Niang v. Lakeshore Gardens Co-operative Homes Inc., 2016 HRTO 189

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katarzyna (Kate) Niang Applicant

-and-

Lakeshore Gardens Co-operative Homes Inc. Respondent

DECISION

Adjudicator: Laurie Letheren Date: February 10, 2016 Citation: 2016 HRTO 189 Indexed as: Niang v. Lakeshore Gardens Co-operative Homes Inc.

APPEARANCES

Katarzyna (Kate) Niang, Applicant Self-represented

Lakeshore Gardens Co-operative Homes Inc., Respondent Christopher McClelland, Counsel

1On October 30, 2014, the applicant filed an Application in which she alleged that the respondent discriminated against her because of place of origin, sex, family status, marital status, receipt of public assistance, association with a person identified by a Code ground and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a resident and member of the respondent co-op. In her Application she raised a great number of allegations regarding incidents that have occurred between 2008 and October 2014. The incidents relate to the actions of the respondent’s staff and the members of its board of directors.

3On July 14, 2015, the applicant advised the respondent and the Tribunal that she would only be pursuing the following allegations through this Application:

i. The incident from March 22, 2013 in which she alleges that the respondent’s coordinator indicated to her that her partner’s income was low and asked why she hadn’t chosen someone with more money, and then said to her, in relation to her partner, “no money, no value”.

ii. The incident from September 25, 2013 in which she alleges that an employee working in the respondent’s office made fun of her pregnancy and the fact that she was a stay at home mother of two children.

iii. The incident that she alleges happened sometime in the fall of 2013 when she approached the respondent’s coordinator in the lobby and asked him when he was returning to the office. She alleges that he held up fingers to indicate 1 and then 5. She claims that this was done in a manner that was demeaning and consistent with the notion that she would not understand English.

iv. Pattern of alleged harassing conduct from respondent’s coordinator with respect to the use of her name (Kate or Cathy rather than Katarzyna) beginning in January 2013 and culminating on March 25, 2014.

v. Alleged pattern of incidents pertaining to incomplete or late work orders from December 2005-June 2015. She alleges that her household pays rent amounts geared to her income and the respondent had been treating those members who pay market rent better.

4On May 6, 2015, the Tribunal issued a Case Assessment Direction (“CAD”) in which it directed that a summary hearing be held to address whether the Application should be dismissed on the basis that some or all of the alleged incidents of discrimination occurred more than one year prior to the date the Application was filed or on the basis that there is no reasonable prospect that she will succeed in proving that some or all of the alleged incidents breach her rights as protected by the Code.

5It is clear from the material filed and the submissions made by the applicant that there is a great deal of animosity between her and the respondent’s coordinator and that the applicant has not been satisfied with many of her experiences while living at the respondent co-operative. However, for the reasons that follow, I find that the applicant’s allegations that occurred prior to October 30, 2013 must be dismissed as untimely. I also find that her allegations regarding the incident that occurred in the lobby in the fall of 2013 and her allegations regarding the respondent’s requests that she use the name Katarzyna in her correspondence must be dismissed as the applicant does not have a reasonable prospect of demonstrating that these incidents are a breach of the Code. As was explained to the parties in the CAD and at the commencement of the summary hearing, the Tribunal cannot address allegations of unfairness that are unrelated to the Code.

6During the summary hearing, the applicant advised the Tribunal and the respondent that she was no longer pursuing the allegations set out in paragraph 3(v).

ANALYSIS

Alleged Incidents of March 22 and September 25, 2013

7Under s. 34(1) of the Code the Tribunal has jurisdiction to hear allegations that are filed within one year of the incident alleged. Since the applicant filed her Application on October 30, 2014, these allegations are untimely unless they form part of a “series of incidents” with the incidents with those that occurred within one year of filing the Application. See section 34(1)(b). All untimely allegations must be dismissed unless the applicant can demonstrate that she had good faith reasons for her delay in filing the Application in relation to these incidents.

Series of Incidents

8The fact that different incidents occur between the same parties is not enough for them to be considered a “series of incidents”. The Tribunal has found that there must be some thematic connection or nexus between incidents in order for them to be considered a “series of incidents”. A series cannot be comprised of incidents relating to discrete and separate issues. They must be part of a pattern of incidents of a similar nature or character. Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of one year or more between incidents.

9In this case, I find that the applicant’s allegations regarding events occurring prior to October 30, 2013 do not form a “series of incidents” with the alleged incidents in the lobby in the fall of 2013 or the incidents regarding the use of her name in March 2014. The incidents that are alleged to have occurred prior to October 30, 2013 are discreet and separate. I do not find that they are similar in nature or character to the incidents in the lobby in the fall of 2013 or the incidents regarding the use of her name in March 2014. For this reason, I find that the allegation that the coordinator made comments about the income of applicant’s spouse and the allegation that an employee working in the respondent’s office made fun of her pregnancy were not filed within the time required by section 34 of the Code.

Was the Delay Incurred in Good Faith?

10Having determined that the March 22 and September 25, 2013 allegations were not filed within the required time limit, the issue of whether the delay was incurred in good faith must be considered.

11When asked why she had not filed an Application with respect to the alleged March and September 2013 incidents within one year of their occurrence, the applicant submitted that, at the time that they were happening and then after, she was overwhelmed and depressed and it was too much for her to do at that time. She was also a mother of a one-year-old daughter and 11-year-old son and she was pregnant. She states that she had flare-ups of arthritis during her pregnancy and she submits that she did not have the physical strength to file an Application at that time. When asked if she had any medical documentation to support her claims, the applicant stated that she did not.

12Assuming without deciding that the applicant is a person with a disability, she has not met the standard required by the Tribunal’s case law. The test to establish a good faith explanation for the failure to file a timely Application is a high one and requires evidence of a substantial inability to initiate the process.

13In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal commented on what was required of an applicant seeking to establish as a good faith, a disability:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

14In this case, the applicant has not provided any medical documents that could support a finding that she was prevented from filing this Application on time because of a disability.

15For all of these reasons, I find that the allegations outlined in paragraphs 3(i) and (ii) are dismissed for delay.

Incident in the Lobby in Fall 2013

16The applicant alleges that sometime in the fall of 2013, she approached the respondent’s coordinator and asked him when he would be returning to the office. She was not able to recall the exact date of this occurrence. For the purpose of this summary hearing, I am assuming that based on the chronology of incidents detailed in her Application this incident happened after October 30, 2013.

17She stated that the co-ordinator was speaking to someone at the time that she asked him this question. She alleges that rather than speaking the words “fifteen minutes” he held up his fingers to indicate one and five. She claims that this gesture was made because the co-ordinator assumed she would not understand the spoken words “fifteen minutes”. She stated that she did go to the office after fifteen minutes but she did not speak to him about this gesture.

18As the Tribunal has stated in a number of decisions, in order for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation to believe that an applicant could show discrimination on the basis of one of the grounds listed in the Application. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

19Although, the applicant may have found this gesture to be rude and disrespectful, the applicant has not indicated what evidence she may have to demonstrate that the coordinator made this gesture because he thought that she would not understand his spoken English words. The coordinator may have just gestured with his fingers in order not to interrupt the person he was speaking to at the time. The applicant could not point to any evidence she has or will have to demonstrate that it is more than mere speculation on her part that he made this gesture because he thought she did not understand spoken English.

20In my view, these allegations must be dismissed as having no reasonable prospect of success under the Code.

Incidents Regarding the Use of Name “Katarzyna”

21The applicant alleges that because she is from Poland she is treated differently than members of the respondent whose place of origin in Canada. She states that other members who are from Canada are allowed to use names other than their legal names in correspondence with and in documents provided to the respondent. She alleges that she was not allowed to use the English version of her Polish name. In support of this, she has email correspondence between her and the respondent’s coordinator. In these emails, she signs off using “Kate” and “Cathy” rather than Katarzyna.

22Again, although this correspondence between the coordinator and the applicant could perhaps be characterized as rude and of an inappropriate tone, I do not find that the applicant has a reasonable prospect of demonstrating that these incidents are a breach of her Code rights. The Tribunal has indicated that “a demeaning tone”, Ahmed v. VPI, 2010 HRTO 1855 at para. 45, or “rudeness”, Fisher v. Sheidow, 2011 HRTO 2332 at para. 18, are not, in and of themselves, evidence of discrimination.

23The email address used by the applicant uses another variation of her name and in some of the emails she is providing private information about her spouse, her family income and requesting to pick up a personal file. The applicant did not demonstrate what evidence she has or will have to support her claim that the reason she was asked to use her legal name was because she her place of origin is not Canada.

24The respondent submits that there are over 100 members and the coordinator was asking the applicant to use her legal name in order to avoid errors or confusion with these other members. The respondent submits that in its role as a housing provider with rent geared to income agreements, it must coordinate and provide a great deal of personal information about its members to government offices. In the absence of any evidence from the applicant to demonstrate that the request was discriminatory and no evidence to rebut the respondent’s explanation, it appears that this is a reasonable explanation for demanding that the applicant used her legal name.

25In light of the above, I find that there is no reasonable prospect that the applicant would be in a position to bring forward evidence to establish a violation of the Code in this case.

ORDER

26For the reasons set out above, the allegations in the Application relating to events that occurred prior to October 30, 2013 are dismissed because they are untimely.

27The allegations regarding the respondent’s use of gestures rather than words in the lobby in the fall of 2013 and the respondent’s request that the applicant use her legal name in correspondence must be dismissed as the applicant has no reasonable prospect of succeeding in demonstrating that these incidents violated her rights under the Code.