Bonds v. Niagara Peninsula Homes Inc., 2017 HRTO 1080

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Bonds

Applicant

-and-

Niagara Peninsula Homes Inc., Vineyard Co-operative Homes Inc. and Niagara Regional Housing

Respondents

INTERIM DECISION

Adjudicator: Josée Bouchard Date: August 17, 2017 Citation: 2017 HRTO 1080 Indexed as: Bonds v. Niagara Peninsula Homes Inc.

WRITTEN SUBMISSIONS

Edward Bonds, Applicant Self-represented

Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc., Respondents Jessica Connell, Counsel

Niagara Regional Housing, Respondent Stephen Chisholm, Counsel

Introduction

1The applicant filed an Application on October 20, 2016 alleging discrimination with respect to housing because of race, colour and disability and because he was subjected to reprisal or threat of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On March 10, 2017, the Tribunal issued a Case Assessment Direction indicating that it would hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that:

a. It appears that some of the allegations may be untimely; and, b. There is no reasonable prospect that the Application or part of the Application will succeed.

3The Tribunal held the preliminary hearing on July 12 and 18, 2017.

background

4The respondent Vineyard Co-operative Homes Inc. (“Vineyard Co-op”) is a 42-unit, non-profit co-operative rental community located in Beamsville, Ontario.

5The respondent Niagara Peninsula Homes (“Niagara Peninsula”) is a non-profit organization, with long standing experience in housing development and property management. Niagara Peninsula is Vineyard Co-op’s property manager.

6The respondent Niagara Regional Housing (“NRH”) is a non-profit organization that helps low to moderate income households find affordable housing that meets their needs. NRH offers housing in rental units owned and managed by it and rental units owned and operated by non-profit and co-operative housing providers, including Vineyard Co-op. NRH also manages the centralized waitlist for housing units in its region.

7The applicant resides at Vineyard Co-op.

8The applicant makes numerous allegations of discrimination that are addressed as follows:

a. Request to transfer; b. Request to be exempted from cleaning duties; c. Accessible parking; d. Damages to the applicant’s vehicle; e. Lightbulbs incident; f. Snow removal incidents; g. Noise complaints and notes received from co-tenants; h. Note on the bulletin board; i. Reprisal; and j. Other allegations.

9The respondent NRH was only involved in allegation 1 and as such did not respond or make submissions regarding the other allegations.

Allegation 1 – Applicant’s Placement at Vineyard Co-op and Request for Transfer

Background

10The applicant applied for rent geared to income assistance through NRH on April 5, 2006 and on January 8, 2007, NRH granted the applicant’s request for homeless status.

11On September 7, 2011, the applicant filed another request for priority status on the NRH waitlist under the health and safety priority. The applicant did not indicate on the application form that he was unable to climb stairs or that he required an elevator. NRH granted his request and the applicant was placed on a health and safety priority status on the waitlist. He was advised in writing that with such priority status, he would receive one offer of housing and if he refused the offer, the health and safety priority status would be removed from his application and he would revert to the regular waitlist with his original chronological date. In November 2011, the applicant contacted NRH to advise that due to his health he was having great difficulty in his current home.

12In April 2012 a one bedroom unit became vacant at Vineyard Co-op. The unit is on the third floor and the building has no elevator. An employee of Niagara Peninsula asked the applicant if he was aware that there was no elevator in the building. The applicant responded that he was fine with living in a unit on the third floor with no elevators.

13During the preliminary hearing, the applicant noted that when he was offered a unit on the third floor with no elevators, the respondents knew he had a disability. As he had already waited six years to get a placement, the offer was like an ultimatum; he was only allowed one choice of placement so he accepted it.

14On April 11, 2012 Vineyard Co-op advised NRH that the applicant had accepted the offer and had been accepted for membership within Vineyard Co-op. The applicant moved in June 2012.

Request for a Ground Floor Unit

15In August 2014 the applicant made a new application with NRH for rent geared to income assistance. He also requested health and safety priority status, which was approved. The applicant specified that he only wanted a ground floor unit or a unit with an elevator and selected only one property that he wished to move into. Such property was not Vineyard Co-op. The applicant was again advised in writing that with such priority status, he would receive one offer of housing and if he refused the offer, the health and safety priority status would be removed from his application and he would revert to the regular waitlist with his 2014 chronological date. The applicant remains on the centralized waitlist with a 2014 date of application for the property he applied for. NRH observes that as there is a limited number of one bedroom units at the selected property, the applicant may have a lengthy wait before he is offered a unit.

16Niagara Peninsula and Vineyard Co-op have no input into or control over the NRH process and where a tenant is on the centralized waitlist for the region. They also have no input or control into requests to move to properties out of Vineyard Co-op. They can however offer transfers of units within Vineyard Co-op.

17On March 30, 2015, Niagara Peninsula informed the applicant that he could request a transfer to a one bedroom unit on the first floor at Vineyard Co-op. Because it would be an internal transfer, the applicant would not have to go through the NRH waitlist. The applicant responded by email that same day that he refused the offer to be placed on the waitlist to transfer internally and that he would wait to be transferred out of Vineyard Co-op. He also told Vineyard Co-op’s property manager verbally that he did not want to move to the first floor because it would put him too close to the office and, by extension, to her. At the preliminary hearing the applicant indicated that moving to the first floor of Vineyard Co-op would create a hostile environment because of the intimidation and racism he has suffered since 2012.

18The applicant explained that he did not file his Application with this Tribunal in 2014 because he wanted to use the alleged refusal to transfer him as proof of the respondents’ character. The applicant thought that the alleged refusal to transfer him could be discriminatory based on his race, ancestry, colour, ethnic origin or disability. The applicant indicates that he self-identifies as Black and he has a disability. The applicant provided no further link between the alleged incidents and the Code grounds.

Respondents’ Submission

19NRH submits that the applicant has not identified any incident of discrimination based on his race, colour or disability or that he was adversely treated compared to others on the centralized waitlist. He has also not identified any evidence that could suggest that the chronological waitlist is discriminatory or has an unintended discriminatory outcome. NRH argues that the applicant remains on the priority list for placement and the applicant has not shown that he has been adversely impacted by the process.

20Vineyard Co-op and Niagara Peninsula maintain that the applicant was offered an internal transfer to Vineyard Co-op’s first floor in March 2015 but he refused the transfer. The Application is untimely as the Application, filed on October 20, 2016, was filed more than one year after the alleged incident.

21Vineyard Co-op and Niagara Peninsula also argue that the Application as it relates to the transfer to another property should be dismissed against them because they have no control over the NRH waitlist and the applicant has not been adversely treated. Vineyard Co-op offered a unit on the ground floor to the applicant but he refused it.

Allegation 2 – Cleaning Duties

22The applicant explains that one of the obligations related to being a member at Vineyard Co-op is to clean common elements approximately every 6 to 8 weeks.

23The applicant maintains that he made efforts to perform his cleaning duties but after 1 ½ years, he could no longer perform the tasks. He explains that he has a disability; he has a back and hip injury. The applicant contends that he learned through another member of Vineyard Co-op that he should have been exempted from cleaning duties on his first day at Vineyard Co-op because of his disability. He argues that he should have been informed of the exemption procedure.

24In November 2013, the applicant informed Vineyard Co-op and Niagara Peninsula by letter that he was unable to perform cleaning duties due to a medical condition. On November 27, 2013, Vineyard Co-op wrote to the applicant advising him that he would be exempted from performing cleaning duties if he provided a doctor’s note.

25In December 2013, the applicant filed a doctor’s note and on February 6, 2014, Vineyard Co-op’s property manager wrote to the applicant to confirm its receipt of the doctor’s note and to inform him that he was exempted from cleaning duties. The applicant has been exempted from cleaning duties since then.

26The applicant maintains that the cleaning duties worsened his injuries. The applicant explains that he does not know why he did not file a timely Application with this Tribunal when he found out about the exemption.

Vineyard Co-op and Niagara Peninsula’s Submission

27Vineyard Co-op and Niagara Peninsula submit that prior to November 2013; they did not know that the applicant had a medical condition rendering him incapable of performing cleaning duties. Once Vineyard Co-op and Niagara Peninsula were informed, they exempted the applicant from cleaning duties. They argue that they have reasonably accommodated the applicant’s disability to the point of undue hardship by fully exempting him from cleaning duties.

28Vineyard Co-op and Niagara Peninsula also argue that the Application related to this allegation is untimely.

Allegation 3 – Accessible Parking

Applicant’s Submission

29The applicant explains that he has never requested an accessible parking space as those spaces are open to anyone with a disability and no one should have to make such request. According to the applicant, there are eight accessible parking spaces at the Vineyard Co-op.

30The applicant indicates that he often came home to find four accessible spaces taken by vehicles without a disability permit. He complained about this and believes that as a result, members put nails in the tires of his vehicle.

31The applicant states that the use of accessible spaces without the appropriate parking permits started in June 2012 and is an ongoing issue. He says that he enquired as to whether people without permits were allowed to park in the accessible parking spaces. He was told that one mother whose child has a disability and lives at Vineyard Co-op was allowed to park there.

32The applicant received a letter dated June 18, 2014 indicating that the property manager had received his letter about the nails in the tire and that the matter of assigning and creating a few more accessible parking spaces would be on the agenda for the Board of Director’s (“the Board”) meeting in July. The applicant believes that the Board should have looked at the audio/video tape of the “nails in the tires” incident to find out who had vandalized his car. He believes the Board did not do anything with the complaint.

33The applicant was asked if he had seen the notice that the Board posted for members of Vineyard Co-op stating that it is illegal to use someone else’s accessible parking permit. In addition, the notice says that members are not to park in the accessible parking spaces for any length of time. The applicant had seen the notice, but thought it had been recently posted in the lobby and that tenants could not read it because of the small print. He states that even with this notice, the issue has not been resolved and cars without permits still park in the accessible spaces. He maintains that he only raised the issue once in 2014.

34The applicant explains that in the last three years he is not really mobile and his van stays where it is in an accessible parking space. The applicant says that he has had difficulties finding accessible spaces on occasion but he could not provide any particulars. He could not remember when this happened to him but it would have been a few years ago. He admits that when he complained about the issue to Vineyard Co-op, he was complaining about a member and her mother using the accessible parking without a permit. He never told Vineyard Co-op that he had difficulty finding spaces.

35The applicant explains that he did not file a timely Application with the Tribunal because he was expecting his transfer to another co-op and he did not know about the one year limitation period.

Vineyard Co-op and Niagara Peninsula’s Submission

36Vineyard Co-op and Niagara Peninsula state that the applicant takes issue with tenant’s guests using accessible parking spaces without permits. However, the applicant has never requested that he be provided with a designated accessible parking space.

37Vineyard Co-op and Niagara Peninsula submit that until July 2014, two accessible parking spaces were assigned to two tenants who have accessible units. There were also three accessible parking spaces available for members or their guests. A mother and caregiver of one member used the member’s designated accessible parking space by using her daughter’s parking permit when she visited Vineyard Co-op. In September 2014, the parking lot was repaved and the number of accessible parking spaces was increased to eight.

38Vineyard Co-op and Niagara Peninsula submit that the applicant takes issue with the tenant’s mother using the tenant’s designated accessible parking space without a permit. They argue that there are no particulars pointing to the fact that the applicant was prevented from parking in an accessible parking space or that he otherwise had difficulty accessing the building from the parking lot due to his disability.

Allegation 4 – Damage to Vehicle

39The applicant states that in June 2014, after he complained about the accessible parking spaces, he found nails in his tires. He believes that this incident occurred because he complained about the accessible parking spaces and because he is Black and has a disability.

40In June 2015, the applicant noticed a “K” scratched on the door of his vehicle. He requested data to identify who did this. He was not provided with the data but the incident was reported to the police. He believes that this second act of vandalism is linked to the fact that he complains about numerous matters. He also thinks that the letter “K” is the initial of one of his co-tenant who, he assumes, vandalized his vehicle. He states that Vineyard Co-op and Niagara Peninsula have created a hostile environment for him by not solving the issues and by attempting to evict him.

41The last incident of alleged vandalism occurred in February 2016. The applicant had an appointment at the university. The day before he had asked that a car without a permit be removed from an accessible parking space. The next day he found that five bolts had been loosened on the driver’s rear tire. He believes he was vandalized again because he asked questions and complained, and this is linked to his disability.

Vineyard Co-op and Niagara Peninsula’s Submission

42Vineyard Co-op and Niagara Peninsula have no knowledge of who allegedly vandalized the applicant’s car or loosened his wheel nuts. They deny that they allowed or condoned harassment by tenants against the applicant.

43They further submit that the June 2014 and 2015 allegations are untimely. They also note that these allegations are against co-tenants and do not form part of a series of events.

Allegation 5 – Lightbulbs Incident

44The applicant states that the light fixtures in his unit are more than twenty years old. In 2013 he replaced the lightbulbs and paid Vineyard Co-op $5 for two lightbulbs. The lightbulbs stopped functioning a few months later. In February 2014, the applicant raised this issue with Vineyard Co-op or Niagara Peninsula. The applicant refused to pay for the second set of bulbs and requested that Vineyard Co-op or Niagara Peninsula replace the entire lighting system. They complied with the request. The applicant did not pay for the lightbulbs and Vineyard Co-op did not enforce the request for payment.

45The applicant states that he did not file his Application with the Tribunal at the time as he did not think it was important. He believes that he was discriminated against because he was charged an illegal fee for the lightbulbs. He states that this is harassment but it is not linked to the grounds under the Code.

Vineyard Co-op and Niagara Peninsula’s Submission

46Vineyard Co-op and Niagara Peninsula argue that the applicant has not set out facts that, if proven, could demonstrate that a prohibited ground of discrimination was a factor with respect to the alleged lightbulb incident.

Allegation 6 – Snow Removal

47The applicant states that on two occasions in 2016 he was given $20 tickets because he did not move his car to allow for snow removal. The applicant submits that this is discriminatory for those with disabilities who have to get to their cars and move them.

48The applicant states that he was originally asked to pay the tickets but did not. He confirms that Vineyard Co-op and Niagara Peninsula did not enforce the payment of the tickets.

Vineyard Co-op and Niagara Peninsula’s Submission

49Vineyard Co-op’s snow removal policy provided that, on days with a snowfall of more than two inches, members were required to park their vehicles in the parking lot across the street by noon so that the parking lot could be cleared. Failure to comply resulted in a $20 ticket. Vineyard Co-op and Niagara Peninsula admit that the applicant has been issued tickets for failure to comply, which he refused to pay, but they never enforced the fines.

50In the circumstances, Vineyard Co-op and Niagara Peninsula state that the applicant has not demonstrated that he has experienced adverse treatment, or alternatively he has not set out sufficient facts that, if proven, could demonstrate that his disability was a factor in his refusal to comply with the snow removal policy.

Allegation 7 – Noise Complaints and Alleged Racial Discrimination

51The applicant states that on August 11, 2015 he received a Notice to Attend Vineyard Co-op’s Board meeting on August 24, 2015 to discuss the ongoing matter of the extremely loud music coming from his unit. The applicant attended the meeting. The applicant states that he gave the Board a doctor’s note saying: “Ed has hearing problems requiring a hearing aid”.

52At that meeting the applicant agreed not to watch television louder than 15 decibels. Also, if anyone wished to complain about the sound, they could ring the applicant’s buzzer in the lobby. The applicant states that no one ever rang the buzzer but he got two noise tickets.

53The applicant says that at that time other tenants were frequently posting nasty notes on his door, including one racist in nature and one commenting on the applicant’s disability. He reported this to the police but nothing was done. The applicant states that when he saw the notes, he took them down, copied them and put them back on his door with messages for his neighbours. The notes were placed on the applicant’s door in 2015 and 2016.

54The applicant recalls that in May 2016, there was another meeting with him at which Vineyard Co-op’s Board wanted him to sign a performance agreement. The applicant refused to sign it. He says that the eviction notice was dropped but he was not told about this.

Vineyard Co-op and Niagara Peninsula’s Submission

55Vineyard Co-op and Niagara Peninsula submit that the Vineyard Co-op’s by-laws clearly indicate that members must not make or allow any noise, nuisance or other act that unreasonably disturbs or interferes with any other member of these communities. The by-laws also state that members must respect the human rights of other members.

56The respondents maintain that starting in approximately March 2015, Vineyard Co-op began receiving verbal and written complaints from other tenants that the applicant was playing his music extremely loudly. On May 22, 2015, the Vineyard Co-op’s Board sent the applicant a letter requesting that he correct this issue by using a reasonable and acceptable noise level so that he could enjoy his music without disturbing his neighbours.

57Vineyard Co-op and Niagara Peninsula maintain that on August 11, 2015, the Board sent the applicant a further letter requesting that he attend a meeting to discuss the ongoing matter of the extremely loud music coming from his unit.

58Vineyard Co-op and Niagara Peninsula submit that the applicant provided a copy of a doctor’s note dated August 24, 2015, stating that he has hearing problems and requires a hearing aid. The note does not state that due to hearing problems, the applicant must listen to music at a loud level.

59Vineyard Co-op, Niagara Peninsula and the applicant came to an arranged upon which members would buzz the applicant from the lobby to ask that he turn down his music as required. Vineyard Co-op informed the applicant’s neighbours of this arrangement.

60Vineyard Co-op and Niagara Peninsula maintain that upon learning of the applicant’s hearing disability, they acted proactively by amending their Fire Plan and installing a blinking strobe smoke detector in his living room and bedroom in the event that he was unable to hear the fire alarm.

61Vineyard Co-op and Niagara Peninsula state that the suggestion that the applicant’s neighbours buzz him from the lobby proved unsatisfactory because certain members were too afraid of the applicant to buzz him. The noise complaints continued. Vineyard Co-op notified the applicant of a number of complaints by letters in January 2016.

62Vineyard Co-op and Niagara Peninsula indicate that between August 2015 and April 15, 2016, Vineyard Co-op received approximately 18 noise complaints. A number of these complaints cited the tenants’ own health issues (anxiety disorder and migraines) as being adversely affected by the loud music. One terminally ill tenant provided a doctor’s note which stated that she was suffering from severe anxiety caused by excessively loud music from her neighbour and requesting co-operation to find a way to reduce the noise in the building. The applicant’s neighbours called the police on several occasions.

63Vineyard Co-op and Niagara Peninsula acknowledge that some of the applicant’s neighbours left nasty notes on the applicant’s door. Anytime a Niagara Peninsula staff member or Vineyard Co-op Board member became aware of the notes, they immediately removed them. The applicant then proceeded to put them back on his door and he responded to some of his neighbours by leaving nasty notes on their doors.

64Vineyard Co-op and Niagara Peninsula maintain that on April 15, 2016, Vineyard Co-op issued a Notice to Appear to the applicant (the “Notice to Appear”) under its Occupancy By-Law. The Notice to Appear particularized the various complaints, provided supporting documentation and indicated that the Board was going to consider whether the applicant had broken the by-laws and, if so, whether he should be expelled from membership. The applicant was invited to appear, speak at the meeting and present written material, either on his own behalf or with the assistance of a lawyer or other representative.

65The meeting took place as scheduled on May 9, 2016. The applicant attended and distributed a letter with attachments. Vineyard Co-op and Niagara Peninsula maintain that the applicant was permitted an opportunity to present his point of view, which the Board discussed. After hearing from the applicant and considering the issue, the Board decided during a meeting on May 12, 2016 to stop the eviction process of the applicant. The Board instead proposed entering into a Performance Agreement.

66Vineyard Co-op drafted a Performance Agreement, dated May 19, 2016 (the “Performance Agreement”), that included the following:

a. a request for further medical information from the applicant; b. that a flashing or vibrating device be installed in the applicant’s unit to allow him to turn down or reduce the noise; c. that the applicant use wireless headphones or earphones with a volume control when listening to television, computer, or any device which emanates sound; d. that the volume of the television be set at 15 decibels; e. that he stop sending critical, accusatory and disrespectful letters without merit to the respondents; f. that he remove the letters that are posted on his door; g. that he stop taking pictures on the Co-op premises of members, guests and their vehicles without prior permission; h. that he stop reprimanding and intimidating members in the parking lot about parking; i. that if the police are called to the unit and determine that the noise levels amount to nuisance, this will constitute a breach of the Performance Agreement; and j. that copies of police reports or tickets be provided to the Co-op upon request.

67The applicant refused to sign the Performance Agreement and he indicated by letter dated May 21, 2016 that he wanted to appeal the decision to enter into a Performance Agreement. Vineyard Co-op responded by letter dated June 7, 2016 indicating that it was happy to discuss and amend the terms of the Performance Agreement, within reason, to facilitate an amicable solution. The applicant did not respond with proposed amendments.

68Vineyard Co-op and Niagara Peninsula maintain that on June 17, 2016 and October 28, 2016, they sent follow-up letters to the applicant but he has yet to respond.

69Vineyard Co-op and Niagara Peninsula state that the applicant has provided a medical note showing that he has a hearing disability and requires a hearing aid. However, they submit that the applicant has not experienced adverse treatment or, if he has, he has not demonstrated that his hearing disability was a factor in this adverse treatment.

70Vineyard Co-op and Niagara Peninsula submit that the Notice to Appear itself does not constitute adverse treatment. Rather, it was an invitation to a hearing for the purposes of exploring how to balance the applicant’ hearing disability with the rights of his neighbours (some themselves with disabilities impacted by loud music) to quiet enjoyment, and to address his neighbour’s other complaints.

71Vineyard Co-op and Niagara Peninsula argue that after the hearing before the Board, the applicant was also not subject to adverse treatment. The Performance Agreement was not punitive. Instead, Vineyard Co-op stopped the eviction process and offered to provide a number of accommodations, including installing a flashing or vibrating device for the purpose of allowing the applicant to turn down or reduce the noise and covering the cost of purchasing an assistive device.

72In the alternative, Vineyard Co-op and Niagara Peninsula submit that the applicant has not demonstrated that his disability was a factor in any adverse treatment. The applicant has a hearing disability that his doctor indicates requires the use of a hearing aid. However, he has not provided medical evidence that supports that his hearing disability requires him to play his music or television excessively loudly.

73Vineyard Co-op and Niagara Peninsula also argue that they proposed reasonable solutions to accommodate the applicant’s hearing disability to the point of undue hardship. By refusing to agree to the Performance Agreement, which contains reasonable accommodations, or to engage with Vineyard Co-op’s invitation to fashion acceptable alternatives, the applicant unreasonably refuses to participate in the accommodation process. Vineyard Co-op and Niagara Peninsula have discharged its duties in the circumstances.

Allegation 8 – Bulletin Board

Applicant’s Submission

74The applicant states that the word “nigger” was carved into the bulletin board in the lobby of Vineyard Co-op. The applicant found out about the incident, which occurred in March 2015, from another tenant in September 2015. The applicant admits that he never saw the racist word etched in the board but was told about the incident and saw photographs of the board. The applicant maintains that the inappropriate comments remained hanging for approximately 9 days.

75On October 15, 2015, the applicant complained to the property manager. He received a letter from the manager of operations at Niagara Peninsula on November 2, 2015 indicating:

I would like to acknowledge the fact that what was written on the board in March 2015 was appalling, shameful and unacceptable. Racial harassment is unlawful and has not place in a co-op. This being said, nobody knows who wrote the inscriptions on the bulletin board.

Once this was brought to staff’s attention […] the board was immediately covered and the writing completely out of sight. Pictures were taken with the expectation of the maintenance committee taking it down. Staff and Board viewed the video camera to see if they could find the culprit but sadly to say, that portion of the stairs where the board is situated did not have a camera coverable […]

Your letter dated October 15, 2015 is accusing the staff and Board for cover up. I would like to enlighten you that, Niagara Peninsula does not condone acts like this as we advocate against such discrimination and harassment. In as much as there were blames everywhere, I applaud your Board for the action taken at their Board meeting to address this issue. The Board at this time decided to remove the bulletin board, repair and paints the wall and not replace the bulletin board. In order to prevent any further incidents such as this, Posting can be placed in the glass case upon request in the co-op office to the Board President or the Vice-President. This was reported to the membership in May 2015. I hope you can see there was no cover-up here.

I would like to state at this point that, when this happened, the President at the time and I, are both people of colour. Considering the seriousness of this matter; I, myself attended the board meeting that this issue was discussed at to make sure proper measures were in place to address the concern. Your President at the time and myself were satisfied that what could be done at the time for both remediation of the situation and prevention for future were done […]

Because nobody knows or is aware of who did it […] there is no one that the co-op can hold responsible directly, therefore it may seem not properly dealt with. Should you have any suggestions to assist your Board of what to do that would have a long-term outcome; I will be prepared to see it happen […]

I am sorry that in this day and age, we have to deal with this form of discrimination and harassment especially in your co-op […]

76The applicant says that he filed his Application with the Tribunal following the November 2, 2015 letter from the manager of operations of Niagara Peninsula.

Vineyard Co-op and Niagara Peninsula’s Submission

77Vineyard Co-op and Niagara Peninsula state that the applicant, who did not see the bulletin board and did not even hear about it until months later, has not demonstrated that he himself has experienced discrimination or harassment. In the circumstances, he is not the appropriate applicant with respect to this incident and his Application should be dismissed on this basis.

78Vineyard Co-op and Niagara Peninsula further submit that the applicant filed his Application on October 20, 2016. The bulletin board allegation, whether it runs from when it occurred in March 2015 or in the alternative from when the applicant first learned of it in September 2015, is untimely.

Allegation 9 – Reprisal

79In his Application, the applicant alleges that when he told Niagara Peninsula staff members and the Board of Directors of Vineyard Co-op of his alleged discrimination and harassment complaints, they “started a hostile environment” and “tried to put [him] in a situation to evict”. The applicant did not provide particulars at the hearing.

80Niagara Peninsula and Vineyard Co-op categorially deny that they have been involved in a campaign to harass the applicant on the basis of any prohibited grounds of discrimination (or at all) or in reprisal for indicating that he intended to file an Application with the Tribunal. Niagara Peninsula staff and Vineyard Co-op argue that they have followed non-discriminatory policies, procedures and by-laws and have interacted with the applicant in a responsive and respectful manner. The applicant has responded aggressively to his neighbours and to Niagara Peninsula staff members and to question virtually every decision made, even on innocuous matters.

Other Allegations

81The applicant takes issue with Vineyard Co-op’s policies, procedures and by-law amendments, including with respect to the fire drill procedure and member deposit requirement. Niagara Peninsula staff and Vineyard Co-op submit that in no instance has the applicant set out facts that, if proven, could demonstrate that a prohibited ground of discrimination was a factor with respect to these allegations.

decision and analysis

No Reasonable Prospect of Success

82Rule 19A of the Tribunal’s Rules of Procedure reads as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.

83The test on a summary hearing is whether the Application has a reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing so as to assess whether the Application should be dismissed in whole or in part on the basis of no reasonable prospect of success:

In some cases, the issue at a summary hearing may be whether, assuming all of 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by the respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

84As the Tribunal explained further in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

85The Tribunal has consistently stated that to be successful, an applicant has the onus of establishing that he or she experienced a real burden or disadvantage because of a Code ground. See for example Freitag v. Penetanguishene (Town), 2013 HRTO 554 at para. 8.

86I turn now to the applicant’s allegations.

Allegation 1 – Applicant’s Request for Transfer

87The applicant applied through the NRH process for a unit in another property in August 2014. He was placed on the waitlist with priority status and remains on the waitlist. The applicant has failed to point to any evidence, or any evidence that may be reasonably available to him, that he was treated differently and adversely compared to other applicants in the NRH process and that race, colour or disability were factors in the way he was treated. In addition, the applicant has not identified any evidence that could suggest that the chronological waitlist is discriminatory or has an unintended discriminatory outcome. The applicant has also not shown that he experienced a real burden or disadvantage because of his race, colour or disability as a result of his application through the NRH process; he remains on priority status on the waitlist.

88In addition, Vineyard Co-op and Niagara Peninsula offered a transfer to the applicant to a unit on the ground floor in 2015 and he refused it. He failed to provide any particulars regarding the reason for his refusal; that moving to the ground floor would create a hostile environment for him. I find that this is mere speculation and as the Tribunal has consistently stated, there must be a basis beyond mere speculation and accusations to proceed with an allegation.

89I find that the allegations related to the 2014 request to the NRH for transfer and Vineyard Co-op and Niagara Peninsula’s offer to transfer the applicant to a ground floor unit, which he refused, have no reasonable prospect of success.

Allegation 2 – Cleaning Duties

90Cleaning duties are mandatory for member of Vineyard Co-op unless they have a medical exemption. In November 2013, for the first time, the applicant notified Vineyard Co-op’s Board of a medical limitation and he provided the required medical documentation. Once the Board was informed of the applicant’s medical limitation and received the supporting documentation, it exempted the applicant from cleaning duties and the applicant remains exempted. I find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to show that he experienced a real burden or disadvantage because of his race, colour or disability in having to comply with cleaning duties until he provided medical documentation to support his disability.

91I find that the allegation related to the cleaning duties has no reasonable prospect of success.

Allegation 3 – Accessible Parking

92In July 2014, the applicant complained about the use of accessible parking spaces by co-tenants who do not have a valid permit. The applicant never requested that he be provided with a designated accessible parking space. Although the applicant said that on occasion he could not find accessible parking, he could not provide any particulars about this or any adverse impact this may have caused him. The applicant noted that for the last few years, because of his mobility impairment, his vehicle is rarely moved from the accessible parking space and he could not recall the last time he moved the vehicle. I find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to show that he experienced a real burden or disadvantage because of his race, colour or disability as a result of some members using the accessible parking space without the a permit.

93I find that the allegation related to the accessible parking spaces has no reasonable prospect of success.

Allegation 4 – Damage to Vehicle

94The allegations that the applicant’s vehicle was vandalized on three occasions are allegations about the applicant’s co-tenants. The applicant does not allege that employees or Board members of Vineyard Co-op or Niagara Peninsula vandalized his vehicle. Neither Vineyard Co-op nor Niagara Peninsula has any knowledge of who allegedly vandalized the applicant’s car or loosened his wheel nuts. In addition, although the applicant believes that the vandalism may have occurred because he complained about the accessible parking spaces or complained in general, he failed to point to any evidence, or any evidence that may be reasonably available to him, to show that the vandalism occurred because of his colour, race or disability.

95I find that the allegations related to the vandalism incidents have no reasonable prospect of success.

Allegation 5 – Lightbulbs Incident

96Vineyard Co-op and Niagara Peninsula in fact acceded to the request and changed the light fixtures in the applicant’s unit upon his request and refrained from collecting the $5 for the two new lightbulbs. The applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to show that he experienced a real burden or disadvantage because of his colour, race or disability as a result of the lightbulb incident.

97I find that the allegation related to the lightbulbs incident has no reasonable prospect of success.

Allegation 6 – Snow Removal

98Although the applicant was charged $20 for failure to remove his vehicle after snowfalls, Vineyard Co-op and Niagara Peninsula never collected on those tickets. In addition, the applicant has not set out any facts that could demonstrate that his disability was a factor in the issuance of the fine for failing to comply with the snow removal policy. The applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to show that he experienced a real burden or disadvantage because of his colour, race or disability as a result of the snow removal policy.

99I find that the allegation related to the snow removal incidents have no reasonable prospect of success.

Allegations 7 and 8 – Noise Complaints and the Bulletin Board Allegations

100Vineyard Co-op and Niagara Peninsula received numerous complaints from tenants, some with disabilities, that the music in the applicant’s unit was overwhelmingly loud. As a result, they made significant efforts to find a solution that would accommodate both the applicant and his co-tenants. Upon receiving a medical note from the applicant indicating that he has hearing problems requiring a hearing aid. Vineyard Co-op and Niagara Peninsula immediately took steps to address the situation, including amending its Fire Plan and installing a blinking strobe smoke detector in his living room and bedroom in the event that he was unable to hear the fire alarm. Vineyard Co-op and Niagara Peninsula also stopped any eviction processes and instead offered to negotiate and enter into a Performance Agreement.

101However, during that period co-tenants posted nasty notes on the applicant’s unit door. Two notes are particularly offensive and raise the grounds of race and disability under the Code: “Keep your fucken niger music down asshole” and “Deaf guy, This is a reality check. You are rude, selfish, inconsiderate and only think about you. I too am hard of hearing but that does not give me the right to annoy my neighbors as you do on a daily basis. We do not like you.”

102In addition, the word “nigger” was scratched into Vineyard Co-op’s community bulletin board. Even though a tenant other than the applicant saw the word in March 2015 when the incident occurred, the respondent became aware of the incident in September 2015.

103I cannot find that the applicant’s allegations that he was subjected to discrimination or harassment as a result of the alleged offensive notes posted on his door as referred to above or the offensive note scratched on the bulletin board have no reasonable prospect of success.

104The Tribunal has held that the poisoned environment concept may constitute a violation of the general protections against discrimination in the context of the occupancy of accommodation (see Ontario (Human Rights Commission) v. Elieff, 1996 CanLII 20062 (ON CTGDDC), 37 C.H.R.R. D/248 (Ont. Div. Ct.), Messmer v. Piliwood Investments Ltd., 2011 HRTO 1421).

105In determining whether or not a poisoned environment exists, relevant factors include: the number of comments or incidents; their nature; their seriousness; and whether taken together, it had become a condition of the applicant’s employment that she or he must endure discriminatory conduct and comments: see Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at para. 19.

106The notes posted the applicant’s door and on the bulletin board are extremely offensive and based on Code grounds. I find that the context surrounding the notes, for example whether they contributed to the creation of a poisoned environment for the applicant, whether Vineyard Co-op and Niagara Peninsula are liable for the actions of tenants and whether Vineyard Co-op and Niagara Peninsula took sufficient steps to address the situation, may only be resolved after hearing evidence in a hearing on the merits.

107I do not find that the allegations related to the racially based note and the note that refers to the applicant’s disability, posted on the applicant’s door, and the racially based note scratched on the bulletin board have no reasonable prospect of success.

Allegation 9 – Reprisal and Other allegations

108Section 8 of the Code contains a very specific definition of “reprisal”:

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.

109The Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.

110I find that the applicant failed to point to evidence, or any evidence that may be reasonably available to him, to show that Vineyard Co-op and Niagara Peninsula were involved in a campaign to intentionally harass the applicant on the basis of one or more prohibited grounds of discrimination or in reprisal for indicating that he intended to file an Application with the Tribunal.

111I also find that the applicant failed to point to any evidence, or any evidence that may be reasonably available to him, to show that he experienced a real burden or disadvantage because of his colour, race or disability as a result of Vineyard Co-op and Niagara Peninsula’s policies, procedures and by-laws.

Dismissal against NRH

112NRH is named as a respondent but was only involved in the allegation related to the applicant’s request for a transfer from Vineyard Co-op to another property. In light of my order to dismiss the Application as it relates to the request to NRH for a transfer, I find that the Application with respect to the allegations regarding the offensive notes will continue only against Vineyard Co-op and Niagara Peninsula. NRH is removed as a respondent for the remainder of the proceeding.

Order

113The Tribunal orders as follows:

a. The following allegations are dismissed:

• the request to transfer to another property;
• the request to be exempted from cleaning duties;
• the accessible parking incident;
• the damages to the applicant’s vehicle incidents;
• the lightbulbs incident;
• the snow removal incidents;
• reprisal; and
• the Vineyard Co-op’s policies, procedures and by-laws.

b. The Application shall continue against Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc. with respect to the following allegations:

• the offensive note that refers to the applicant’s disability and the racially-based note placed on his door and Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc.’s actions to address the matter;
• The offensive racial slur scratched in the bulletin board and Niagara Peninsula Homes Inc. and Vineyard Co-operative Homes Inc.’s actions to address the matter.

c. Niagara Regional Housing is removed as a respondent for the remainder of the proceeding.

Dated at Toronto, this 17th day of August, 2017.

“Signed by”

Josée Bouchard Vice-chair