Chalykoff v. Quality Living Housing Cooperative, 2016 HRTO 1565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheila Margaret Chalykoff

Applicant

-and-

Quality Living Housing Cooperative, Patricia Turgeon and Carol McMurtry

Respondents

DECISION

Adjudicator: Laurie Letheren

Date: December 7, 2016

Citation: 2016 HRTO 1565

Indexed as: Chalykoff v Quality Living Housing Cooperative

APPEARANCES

Sheila Margaret Chalykoff, Applicant

Self-represented

Quality Living Housing Corporation, Patricia Turgeon and Carol McMurtry, Respondents

Marisa Gilmore, Counsel

Introduction

1This Application alleges discrimination with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal has held one full day of hearing during which time the applicant provided extensive evidence about her allegations. The applicant’s testimony and that of one of her witnesses has now concluded.

3After hearing this part of the applicant’s evidence, the Tribunal on its own initiative, directed a Summary Hearing be held to determine whether there is a reasonable prospect that the Application can succeed. In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal confirmed that it may be appropriate at a later stage in a proceeding to have the parties address whether an Application ought to be dismissed on the basis that it has no reasonable prospect of success. Frequently, the Tribunal will hear submissions regarding whether an Application ought to be dismissed as having no reasonable prospect of success after hearing the applicant’s case in chief, although it may hear such submissions at other points in the hearing process as well.

4The Summary Hearing teleconference was scheduled for May 24, 2016. Following the scheduling of the Summary Hearing, the applicant filed a Request for Order during Proceeding (Request) to amend the Application to add allegations of discrimination experienced during the process of applying for an Addition to Household with the respondent co-operative. The new allegations that she sought to include cover events that occurred from December 2015 to May 2016. They relate to the respondent co-operative’s process in determining the Addition to Household application and the various requests for documents and information that were made to the applicant during this time period.

5The applicant also made a Request for production of further documents from the respondent.

6As a result of timing of the Request, the Summary Hearing was adjourned to allow the respondents time to file a Response to the Request.

7The Tribunal denied the Request to amend in Interim Decision Chalykoff v Quality Living Housing Cooperative, 2016 HRTO 748 on the basis that permitting these amendments to the Application would be inconsistent with the Tribunal’s mandate to provide for a fair, just and expeditious resolution of matters before it.

8The Tribunal determined that the requested amendments are brand new allegations covering events that occurred after the allegations made through this Application. They are completely beyond the scope of these proceedings.

9Because the documents that the applicant was requesting be produced all related to the allegations that she sought to include as amendments to the Application, the Request for Production was also denied.

Link between Decisions Made by Respondent and Receipt of Social Assistance by Applicant

10The applicant alleges that her Code rights to equal access to accommodation on the basis of being a person in receipt of public assistance were breached when she applied to be a member of the respondent co-operative. She states that the respondents used their personal prejudices against persons who are in receipt of public assistance when making a decision about whether to process and recommend her application for membership.

Witnesses Testimony

Applicant

11The applicant testified that she made her subsidy application to the respondent in mid-May, 2014. She was concerned about the rejection of this application because she had been having some difficulty covering the costs of her rent where she was living at the time of the application.

12After she submitted her application, she was contacted by a member of the co-operative’s membership committee to advise her that some information was missing. She was told that she needed to provide a letter from her Ontario Work’s (OW) worker that confirmed the amount of assistance she received as well as a letter from her employer that indicated her income and employment status.

13The applicant testified that when she asked the OW worker for this confirmation, she was told that the worker did not have the ability to provide this information but she could confirm that what the applicant had told the respondent as true and she could provide her contact information. She stated that she provided a copy of her monthly OW statement and a letter from her employer to the respondents. This letter was submitted into evidence and it states, “her staff pay varies depending on the income of the org week over week.”

14She stated that she then received a call from Patricia Turgeon, the Chairperson of the Membership Committee, and she was advised that the documents she had provided were not sufficient and the co-operative needed more details of exactly what she was issued on monthly basis. She stated that she told Patricia Turgeon that the co-operative could contact her OW worker.

15The applicant testified that her application was returned with a letter that indicated that the co-operative “cannot process [the application for membership] at this time.”

16She testified that she contacted the membership committee to request an appeal of their decision and it was agreed that they would meet on December 16, 2014. She stated that she was given very short notice of this meeting. In cross-examination, she agreed that it was not the co-operative’s policy to have meetings with people who had been rejected from membership but that an exemption had been made in her situation because her mother, Cathy Chalykoff, was on the co-operative board of directors.

17She stated that during the meeting she was advised that the reason that her application had been returned was her history of rental arrears. She stated that at the meeting she discussed the repair issues she had with her landlord and the relation between the outstanding repairs and her rent arrears. She stated that she told the membership committee that she understood that the arrears were a problem and explained that is why she was applying for subsidy. She stated that in the meeting she was trying to make the point that when she received the money she paid the rent and that she had paid late because she had received Ontario Works payments late. She stated that she did not feel like she was being heard. She testified that near the end of the meeting Carol McMurtry, a member of the Board of Directors, said to her that if it had been her, she would be making sure the rent was paid and would not be buying new clothes. The applicant testified that she responded to Carol McMurtry to say that this was not an appropriate comment and that she had been made to feel that she was being told how to spend her money. She stated that she became very upset at this point. She stated that Carol McMurtry told her that this was her own opinion and not the opinion of co-operative board.

18The applicant testified that she was advised at the end of this meeting that by the following Monday, she was to provide evidence that the OW payments had been made late.

19She testified that she does not receive bank statements because she does online banking. She stated that she did not get a letter from OW and she put her own document together to show funds received and funds withdrawn from her bank account. She stated that she also included rental payment history for 2009 and 2010. She stated that she included this because she wanted to show that when not under financial duress she pays her rent on time and that is why she was applying for a subsidized spot at the co-operative.

20The applicant submitted these documents into evidence. The documents are not statements or prints of online statements. They are word documents that she created herself from copying items from online bank statements and from printing, cutting and then taping together portions of her banking activities.

21In cross-examination, she agreed that she could have printed off month by month activity from her on-line access but that it had not occurred to her to print it off in that way and then black out what was not relevant.

22She testified that about a week later, Cathy Chalykoff, her mother, advised her that the co-operative was not happy with the format of the documents she had provided. When she asked Cathy Chalykoff what the co-operative wanted, Cathy Chalykoff could only say “Carol does not like it.”

23When she was asked whether she had contacted anyone on the membership committee or board to ask for clarity, she stated, “No. The intention is pretty clear. No it tells me I have no options and I am completely shut out so the idea of repeating and asking for another chance did not occur to me.”

24When she was asked if she recalled a conversation about the possibility that she had falsified the documents, she responded, “It seems to me that may have come up after February 12, 2015 so I did not end up touching on it.”

25She stated that it seemed that the co-operative wanted the banking information so quickly and then she did not know what to do anymore. When she was asked if she had contacted anyone on the committee to ask for more time she responded, “No I was told I had to get the information as soon as possible and ‘as soon as’ was what emphasized and by Tuesday OW had not yet called back.”

26The following week, she received a letter dated February 12, 2015, which stated that Cathy Chalykoff had been advised that the information was not acceptable in the format received and in addition the membership committee was still waiting for the letter from her OW worker. The letter stated that the Board of Directors supported the decision of the membership committee to reject her application.

Cathy Chalykoff

27Cathy Chalykoff is the applicant’s mother and she is a member of the co-operative. She testified about her observations of the way that other applicants for membership had been treated. She stated that in some instances those whose income was social assistance had asked the co-operative to call their worker and the co-operative had made the call.

28She also stated that in her experience no one had been given such short notice of a meeting with the Board as the applicant had been given.

29She testified that after the meeting closed on January 24, 2015 Carol McMurtry made a comment that the applicant should have paid the rent instead of buying new clothes for her children with her social assistance money. She stated that she had never seen anyone in an application interview asked about how they spend their money. She stated that in her experience the members at the January 24, 2015, meeting were asking a lot more details about breakdown of income than they had asked others in the past. She stated that she had not seen that and that usually it was just the grand total of income given in letters from social workers. However, in cross-examination she admitted that while she was on the membership committee, she had never reviewed an application from a person whose income was social assistance. She also stated that she did not know how a subsidy was calculated for persons whose income is social assistance.

30When she was asked about her understanding of why the applicant’s application had not been processed by the cooperative, she said that it was her understanding from the January 24, 2015 meeting that it was due to the reference the applicant had received from her landlord, and that later she learned about the problem with the format of the documents.

31She testified that on February 4, 2015, she had been told that the documents the applicant had submitted were not in the proper format because they were “cut and paste.” She was asked to inform the applicant of this issue. She stated that she did not ask for any further details because she was surprised and she did not think of asking at that time.

32She also testified that she also felt the applicant had been treated differently than others when the co-operative had not offered to process the addition to household when the applicant and her children were guests in her home.

Applicant’s Submissions

33The applicant did not make any submissions on what evidence she has provided that links the respondents’ decision to not process her application with the fact that she was a person in receipt of social assistance.

34The applicant submits that it is premature to dismiss the Application at this point for no reasonable prospect of success because she still has two more witnesses to call.

35The first additional witness the applicant intends to call to give evidence has served as a member of the respondent co-operative’s membership committee commencing December 2015. It is expected that she will provide general evidence about the inconsistent handling of membership applications, members and their guests; and evidence about specific events that show bias within the co-operative.

36The second additional witness the applicant intends to call to give evidence was employed by the co-operative during the period of time that is relevant to this Application. She managed the office and was a liaison with the board and board committees. She is expected to give evidence about the information that the applicant was asked to produce such as the letter from the OW worker that others were not asked to produce. She is also expected to give evidence about the conversations and directions she received from board members when the applicant’s application for membership was being processed.

Respondent’s Submissions

37The respondents submit that the applicant has provided no evidence to demonstrate how asking for details of income; employment; a letter from her OW worker that breaks down the income she receives; and requiring documents to be a certain format is a breach of her Code rights as a person in receipt of social assistance.

38They submit that the proposed evidence of the additional witnesses is either not relevant or immaterial to a finding that the applicant experienced a breach of her Code rights. The respondents submit that the proposed evidence of these witnesses is simply more innuendo to suggest that there might be something behind the requests that were made to the applicant. These witnesses are not proposing to provide evidence of any specific act of discrimination on the basis of receipt of social assistance.

Analysis and Decision

39A successful claim of discrimination requires an applicant to show, on a balance of probabilities, that one of the prohibited grounds of discrimination was a factor in the disadvantage or adverse treatment she alleges she experienced. The applicant must show that the fact that she is a person whose income was social assistance at the time she applied was one of the factors in why the respondents requested information from her or in the respondents’ decision not to accept her application for membership at the co-operative.

40I find that the applicant does not have a reasonable prospect of proving that her rights under the Code have been breached by establishing this link.

41The Tribunal does not have the general power to inquire into claims of unfairness or inconsistent application of policies and procedures outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 discrimination on the basis of one of the grounds alleged in the Code.

42Assessing whether there is a reasonable prospect of success during the hearing involves a consideration of whether, in light of the pleadings; witness statements; documents relied upon; and evidence that has been heard there is a reasonable prospect that an applicant can meet his or her burden of proof (Pellerin, above at para. 30).

43In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to establish prima facie case on a balance of probabilities, the application must be dismissed following the summary hearing.

44The applicant and her mother both gave evidence that they understood that the problems with her application were first due to the reference from her landlord, who had told the cooperative that she had a history of rental arrears, and second, the problem with the format of the documents that she provided to support her attempt to explain the late rental payments. The applicant was aware that a history of late rent payments would be a problem for anyone who applied for membership with the co-operative. She testified that when she first applied, she was concerned about the rejection of this application because she had been having some difficulty covering the costs of her rent where she had been living at the time of the application. An email that the applicant received dated October 24, 2014 indicates that the committee had made a decision not to continue to process her application, “based on the results of the reference check.” The applicant testified that the reference check stated in the email was from her former landlord who had spoken to the committee about the late rent payment history.

45The applicant was given the opportunity to meet the Membership Committee and at the meeting she took the opportunity to explain the reason for the history of arrears. She testified that advised the Membership Committee that she had often been late in paying the rent because she had received her social assistance payments late. When she was asked to provide banking verification that she had received late social assistance payments during the period of time in question, the applicant provided that were in a cut and paste format rather than printing off the monthly activities as they appeared on her online statements. The respondents found the format of the documents to be unreliable. She testified that she did not ask for clarity or pursue it further as a way of amending the unacceptable format. She admitted in cross-examination that she was aware that the format of these documents may have raised some concern that she had falsified the documents.

46The February 12, 2015 letter to the applicant from the respondent co-operative advised the applicant that the information she had provided was not in an acceptable format and the committee was still waiting for a letter from her case worker. This letter states that for these reasons, the Board of Directors had supported the decision of the Membership Committee to reject the application

47As stated in Pellerin, above, at paragraph 26, it would not be appropriate to continue the hearing when there does not appear that any possibility remaining that the evidence that the applicant proposes to call or the evidence of the respondent would allow her to meet her burden of proof.

48The applicant and Cathy Chalykoff provided no evidence at the hearing nor did the applicant refer to any evidence that may be reasonably available that could demonstrate that the fact that she received social assistance was a factor in the respondents’ requests for specific information or information in a different format, or in the decision to deny her application for membership.

49There is no reasonable prospect that the proposed evidence of the applicant’s two other witnesses or the evidence of the respondent could change this conclusion. The additional witnesses that she intends to call were not part of the Membership Committee or the Board of Directors and were not present when the decisions were made about the application for membership. These witnesses will not be providing any evidence that could demonstrate that the applicant’s receipt of social assistance was a factor in the respondents’ decision.

50The first witness the applicant intends to call was not a part of the membership committee and did not participate in any part of the process to assess the applicant’s membership application.

51The second witness is intending to give evidence about the general inconsistencies in the application process for different persons. She was not part of the decision making process for the applicant’s membership. She cannot provide any evidence that is specific to the decisions made in the applicant’s membership application.

52Neither of these proposed witnesses would provide any evidence that could possibly assist the applicant to make the connection between the decisions of the respondents and the fact that she was in receipt of social assistance.

53The fact that the applicant may have been asked to provide a letter to verify her social assistance income when such a letter may not have been asked of other applicants does not demonstrate that she was treated differently because she received social assistance as her income. The applicant was applying for a subsidy for her rental costs at the cooperative and as she admitted in her testimony, a verification of her income was needed to determine that subsidy. As well, there is nothing in the evidence heard or in the evidence that could be introduced later in the hearing that would connect the fact that the Membership Committee did not accept her cut and paste document to the fact that she was a person whose income was social assistance.

54She may also have found the comments Carol McMurtry made to be insulting and hurtful. However, these comments are not evidence of a connection between the requests made by the Membership Committee and the eventual denial of her applicant for membership, and the fact that she was a person who receives social assistance.

55As the Supreme Court of Canada explained in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 at paras. 45-50, not all distinctions are discriminatory in the context of human rights codes.

56Based on the reasons stated above, I have concluded that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.

order

57This Application is dismissed.