Saraco v. Northview Meadow Co-operative Homes Inc., 2016 HRTO 461

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angie Saraco Applicant

-and-

Northview Meadow Co-operative Homes Inc., Jacqueline Boyd, Bernice Davies, Sarah DeRose, Jessica Miller and Wendy Short Respondents

INTERIM DECISION

Adjudicator: Bruce Best

Date: April 12, 2016

Citation: 2016 HRTO 461

Indexed as: Saraco v. Northview Meadow Co-operative Homes Inc.

WRITTEN SUBMISSIONS

Angie Saraco, Applicant

Mitchell Kent, Paralegal

Northview Meadow Co-operative Homes Inc., Jacqueline Boyd and Bernice Davies, Respondents

Christine Davies, Counsel

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

2The applicant is a former member of the respondent Northview Meadow Co-operative Homes Inc., (the “Co-op”), which is a non-profit housing co-operative under the Co-operative Corporations Act, R.S.O. 1990 c.C.35. She alleges that she was subject to harassment by other Co-op members because of her disability contrary to s.2(2) of the Code, and that the Co-op failed to address this harassment.

3The Co-op has filed a Response, on its own behalf and on behalf of Jacqueline Boyd and Bernice Davies, who are the president and vice-president of the Co-op’s board of directors (collectively the “Co-op respondents”). No response has been filed on behalf of the other three individual respondents, who are the members of the Co-op alleged to have harassed the applicant (the “individual member respondents”).

4The Co-op has requested that the Tribunal dismiss the Application on the basis that the substance of the Application has been appropriately dealt with in another proceeding before the Landlord and Tenant Board (“LTB”). It also has asked that the Tribunal hold a summary hearing to determine if the Application should be dismissed on the basis that it has no reasonable prospect of success. It also claims that most of the allegations are untimely, and that the Application has insufficient particulars.

Did the LTB proceedings appropriately deal with the substance of the APplication?

5Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6The Co-op claims that the applicant was a difficult and disruptive member, and that despite making extensive efforts to support her in keeping her housing, it eventually had to commence eviction proceedings under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (“RTA”) at the LTB based on her conduct. The Co-op claims that the allegations of discrimination were all dealt with in an LTB hearing in October 2015.

7Having reviewed the LTB’s order, however, it appears that the only issue before the LTB was whether the applicant’s conduct justified an eviction order under the RTA. In contrast, the issue in the present Application is whether the respondents’ conduct constitutes discrimination or harassment under the Code.

8The primary allegations in the Application against the individual member respondents are that they harassed the applicant, including making derogatory comments related to her disability. The primary allegations against the Co-op respondents are that they failed to take appropriate action in response to the applicant’s complaints about the alleged harassment. Neither of these allegations were before the LTB. The only allegation referred to in the LTB decision against any of the respondents is that the complaints brought against the applicant were lies and part of a conspiracy against her. There is no indication that the applicant argued that the Co-op’s decision to pursue the eviction at the LTB was because of a Code issue.

9In my view, there is nothing to indicate that the LTB proceeding dealt with the substance of the Application at all. The request to dismiss under s.45.1 is therefore denied.

10That does not necessarily mean, however, that the LTB proceedings are not relevant. The Application does include a claim for the difference between her housing charge at the Co-op and the rent she had to pay after moving out, suggesting that she moved because of the alleged harassment. If the applicant is able to establish that the respondents have discriminated against her contrary to the Code, the fact that the LTB found that the Co-op was entitled to evict for a reason unrelated to the Code will likely be relevant to the remedy sought. This, however, is an issue that is best addressed by the adjudicator who hears the case on the merits.

SUMMARY HEARING REQUEST

11Rule 19.5A of the Tribunal’s Rules of Procedure states:

19.5A Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party's request.

12The respondents’ request for a summary hearing is refused. As indicated in the above Rule, reasons need not be given for a decision not to hold a summary hearing.

particulars and Timeliness

13The Co-op respondents further note that the Application provides insufficient particulars, in that dates are not provided for a number of the incidents. It further argues that most of the allegations are out of time. The applicant acknowledges that the Application did not provide particulars with respect to dates, though notes that the Co-op respondents were nonetheless able to provide a detailed Response. The applicant further argues that the allegations are all part of a series of incidents for the purposes of Code s.34(1)(b).

14It is not disputed that some of the incidents occurred within one year prior to the filing of the Application, though there would appear to be a dispute respecting the gap in time between those allegations and the earlier allegations. Whether or not the earlier incidents form part of a series for the purposes of Code s.34(1)(b) is, in my view, a matter best left to the adjudicator hearing the Application should it proceed to a hearing on the merits.

Individual Member Respondents

15The Application was sent to all the named respondents by the Tribunal, including the individual member respondents Sarah DeRose, Jessica Miller and Wendy Short, on December 4, 2015. By further correspondence dated December 17, 2015, all named respondents were given until January 22, 2016 to file their Response. The notice sent to the respondent Sara DeRose was returned marked “MOVED/UNKNOW”. The notice sent to Jessica Miller and Wendy Short have not been returned undeliverable.

16The Tribunal sent two further letters to the parties on January 26, 2016. The first letter noted that Jessica Miller and Wendy Short had not filed a Response, and indicated that if they wished to respond they must do so by February 9, 2016. The Co-op responded to this letter indicating that it was aware that the mailboxes of these two respondents were damaged and that it was possible they had not received the correspondence from the Tribunal. The Co-op further indicated that it would leave a note on their doors asking them to come to the Co-op office to obtain further information about the Application, and to advise them that they were responsible for filing their own Responses to the Application.

17The second letter of January 26, 2016 noted that, with respect to Sarah DeRose, it is the applicant’s responsibility to provide a current mailing address for each respondent. The applicant replied on February 13, 2016 indicating that she believed she had provided the correct address, but that it was possible Ms. DeRose had moved to another unit in the Co-op, and that if this was the case the Co-op would have the correct address. The Tribunal responded and noted again that it was the applicant’s responsibility to provide the correct address, and that if she believed the Co-op was aware of a new mailing address, the applicant could file a Request for an Order During Proceedings in a Form 10 seeking to have the Co-op provide the information.

18The Tribunal has not received further correspondence from either the applicant or the Co-op with respect to the above issues.

Orders and Directions

19The Request to dismiss the application under Code s.45.1 is denied.

20The Request for a summary hearing is denied.

21The Co-op is directed to advise the Tribunal within 14 days of the date of this Interim Order whether it has received any communication from Jessica Miller or Wendy Short with respect to the Application, and whether or not there are any ongoing issues with respect to mail or courier delivery within the residential complex.

22If the applicant wishes to continue the Application against Sarah DeRose, she shall, within 14 days, provide the Tribunal with a complete mailing address for Ms. DeRose, or, if she believes the Co-op has this information, file a Form 10 with the Tribunal within 14 days requesting an order that the Co-op provide Ms. DeRose’s current mailing address.

23I am not seized.