Mathurin v. Amaz Property Management Inc., 2016 HRTO 1550

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Myrlande Mathurin

Applicant

-and-

Amaz Property Management Inc.

Respondent

DECISION

Adjudicator: Mary Truemner Date: December 2, 2016 Citation: 2016 HRTO 1550 Indexed as: Mathurin v. Amaz Property Management Inc.

APPEARANCES

Myrlande Mathurin, Applicant Self-represented

Amaz Property Management Inc., Respondent David Rubin, Paralegal

Introduction

1This Application originally alleged discrimination and reprisal with respect to housing, goods, services and facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application listed the following grounds of discrimination: race, colour, ancestry, place of origin, disability, gender identity, marital status, receipt of public assistance. In response to the question of “what happened” on the Application Form, the applicant wrote, “Breaking and entering – personal injuries due to questionable activities of illegal drugs [sic] labs all around my apt. below, besides [sic], above.”

2The applicant’s narrative written on the Application Form in various places made it clear that the applicant believed that the staff members of her landlord’s property management company were not treating her respectfully or fairly, but the narrative was very difficult to understand. The applicant subsequently filed over 100 pages of densely hand-written submissions to clarify her allegations, but they also were extremely difficult to understand. Her allegations did not appear to be related to the grounds she listed.

3By Case Assessment Direction (“CAD”) dated February 18, 2016, 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 because it appeared to the Tribunal that the applicant may be unable to prove a link between the alleged grounds and the respondent’s alleged treatment of her.

4The CAD also directed that the summary hearing address whether the applicant should be declared a vexatious litigant because, at the time of the CAD, she had filed ten other applications with the Tribunal, eight of which were dismissed. Many of these applications were dismissed as abandoned because the applicant failed to appear at summary hearings. Two of the ten applications were outstanding at the time of the CAD. The Vice-chair who issued the CAD wrote:

In considering this information, I find it appropriate to seek submissions on whether the applicant should be declared a vexatious litigant and barred from filing further applications without leave of the Tribunal in accordance with the principles set out in Drenic v. Salvation Army, 2010 HRTO 1667, and Abdul v. University of Toronto, 2011 HRTO 2299. These factors include the frequency or number of applications filed without apparent merit, and whether the applicant failed to substantiate the allegations set out in the applications. The purpose of finding an applicant to be vexatious is to protect respondents from vexatious conduct and to ensure that the Tribunal’s resources are not wasted and its process not abused.

5As explained more fully below, I find that this 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 during the summary hearing to be true, the applicant has not been able to point to any evidence beyond her own suspicions that the respondent violated the Code. I also find below that there are not sufficient reasons to declare the applicant a vexatious litigant.

Summary Hearing Process

6The 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.

7The 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.

8The 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, nor is it assessing the impact of the treatment the applicant 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.

9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were 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 their belief that they 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.

10As 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.

11Having 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.

The various allegations and corresponding findings

12At the summary hearing, I asked the applicant to clarify what she alleges happened to justify her citing of the various grounds indicated on the Application Form.

Allegations re: Sex, Marital Status, Race, Colour, Ancestry and Place of Origin

13The applicant explained at the summary hearing that she lived in a building that is mostly inhabited by Southeast Asian tenants so that there is a cultural way of “doing things” in the building that is not the applicant’s way, and the property management team therefore treats her badly. She self-identified as a Black, single woman. She explained that when she indicated “gender identification” on the Application Form, she meant “gender” along with her marital status because she believes that she is being treated badly because she is a woman without a husband. The applicant was permitted to amend her allegation from discrimination because of gender identification to discrimination because of sex.

14The applicant explained that the property management staff continually came in and out of her unit without her permission. During these times of intrusion, the management staff went through her belongings, fridge and freezer, although she never actually saw them doing this or intruding. Still, she “felt” that they entered and went through her belongings because she is a Black, single woman. She said that if she were married, it would be different. She also said that when she met them other times, “I never feel like they are racist when they talk to me, but when I look at the big picture [maybe they are].”

15The applicant explained that she felt that the main problem with the property management staff was that they were stalking her, or spying on her. She would notice that they must have been in her unit, looking through her things, because she noticed her belongings moved, or that there were little silver balls on the floor. She is confused about how they entered her apartment because she said she has changed her lock several times, and she did not give them any key.

16The applicant explained that if her allegations were to proceed to a full hearing, then her evidence would be that in Southeast Asian culture, women are perceived as weak compared to men, and, while she is not weak, the management staff might assume that she is. Therefore, she argued, the respondent must be discriminating against her because of her marital status, sex, race, colour, ancestry and place of origin.

Findings re: Sex, Marital Status, Race, Colour, Ancestry and Place of Origin

17For the purpose of argument, even if I accept the alleged facts put forward by the applicant as true and provable, that the respondent’s employees were stalking the applicant and entering her apartment without keys, I must find that the allegations of discrimination because of sex, marital status, race, colour, ancestry and/or place of origin have no reasonable prospect of success under the Code. The applicant has pointed to no evidence to prove that one of the reasons for the alleged conduct was because of her sex, marital status, race, colour, ancestry and/or place of origin. She simply believes that this is that case.

18The Tribunal has noted on many occasions that more than mere assertion of discrimination is required – there must be some evidence to which the applicant can point that would link the alleged actions of the respondent to the grounds alleged. 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.

19Having reviewed the applicant’s submissions, I find that there is nothing beyond the applicant’s belief to link the alleged actions of the respondent’s staff to the grounds of sex, marital status, race, colour, ancestry and/or place of origin. Therefore, I dismiss the allegations with respect to those grounds.

Allegations and Findings re: Disability and Receipt of Public Assistance

20At the summary hearing, the applicant described how the Ontario Disability Support Program (“ODSP”) paid her rent directly to the landlord, but the landlord claimed that the rent was not paid on at least one occasion, and the respondent’s staff went to her friend about the rent instead of to her. She was insulted, she said, because “they might have thought” that she was using the rent money for drugs instead of rent because she receives ODSP benefits. As this is merely the applicant’s suspicion, I find that the applicant has no evidence to prove any assumption that she is perceived as a drug user, and no evidence to link the respondent’s contact with her friend to disability and the receipt of public assistance.

21On the Application Form, the applicant indicated that her disability is “ADHD/ADD” and she therefore does not want to be subject to harassment, but she is being psychologically abused. She indicated on the Application Form that she went to the superintendent, who suggested that she seek medical help and that she contact the police about her problems.

22At the summary hearing, the applicant explained that when someone is in receipt of public assistance because they are receiving ODSP benefits, then there is a tendency for people in general to think the disability is a mental disability, not a physical disability, and that the recipient of the benefits is mentally dysfunctional and not to be taken seriously. This perception, the applicant explained, is why the superintendent has told her that she is imagining the spying and illegal entries into her unit that he denies the respondent’s staff did and that he knows nothing about. This perception, she further explained, is why he told her to complain to the police. The superintendent’s alleged perception of the applicant as someone with a mental disability is why he did not take seriously her complaints of high voltage levels of electricity in her apartment causing burns from hot water, particularly boiled water from her kettle, but instead told her to seek medical attention. She said he thinks she’s crazy.

23The applicant believes that the building superintendent had concerns about her mental health because she is in receipt of ODSP benefits. However, her frequent sightings of shuffled belongings and silver balls on the floor were her only basis for her claim that intruders who she never saw were continually entering her unit through her locked door, tampering with her computer and her voltage, and/or installing unidentified and unseen devices in her unit. In that context, and in the context where the superintendent said that the respondent did not know of people entering her apartment, it would not be reasonable for the superintendent to do more than refer the applicant to the police and to medical professionals. It is unreasonable to expect the superintendent to investigate the applicant’s claim of extra electrical voltage in her apartment when the applicant herself points to water that has boiled from her kettle as the cause of burns. I find that the superintendent’s inaction and his referrals were reasonable in the circumstances. I find that they do not constitute harassment or discrimination. Also, even if one of the reasons for his disbelief of the applicant’s reports of intruders and extra voltage was because he believed the applicant had a mental disability, in the circumstances where there was nothing he could do, and where the applicant was not actually asking him to change a lock or make a particular repair, I do not see that there is any adverse treatment by the respondent.

24In conclusion, given the context in which the applicant described them being made, I find that allegations concerning the inaction of the superintendent and his alleged comments have no reasonable prospect of being characterized as harassment or discrimination, and the allegations of adverse treatment because of disability and receipt of public assistance are dismissed. In dismissing the allegations concerning disability, the Tribunal is making no finding as to whether the applicant has a disability. However, and again without making any findings in this case, it is important to note that, as a general matter, tenants with mental disabilities have the same rights to report disrepair or relevant problems to their landlord as any other tenants, and the same rights to have such complaints addressed by their landlord. Thus a failure to investigate a tenant complaint, if that failure was because of a real or perceived mental disability, could, in other circumstances, given rise to a breach of the Code.

Allegation and Finding re: Reprisal

25The applicant explained at the summary hearing that she is alleging reprisal because when she asked the respondent for something in writing to show the ODSP office that her rent was overdue, the respondent’s staff provided her with an eviction notice, “Notice to Terminate”, saying, “This is the way we do it.”

26This allegation seemed to me at the summary hearing to be related to the incident described above, where the respondent asked the applicant’s friend about her rent. However, the applicant explained that she believes that the reason she was given an eviction notice was not because the landlord had not received the rent. She claimed that the landlord was pretending that they did not receive the rent so that they could evict her because they knew that she had filed applications at the Tribunal against other respondents. She believes that this is reprisal contrary to the Code.

27To show how she would prove reprisal, the applicant explained that the respondent must know about how she had filed applications against others at the Tribunal because the respondent’s staff broke into her apartment and hacked into her computer all the time. She never saw them doing this in her apartment, but once saw them outside her door with some sort of electronic device. She doesn’t know what the device was or what they were doing. Also, she believes that there is proof that the respondent must have hacked into her computer because she was able to access wireless from inside her apartment when she had not asked for wireless. Finally, she explained that she bought a security camera and someone must have tampered with it, so it must have been the respondent.

28The applicant explained that she believes that she can demonstrate the respondent reprised against her because of the above “proof” that they knew she had filed applications against other respondents, and because she believes they would not like the fact that she claimed her rights and could make trouble for them too.

29I do not agree that the applicant can demonstrate reprisal. The test for establishing reprisal is set out in Noble v. York University, 2010 HRTO 878. A reprisal or threat of reprisal is established when 1) an action was taken against or a threat was made to the claimant; 2) the alleged action or threat was related to the claimant having claimed or attempted to enforce a right under the Code; and, 3) there was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right.

30In the instant Application, there is only the applicant’s conjecture, no evidence, to show that the provision of the notice of eviction was related to the other applications filed at the Tribunal against other respondents. Even if the applicant were right about the existence of intruders, there is only the applicant’s belief that it was the respondent’s staff members who were the people breaking into her unit, hacking into her computer, and finding in her computer information about her applications against others. Even if the respondent did have knowledge about the other applications, there is no evidence that the notice of eviction was related to them, particularly in circumstances where the applicant had actually asked the respondent for a document to show the ODSP office that the landlord was not receiving rent for her unit. The provision of the notice of eviction was a reasonable document to provide in such circumstances given that it is merely a warning, as the applicant herself explained, and that if rent is not paid after the notice, the landlord may commence eviction proceedings.

31In conclusion, the allegation of reprisal is dismissed because there is no reasonable prospect for the applicant to demonstrate that the respondent knew she had filed applications to the Tribunal against other respondents and that they provided her with the Notice of Termination as a result.

vexatious litigant

32The respondent took the position that the applicant should be declared a vexatious litigant. I note, however, that the reason the CAD included the vexatious litigant issue is because most dismissals of her applications were as a result of the Tribunal deeming the applicant to have abandoned those applications when she did not appear at summary hearings scheduled by the Tribunal. Given that she did appear at the summary hearing scheduled in this case, I will not declare the applicant a vexatious litigant.

order

33For the above reasons, the Application is dismissed in its entirety.