Morrison v. Durham Housing Authority, 2016 HRTO 907

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lana Morrison

Applicant

-and-

Durham Housing Authority and

Lynn Alexander

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: July 11, 2016

Citation: 2016 HRTO 907

Indexed as: Morrison v. Durham Housing Authority

APPEARANCES

Lana Morrison, Applicant

Self-represented

Durham Housing Authority and Lynn Alexander, Respondents

Soojin Lee, Counsel

Introduction

1The applicant filed an Application alleging discrimination in housing on the basis of disability and receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3The hearing took place by teleconference on July 5, 2016.

Summary Hearing Process

4The 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, as in this case, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The 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.

6The test that is applied at the summary hearing stage is whether 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.

7However, 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.

8As 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.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant rented a residential unit from the organizational respondent (the “landlord”). The individual respondent was the landlord’s housing manager. The applicant occupied the unit with her son for a period of five years until she was evicted by the landlord. Prior to being evicted she had asked her landlord to be transferred to another unit because the area she was in was unsafe and her neighbours across the street always brought her troubles. According to the applicant the transfer was denied.

11The applicant alleges that the landlord’s denial of the transfer and the eviction from her unit were discriminatory.

analysis

12Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code.

Denial of the transfer

13It is not clear if the request for a transfer was in fact denied or whether the transfer request was pending until another suitable unit became available for the applicant to occupy. Assuming it was denied, however, the applicant has to point to evidence available to her that would support her belief that the denial was connected to her disability or her being in receipt of public assistance. The applicant did not point to any proposed evidence that would link the alleged refusal of a transfer to her disability or the fact that she was in receipt of public assistance. As opposed to merely insufficient or ambiguous evidence being offered by the applicant there is, in fact, no allegation that could form any basis for establishing a Code violation beyond mere conjecture on the part of the applicant.

The eviction

14It is clear from the evidence provided by the applicant that she was evicted from her rental unit because of the activities of her son at the rental complex. The Landlord and Tenant Board (“LTB”) found that the son committed an illegal act on the premises and that criminal charges were laid by the police as a result. The LTB determined that for this reason the tenancy should be terminated and eviction was ordered. A request by the applicant to review the order was denied by the LTB. The applicant failed to provide any evidence that she had or that was available to her that could link the eviction by her landlord to her disability and/or the receipt of public assistance.

15I understand that the applicant found the eviction to be unfair and unjust particularly given that the criminal charges against her son were ultimately withdrawn. However, the Tribunal cannot address allegations of unfairness, unrelated to the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more personal characteristics covered by the Code was a factor in the treatment the applicant experienced.

New allegation

16At the hearing the applicant raised a new ground of discrimination, namely, race. The applicant who self-identifies as white indicated that her son, who at the time was 17 years of age and who is now 19 years of age, is “brown”. She described her son as “mixed”, his father being a black man from Jamaica. She alleged that the neighbours across the street would taunt her son by calling him “racial names”.

17The ground of race and the allegation were never raised in the Application despite three attempts by the applicant to file a completed Application that was finally accepted by the Tribunal. The Application was filed with the Tribunal in August 2015. There was never any attempt by the applicant to amend the Application to include the ground of race prior to this hearing. Moreover, the allegation is lacking particulars. The applicant did not supply any details as to who said the “racial names”, when they were said, where they were said or in what context they were said. Under these circumstances, I find that it would be inappropriate to consider the allegation at this point.

18Moreover, it would appear to me that it would be for the son, or someone on the son’s behalf if he was a minor, to raise this allegation in an application to the Tribunal.

decision

19For all the foregoing reasons, I have concluded there is no reasonable prospect that this Application can succeed. Therefore the Application is dismissed.