HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cindy Welykyi Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Z.K. by his next friend T.S. Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

William Bowerman Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

T.S. Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Mimi Marilyn Gow Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Betty Jarvis Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Elsie Biloki Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

Debora Crew Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

The Estate of Harold (Mike) Large Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

A N D B E T W E E N:

The Estate of Rae Fuller Applicant

-and-

Rouge Valley Co-operative Homes Inc. / Board of Directors Respondent

RECONSIDERATION DECISION

Adjudicator: Douglas Sanderson

Date: November 28, 2016

File Numbers: 2012-12293-I; 2012-12442-I; 2012-12444-I; 2012-12445-I; 2012-12622-I; 2012-12295-I

Citation: 2016 HRTO 1543

Indexed as: Welykyi v. Rouge Valley Co-operative Homes Inc.

WRITTEN SUBMISSIONS

Cindy Welykyi, T.S., Z.K., Mimi Marilyn Gow, Debora Crew, the Estate of Harold (Mike) Large, William Bowerman, Elsie Biloki, Betty Jarvis, and the Estate of Rae Fuller, Applicant

Karen Sanchez, Counsel

Rouge Valley Co-operative Homes Inc. / Board of Directors, Respondent

Kiel Ardal, Counsel

1The respondent requests Reconsideration of the Tribunal’s Decision of March 4, 2016, 2016 HRTO 299, granting the Applications in part (the “Decision).

2The circumstances in which Reconsideration may be granted are set out in Rule 26.5:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking Reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the Reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed Reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

3The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

4The respondent filed a Request for Reconsideration (the “Request”) on March 11, 2016 and filed submissions adding to the Request on April 4, 2016. The respondent relies on Rules 26.5(c) and 26.5(d).

5The respondent identified four issues that it submitted warrant reconsideration of the Decision as follows:

1. The Decision is in conflict with established jurisprudence because it applied the same legal standard as it applies to large, sophisticated employers;
2. The Decision did not take into account the unique nature of non-profit affordable housing cooperatives in rendering its decision;
3. The Tribunal's legal standard was not properly applied; and,
4. The Orders against the respondent are in conflict with previous rulings of the Tribunal and are of general public importance.

6The Tribunal directed the applicants to file submissions to the Request, which they did on May 17, 2016.

The Decision

7In the Decision, I found that the respondent did not respond adequately to serious and persistent harassment directed at the applicants over a period of several months in 2013. There was no dispute that the respondent’s governing body was an elected Board of Directors. There was no dispute that under the Tribunal's jurisprudence that right to be free from harassment in the occupancy of accommodation imposes an obligation on housing providers, such as the respondent, to address allegations of harassment on Code grounds. At paragraph 165 of the Decision, I noted that the jurisprudence with respect to this obligation was first developed in the employment context. I cited the leading case in this regard, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Marineland”). In Marineland the Tribunal stated that the standard a respondent is expected to meet is one of reasonableness, which is assessed in light of the unique circumstances of each case.

8I set out the criteria described in Marineland for assessing whether a respondent has met this standard. I also noted that the Tribunal has found that similar obligations arising the housing context, pursuant to the decision in Bekele v. Cierpich, 2008 HRTO 7 (“Bekele”), a decision that the applicants relied upon in argument. I also observed that the relative sophistication of the respondent should be considered in the analysis of whether it has acted reasonably, pursuant to the Tribunal's decision in Coates v. Communication, Energy and Paperworkers Union, Local 324, 2009 HRTO 1631 (“Coates”), which is a decision of the respondent relied upon in argument. In its final submissions, the respondent's counsel also made comprehensive and able submissions to the effect that, in the context of a not-for-profit housing cooperative, run by a volunteer Board of Directors, the respondent met the criteria set out in Marineland, above. Accordingly, counsel submitted that the Tribunal should find the respondent to have acted reasonably in the circumstances. In doing so, respondent's counsel emphasized the nature of a housing cooperative, which cannot exercise a degree of control over its members that an employer may exert over its employees. However, I found that in the unique circumstances of these Applications the respondent did not act reasonably in response to the harassment.

Respondent’s Submissions

9The respondent submitted that the Decision greatly expands the application of the Tribunal’s jurisprudence regarding employer's responses to human rights complaints. The respondents submitted that the Tribunal applied this jurisprudence improperly and, in particular, without considering the unique circumstances of non-profit housing cooperatives. The respondent's submissions including a description of the characteristics of housing cooperatives, including that the members elect a Board of Directors. These submissions were large part repetitive of the respondent's submissions on this subject during the hearing. The respondent submitted that the Tribunal misapplied its jurisprudence, set out in the Coates decision, above, that the criteria for evaluating a respondent's response to a human rights complaint must be applied with due consideration for the context of each case, in particular the relative sophistication of the respondent.

10The respondent submitted the unique circumstances of this case required the tribunal to determine whether the standard set in Marineland, above, should be applied to the respondent where the perpetrator of the harassment was never ascertained and given the aforementioned characteristics of non-profit housing cooperatives. The respondent submitted that I should have developed a new standard befitting the particular circumstances of the case, but failed to do so. In particular, the respondent submitted that I incorrectly relied upon the Tribunal's decision in Bekele, above, as a basis for importing the Marineland criteria into the residential context, particularly in circumstances involving a non-profit housing cooperative. The respondent submitted that the circumstances before the Tribunal in the Bekele decision were completely different than in these applications because in Bekele the allegations were leveled at the respondent's representatives and because the organization in Bekele was a for-profit cooperative. The respondents submitted that the fact that the complaint had been made against the housing cooperative's representative was significant because of the element of control a housing cooperative has over its representatives. On the other hand, the respondent had no control over the unknown perpetrator in this case. The respondent submitted that the non-profit nature of the respondent was significant because, unlike for-profit cooperatives, the respondent's members do not have equity interests in the cooperative and cannot sell their interests, unlike members of a for-profit cooperative. The members of non-profit cooperatives are often people identifiable by Code grounds and are offered an opportunity for affordable housing with a degree of control they would not otherwise experience. The respondents submitted that the failure to analyze these two factors and to formulate new standard to address the expectations for any non-profit housing cooperative responding to an unknown harasser warrant Reconsideration. The respondent submitted that this amounted to a legal error.

11The respondent also submitted that the Decision failed to account for the applicants’ roles on the respondent's Board of Directors and also failed to account for the issues relating to the transfer from "Old to New Boards". Regarding the former point, the respondent submitted that the Decision includes no discussion or analysis of the fact that several of the applicants were on the Board of Directors (i.e., "the Old Board") when the first two harassing messages were found in the cooperative. In particular, the respondent submitted that the Decision does not compare and contrast the actions taken by the Old Board and the New Board (which took over on May 23, 2012) and does not hold the Old Board to the same standard of conduct. With respect to the second issue the respondent submitted that, although the Decision refers to the ongoing tension between members of the Old board and the New Board the Decision does not comment on the effect this had on the respondent's (i.e., as led by the New Board) ability to address the harassment. In this regard, the respondent's submission was essentially that the relationship between the Old and New Boards was highly acrimonious. This acrimony exacerbated the transition between the Boards, made communication between them more difficult and in fact prevented them from working together to address the harassment. The respondent submitted that the Decision did not take into account the fact that volunteer Boards of Directors of housing cooperatives must rely on external advice and appears to hold the vice respondent received against it. The respondents submitted that my factual findings were not supported by the evidence, my conclusions about notices the respondent posted in particular.

12The respondent noted that the remedial orders made in the Decision required the respondent to post the Decision on its bulletin board for a period of six months following the decision and also send a notice to each of its members to notify them of the Decision. The order also required that the notice be posted on the respondent’s bulletin board for a period of six months. The Tribunal also ordered the respondent to pay each of the applicant’s $3,000.00 as monetary compensation for the infringement of their right to be free from discrimination and harassment in the occupation of accommodation, including injury to dignity, feelings and self-respect.

13The respondent submitted that the applicants did not request an order requiring the respondent to post the Decision and to notify each of its members and that the Tribunal did not afford the parties an opportunity to make submissions about these remedies. The respondent submitted that, as a result, these orders are contrary to the Tribunal’s jurisprudence of allowing parties to make submissions regarding proposed remedies. The respondent submitted that the issue is of public importance because parties to Tribunal proceeding have an interest in ensuring that remedies shall not be imposed unless the parties have an opportunity to make submissions regarding proposed remedies. The applicant further submitted that these remedies appear to be punitive because it provides no benefit to the co-operative or it members and would have a prejudicial effect on the co-operative if viewed by visitor to the co-operative, including potential members. The respondent submitted that it was unnecessary to post the Decision in light of the requirement to send notices to each member.

14The respondent also submitted that the monetary compensation award in the Decision was contrary to the Tribunal’s jurisprudence and sends a confusing and contradictory message to non-profit housing providers. In that respect, the respondent submitted that in Islam v. Big Inc., 2013 HRTO 2009 (“Islam”), the Tribunal awarded $2,000.00 in circumstances where the respondent made no efforts to address the human rights complaint in question. By contrast, the respondent submitted that it made significant efforts to address the harassment experienced by the applicants, but “could have done a bit better”. The respondent submitted that, as a result, the monetary award sends a confusing and contradictory message to housing providers.

The analysis and decision

Applicable Standard

15As noted above, the standard applied to the respondents was, pursuant to Marineland and Coates, above, whether the respondent addressed the harassment in a reasonable manner, taking into account the particular circumstances of the case, including the relative sophistication of the respondent. At the hearing, the respondent raised no issue with the standard and made no submissions to the effect that a new or different standard was required in respect of non-profit housing cooperatives. Similarly, the respondent raised no concern with the ruling in Bekele to the effect that the obligations identified in Marineland also apply in the housing context. As noted above, the respondent argued that application of the Marineland criteria indicated that it acted appropriately. The only submission the respondent made about Bekele was that it was factually distinguishable from these Applications and that therefore the Tribunal should not follow it in terms of remedy. Consequently, the respondent's arguments regarding the appropriate standard amount to an attempt to reargue the case and to repair a deficiency in the respondent's case, since these were arguments the respondent could have made the hearing but failed to do so. As is clearly stated in the Practice Direction on Reconsideration any of the Tribunal's jurisprudence, Reconsideration is not an appeal or evaluation of alleged errors in the decision. See Latronico v. York Region District School Board, 2012 HRTO 637 (“Latronico”) and 4137566 Canada Ltd. v. Clements, 2011 HRTO 1008 (“4137566 Canada Ltd.”).

16In any event, the respondent's arguments that the standard applied in the decision - reasonableness in the circumstances - was not appropriate were not convincing. In particular, the respondent failed, despite the significant length of the submissions, to indicate why it should not be held to a standard of reasonableness because it is a housing provider, because of its non-profit nature or because it is run by a volunteer a Board of Directors. As the applicant submitted, the respondent did not suggest what standard should be substituted for reasonableness or what criteria should be considered instead of those enunciated in Marineland to evaluate a housing provider’s actions.

17I also cannot agree that the Decision expanded the standard for assessing respondents' reactions to human rights complaints in the residential context or that the Decision imposes an overly onerous burden on hosting providers in general or non-profit housing cooperatives in particular. The criteria set out in Marineland entail an evaluation of such things as a respondent's awareness of human rights issues, the urgency of response, how the complainants were treated, the steps taken to address the complaint and how the issue was resolved. In my view these factors, adjusted as necessary for the particular context, are useful and highly relevant (but not necessarily exhaustive) criteria for assessing whether a respondent has responded reasonably to human rights complaint. The respondent neither explained why these criteria are inappropriate in the housing context nor suggested alternative or additional criteria.

18Having applied the standard of reasonableness as set out in the Tribunal’s case law, I find that there is no proper basis for concluding that the Decision is inconsistent with established jurisprudence.

Characteristics of Housing Cooperative/Application of Legal Standard

19In large measure, the respondent's Reconsideration Request concerns its disagreement with my analysis of evidence and findings of fact. As described above, the respondent set out a number of errors it considers me to have made in the Decision. Again, Reconsideration is not an appeal or evaluation of alleged errors in the decision. See Latronico and 4137566 Canada Ltd., above. Accordingly, the respondent's submissions that the Decision was incorrect in certain respects are not grounds for Reconsideration. In any event, I disagree that I did not take the respondent's circumstances into account. In the Decision I specifically noted that the respondent's Board of Directors, which was responsible for addressing the harassment, were volunteers and were relatively unsophisticated. However, even in this context, I found that the respondent failed to address the harassment experienced by the applicants in a reasonable manner. See paragraph 166 of the Decision. I would also note that the respondent makes much of the democratic nature of housing cooperatives that rely on outside resources for guidance. The fact is, however, that the Board of Directors is the directing mind of a housing co-operative, whether for profit or not, which is a fact that was not disputed in this case and that was in any event established by the evidence. Accordingly, it is the Board of Directors’ responsibility to address human rights complaints and it is the Board’s actions that are subject to scrutiny.

Remedial Order

20Sections 45.2(1) and 45.2(2) provide as follows:

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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

21The order requiring the respondent to post the Decision in the co-operative and to send its members a notice advising them of the Decision was made with a view to promoting compliance with the Code, pursuant to section 45.2(3) of the Code. The respondent is correct that the applicant did not request these remedies and the Tribunal did not seek submissions from the parties regarding them. However, the Tribunal may make orders under 45.2(3) even if no such order was requested, pursuant to section 45.2(2)(b) of the Code. Section 45.2(2)(b) does not require the Tribunal to seek submissions from the parties when considering remedies that it considers will promote compliance with the Code. The respondent submitted that it is contrary to the Tribunal’s jurisprudence to order a remedy against a respondent without affording the respondent an opportunity to respond to the proposed remedy. The respondent did not, however, cite any decision of the Tribunal in which it made such a pronouncement. In fact, I note that the Tribunal has granted a remedy to promote compliance with the Code without seeking submissions from the parties on several occasions. See Frolov v. Mosregion Investment Corporation, 2010 HRTO 1789; Tombs v. 1303939 Ontario Ltd. (Holiday Inn Express), 2015 HRTO 842; McCarthy v. Caesar’s Plumbing and Heating, 2014 HRTO 1795 and Smith v. Network Technical Services Inc., 2013 HRTO 1880. Consequently, the respondent has not in my view established the criteria under Rule 26.5(c).

22Having reviewed the respondent’s submissions through the Reconsideration process, I do not agree that these orders were punitive. However, I agree with that the requirement to post the Decision in the co-operative was redundant and therefore unnecessary. The purpose of the order requiring the respondent to post the Decision and send notices to its members was to ensure they were aware of the Decision to promote future compliance. Sending notices to the membership would have accomplished this goal and members wishing to read the Decision could have accessed it on the Internet or other means. The order requiring the respondent to post the Decision should be removed.

23The respondent’s submissions regarding the monetary award in the Decision are in my view another attempt to reargue the case. The Tribunal’s jurisprudence indicates that for Rule 26.5(c) to apply there must be a conflict with “established” jurisprudence or procedure in the sense that there is a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules. See Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34. The respondent did not indicate how the monetary award amounted to a clear and surprising departure from a settled understanding of the legal rules that apply. Rather, the respondent argued that the amount awarded in these Applications ($3,000.00) was too high in light of the decision in Islam, in which, as noted above, the Tribunal ordered a lesser amount. The remedies awarded in Islam were based on the Tribunal’s findings in that case and do not establish a legal rule. The Tribunal applied the same well established legal principles for fashioning remedies in Islam and the Decision and, as a result, the Decision is not inconsistent will the Tribunal’s jurisprudence.

24In any event, the issue of monetary compensation was vigorously argued by the parties and Islam was one of the cases upon which the applicant relied. My reasons for making a higher damage award than in Islam are set out at paragraph 197 of the award and squarely address the issue the respondent raises in its Reconsideration Request. As noted at paragraph 197, I found that the respondent’s failure to address the harassment in these Applications was more serious than the respondents’ failure in Islam. The respondent’s submissions on this point indicate, not surprisingly, that it disagrees with my conclusion, but this is not a proper basis for Reconsideration. I would also point out that this was not a case where the respondent “could have done a bit better”. To the contrary, the evidence established significant deficiencies in the respondent’s response to the harassment at the co-operative, not least of which were failing to take the matter seriously, a lack of urgency and failure to communicate with the victims.

Order

25In my view, the respondent provided no reason to conclude that compelling and extraordinary circumstances exist that would call for Reconsideration of the Decision to dismiss the Application. The Request for Reconsideration is dismissed, with the exception of my finding at paragraph 22, and as ordered below.

26Paragraph 202(3) shall be removed from the Decision.