HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natasha Mitchell
Applicant
-and-
Ontario Property Management Group Inc. and Ellen Gerow
Respondents
INTERIM DECISION
Adjudicator: Jennifer Khurana
Indexed as: Mitchell v. Ontario Property Management Group
APPEARANCES
Natasha Mitchell, Applicant
Self-represented
Ontario Property Management Group and Ellen Gerow, Respondents
Kumail Karimjee, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”), alleging discrimination in the provision of housing because of race, marital status and age.
2The applicant was a resident and member of a cooperative housing complex (“the Co-op”) until approximately October 9, 2015. The respondent Ontario Property Management Group (“OPMG”) began providing property management services to the Co-op on or about November 1, 2014. Generally, the applicant alleges that because she is young, single and black, she has not been treated with dignity and respect by the respondents. She alleges that her repair requests were not answered, that she was sent notices for housing charge adjustments and outstanding arrears in bad faith, and that the individual respondent made discriminatory remarks about her and her son.
3By Case Assessment Direction (“CAD”), the Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that it appears some or all of the allegations may be untimely and there is no reasonable prospect that the Application or part of the Application will succeed.
4For the reasons set out below, I find that all allegations with the exception of those relating to discriminatory comments made by the individual respondent must be dismissed on the basis that they has no reasonable prospect of success under the Code. I do not find it appropriate to dismiss the applicant’s allegations that Ellen Gerow made discriminatory comments regarding her son and on her voicemail, as detailed below. I find it necessary to hear evidence from the parties in order to determine these two specific allegations of discrimination raised by the applicant.
DELAY
5In the Application the applicant made a number of allegations that date back several years prior to the filing of the Application, some of which involved individuals or organizations not named as respondents. OPMG and the individual respondent had no contact with the applicant and did not begin to provide property management services to the Co-op until November 1, 2014.
6At the outset of the summary hearing I asked the applicant to clarify the scope of her claim of discrimination as in her Reply she indicated that some of the allegations were only intended as background.
7The applicant confirmed that her Application pertains only to allegations of discrimination made against the respondents for the period of December 2014 to October 2015. These allegations are all within a year of the filing of her Application on November 30, 2015. There is no dispute among the parties with respect to the timeliness of the allegations that span the period of December 2014 to October 2015.
8The respondents asked that in the event the Tribunal determines that all or part of the Application proceed, all allegations falling outside this period be struck from the pleadings to avoid confusion.
NO REASONABLE PROSPECT OF SUCCESS
9The 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
10The 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.
11The 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 or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant is telling the truth unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.
12However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has 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.
13As 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 a breach of the Code.
14Having 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.
FACTUAL BACKGROUND
15At the summary hearing, I went through the Application and Reply in detail to confirm the allegations of discrimination the applicant was making and to distinguish what she had included as “background” information. I asked the applicant to identify the various incidents or allegations of discrimination she was making as her pleadings included multiple pages of incidents, several of which she had since acknowledged were not timely, were not relevant for her Application, or were not allegations made against the named respondents. At the end of this review of the pleadings, I again asked the applicant to confirm my understanding of her specific allegations of discrimination as against the respondents and I read them back to her. These allegations are summarized below:
Becky Raco, a housing administrator employed by the organizational respondent, confused the applicant with another black female resident;
The applicant filed 15 or more maintenance requests from December 2014 onwards which were ignored. The applicant was denied services, including the timely repair of her toilet, whereas a white member had their toilet fixed;
The individual respondent told the applicant that if she had a man at home, she could have things fixed;
The respondents sent notices of arrears to the applicant in bad faith because the applicant is young and black and the respondents learned that the applicant had returned to school and gained some knowledge of legal issues as a paralegal;
The applicant received unjustified notices of housing charge adjustments and notices to end her occupancy for non-payment of these charges;
The individual respondent was inquiring about thefts at the Co-op and told the applicant’s teenage son who is racialised, that he was going to steal something because “kids like him do that”;
The individual respondent left a voicemail message on the applicant’s machine on October 15, 2015 and referred to the applicant as “people like her” or “these kind of people” and made comments to the effect that “she won’t get away with it”..
16The applicant was involved in proceedings before the Landlord and Tenant Board (“LTB”) related to arrears of housing charges and the changing of the locks of her unit. The applicant confirmed at the summary hearing that the allegations in her Application and Reply about housing charges arrears, eviction and the changing of locks with the exception of those listed above are not part of her claim before the Tribunal but constitute background information. The respondent requested that the Tribunal order that these parts of the applicant’s narrative be struck from the pleadings.
17The respondents made submissions with respect to each of the applicant’s allegations of discrimination once they were clarified and confirmed by the applicant. They generally submit that the applicant’s claims are bald and unsubstantiated allegations without evidence to support how the alleged treatment is connected in any way to race or another Code ground. While there is no doubt that the applicant has concerns about the maintenance and other issues she raised with the respondents, the respondents submit not every concern with a housing provider amounts to discrimination within the meaning of the Code.
18At the summary hearing, I reviewed the CAD and the Tribunal’s summary hearing process with the applicant. I also went through her lengthy Application and Reply to give her the opportunity to explain why she believed a Code ground was a factor in the respondents’ alleged unfair treatment and what evidence she intended to bring at a hearing to establish a link between the allegations raised and a right protected under the Code.
Findings
19Even if I accept the facts put forward by the applicant as true and provable, I find that all allegations with the exception of the comments made to or about the applicant’s son and those left on the voicemail recording in October 2015, stand no reasonable prospect of success under the Code. For an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond suspicions, that could make out a link to the Code. 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.
20In Villella v Brampton (City), 2011 HRTO 1085, at para. 10 the Tribunal stated:
The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.
21The applicant may strongly believe or suspect that the respondents did not respond to her maintenance requests or sent her notices about arrears and rate changes on account of her race, family status or age, but this is speculative. The applicant explained that it seemed as though there was some favouritism and that certain people were getting things done if they made friends with the people in the housing office, yet she did not point to evidence supporting her assertion that these assumptions, even if true, were linked to a Code ground. While the applicant indicated she would rely on copies of her requests for maintenance and work orders, these do not provide a reasonable basis for a finding of discrimination.
22The applicant made various allegations regarding the notices she received from the respondents related to housing charge adjustments and outstanding arrears. The respondents submit submission that they were collecting on housing charges and managing arrears and that there is nothing inherently discriminatory about asking members of the Co-op, including the applicant, to pay their housing charges. Further, it appears that in some months the housing charge adjustment the applicant complains of was reduced. The arrears appear to have been dealt with by the LTB, which could have heard human rights issues in that context as well. In any case the applicant did not point to evidence to support her contention that the respondents’ actions in sending the notices were related to her race, family status or age.
23The comment allegedly made by Ms. Gerow about the applicant being able to get things fixed if she had a man at home, even if true, was perhaps inappropriate, but I do not find that it could reasonably give rise to a finding of discrimination on the grounds of marital status. I also find that the allegation about Ms. Raco having confused the applicant with another black resident must be dismissed as having no reasonable prospect of success. I agree with the respondents that the comment, even if true, does not support a finding of adverse treatment.
24The applicant’s claim is based on allegations of discrimination on the grounds of race, family status and age. However, the following must be considered with respect to racially-based discrimination in particular. The existence of racism, in particular anti-Black racism, has been recognized by both this Tribunal and the Courts. Further, marshalling evidence of stereotyping and prejudice racism can be difficult. In most cases, there is no direct evidence of discrimination; therefore, discrimination will most often be established by circumstantial evidence. See, for example, Phipps v. Toronto Police Services Board, 2009 HRTO 877 (upheld on judicial review Shaw v. Phipps, 2010 ONSC 3884; aff’d 2012 ONCA 155).
25That said, an applicant cannot rely on the existence of racism, in the absence of any other evidence, to establish that race was a “factor” in the respondents’ conduct. See HO v. Toronto District School Board, 2013 HRTO 1296. It is not enough that racism exists, and that the applicant is a member of a protected group. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098, at paragraph 25, while discrimination based on grounds such as race and colour can be subtle and hard to detect, it is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred. An applicant must provide some reasonable basis for making allegations of such discrimination.
26In Pitter v. Toronto Transit Commission, 2012 HRTO 1412, the Tribunal described the burden an applicant must meet in a summary hearing in respect of race based allegations, as follows at paragraphs 18-20:
The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.
The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, colour, ancestry or place of origin.
27Even accepting all of facts alleged as true, I find that there is no reasonable prospect that the applicant would be able to establish that the treatment she experienced in connection to the incidents discussed above was connected to a Code ground.
Allegations of discriminatory comments
28While I find that all other allegations should be dismissed, I cannot find that the applicant’s allegations of discriminatory comments made by Ms. Gerow stand no reasonable prospect of success at this preliminary stage of the proceeding.
29Rule 19A.6 provides that where the Tribunal decides not to dismiss an application following a summary hearing, it need not give reasons. However, I find the following brief comments about these two specific allegations appropriate.
30A decision by the Tribunal to allow an application to proceed after a summary hearing does not mean that the application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement.
31Much was made about the particulars of the applicant’s allegation involving the applicant’s son at the summary hearing as there was confusion about what exactly was being alleged and who was alleged to have made the comment and to whom. In the Application, the applicant alleges that Ms. Gerow made racial assumptions about her son, and assumed that because he’s mixed race and was 16 at the time, “that he was going to steal something from someone’s yard”. She notes at page 19 of her Application that a fellow member of the Co-op, Crystal Storer, was the one questioned about the applicant’s son. In the Reply the applicant alleges that Ms. Gerow made “offense [sic] comments..toward my son about his race”. At the summary hearing, the applicant indicated that Ms. Gerow, who was looking into the thefts, allegedly said to her son that lots of things have been missing from people’s yards, and that “people like you” were stealing things in the building. The applicant indicated that she would call Crystal Storer as a witness as she spoke with Ms. Gerow and Ms. Storer was allegedly told that people like the applicant’s son had been stealing things.
32The respondents submit that even if true, there is not a sufficient factual or evidentiary basis to support the applicant’s claim that the comments were discriminatory. In their view, Ms. Gerow wanted to ensure that nothing was missing and that she was taking steps to protect the property of other members of the Co-op which is not unreasonable in light of her role as property manager. This may be the case, but I find that the Tribunal will need to hear evidence on this incident to determine whether race or another Code ground was a factor in the individual respondent’s actions and comments. At this stage of the process, I have not heard any evidence and I cannot make factual findings about the incident and about what is more likely than not.
33I also cannot dismiss the incident involving the voicemail recording left for the applicant as having no reasonable prospect of success. The applicant indicates that she has a copy of the voicemail which refers to “people like you” or “these kind of people”. The respondents submit that there is nothing to connect the comment to a Code ground and that the comment would have been made at a time when the relationship between the parties was acrimonious. Legal proceedings were either started or being contemplated at that stage and Ms. Gerow had promptly responded to a complaint the applicant had about her keys. The respondents may well have a complete response to this allegation, but this must be determined at a hearing.
34As I cannot find that there is not reasonable prospect of success, the Application will proceed in the Tribunal’s process with respect to these two alleged incidents only. I note, however, that if the applicant alleges that the comments were made to her son and/or to Crystal Storer, she will have to establish how she experienced an adverse effect from remarks made to her son or to a third party. The applicant did not file an Application on behalf of her son and she does not appear to allege that the comments about her son were made to her directly.
35As all other allegations are dismissed, I need not deal with the respondents’ request to strike the portions of the Application that pre-date November 2014 or that relate to what the applicant termed “background information”.
36The parties agreed to mediation. The Registrar will schedule a mediation and will send the parties a Notice of Mediation with the date, time and location.
Order
37The Tribunal orders as follows:
a. The allegations about discriminatory comments made by Ms. Gerow and involving the applicant’s son and the allegations relating to comments left on the applicant’s voicemail on October 19, 2015 are not dismissed at this stage. Those parts of the Application only will proceed in the Tribunal’s hearing process.
b. All other allegations in the Application and Reply are dismissed on the basis that they have no reasonable prospect of success.
c. The Registrar shall schedule a mediation in this matter.
38I am not seized.
Dated at Toronto, this 23rd day of December, 2016.
“Signed By”
Jennifer Khurana
Vice-chair