.

34The applicant submitted during the summary hearing that she would call a witness or witnesses, at least one who was a former tenant, to testify about the treatment to which she was subjected by the respondent. Despite the Tribunal probing the applicant several times about what the proposed witness(es) would say, the applicant was very vague about the content of such proposed evidence, taking the position that the Tribunal’s Rules do not require identification of a witness, and their evidence, until prior to the start of a hearing and that she did not want to pre-empt what the potential witness would testify about.

35Rule 17 of the Tribunal’s Rules does not require identification of a witness until specified dates prior to the first scheduled date of hearing, unless otherwise directed by the Tribunal. Despite this, it is clear from the CAD that the applicant was required, during the summary hearing, to point to some evidence, or factual basis, to establish a link between her allegations and the Code ground(s) alleged to have been violated. The fact that the applicant has said that there is an individual who witnessed the respondent’s conduct towards her is not sufficient and provides no factual details between her allegations of discrimination and the Code ground of age.

36For these reasons, the Application is also dismissed as having no reasonable prospect of success.