Bussey v. Cedar Range Management Inc., 2016 HRTO 800

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Bussey

Applicant

-and-

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne and Luc Vanthuyne

Respondents

AND BETWEEN:

Paul Bussey

Applicant

-and-

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne and Luc Vanthuyne

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 14, 2016

Citation: 2016 HRTO 800

Indexed as: Bussey v. Cedar Range Management Inc.

APPEARANCES

Paula Bussey and Paul Bussey, Applicants

Self-represented

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne and Luc Vanthuyne, Respondents

Viktor Krvgic, Representative

Introduction

1The applicant, Paula Bussey (“Ms. Bussey”) filed Application 2014-18319-I on July 25, 2014, alleging reprisal and discrimination in accommodation because of disability, sex harassment and solicitation or advances, marital status and association with a person with a disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant advised she was not proceeding with respect to the ground of marital status.

2The applicant, Paul Bussey (“Mr. Bussey”) filed Application 2014-19456-I on November 21, 2014 alleging reprisal and discrimination in accommodation on the basis of marital status, disability and association contrary to the Code although he did not make any submissions with respect to marital status.

3These Applications were deferred for a period of time until the completion of related Landlord and Tenant Board (“LTB”) proceedings. In addition, the Tribunal has dealt with a myriad of Form 10 Requests for an Order During Proceedings (“Requests”) including more than one request to amend the Applications. One of the resultant orders was that these Applications would be processed and heard together.

4Ultimately the respondents requested a summary hearing, and by Case Assessment Direction, dated August 11, 2015, the Tribunal advised the parties that a summary hearing would be held by teleconference for the following reasons:

a. It appears that the applicants may be unable to prove that there is a connection between what the respondents are alleged to have done, and the grounds of disability, sex, sexual solicitation or advances, marital status and association cited in the Application. That is, although the applicant may believe that the conduct of the respondents is connected to the ground, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicants have or may be able to obtain; and

b. The reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondent reprised against him or her for one of these three things.

5The parties provided written submissions, and a full day summary hearing was held in person during which the applicants and respondents made oral submissions.

summary hearing process

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

8The test that is applied at the summary hearing stage is whether an application, or in this case, part of an application, has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

10As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

the law

11The relevant sections of the Code are set out, below:

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.

7. (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.

8. (3) Every person has a right to be free from,

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

background

12Having set out the summary hearing process and the law, I turn now to the facts in this Application.

13By way of background, the applicants are a married couple who resided together at all material times (specifically between October, 2012 and August, 2014) in a unit in an apartment building (“building”) co-owned by Viktor and Tina Krvgic. Mr. Krvgic is the president of the corporate respondent, and also was the primary property manager for the apartment building. He also acts as the respondents’ representative.

14The respondent, Glen Fahselt, was at all material times the building superintendent. According to Mr. Fahselt’s Response, he did some “special projects” at the building between 2011 and 2014, became the temporary superintendent of the building in January 2014 and became the permanent superintendent of in July, 2014. The applicants allege their problems with Mr. Fahselt began in November, 2013.

15The respondents, Nancy Vanthuyne and Luc Vanthuyne, became residents in the building in October, 2012. In March, 2014 they moved from their unit into a renovated unit located directly underneath the applicants’ unit. The applicants allege the Vanthuyne’s helped manage the building, but the Vanthuyne’s and the corporate respondent deny this and assert they were never employees of the corporate respondent and were simply helping out Mr. Fahselt because he was new to the area and the building.

16The applicant, Ms. Bussey, made submissions on behalf of both applicants. Although they filed hundreds of pages of material, both as part of their Applications, Requests and submissions, Ms. Bussey summed up their claims fairly concisely at the outset of her submissions.

Ms. Bussey’s allegations

17Ms. Bussey’s allegations include:

a. she was sexually harassed by Mr. Fahselt on December 12, 2013 in a renovated apartment he was showing her;

b. Mr. Fahselt continued his sexual harassment on December 20, 2013 when Ms. Bussey found him standing outside her apartment door, at which point she called police to “enforce her Code rights”;

c. Ms. Bussey reported Mr. Fahselt’s sexual harassment to Mr. Krvgic who did not investigate or take it seriously and instead questioned why she reported to police instead of coming to him first;

d. Mr. Krvgic ignored how sexual harassment would affect her as a disabled person;

e. after the sexual harassment incident and her report to police, Mr. Krvgic began to reprise against Ms. Bussey by going to the police and trying to interfere with the criminal investigation.

f. Mr. Krvgic reprised against her by organizing a campaign of noise in the building, and by advising her and Mr. Bussey they would have to move out of the building – she alleged he gave them the opportunity to move to a better building without having to give notice, and offered to prorate their rent, which was a reprisal because they could not move because of their disabilities;

g. Mr. Krvgic ignored the fact that the noise was harming their health and told them not to document their noise complaints anymore;

h. Mr. Krvgic reprised against Ms. Bussey by stationing all of his employees, including the Vanthuyne’s, around them to harass them by making noise;

i. the Vanthuyne’s and Mr. Krvgic worked in concert to get rid of the Bussey’s, and part of this plan was that Mr. Krvgic offered to rent only to the Vanthuyne’s the apartment below the Bussey’s, which Ms. Bussey alleged was part of the reprisal by noise.

j. Discrimination on the basis of association by Mr. Krvgic telling her at the end of the LTB proceeding in May, 2014, something along the lines of its being a good thing that the applicants were contemplating separation because at least then Ms. Bussey would be away from Mr. Bussey, which was discriminatory because that decision was up to Ms. Bussey, and she wondered if Mr. Krvgic was asserting she was a bad person for being married to Mr. Bussey – when I asked her how a comment about her marriage constituted discrimination, she replied it was because Mr. Krvgic thought Mr. Bussey was a domineering person.

Mr. Bussey’s allegations

18Mr. Bussey’s allegations included:

a. Ms. Vanthuyne reprised against him at Mr. Fahselt’s direction by filing a false police report in which she alleged she was deathly afraid of a telephone call she heard Mr. Bussey making;

b. When he told Mr. Krvgic he was not accommodating his disability given all the noise, Mr. Krvgic told him not to contact him anymore;

c. Mr. Krvgic offered to let the applicants out of their lease but the applicants declined because their disabilities made it impossible for them to move;

d. the corporate respondent provided him with no accessible parking, although there was an understanding that disabled people could park out front, and because of an incident with another tenant who the applicants allege keyed their car, Mr. Krvgic put up accessible parking signs.

e. when Mr. Bussey told Mr. Krvgic he had to accommodate his disabilities, Mr. Krvgic responded: “Oh so you are going to play the disabled card”;

f. when Ms. Bussey told Mr. Krvgic she would not move apartments unless Mr. Bussey did not survive his surgeries, Mr. Krvgic replied that Mr. Bussey looked strong to him, which Mr. Bussey alleged was discriminatory because Mr. Krvgic made an assumption about what disabled people should look like;

g. Mr. Bussey alleged unnamed persons called him mean and an ogre because he cannot see because he goes blind from light hitting his eyes; and

h. Ms. Bussey reminded Mr. Bussey that someone called him a fake, and although Mr. Bussey responded he did not remember that, he then said he did remember that it was Mr. Krvgic and he knew Mr. Krvgic said it because Mr. Bussey read his lips; and

i. Mr. Bussey also alleged discrimination as a result of someone from the police coming to assess his mental health, although he did not know who it was.

Allegations of Both Applicants

19Both applicants alleged:

a. Ms. Vanthuyne reprised against them by alleging the applicants made noise even though they were not at home at the time; that there was a domestic dispute in the applicants’ unit; and that the applicants threw water on her; and

b. Ms. Vanthuyne told her at the LTB proceeding that she got police reports to use against the Bussey’s, which Ms. Bussey alleged demonstrated that the Vanthuyne’s worked with Mr. Fahselt and reprised against them.

respondents’ submissions

Corporate Respondent

20Mr. Krvgic made submissions on behalf of the corporate respondent, and provided a lot of documentary evidence, although as I reminded the parties at the summary hearing, this was a summary hearing, and it is not my role to assess the veracity of the evidence.

21Mr. Krvgic submitted he treated the applicants the same as any other tenants, up until the applicants made allegations about an incident in the laundry room in September, 2013 that the surveillance cameras showed did not occur as alleged, at which point he began to question their perceptions. Up to that point, Mr. Krvgic had responded to every complaint, including noise complaints.

22With respect to the allegation of sexual harassment against Mr. Fahselt, Mr. Krvgic submitted a December 20 surveillance video as part of his documents in the summary hearing, which I did not review at this preliminary stage.

23Mr. Krvgic wrote a December 29, 2013 letter to the applicants listing the dates on which he had responded to their various complaints, and which he submitted as part of his summary hearing documents, and advising that he realized there was no way to make them feel comfortable or safe. He offered to allow them to move on favourable terms, but the applicants refused. Mr. Krvgic stated by that time he knew the applicants were making things up and were harassing other tenants, and he knew he had to move them.

24Mr. Krvgic did not refer to the sexual harassment allegations in his letter because the police investigation was not complete and he did not know the status. He did not investigate Ms. Bussey’s complaints because of the police investigation. Mr. Krvgic found out a while later that just after the sexual harassment complaint, the police had determined no charges were warranted.

25On December 30, 2013, Mr. Krvgic stated he wrote to the police about the alleged incident, not to reprise against the applicants, but to explain to the police that he had video that did not substantiate other complaints the applicants made, and that he had had no trouble with Mr. Fahselt in the past.

26Mr. Krvgic submitted that after Ms. Bussey made her sexual assault allegation the applicants’ complaints to police increased. He pointed to the applicants’ diary entries that showed that the applicants called or visited the police 33 times in two months’ time, when no one else was complaining about noise. Mr. Krvgic also pointed out that the applicants have three different versions of the diary in which they kept their complaints about noise.

27Mr. Krvgic submitted he did not understand the applicants’ claim that he discriminated against them on the basis of their disability because of the noise. In the time period when the applicants called the police 33 times, the police were called on the applicants three times, which in his view is evidence that this was one-sided from the applicants, and his actions were not a reprisal by the corporate respondent.

28Mr. Krvgic stated he provided information and documents only to respond to the applicants’ calls to the police, not as a reprisal.

29Mr. Krvgic submitted he does not understand the applicants’ assertion that the noise was a reprisal because their noise complaints began even before the sexual harassment allegation, and he denied organizing a noise campaign as a reprisal.

30Because of the Bussey’s accusations against other tenants, Mr. Krvgic felt he had to move them, which had nothing to do with their disabilities.

31Mr. Krvgic also denied reprising against the applicants by having the police attend to check Mr. Bussey’s mental health. He provided a police report that showed this visit was initiated by two police sergeants.

32With respect to the applicants’ complaint that he provided no accessible parking, he denied this. He had one sign up already and provided an undated confirmation showing he ordered three more.

33Generally, Mr. Krvgic stated he offered the applicants accommodation by offering to move them to a ground floor apartment, which would have alleviated the noise they alleged, was coming from the apartment below them, but they refused.

34With respect to the complaint that Mr. Krvgic stated that Mr. Bussey looked strong to him, he meant this as an everyday compliment because Mr. Bussey looked healthy.

35Mr. Krvgic also denied saying Mr. Bussey was a fake.

The Vanthuyne’s

36Mr. and Mrs. Vanthuyne noted the main claim against them appeared to be that they reprised against the applicants by making noise, which they denied. In addition, the Vanthuyne’s deny ever being employees of the corporate respondent or reprising against them.

Mr. Fahselt

37Mr. Fahselt denied the sexual harassment occurred, and stated the police investigated and found nothing, as evidenced by the police report which was submitted. Mr. Fahselt denied reprising against the applicants by making noise, and submitted he in fact did everything he could to avoid them. Up until Ms. Bussey made the sexual harassment allegation, he thought he had a good relationship with the applicants.

Applicants’ Reply

38Ms. Bussey stated it was almost a year before the accessible parking signs were put up.

39She denied Mr. Krvgic responded to all their noise complaints at first. I asked how that constituted discrimination even if it is the case and she responded that he discriminated against them by not making the noise stop.

40With respect to Mr. Krvgic’s submission that the noise complaints began before the sexual harassment allegation, Ms. Bussey submitted she made no noise complaints until April, 2013. I pointed out to her that for the noise to be a reprisal it would have to come after she made her sexual harassment allegation in December, 2013. Ms. Bussey then stated that before that, the noise was sporadic. She could not explain why no one else heard it.

41Ms. Bussey denied there were different versions of the noise diary; explaining one is the original and the others are summaries but contain the same information.

42Ms. Bussey also questioned why Mr. Krvgic went to the police himself after she made the sexual harassment allegation, but stated he did not mention the allegation in the December 29, 2013 letter because the police were investigating. Ms. Bussey submitted that the sexual harassment police report is redacted and only tells half the story.

43Ms. Bussey also replied that the police warned both them and Mr. Fahselt to keep the noise down. Ms. Bussey asserted a loudspeaker was held up to their window, which made Mr. Bussey fall down and fluid come out of his ears. He did not go to emergency because the applicants had been told that ears repair themselves within 10 minutes and the only issue then is if there is permanent hearing loss.

44Finally, Mr. Bussey submitted that in the summary hearing no one can dispute what they say if they firmly believe these things happened. He accused Mr. Krvgic of altering video evidence.

analysis and decision

Ms. Bussey

Sexual Harassment

45Ms. Bussey’s oral submissions with respect to her sexual harassment allegations did not contain as much detail as her Application. However, it is true that in a summary hearing, as the applicants pointed out, I must accept the applicant’s allegations as true, unless it is plain that the respondent’s explanation is true. For me to be able to find that there was no sexual harassment would require me to weigh the evidence, which is not the purpose of a summary hearing. As such, I cannot at this preliminary stage find that Ms. Bussey’s allegations of sexual harassment by Mr. Fahselt have no reasonable prospect of success. However, I note that Ms. Bussey’s allegations as set out in her oral submissions differed from her allegations in the Application, and the fluid nature of her allegations may well mean that Ms. Bussey will not be able to prove them. However, at this preliminary stage, her allegations in paragraph 17(a) and (b), above, will continue in the Tribunal’s process.

Reprisal for Asserting her Code Rights

46Resulting from the same incident, Ms. Bussey alleges reprisal by Mr. Krvgic pursuant to section 7(3)(b) of the Code because he went to the police about her sexual harassment allegations and because he allegedly organized a noise campaign.

47Section 7(3)(b) of the Code states that every person has a right to be free from a a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

48Section 8 of the Code applies to the actions of a respondent (or respondents) that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To decide that the Application should not proceed, there must be no reasonable prospect that the applicant could establish an intention on the part of the respondent to reprise against her for one of these three things.

49The mere fact that Mr. Krvgic provided information to the police does not constitute a reprisal. The applicants contacted the police and Mr. Krvgic was required to provide information to the police. It is not reprisal to engage in the lawful activity of cooperating with a police investigation. Ms. Bussey’s allegation in paragraph 17(e), above, is dismissed.

50With respect to what Ms. Bussey alleged was a noise campaign, she pointed to no evidence that even if there was noise, the noise was organized by Mr. Krvgic and intended as a reprisal for asserting her Code rights. The applicants’ noise complaints began before Ms. Bussey’s police report. In addition, Ms. Bussey pointed to no evidence to support her assertion that Mr. Krvgic stationed all of his employees, including the Vanthuyne’s, around them to harass them by making noise. Ms. Bussey’s first allegation in paragraph 17(f), above, and the allegations in paragraphs 17(h) and (i), above, against the corporate respondent, are dismissed.

51Ms. Bussey also asserted Mr. Krvgic reprised against her by offering the applicants an opportunity to move out of the building, pro-rate their rent and waive the notice requirements. This does not constitute a reprisal, even if the applicants’ assertion is true that they were disabled and therefore could not move out. It was an offer intended to resolve the conflict – there is no evidence that it was intended as punishment. Ms. Bussey’s second allegation in paragraph 17(f), above, is dismissed.

52With respect to Ms. Bussey’s reprisal allegation against the Vanthuyne’s, Ms. Bussey at no time asserted any Code rights vis-à-vis these respondents. Ms. Bussey’s claim that these respondents reprised against her for breaking off her friendship with Ms. Vanthuyne bears no relation to an assertion of Ms. Bussey’s Code rights and as such has no reasonable prospect of success, even though Ms. Bussey attempted to link this event to her complaint of sexual harassment against Mr. Fahselt. She pointed to no evidence that would make this link. I also observe that there is no evidence that the Vanthuyne’s were employees or agents of any of the other respondents despite the applicant’s assertion to that effect. Ms. Bussey’s allegations against the Vanthuyne’s in paragraphs 17(h) and (i), above, are dismissed.

Corporate Respondent’s Handling of the Applicant’s Sexual Harassment Claims

53Ms. Bussey alleged that the corporate respondent did not investigate her claims of sexual harassment or take them seriously. Mr. Krvgic on behalf of the corporate respondent did not deny this, stating that he did not do so because there was a police investigation ongoing.

54At this preliminary stage of the proceeding, I cannot find that Ms. Bussey’s claim that the corporate respondent failed to investigate her claims of sexual harassment has no reasonable prospect of success. Ms. Bussey’s allegation in paragraph 17(c), above, will continue in the Tribunal’s process.

55Ms. Bussey also alleged that Mr. Krvgic ignored how sexual harassment would affect her as a disabled person. Assuming for the purposes of the summary hearing that Ms. Bussey has a disability, this allegation appears to be tied to the allegation at paragraph 53 that Mr. Krvgic did not take the applicant’s claims seriously. For the same reason as in paragraph 54, I cannot find at this preliminary stage that this allegation has no reasonable prospect of success. Ms. Bussey’s allegation in paragraph 17(d), above, will continue in the Tribunal’s process.

Failure to Stop the Noise

56Ms. Bussey alleged Mr. Krvgic ignored the fact that the noise was harming her health and told them not to document it any more. Assuming for the purposes of the summary hearing that Ms. Bussey claimed she had a disability that required accommodation, she pointed to no evidence that in fact there was any noise that was out of the ordinary. The applicants provided hundreds of pages of a diary detailing allegations of noises they heard from their apartment, documented in great detail and including exact times and for how many seconds the applicants heard each noise. The diary entries cover entire days over a number of months. The applicants also made many complaints to the police, which led to the police investigating the noise complaints on more than one occasion and finding nothing. The uncontroverted evidence that the police investigated and found nothing is detailed in the applicant’s own diary pages. In my view the applicant can point to no evidence that there was noise out of the ordinary or that links what they heard to any activity of any of the respondents that required any action by the respondents, and as such this allegation has no reasonable prospect of success. Ms. Bussey’s allegation in paragraph 17(g), above, is dismissed.

Discrimination on the Basis of Association

57Finally, with respect to Ms. Bussey’s allegation of discrimination on the basis of association, even if Mr. Krvgic said at the end of the LTB proceeding in May, 2014 something along the lines of it being a good thing that the applicants were contemplating separation, this is not a Code violation and has no reasonable prospect of success. Ms. Bussey’s allegation in paragraph 17(j), above, is dismissed.

Mr. Bussey

Reprisal

58Mr. Bussey alleged Ms. Vanthuyne reprised against him at Mr. Fahselt’s direction by filing a false police report. Mr. Bussey did not explain how this was related to his claiming or enforcing a right under the Code. As such, this allegation has no reasonable prospect of success. Mr. Bussey’s allegation in paragraph 18(a), above, is dismissed.

Disability Accommodation – Stopping the Noise

59Mr. Bussey, similarly to Ms. Bussey, alleged Mr. Krvgic did not accommodate his disability by stopping the noise. He alleged Mr. Krvgic told him not to contact him anymore. Assuming for the purposes of the summary hearing that Mr. Bussey has a disability that requires accommodation, he, like Ms. Bussey, pointed to no evidence that in fact there was any noise that was out of the ordinary. The applicants provided hundreds of pages of a diary detailing allegations of noises they heard from their apartment, documented in great detail and including exact times and for how many seconds the applicants heard each noise. The diary entries cover entire days. The applicants also made many police reports, which led to the police investigating the noise complaints on more than one occasion and finding nothing.

60Given this evidence and for the same reasons as in paragraph 56, above, I find that the allegation that Mr. Bussey was discriminated against on the basis of a disability because the noise did not cease has no reasonable prospect of success.

Accessible Parking

61With respect to the provision of accessible parking, the applicants’ own evidence is that they were permitted to park out front of the building when no one else was, whether or not there was accessible parking signage. In addition, Mr. Krvgic provided confirmation that he ordered signage. As such, this allegation has no reasonable prospect of success. Mr. Bussey’s allegation in paragraph 18(d), above, is dismissed.

Comments by Mr. Krvgic

62Mr. Bussey alleged that Mr. Krvgic said to him at some point: “Oh so you are going to play the disabled card”. This one comment, even if true, in my view does not meet the definition of “harassment”, which means “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Mr. Bussey made no allegation that there was more than one comment or that the one comment was so egregious as to constitute harassment. As such, there is no course of conduct and this allegation has no reasonable prospect of success.

63With respect to Mr. Krvgic stating to Ms. Bussey that Mr. Bussey looked strong to him, this statement is not discriminatory and has no reasonable prospect of success. Mr. Bussey’s allegation in paragraph 18(f), above, is dismissed.

Comments about being mean and an ogre

64Mr. Bussey’s allegations about unnamed people calling him mean and an ogre because he cannot see have no reasonable prospect of success specifically because he did not specify who said these things. When he responded during oral submissions to Ms. Bussey reminding him that someone had called him a fake, Mr. Bussey responded that he did not remember that, but then said he did remember that it was Mr. Krvgic and he knew Mr. Krvgic said it because he read his lips. Given Mr. Bussey’s conflicting submission and the fact that his allegation is against unnamed people, I find this allegation has no reasonable prospect of success.

Mental Health Assessment by the Police

65Finally, Mr. Bussey alleged discrimination as a result of someone from the police coming to assess his mental health, but did not know who arranged this. The Supplementary Occurrence Report from the police, dated June 13, 2014, was attached to Mr. Krvgic’s documentary submissions. It states a police constable and psychiatric assessment nurse attended the applicants’ residence at the request of two other police sergeants. None of the respondents are implicated in this and therefore this allegation has no reasonable prospect of success. Mr. Bussey’s allegation in paragraph 18(i), above, is dismissed.

Both Applicants

Reprisal by Ms. Vanthuyne

66The allegations that Ms. Vanthuyne reprised against the applicants by alleging the applicants made noise even though they were not at home at the time; that there was a domestic dispute in the applicants’ unit; and that the applicants threw water on her fail because there is no evidence that the applicants asserted any Code rights in relation to Ms. Vanthuyne, and therefore the applicants cannot meet the test for reprisal. As well, as previously indicated, there is no evidentiary basis that these respondents were employees or agents of the other respondents. (list allegations dismissed)

67The further allegations that Ms. Vanthuyne told Ms. Bussey at the LTB proceeding that she got police reports to use against the applicants also does not meet the test for reprisal for the same reason. Therefore, both allegations in paragraph 19(a) and (b), above, are dismissed.

ORDER

68The Application in Tribunal File No. 2014-19456-I is dismissed in its entirety.

69The Application in Tribunal File No. 2014-18319-I is dismissed in part.

70The following allegations in Tribunal File No. 2014-18319-I will continue in the Tribunal’s process:

a. As against the respondent, Glen Fahselt, that he sexually harassed the applicant on December 12 and 20, 2013;

b. As against the respondent, Cedar Range Management Inc., that it failed to properly, or at all, investigate the applicant’s allegations that one of its employees, namely Glen Fahselt, sexually harassed the applicant, and failed to take her claims seriously.