HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Carroll

Applicant

-and-

AFTT Development Inc. o/a Golden Pond RV Resort and Joseph Bardoel

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: April 22, 2016

Citation: 2016 HRTO 534

Indexed as: Carroll v. AFTT Development Inc.

APPEARANCES

Wayne Carroll, Applicant

Paul DeMarco, Representative

AFTT Developments Inc. o/a Golden Pond RV Resort and Joseph Bardoel Respondents

Christopher Sinal, Counsel

Introduction

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

2In a Case Assessment Direction (CAD) dated May 21, 2015, the Tribunal directed that a Summary Hearing by way of conference call be convened. It also directed that at the Summary Hearing, the Tribunal would address the respondents’ request to remove a named individual as a respondent to this Application.

3The Summary Hearing was convened and all parties participated.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

The ALLEGED Facts

6The applicant lives in his mobile home on the respondent’s premises. He does not own the land where his trailer is located. His mobile home is heated with a wood stove. In his Application, he alleges that in September 2013, he decided to replace his wood stove with a gas furnace, as he has lost one leg, resulting in a disability which affects his mobility. He alleges that he is unable to cut wood and relies upon help from his friends in order to heat his home. He alleges that in September 2013, he made arrangements to have Union Gas connect his home to a nearby gas line, but that Union Gas required permission from the holder of title to the land, Joseph Bardoel. He alleges that Mr. Bardoel denied permission for the gas hook-up.

7In his Application, he alleges that in October 2013 he received assistance from a legal aid clinic for discussions with Mr. Bardoel and that the legal aid clinic sent a “demand letter” on January 20, 2014, but received no response from Mr. Bardoel.

8The applicant alleges that in April 2014, Mr. Bardoel advised that permission would be granted to Union Gas if the applicant could prove that his home would be insured if the heating system was converted to gas. He alleges that when he provided a letter with such assurances from the insurer to Mr. Bardoel in June, 2014, Mr. Bardoel continued to refuse permission to Union Gas.

9The applicant further alleges that the above-noted January 2014 letter also requested assistance with snow clearing, as ice and snow forms in the applicant’s driveway due to the plowing of the road which Mr. Bardoel does. The applicant alleges that Mr. Bardoel did not respond to his request, nor did he make a “noticeable effort to accommodate” the applicant.

10The respondents seek the removal of the personal respondent as a party to this Application. They submit that the corporate respondent is in the business of operating a mobile home park, and the personal respondent is a co-owner, manager and officer of the corporate respondent. They submit that the factors identified in Persaud v. Toronto District School Board 2008 HRTO 31 (Persaud) are satisfied in the circumstances of this case: there is a corporate respondent alleged to be liable for the same conduct; there is no issue raised as to the corporate respondent’s vicarious liability for the individual’s alleged conduct; there is no issue as to the ability of the corporate respondent to remedy the alleged Code infringement; no compelling reason exists to continue the proceeding as against the personal respondent and; no prejudice would be caused to the applicant as a result of removing the personal respondent. They also assert that the title to the land occupied by the corporate respondent is in the name of the corporate respondent, not the personal respondent. The applicant asserts that the personal respondent is the title holder of the property.

11The respondents also assert that according to the Residential Tenancies Act (RTA), the corporate respondent, as landlord is responsible for the site for the mobile unit, not the unit itself, and it is required to provide sites with electricity and water, but there is no contractual right for any tenant to demand access to a natural gas supply or source of heat for a mobile unit.

12The respondents also assert that according to section 32 of Ontario Regulation 517/06 of the RTA, the corporate respondent is responsible for keeping the roads within the mobile park “free of holes and cleared of snow and obstructions”. They submit that unit owners are responsible for and are free to contract with third parties for snow removal from the roadway to their own mobile unit. The applicant does not dispute this.

13The respondents further submit that the applicant, at his choice, occupies a site which is classified as a “transient site”, which is provided with access to water and electricity only. They submit that “permanent sites” at the park have access to water, gas and electricity. It also submits that the applicant has a propane furnace with two 100 pound tanks which could heat his unit. They also submit that an upcoming planned construction project at the park would necessitate the removal of the gas line that the applicant requests, at significant expense to the corporate respondent.

14The respondents also assert that the corporate respondent has made “every effort to not create a berm from plowing at the applicant’s lot” when it carries out its responsibility to remove snow from roads and public areas in the park.

15At the Summary Hearing, the applicant submitted that he has had a disability impairing his mobility since 2013 and that he brought it to the respondents’ attention and asked for accommodation in the form of removal of the snow windrow caused by plowing the road. He submits that the respondents have an obligation to accommodate his disability and move the snow. He submits that the matter must proceed to a hearing to determine whether or not accommodation would result in undue hardship to the respondents.

16At the Summary Hearing, the applicant submits that it is too expensive to purchase pre-cut wood. He submits that most of the permanent sites are “set up for gas” , and that Union Gas was prepared to run a gas line for him, his insurance company had no concerns with the arrangement, but the respondents did not give permission to Union Gas. He submits that a duty to accommodate exists, and the respondents should be required to provide the reasons for their refusal at a hearing. He submits that a prima facie case of discrimination has been established.

17At the Summary Hearing, the respondents repeated their submissions regarding the removal of the personal respondent.

18The respondents submitted that they fulfill their obligations under the RTA with respect to snow removal. With respect to the matter of the applicant’s responsibility for snow removal on his site, the respondents cite Williams v. Town of Iroquois Falls 2012 HRTO 1483 (Williams). They submitted that here, as in Williams, the applicant is responsible for snow removal on his own site in any event, and the additional task of removing the snow at the windrow does not put him to any disadvantage as a result of his disability.

19The respondents submitted that in accordance with the corporate respondent’s obligations under the RTA and its contract with the applicant, it provides the applicant’s site with water and electricity. It notes, however, that the contract between the parties makes no provision for access to gas. It submits that the applicant retains responsibility for the heating of his own unit, and confirms that the only thing he rents from the corporate respondent is the site. It is not, it submits, the corporate respondent’s responsibility to deliver heat to any unit in the park.

20Further, the respondents submitted that none of the “temporary sites” in the park, which is the kind the applicant has, have access to gas lines. They submitted that the applicant chose to live on a “transient site”, but that “permanent sites” in the park are provided with access to gas.

DECISION

21For the reasons that follow, I find that this matter has no reasonable prospect of success and the Application is dismissed.

22In considering the question of whether the applicant has experienced discrimination in respect of the respondent’s alleged actions, I consider the definition of “discrimination” from Andrews v. Law Society of British Columbia [1989 CanLII 2 (SCC), 1989] 1 SCR 143:

…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

23Accordingly, in considering whether this Application should be dismissed as having no reasonable prospect of success, among other things I must consider whether the applicant has indicated he has evidence to establish that the respondents’ alleged actions have had the effect of imposing a burden, obligation or disadvantage on him due to his disability. A discussion of whether or not the respondents accommodated his disability is premature if he does not first establish discrimination. Accordingly, if he does not point to evidence which will establish discrimination, as defined above, the Application has no reasonable prospect of success.

24With respect to the applicant’s allegation regarding snow removal, the applicant has pointed to no evidence to indicate that the windrow at his driveway causes an additional burden, obligation or disadvantage to the applicant due to his disability. Though he cites the inconvenience of the snow left at the windrow, as in paragraph 13 of Williams,

I find that no additional burden or disadvantage is imposed upon the applicant as a result of the creation of the windrow at the bottom of his driveway. In order for him to access the roadway in order to get to the services he needs, the applicant needs not only to have the windrow cleared but also needs to have his own private driveway cleared. As he is unable to clear the snow himself due to his disability, the applicant has to incur a cost which is the same whether or not the Town clears the windrow.

25The applicant has pointed to no evidence to establish an additional burden, obligation or disadvantage due to the respondents’ snow removal practices and without such evidence, the Application has no reasonable prospect of success.

26The applicant’s position with respect to the respondents’ alleged refusal to permit Union Gas to install a gas line to his site appears to stem from the fact that he asserts that he can no longer use his wood stove for heat, due to his disability, and must find an alternative method to heat his home. He has pointed to no evidence, however, which would indicate that the respondents’ alleged refusal to grant permission to Union Gas results in an additional burden, obligation or disadvantage on him due to his disability: he has pointed to no evidence, for example, to indicate that other heat sources such as electricity or propane are unavailable or disadvantageous to him. Again, without an indication that the applicant suffers from an additional burden, obligation or disadvantage due to the respondents’ alleged actions, the Application has no reasonable prospect of success.

27For all of the reasons above, this Application is dismissed as having no reasonable prospect of success.

28Given the fact that this Application is dismissed, it is not necessary for me to address the identity of the appropriate respondent or respondents.