Songja Hasselsjo v. The Effort Trust Company and Kimberly Holleran, 2017 HRTO 1084

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Songja Hasselsjo

Applicant

-and-

The Effort Trust Company and Kimberly Holleran

Respondents

DECISION

Adjudicator: Bruce Best

Date: August 18, 2017

Citation: 2017 HRTO 1084

Indexed as: Hasselsjo v. The Effort Trust Company

APPEARANCES

Songja Hasselsjo, Applicant

Self-represented

The Effort Trust Company and Kimberly Holleran, Respondents

Mark Melchers, Counsel

Introduction

1This Application alleges discrimination with respect to housing and with respect to goods, facilities or services, based on race, colour, ancestry, place of origin, ethnic origin, disability, creed, gender, family status, marital status age and reprisal or threat of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated December 14, 2016, 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. The Application was heard by conference call on May 29, 2017.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept the facts alleged by the applicant as true, the applicant has not been able to point to any evidence in her possession or that may be reasonably available to the applicant beyond her own suspicions or beliefs that support the claim that the respondents actions in serving her with an eviction notice in June 2016 were contrary to the Code.

Factual Background

4The applicant is a tenant in a building operated by the organizational respondent. On the afternoon of May 30, 2016, the applicant and her spouse were in the building elevator. The applicant was sitting in her electric wheelchair. Another tenant, using a walker, attempted to enter the elevator. The applicant claims that there was not enough space, and she and her husband asked the other tenant to wait for the next elevator. The other tenant allegedly refused, and claimed that the applicant’s husband pushed him out of the elevator. The applicant denies this. The other tenant complained to the superintendent that he had been assaulted by the applicant’s spouse. The superintendent advised the individual respondent, the legal administrator for the organizational respondent, of the complaint.

5The individual respondent subsequently completed a Notice to End your Tenancy For Interfering with Others (N5) (“termination notice”) under the Residential Tenancies Act, 2006, S.O. 2006 c.17 (“RTA”) based on the incident, which was then served on the applicant. The applicant alleges that the respondents’ threat of eviction was made in bad faith and was discriminatory.

Request for Adjournment

6During the course of the summary hearing on May 29, 2017, the applicant requested an adjournment in order to seek legal advice. It appears she had also raised this request at some point in the numerous documents she had filed in the weeks before the hearing. The request also appeared to be related to her request to amend the Application, addressed below.

7The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states, in part:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

8Seeking legal advice will not generally constitute exceptional circumstances that would justify an adjournment, particularly where there has been considerable notice of the upcoming hearing. See Paris v. The Elizabeth Fry Society of Ottawa, 2012 HRTO 164, at paras 10-13. The applicant had been aware since December 2016 that a summary hearing was going to be scheduled in this matter. The alleged incident which gave rise to the request to amend occurred in February 2017. The Notice of Hearing was sent to the parties on March 6, 2017, almost three months before the hearing. There was no indication why the applicant had not sought legal advice earlier. On this basis, I refused the applicant’s request for an adjournment.

Request to Amend Application

9As noted, shortly before the hearing, the applicant sought to amend her Application. In Wozeilek v. 7-Eleven Canada, 2009 HRTO 926 at paras. 4 - 5, citing Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, the Tribunal held that whether to grant an amendment is an issue of discretion, based on prejudice, fairness, a party’s conduct, the impact of the proposed amendment on the course of the hearing, and the stage of the proceedings at which the request is made.

10The events which form the basis of the present Application occurred in May 2016, and the allegations are primarily with respect to the actions of the individual respondent. The proposed amendment was with respect to an allegation that one of the superintendents had called her by a racial epithet in February 2017. Other than the fact that they both involve allegations against the respondent or its staff, the two incidents do not appear to have any connection.

11I ruled at the summary hearing that I would not address the request to amend prior to making a determination on whether the allegations in the Application as filed had no reasonable prospect of success.

12This decision was based on the fact that doing so would have been prejudicial to the respondents, requiring them to address these issues raised less than two weeks before the summary hearing. There was also no indication of any prejudice or unfairness to the applicant. My refusing to grant her request to amend is without prejudice to her right to pursue the February 2017 incident in another application, or in another forum, within the appropriate limitation period.

Tribunal ordered inquiry

13After the issuance of the CAD, the applicant filed a Request for a Tribunal-ordered inquiry. Section 44 (1) of the Code provides:

At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,

(a) an inquiry is required in order to obtain evidence;

(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and

(c) it is appropriate to do so in the circumstances.

14The only specific evidence referred to in the Request was the videotape evidence relating to the incident which gave rise to this Application.

15The respondents noted that the applicant had not provided the details required under Rule 20.2 of the Tribunal’s Rules of Procedure. The respondents took the position in any case that it was not clear why an inquiry would be required, as the videotape evidence sought had already been provided to the applicant. The applicant had, in fact, included captured still images from the videotape and included them in her submissions for the summary hearing.

16At the hearing, the applicant gave a broader explanation for her request for an inquiry. She suggested that if an inquiry were undertaken, it would demonstrate that her assumptions and beliefs respecting the real reasons behind the respondent’s actions were correct.

17The power to order an inquiry is, however, not an inquisitorial power to investigate, but is a tool that may be used by the Tribunal where appropriate to obtain evidence that would otherwise not be available. An inquiry can only be ordered under s. 44(1)(a) of the Code where it is required to obtain evidence. Its purpose is not to determine whether or not a respondent has violated the Code. See Amazan v. Toronto Catholic District School Board, 2015 HRTO 991, at para 8.

18At a summary hearing, it is not necessary to actually present evidence. It is only necessary to point to the evidence the applicant believes may support a finding of discrimination. An inquiry, whose purpose is to actually obtain such evidence, would as such be unnecessary prior to a summary hearing.

19For the above reasons, the applicant’s request for a Tribunal-ordered inquiry was refused.

Summary Hearing Process

20The 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.

21The 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.

22The 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 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.

23However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support her belief that she has experienced discrimination 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.

24As 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.

Application to this Case

25The applicant asserts that the individual respondent did not properly investigate the May 30, 2016 incident, and simply took the other tenant’s side in deciding to serve the applicant with the termination notice. She claims that they would not have done so for other tenants, and that their doing so amounted to differential treatment.

26At the summary hearing, I specifically asked the applicant what evidence would the applicant put forward that the respondents’ actions were discriminatory, rather than simply unfair. The applicant claims that she was served with a number of Notices of Termination which she considered to be baseless. The applicant also provided a lengthy description of the mistreatment she has experienced at the hands of the organizational respondent and its staff. There is also a lengthy history of legal proceedings between the parties, including a previous application before the Tribunal, applications before the Landlord and Tenant Board, and a matter that went to Divisional Court, which was apparently settled.

27The applicant also claims that the notice was given as reprisal. Her basis for this claim appears to be that the respondents has reprised against her as she has exercised her rights to maintain her tenancy. She has not pointed to any evidence, however, that would support a finding that the respondents had reprised against her for raising her Code rights.

28There is little doubt that the applicant has had an acrimonious relationship with the respondents. However, even if she was treated unfairly in being given a termination notice in June 2016, absent evidence of some connection to the Code, such treatment will not amount to discrimination.

29As noted above, for the purposes of a summary hearing, an applicant must be able to point to some evidence, beyond her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311. As noted above, I find that the applicant has been unable to point to any evidence or any evidence that may be reasonably available to the applicant to make that connection or link to a prohibited Code ground and as such the Application is dismissed on the basis of no reasonable prospect of success.

30As also noted above, the applicant raised in her Request to amend the Application additional allegations specifically relating to the allegedly discriminatory conduct of one of the superintendents of the building. The decision to dismiss this Application relating to the events of May and June 2016 is without prejudice to the applicant’s ability to otherwise pursue those allegations.

Order

31The Application is dismissed.