Matthew Wong v. OMERS Realty Management Corporation, 2016 HRTO 1572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Wong Applicant

-and-

OMERS Realty Management Corporation Respondent

DECISION

Adjudicator: Laurie Letheren Date: December 7, 2016 Citation: 2016 HRTO 1572 Indexed as: Wong v. OMERS Realty Management Corporation

APPEARANCES

Matthew Wong, Applicant Rui Chen, Counsel

OMERS Realty Management Corporation, Respondent Michael Citak, Counsel

Introduction

1This Application alleges discrimination with respect to contracts because of disability contrary to Section 3 of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). The Application was filed on July 31, 2015.

2The applicant is the owner and managing partner of Orange Law LLP. In June 2011, he negotiated a lease of office space for his law firm with the respondent. The term of the lease agreement was for three years commencing August 1, 2011, and expiring July 31, 2014. He alleges that during the course of the lease negotiation, the respondent insisted that the following clause be added to the lease:

Tenant acknowledges and agrees that the bathroom in the Building are not barrier free washrooms and that the Landlord, throughout the Term and any extension thereof, shall not be required to upgrading(sic) same.

3The applicant alleges that he signed the lease because he needed office space and felt like he had no choice but to accept this clause. He states that he was not aware that he could not contract out of his rights as protected by the Code.

4The applicant is a person with a disability. He uses a wheelchair and requires an accessible washroom. He alleges that as a result of the inclusion of this clause, from August 1, 2011 to July 31, 2014, he was required to take two elevators, including a service elevator, to access a public washroom in the concourse of an adjoining building. He states that it was not until he reviewed the original release for the purpose of renewal that he realized the washroom clause was discriminatory and illegal.

5The respondent alleges that in or about July 2014, the applicant, on behalf of Orange Law LLP and Public Relations Inc., sought to extend the term of the lease for an additional three years. The respondent asserts that the offer was declined and the lease was only extended for one month to August 30, 2014.

6In its Response, the respondent raises the issues of whether all or part of the Application should be dismissed on the basis that:

• the Application was filed by the individual, Matthew Wong, and the contract is between the respondent and Orange Law LLP and Orange Law LLP is not afforded any protections under the Code;
• the Application has no reasonable prospect of success due to the clause in the lease in which Orange Law LLP undertook to indemnify the respondent against any claims initiated by an Orange Law LLP employee against the respondent; and
• the Tribunal may not have jurisdiction to hear the Application because it was filed more than one year after the date of the alleged incident of discrimination.

7The applicant filed a Reply in which he made the Request to Amend the Application to add Orange Law LLP as an applicant and to increase the amount of damages claimed.

DELAY

8Assuming without deciding that the applicant has the standing to bring this Application in light of the lease being signed by Orange Law LLP, I will consider the issue of delay and whether the Application was commenced within the time limits prescribed in section 34 of the Code.

9Sections 34(1) and (2) of the Code state:

34(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.

10This Application was filed on July 31, 2015. In order for the Tribunal to have jurisdiction to hear this Application, the incident to which this Application relates or the last incident in the possible series of incidents must have occurred on or after July 31, 2014.

11There is no dispute that the applicant was aware that the term as described in paragraph 2 above was present in the contract when it was first signed in June, 2011. In an email dated June 10, 2011, the applicant wrote, "I am aware that the washrooms on the floor are not barrier free and you are welcome to include that in the lease."

12The applicant submits in his Reply that "it was not until a review of the original lease occurred for the purpose of renewal that did he realize the washroom clause (Article 21.05 of the Lease) was discriminatory and illegal."

13On July 22, 2014, the applicant signed the document through which Orange Law and Public Relations Inc. accepted the respondent's proposal to extend the lease for one month.

14The applicant submits that the Tribunal should find, following the reasoning in Swain v. MBM Intellectual Property Law LLP, 2015 HRTO 1011 at paragraphs 15-17, that Section 3 of the Code is designed to cover the period of time up to and including the life of the contract and its termination. The applicant submits that since the extension of the contract was to August 30, 2014, the Application is filed within the one-year time limit. The applicant submits that without such an interpretation, it would be unfair as it would be hard to imagine someone making an Application while the contract term is still running.

15The applicant further submits that the situation alleged in this Application is analogous to a situation in which a person who uses a wheelchair is unable to gain access to a festival venue three years in a row and files the Application within one year of the date when that person was last unable to access the venue. He submits that in this situation the last time the applicant is denied access has been accepted by the Tribunal as a fresh incident of discrimination. He submits that the same reasoning should apply to the calculation of time in this Application.

16The respondent submits that the one year must run from the time the applicant signed the lease agreement and was aware of the clause in June 2011. It submits that the alleged incident of discrimination must be the inclusion of the clause in the lease agreement and the date of that incident is June 9, 2011. The respondent submits that this is not a situation of fresh or repeated acts of discrimination but a situation where there are ongoing consequences of the inclusion of the clause and the time does not continue to run through the period of time for the consequences.

Analysis and Decision

17When considering whether the allegations constitute a series of incidents within the meaning of section 34(1)(b), the Tribunal generally considers the following factors:

• whether there is an ongoing series of incidents or whether there is a single act of alleged discrimination with continuing effects: Garrie v. Janus Joan Inc., 2012 HRTO 1955 ("Garrie");
• whether the incidents involve fresh steps taken by the parties, with each step giving rise to a separate alleged breach of the Code: Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, as cited in Garrie at para. 40;
• whether the alleged discriminatory incidents are part of a pattern or series of incidents of a similar nature or character: Garrie; and
• whether any gap of a year or more interrupts the series of incidents. See, e.g.: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; and Killeen v. Soncin Construction, 2013 HRTO 350 ("Killeen").

18The key issue in this Application is whether the inclusion of the term in the lease agreement was a single act of alleged discrimination with continuing effects or whether it constitutes an ongoing series of incidents within the meaning of section 34(1) of the Code.

19As I suggested during the teleconference hearing, this Application would be better framed as breaches of the Code in the provision of services. As an individual who worked in the respondent's building, he may have experienced discrimination in the manner in which the respondent delivered its services. If the Application had indicated that the applicant experienced discrimination in the receipt of the respondent's services, then there may have been argument that each time the applicant was forced to go through the steps he described to access a barrier-free washroom there was a fresh incident of discrimination. Framed in this manner, the Application may have been filed within time.

20However, the applicant indicated that he did not wish to amend the Application to change the social area to services. No Request to amend the Application was received from the applicant following the summary hearing teleconference.

21Without determining whether the inclusion of the term is in itself an incident of a Code breach since it does not appear that the applicant made requests to the respondent to add a barrier-free bathroom on the floor in order to meet his disability-related needs, it is clear that the applicant is alleging that the inclusion of the term is the discriminatory act. There are no fresh steps alleged to have been taken by the respondent that could be a series of incidents that continued until the end of the lease agreements. The only possible fresh step could be the acceptance of the proposal to extend the lease. However, this does not bring the Application inside the one-year time limit. The applicant signed the acceptance of the proposal to extend the lease on July 22, 2014. The proposal included the condition that the tenant was accepting the premises in a "then as is" condition. The "Use" is described as "as per Lease".

22I find that this Application can be distinguished from the Tribunal's decision in Swain, above, in which it is stated at paragraphs 6, 15, and 18:

The applicant alleges that her removal continued throughout 2012 and was tainted by considerations related to various prohibited grounds under the Code.

There is established case law that governs contract termination, a matter that was conceded by the respondents. There is also case law that supports the proposition that discrimination during the life of a contract is protected and that policies, practices and systems that relate to a contract can be examined by this Tribunal: See, Midwives v. Ontario (Health and Long Term Care), 2014 HRTO 1370 ("Midwives") and Ketola v. Value Propane Inc., 2002 CanLII 46510 ("Ketola")…

In my view, the fact that two parties have entered into a partnership contract voluntarily does not render the Code inapplicable to that relationship as the performance of the contract may be tainted by considerations that could be deemed to be discriminatory under the Code. To create a hiatus in protection from discrimination between contract formation and contract termination would not give proper scope to the remedial nature of the Code.

23In Swain, above, the Application was made with respect to a partnership relationship that was governed by a contract. The applicant in Swain alleged that she experienced discrimination throughout the life of the partnership as a result of the discriminatory acts of the other partners. It was alleged that the discriminatory acts continued right up to the point where the partnership agreement was terminated. In Swain, the signing of the contract was not the discriminatory act. In Swain, the alleged discriminatory acts taken by the other partners between the time when the partnership agreement was signed and when the agreement was terminated were the fresh steps.

24I find the Swain analysis is not applicable to this Application, where the alleged incident of discrimination is the inclusion of the allegedly offending term in the lease agreement.

25The Tribunal does not have jurisdiction to hear an Application filed outside the one-year limitation period.

26The applicant had made a Request to amend the Application to add Orange Law LLP as an applicant to address the issue that the applicant was not a party to the lease. Having found that the Tribunal does not have jurisdiction to hear this Application, I will not decide that Request.

ORDER

27The Application is dismissed.