Williams v. Queen’s Community Housing, 2016 HRTO 1529

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Williams

Applicant

-and-

Queen’s Community Housing

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: November 29, 2016

Citation: 2016 HRTO 1529

Indexed as: Williams v. Queen’s Community Housing

APPEARANCES

Jennifer Williams, Applicant

Mike Adamek, Representative

Queen’s Community Housing, Respondent

Lisa Newton, Counsel

Introduction

1This Application, filed on May 1, 2015, alleges discrimination with respect to housing because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent, an organization that manages student rental properties owned by Queen’s University, denies that it has discriminated contrary to the Code.

3The Tribunal issued a Case Assessment Direction (CAD) in which it directed that a half day conference call hearing be convened to address whether the Application should be dismissed as having no reasonable prospect of success, and also to determine whether the Application is outside of the Tribunal’s jurisdiction due to delay.

4For the reasons below, the Application is dismissed as having no reasonable prospect of success.

Background

5The applicant states she is a student at Queen’s University and lived in premises managed by the respondent commencing May 1, 2013. She states that from that time to April 30, 2014, the monthly rent for her unit was $1,111.00.

6She states that on November 1, 2013, the respondent sent her a letter advising her that her monthly rent would be increased by 2%. It also stated that “if fewer than 50% of the original household wishes to remain in the unit, the rent applicable for May 1, 2014 will be reviewed and may be adjusted.” It went on to state that “the applicable rent increase for new lease periods, however, will be determined by the percentage of original household members”.

7The applicant completed a new application for housing for May 1, 2014 to April 30, 2015, but her roommate decided to terminate her residency on May 1, 2014.

8The respondent sent the applicant a lease agreement on December 6, 2013, which included a rental increase of 20% per month from May 1, 2014 to April 30, 2015.

9The applicant sent an email to the respondent on December 6, 2013, protesting the rental increase and questioning the rationale for the increase. The respondent responded on December 9, 2013, stating that as the applicant’s roommate had decided not to renew her lease, the new rent was the “correct market rent” for this unit.

10The applicant was advised in an email on December 11, 2013, that she had to sign the new lease at no later than 4 pm that day. She signed the lease at the higher rental rate.

11The applicant submits that the rental increase imposed by the respondent was in excess of Ontario’s annual Rent Increase Guideline based on the Ontario Consumer Price Index. She submits that as a result of the respondent’s policy, she has fewer rights than other non-student tenants, namely accepting a rental increase higher than the Ontario Rent Increase Guideline or be evicted from her home by mandatory termination. In written submissions, she submits that section 7(5) of the Residential Tenancies Act, 2006 (“RTA”) results in “adverse effects against students aged 25 and younger”, and that “student status constitutes a proxy for the protected ground of age”.

12Initially, in addition to financial compensation, the applicant sought a declaration that s. 7(1)5 of the RTA is inoperative on the basis that it has the effect of discriminating on the basis of age, as it allows universities to increase rent to student tenants beyond the “Act’s guideline values”. The applicant argued that student status should be understood as a proxy for age under the Code and that s. 7(1)5 should be found to conflict with the Code. She ultimately withdrew that request.

13The RTA states:

7(1) Paragraphs 6, 7 and 8 of subsection 30 (1), sections 51, 52, 54, 55, 56 and 95 to 99, subsection 100 (2) and sections 101, 102, 104, 111 to 115, 117, 120, 121, 122, 126 to 133, 140, 143, 149, 150, 151, 159, 165 and 167 do not apply with respect to a rental unit described below:

5. A rental unit provided by an educational institution to a student or member of its staff and that is not exempt from this Act under clause 5 (g).

14Section 120 of the RTA provides as follows:

Guideline increase

120(1) No landlord may increase the rent charged to a tenant, or to an assignee under section 95, during the term of their tenancy by more than the guideline, except in accordance with section 126 or 127 or an agreement under section 121 or 123.

Guideline

(2) The Minister shall determine the guideline in effect for each calendar year as follows:

1. Subject to the limitation set out in paragraph 2, the guideline for a calendar year is the percentage change from year to year in the Consumer Price Index for Ontario for prices of goods and services as reported monthly by Statistics Canada, averaged over the 12-month period that ends at the end of May of the previous calendar year, rounded to the first decimal point.

2. The guideline for a calendar year shall be not more than 2.5 per cent.

15The applicant states that she can adduce evidence establishing that 82% of students at Queen’s University are between the ages of 18 and 25, and that therefore the RTA provisions exempting certain kinds of student accommodation from statutory rent increase limitations, indirectly affects students. She submits that in this context, therefore, student status is a proxy for age. She cites the Ontario Human Rights Commission publication “Room for everyone: Human rights and rental housing licensing” which states that:

Student status could be a proxy for age, because the two characteristics appear to be inextricably bound up together. In general, while students may range in age, an overwhelming majority of students are young people.

She also cites Addai v. Toronto (City), 2012 HRTO 2252 (“Addai”), with respect to the issue of “proxy”.

16At the time the rent increase took effect, the applicant was 19 years old. She submits that she is a “member of a group identified by a prohibited ground”.

17With respect to delay, the applicant submits that there was no delay, as the last incident was May 1, 2014, the date when the rent increase took effect. The applicant submits that the discriminatory event occurred when the rent increase took place, as the notice of rent increase was a statement of the respondent’s intent, but that the discrimination was not actually experienced until the rent increase took effect.

18By way of alternative, the applicant submits that the date when the rent increase took place was one of a series of incidents which commenced with notice of the rent increase. She submits there is a connection between the two events such that they are not events relating to discrete and separate issues. Rather, she submits, they are incidents in a series.

19By way of further alternative, the applicant submits that if there was a delay, it was incurred in good faith, as it was incurred honestly and she had no ulterior motive. She also submitted that the respondent would suffer no prejudice if the matter is permitted to proceed.

20The respondent submits that in the applicant’s status as a student is not a proxy for age in this case. The respondent submits that, at best ,the evidence the applicant would provide suggests a correlation between being younger than 25 years old and being a student, but the respondent submits that in Addai, the Tribunal found that a numerical link between a group and the protected grounds is insufficient to establish proxy.

21The respondent submits that in any event, its actions were permissible by law under the RTA, and surely it ought not to be found to be discriminating against anyone unless the law which permits its actions is found to be discriminatory. Accordingly, it submits that it is wrongly named as respondent in this Application and that the true respondent is the Attorney General of Ontario. The respondent further submits therefore that the applicant has no reasonable prospect of success in having the RTA declared inoperative as against it.

22With respect to timeliness, the respondent submits that the applicant’s complaint is about one single event, the respondent’s December 6, 2014 communication to her that it had decided to increase her rent. It submits that after that communication, other than responding to her queries, the respondent took no further action and no other incident occurred. Accordingly, it submits that there is no series of events. It submits that everything after December 6, 2014 was nothing more than the continuing effect of its December 6, 2014 decision. At the latest, the respondent submits that the latest relevant date to the alleged discrimination took place on December 11, 2014, when it emailed her, rejecting the lease she had originally signed as she had made comments on it, requiring her to provide a new signed lease.

Decision and Analysis

23With respect to the issue of timeliness, section 34of the Code reads as follows:

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

(a) within one year after the incident to which the application relates; or

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

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

24I find that the Application was filed in a timely manner. I find that the date the rental increase took effect, and was therefore payable by the applicant, was the last incident of alleged discrimination. The rental increase took effect May 1, 2014 and the Application was filed one year after that date, making it timely pursuant to section 34 of the Code. In any event, I also find that the May 1, 2014 increase of rent was the final event in a series of incidents, commencing with notification by the respondent of the rent increase, continuing with the requirement to sign an agreement which reflected the upcoming rental increase, and culminating in the rent increase becoming payable. The incidents are all related to the same matter: the increase of the rent in accordance with provisions of the RTA, and there is no significant temporal gap between the incidents. They relate to the same issue and are properly a series of incidents.

25However, the Application is dismissed on the basis that it has no reasonable prospect of success.

26Though the applicant states that s.7(1)5 of the RTA should be found in conflict with the Code, she does not seek a declaration that the section is inoperative on the basis of discrimination. She appears to seek a declaration that the respondent has violated the Code by taking action under legislation which she does not challenge. She has not pointed to any evidence she would rely upon to establish that the respondent took action under the legislation in a discriminatory manner.

27She appears to take issue with the legislation itself, rather than the respondent’s actions under the legislation. If in fact the real dispute the applicant seeks to have determined is the validity of section 7(1)5 of the RTA, and she does in fact seek to have it declared discriminatory, the respondent Queen’s Community Housing is not responsible for the legislation and no liability rests with it for the legislation. The applicant has no reasonable prospect of success of having the respondent found liable for the legislation.

28For the reasons above, the Application is dismissed as having no reasonable prospect of success.