Joe Clark v. Queen Leslie Realty Ltd., 2016 HRTO 297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe Clark

Applicant

-and-

Queen Leslie Realty Ltd.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: March 4, 2016

Citation: 2016 HRTO 297

Indexed as: Clark v. Queen Leslie Realty Ltd.

WRITTEN SUBMISSIONS

Joe Clark, Applicant

Self-represented

Queen Leslie Realty Ltd., Respondent

Rich Appiah, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to occupancy of accommodation because of disability and association with a person identified by a prohibited ground of discrimination.

Background

2The applicant identifies himself as a person with a disability as a result of mental health conditions. The applicant alleges that the respondent discriminated against him by repeatedly filing deficient and/or unmeritorious applications to the Landlord and Tenant Board (“LTB”), which had a negative effect on his mental health. The applicant states that the respondent knew about the applicant’s disability and had a duty to accommodate the applicant to the point of undue hardship by not filing applications to the LTB. In the Application, the applicant stated that “undue hardship” does not include the respondent not receiving rent from the applicant. The applicant also states that he was unable to attend a LTB proceeding because of his partner’s health and requested an adjournment by fax. The LTB apparently lost the request, but the respondent received the request and did not inform the LTB of the applicant’s circumstances. The respondent’s position is that it is simply trying to collect rent arrears from the applicant, as it is entitled to do, which does not amount to discrimination.

3The Tribunal initially, scheduled this matter for a merits hearing on June 29 and 30, 2015. In a Case Assessment Direction dated July 3, 2015, the Tribunal set this matter down for a summary hearing/preliminary hearing to determine whether the Application should be dismissed, in whole or in part, because it has no reasonable prospect of success and/or because another proceeding has appropriately dealt with the substance of the Application, pursuant to section 45.1 of the Code.

Request for Anonymization Denied

4The applicant requested anonymization of any orders published in this matter because the hearing will require the disclosure of confidential medical information. As is set out below, I find the Application has no reasonable prospect of success and must be dismissed. In coming to this conclusion, I have made only general references to the applicant’s disability and an Interim Decision in this matter, 2015 HRTO 738, made no references to confidential medical information. In these circumstances, there is no proper basis for publishing the Tribunal’s orders in this matter in an anonymized fashion.

Submissions

5The applicant submitted that the respondent is an experienced landlord, but nonetheless filed several deficient applications to the LTB. The applicant also submitted that the respondent was aware of his mental health disabilities and filed these applications to the LTB knowing that this would cause his condition to worsen. The applicant also submitted that he was required to respond to the respondent’s applications to the LTB. The applicant submitted that this neutral requirement had an adverse effect on him for the purposes of section 11 of the Code because dealing with the LTB applications had a negative effect on him.

6The applicant submitted that his partner became ill prior to a hearing before the LTB and he requested an adjournment of the hearing. The LTB lost the request and the respondent’s lawyer failed to inform the presiding member of the circumstances. The applicant obtained a recording of the hearing, which he transcribed. The applicant’s transcript indicates that respondent’s counsel at the hearing advised the presiding member that the applicant had advised that his partner was ill and that he was seeking an adjournment. Respondent’s counsel then requested to withdraw the application, which the LTB granted. The applicant submitted that respondent’s counsel attending the LTB hearing did not provide the LTB with his letter to allow the presiding member to consider it in making her decision. The applicant submitted that the respondent did this to avoid having to provide documentation regarding his lawful rent. The applicant submitted that the respondent then filed another deficient application, which was also withdrawn.

7The respondent submitted that it has a legal right under the Residential Tenancies Act to initiate proceedings at the LTB against any tenant who does not pay his or her rent, such as the applicant. The respondent acknowledged that it had filed several applications to the LTB containing errors and that it withdrew these applications. The respondent submitted that the Tribunal is not the proper avenue for addressing concerns about LTB proceedings. The respondents also submitted that the applicant has not alleged any facts that suggest that the respondent treated him differently, or harassed him, because of disability.

8The respondent also submitted that the applicant’s allegations do not engage section 11 of the Code. The respondent submitted, as stated in the Tribunal’s jurisprudence, the duty to accommodate is not a free standing right and only arises where an applicant is disadvantaged because of a prohibited ground of discrimination. The respondent noted that adverse effect discrimination as defined in section 11(1) requires “in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person (i.e., the applicant) is a member”. The respondent submitted that its actions to enforce payment of rent or to evict a tenant demonstrate a preference in housing of group of persons who have paid their rent, which is a preference permitted by law.

9The respondent submitted that the requirement to pay rent does not in itself amount to discrimination, even where a tenant is financially unable to pay because of disability. See Windward Cooperative Home Inc. v. Shuster, 2007 CanLII 8010 (ON SCDC), [2007] O.J. No. 967 (Div. Ct.) and Engel v. Winkleigh Co-operative Housing Corporation, 2010 HRTO 1569. The respondent submitted that it is not disputed that the applicant’s rent was and is in arrears. The applicant has not asserted a Code protected ground to justify his inability to pay, but the Code does not in any event excuse him from paying rent or prevent the respondent from exercising its rights before the LTB. The respondent submitted that to allow the Application to proceed would open a floodgate of frivolous applications and would create chaos in a highly regulated landlord tenant system

10The respondent submitted that the applicant’s own document show that the respondent’s counsel advised the LTB that the applicant did not attend because of his partner’s illness and that the applicant wished to adjourn the matter, but the LTB permitted the respondent to withdraw the application. The respondent submitted that the applicant sought reconsideration of this decision, which was denied. The respondent submitted that the applicant did not allege any facts supporting the conclusion that the respondent’s actions before the LTB amounted to discrimination because of association with a person identified by a Code ground. The respondent submitted it was entitled to advocate for its position before the LTB and that the duty to accommodate did not arise in these circumstances.

Analysis and Decision

11Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

12Section 2 of the Code states as follows:

2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

13Section 11 of the Code states as follows:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

Idem

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Idem

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

No Reasonable Prospect of Success

14In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In 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 prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

15The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

16At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

17To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. There is no dispute that the applicant is in arrears in his rent. Paying rent is a tenant’s most basic obligation. Pursuant to the Residential Tenancies Act, the respondent has the right to apply to the LTB to enforce payment and/or to have a tenant evicted. The respondent has exercised these rights as against the applicant and the applicant alleges that this is discriminatory. However, the applicant has not pointed to any evidence that he has or has reasonably available to him that would suggest that the respondent has treated him differently than other tenants who do not pay their rent or that his disability was a factor in its decision to initiate proceedings against him before the LTB. As a result, I find this allegation has no reasonable prospect of success.

18The applicant complains that the respondent has filed several LTB applications against him that were withdrawn because of certain defects, which is not disputed. The applicant submitted that the respondent has intentionally filed spurious applications against him because it knows that this will have a negative effect on his mental health. If so, the respondent’s actions would amount to an abuse of the LTB’s processes. The LTB is empowered to address any abuse of its processes, pursuant to Rule A8 of the Social Justice Tribunals of Ontario Common Rules of Procedure. Accordingly, the proper forum to address this alleged conduct is the LTB, not the Tribunal.

19As the respondent submitted, the duty to accommodate is not a free standing obligation. See Baber v. York Region District School Board, 2011 HRTO 213. Rather the duty to accommodate arises only under sections 11, 17 or 24 of the Code where a person is disadvantaged by a requirement or qualification because of a prohibited ground of discrimination. In this case, the applicant submitted that the duty to accommodate arises under section 11 of the Code because of the requirement to respond to the respondent’s applications to the LTB. While there is no doubt that the applicant was required to respond to the respondent’s applications, the applicant pointed to no evidence that he has or has reasonably available to him that indicates that this requirement resulted in the “exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the applicant is a member”. The applicant has found the LTB process distressing, but has not pointed to any evidence that this process has created a barrier or exclusion because of his disability. In other words, the requirement to respond to a LTB application is not discriminatory and the duty to accommodate does not arise in these circumstances. To the extent the applicant’s disability presents challenges in the participating in the LTB proceedings, the LTB has a duty to accommodate the applicant to facilitate his participation. Moreover, the respondent filed its LTB applications because the applicant did not pay his rent. The respondent apparently continues to pursue the applicant before the LTB and the result of this litigation may be that the applicant is required to pay his rent arrears and/or that the applicant is evicted. The Divisional Court and this Tribunal have confirmed that such a result is not discriminatory. See Windward and Engel, above. In my view, that applicant has no reasonable prospect of demonstrating that respondent was required to accommodate the applicant by desisting from filing LTB applications against him.

20The applicant’s submissions indicate that the respondent’s counsel did advise the LTB that applicant was absent because of his partner’s illness and that the applicant wanted an adjournment. The applicant did not indicate that there was any other information in his letter seeking an adjournment that may have assisted the LTB member. Accordingly, the basis for the applicant’s suggestion that respondent’s counsel acted improperly is not clear. In any event, the respondent was not obliged to accommodate the applicant in the context of an adversarial legal proceeding. Further, the applicant pointed to no evidence that the respondent’s actions at the LTB hearing were in any way connected to his partner’s illness. This allegation also has no reasonable prospect of success.

21In the circumstances, the Application is dismissed and it is unnecessary to address the parties’ submissions regarding section 45.1.