Craig Hinkley v. Eastbury Properties Ltd., 2016 HRTO 631

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Craig Hinkley

Applicant

-and-

Eastbury Properties Ltd.,

Richard Edwards and Clair Edwards

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: May 11, 2016

Citation: 2016 HRTO 631

Indexed as: Hinkley v. Eastbury Properties Ltd.

APPEARANCES

Craig Hinkley, Applicant

Marisa Scotto di Luzio, Counsel

Eastbury Properties Ltd., Richard Edwards and Clair Edwards, Respondents

Michael Henowick, Representative

1This is an Application dated March 3, 2015 alleging discrimination with respect to the occupancy of accommodation because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant has been a tenant at a building owned by the respondent company in Hamilton since 2004. He states that despite the written terms of the lease agreement, a parking space close to the building was included in his rent and he was able to park in that space until the fall of 2014. He states that in October 2014, his parking space was blocked off for repairs, but since that time he has been prevented from using the parking space and has been required to park on the street. He states that he is a person with a mobility impairment who requires parking close to the building for reasons arising from his disability.

3The respondents rely on the lease agreement and take the position that parking was never included in the applicant’s lease agreement. They state that there are a limited number of parking spaces close to the building which are available to tenants if they pay an additional $35.00 per month for the privilege. They state that there is a parking space that would be available for the applicant to use that is close to the building, but that he would need to pay an additional $35.00 per month in order to do so, to which the applicant has never agreed. The respondents deny any discrimination against the applicant because of disability.

4By Case Assessment Direction dated October 28, 2015, the Tribunal determined that this matter should proceed to a summary hearing to determine whether the Application has a reasonable prospect of success. The summary hearing was held on February 23, 2016, and I heard oral submissions from the parties.

5In addition, on February 11, 2016, the applicant filed a Request for Order seeking to amend his Application. As the deadline for the respondents to file a Response to Request for Order had not expired by the time of the summary hearing, I did not hear oral submissions from the parties on the amendment request at that time. The respondents subsequently filed their Response to Request for Order, and I will deal with the amendment request on the basis of the parties’ written submissions.

Should the Application be dismissed as having no reasonable prospect of success?

6On the basis of the materials filed for the purpose of the summary hearing and the applicant’s written and oral submissions, it appears to me that this Application raises three alleged violations of the Code: (1) that the denial of a parking space close to the building amounts to discrimination because of disability as requiring the applicant to park on the street has an adverse impact on him due to his disability-related needs; (2) that the respondents failed to appropriately respond to the applicant’s requests for accommodation and thereby breached the procedural component of the duty to accommodate; and (3) that by preventing the applicant even from parking close to the building temporarily in order to unload his vehicle amounts to a failure to accommodate his disability-related needs.

7With regard to the first issue, I appreciate that there is a factual dispute between the parties as to whether a parking space close to the building was included in the lease terms. It is not the purpose of a summary hearing to hear evidence and make factual determinations of this nature. That is a matter that more properly should be the subject of evidence and cross-examination at an in-person hearing, where credibility of witnesses can be assessed. My understanding of the applicant’s position is that, if his evidence is accepted that parking was included in the lease terms, then denying him access to a parking space close to the building is not only a violation of the terms of the lease, but amounts to discrimination against him because of disability as it has had an adverse impact on him as a result of his disability-related needs. Further, the applicant takes the position that even if parking was not included in the terms of the lease, the respondents may nonetheless have an obligation to accommodate his disability-related needs by allowing him to park close to the building.

8While I am not sure whether the latter proposition is a correct statement of the law, it appears to me that at the very least if a finding of fact were made at the hearing that parking was included in the lease terms, then I cannot say that the applicant has no reasonable prospect of success in establishing that the denial of a parking space close to the building amounts to discrimination against him because of his disabilities due to the adverse impact of being required to park in the street at a much further distance from the building. As stated above, while I appreciate that the respondents take a different position on the terms of the lease agreement, that more properly is a matter for evidence at an in-person hearing.

9With regard to the second issue raised, the applicant states that he initially made an accommodation request to the personal respondents, and was told to submit his request to the principal of the respondent company, Mr. Henowick. He states that he did so on November 7, 2014 but received no response. This was followed by a letter to Mr. Henowick from the Human Rights Legal Support Centre (“HRLSC”) on November 21, 2014 repeating the accommodation request, which also was not responded to. A further letter from the HRLSC dated December 18, 2014 elicited a telephone call from Mr. Henowick on December 22, 2014, which was not successful in resolving the accommodation request. A final letter from the HRLSC dated January 14, 2015 reiterating the accommodation request did not elicit any further response.

10In these circumstances, I cannot say that the applicant has no reasonable prospect of success in establishing that the respondents violated the procedural duty to accommodate by failing to respond to the applicant’s requests for accommodation in a timely and/or appropriate fashion. Whether or not such a violation occurred more properly is a matter for consideration at an in-person hearing on the basis of all of the factual circumstances.

11With regard to the third issue, the applicant states that the personal respondent Mr. Edwards prevented him from even temporarily parking his vehicle in front of the building for the purpose of unloading. Once again, it is not my role at a summary hearing to make a determination as to whether or not this allegation is true. However, if the applicant’s evidence on this point is accepted, I cannot say that he does not have a reasonable prospect of establishing that his right to disability-related accommodation under the Code was violated.

12For the foregoing reasons, I am not satisfied that the Application should be dismissed at this stage of the proceeding as having no reasonable prospect of success. Later in this Interim Decision, I will set out the next steps for this matter to proceed further in the Tribunal’s process.

Should the applicant’s amendment request be granted?

13This Tribunal has the power to grant a request to amend an Application pursuant to Rule 1.7(i)(c) of the Tribunal’s Rules of Procedure. The factors to be considered in deciding whether to grant an amendment request are: fairness and potential prejudice to the parties; the conduct of the party seeking the amendment; the impact of the amendment of the course of the hearing; the stage of the process; and the nature of the amendment requested: see Lo v. MCJFC Food Enterprise, 2011 HRTO 26; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

14The amendment request by the applicant has been made at a relatively early stage of this proceeding. No notice of hearing has yet been issued and no hearing date has yet been scheduled, and the parties have not yet reached the stage of making disclosure to each other. Further, in my view, the amendment request does not materially change the nature of the allegations raised in this proceeding, but rather provides additional particulars or specifics in support of the general allegations raised in the original Application. In my view, no real prejudice would result to the respondents by granting the amendment request.

15The respondents’ Response to the amendment request reiterates their position that parking was not included in the lease agreement. That, as I have said above, is a matter that can be raised and argued at the hearing. However, in my view, that is not a proper reason to deny the applicant’s amendment request.

16In these circumstances, the amendment request made by the applicant is hereby granted. The Application shall be deemed to be amended to incorporate the amendments as set out in Section 3 to Schedule A to the applicant’s Request for Order dated February 11, 2016.

Next steps

17Given that the applicant’s amendment request has been granted, there are a few things that need to be done before this matter can be scheduled for a hearing.

18First, the applicant is hereby directed to serve on the respondents and file with the Tribunal an amended Application that reflects the amendments that have been granted. This is to be done within 7 calendar days of the date of this Interim Decision.

19Second, the respondents are entitled to serve on the applicant and file with the Tribunal a Response to the amended Application, which specifically responds to the particulars or specifics of the applicant’s allegations as they are now described. This is to be done within a further 21 days.

20Third, the applicant is entitled to serve on the respondents and file with the Tribunal an amended Reply to the respondents’ amended Response. This is to be done within a further 7 calendar days.

21Once these steps have been completed, this matter will be sent forward for the hearing to be scheduled. Disclosure and filing requirements for the parties will be described in the Notice of Hearing.

ORDER

22For all of the foregoing reasons, I hereby make the following order:

a. The Application is not dismissed as having no reasonable prospect of success and will continue in this Tribunal’s process;

b. The applicant’s request to amend the Application is granted, and the Application shall be deemed to be amended to incorporate the amendments as set out in Section 3 to Schedule A to the applicant’s Request for Order dated February 11, 2016;

c. Within 7 calendar days of the date of this Interim Decision, the applicant shall serve on the respondents and file with the Tribunal an amended Application that reflects the amendments that have been granted;

d. Within a further 21 days, the respondents shall serve on the applicant and file with the Tribunal a Response to the amended Application, which specifically responds to the particulars or specifics of the applicant’s allegations as they are now described;

e. Within a further 7 calendar days, the applicant shall serve on the respondents and file with the Tribunal an amended Reply to the respondents’ amended Response; and

f. Once these steps have been completed, this matter will be sent forward for the hearing to be scheduled.