HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ira Kurti
Applicant
-and-
2730979 Canada Inc. operating as Georgian Court Estates
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Kurti v. 2730979 Canada Inc.
APPEARANCES
Ira Kurti, Applicant
Self-represented
2730979 Canada Inc. operating as Georgian Court Estates, Respondent
Martin Zarnett, Counsel
1This is an Application dated March 4, 2015, alleging discrimination with respect to the occupancy of accommodation because of ethnic origin, citizenship and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The hearing in this matter proceeded before me on July 13 and November 7 and 8, 2016, and on January 20, 2017. The hearing also was scheduled to proceed on November 9, 2016, but was adjourned because the applicant was not well enough to proceed that day.
3At the hearing, I heard evidence from the applicant and a paralegal from a legal clinic. I also heard evidence from the respondent’s former property manager, the former assistant property manager, and the assistant property manager’s spouse. In addition, voluminous documentation has been introduced into evidence before me, which I have reviewed and considered for the purpose of issuing this decision.
4The hearing in this matter was bifurcated, so that at this stage of the hearing, I only heard evidence and submissions regarding whether the applicant’s rights under the Code had been infringed. It was only if I determined that there had been an infringement of the applicant’s Code rights that the hearing would proceed further to hear evidence and submissions from the parties on the issue of remedy.
EVIDENCE
5The applicant moved into a townhouse in the respondent’s residential housing complex in January 2012. This townhouse was being rented by a man (the “ex-spouse”) who the applicant had been dating since 2006. The ex-spouse had entered into a residential lease agreement with the respondent in June 2007, and had been living in the townhouse since that time. At no time was the applicant added as a tenant on the lease agreement.
6The applicant and the ex-spouse lived in the townhouse together in a common-law spousal relationship until the fall of 2014. On September 30, 2014, the ex-spouse gave notice to the respondent that he would be vacating his rental unit at the end of November 2014. In a document dated September 30, 2014, the respondent accepted the ex-spouse’s notice and confirmed that he would be vacating the rental unit by noon on November 30, 2014.
7The ex-spouse did not immediately tell the applicant that he had given notice to vacate the rental unit. The applicant discovered that he had done so when she found the document accepting the ex-spouse’s notice to vacate slipped under the door to the rental unit. She states that she kept this document for a few days to see whether the ex-spouse would discuss his plans with her. When he did not do so, she states that she left the respondent’s document on the floor inside the rental unit door for the ex-spouse to find. This prompted a discussion between the ex-spouse and the applicant in early October 2014, during which the ex-spouse confirmed that he was moving out as of the end of November 2014. The applicant states that the ex-spouse made it clear to her that he was getting another apartment on his own, and that he had already found one.
8The applicant testified that from this moment, her common-law relationship with the ex-spouse was over. She states that they remained friendly and civil with each other and continued to live together in the townhouse until the ex-spouse moved out on November 14, 2014, but they no longer shared a bedroom.
The applicant’s rental application
9The applicant states that on October 9 or 10, 2014, she went to speak with the then property manager for the respondent residential complex (the “property manager”). She states that she told the property manager that she understood that the ex-spouse had given notice, but that he had not informed her. She told the property manager that she wanted to stay in the unit. The property manager advised the applicant that, as her name was not on the lease agreement for the unit, the applicant would have to make a new rental application on-line.
10The applicant did so on October 15, 2014, applying to rent a two-bedroom townhouse commencing December 1, 2014. The rental application form required the applicant to indicate her present landlord, which the applicant identified as the respondent. The applicant did not include information for any previous landlord, because the form asked for a previous landlord if the applicant had been living at her current address for less than one year. The application form also asked the applicant to provide the name of her present employer, a contact name and phone number, her job title and occupation, the years at her current job, and her monthly gross income. The applicant stated that she had been employed as a senior accountant for 10 years, with a monthly gross income of $3,600. The application form also advised the applicant that the respondent would be obtaining a credit report for the applicant.
11In accordance with the respondent’s procedure, the applicant’s rental application form was first reviewed by the then assistant property manager (the “assistant property manager”). The assistant property manager completed the top portion of a document called an applicant verification report, which is dated October 16, 2014. This report indicates that the applicant had provided no current landlord information, as the applicant was not a tenant at the respondent’s residential complex, and that no previous landlord information had been provided. The assistant property manager spoke with the contact person identified by the applicant as her employer, who said that the applicant had worked for him as a temporary consultant on and off for 10 years, that he would use her services again, and that the applicant was paid $20 per hour when she worked for him. In her evidence before me, the applicant confirmed that this information is accurate. The form also indicates that no previous employment information had been provided by the applicant beyond consulting. The respondent also obtained a credit report for the applicant.
12The applicant’s rental application form and the applicant verification report were then reviewed by the property manager. It is the property manager’s handwriting that appears on the applicant verification report under the heading “overall impression and recommendation.” In this section, the property manager states that the applicant was applying for a two-bedroom unit with hopes of finding a roommate who can share the rent. The applicant does not dispute that she had a discussion with the property manager where she asked whether she had the option to have a roommate, but states that she had applied to be the sole tenant.
13The property manager next notes that the applicant claimed to have lived at the respondent residential complex for three years; however, the respondent’s records did not show her as a leaseholder or occupant. It is correct that the lease agreement with the ex-spouse does not identify the applicant as either a tenant or an occupant. I accept that the applicant had lived in the rental unit since January 2012. There is no evidence to the contrary.
14The property manager notes that the applicant had said that she finds work through a temp agency and was hopeful of having stable employment in the near future. The applicant denies that she said this to the property manager. Nonetheless, it is clear from the evidence before me that the applicant worked on and off on a temporary contractual basis, and did not have a permanent, full-time job. As she advised the Halton Community Legal Clinic (the “legal clinic”) in October 2014, she had only worked a total of 18 weeks over the previous year. As a result, the evidence is clear that the applicant did not have stable employment at the time of her rental application.
15The property manager notes that the applicant said that if the rental application was approved, she would not be able to have the last month’s rent deposit available as required. This also is denied by the applicant, who testified that she offered to pay the whole year’s rent in advance. This is denied by the property manager.
16The property manager notes that the applicant claimed to have worked at a job for 10 consecutive years, but notes that this information is false. The employer contact had indicated that the applicant had worked on and off as a temporary consultant for 10 years.
17The property manager next notes that the applicant had used the name “Claire” when speaking to one of the then assistant property managers (the two assistant property managers at the time are a couple, so for clarity I will refer to this second person as the “assistant property manager’s husband”). There is conflicting evidence about this alleged incident, including about when it occurred. The assistant property manager’s husband testified that he was alone in the property management office when the applicant came in. He believes that this was in late October or early November 2014, which was shortly after he had commenced employment in the assistant property manager position in late September 2014. He had never met the applicant before, and believed that she was a person just walking in off the street inquiring about available properties. He states that he told the applicant that he did not have any information about this, and asked for her name, which she said was “Claire.” He states that the property manager and the assistant property manager came into the office shortly after the applicant had left, and told him that this person lived in the residential complex.
18The property manager’s evidence about this incident is rather confused. She testified that the assistant property manager’s husband brought to her attention that the applicant had used the false name “Claire.” Her testimony is that the assistant property manager’s husband recognized the applicant as the person who had identified herself as “Claire” when the applicant came to the property management office on November 26, 2014 (this incident is discussed in detail below). However, the property manager later confirmed that the decision not to approve the applicant’s rental application had been made in the latter part of October 2014 and certainly by the time the property manager advised the ex-spouse on November 10, 2014 that the rental unit had been rented to another party. I asked the property manager why, if she only became aware of this incident on November 26, 2014, it would be shown on the applicant verification report, to which the property manager replied that she would add new information to any such report as it became available. This makes little sense to me, as the following sentence on the applicant verification report refers to the applicant’s credit report, which the respondent had in its possession as of mid-October 2014 and was one of the items reviewed in considering the applicant’s rental application. I find that the property manager is mistaken in her recollection that the “Claire” incident was only brought to her attention on November 26, 2014.
19The assistant property manager testified that she “assumed” the “Claire” incident had happened in December 2014, although she was not sure. She states that her husband had called her to ask about potential vacancies, and she told him to take the person’s name and phone number. She states that at the time, her husband did not know the applicant by her real name. The timing here clearly cannot be correct, because the assistant property manager’s husband had certainly seen the applicant and would have been aware of her real name as a result of the incident on November 26, 2014.
20The applicant denies that she ever gave the name “Claire” to the assistant property manager’s husband. She states that she recalls going into the property management office to speak with the property manager to inquire about the potential availability of a rental unit in January 2015 on behalf of a friend of hers who lived in Ottawa who was planning to re-locate close to the applicant. She states that the assistant property manager’s husband was the only person in the office at the time. She states that the assistant property manager’s husband asked for her name, to which she replied that her name was not important. She confirmed that her friend’s name is not “Claire.”
21On the applicant verification form, the property manager next notes that the applicant has poor credit with one account in collection. The applicant’s credit report does show one account in collection. While the amount shown in collection is only $143, the property manager testified that she would still regard it as significant that a rental applicant had allowed such a small amount to proceed to collection. The applicant’s evidence is that this account is based on an error relating to certain equipment she had returned but which the account holder failed to properly input into its system, and she states that she had raised this issue with the account holder. However, while I have no reason to doubt the applicant’s evidence on this point, the information provided by the applicant at the hearing was not known to the respondent at the time it considered the applicant’s rental application. Both the property manager and the assistant property manager testified that it is not the respondent’s practice to follow up with rental applicants if concerns arise from the credit report, although a rental applicant can provide clarifying information voluntarily. While the assistant property manager did not agree with the use of the term “poor credit” in reference to the applicant’s credit report and preferred the term “minimal credit”, she raised in her evidence the same concern about the account in collection as had been raised by the property manager.
22Finally, on the applicant verification form, the property manager makes a note that the respondent had received a call from a man who was answering an ad on Kijiji for a basement apartment in the rental unit where the applicant lived. The note continues that the respondent believed that the applicant had placed this ad, looking for someone to rent the basement. This is not permitted under the respondent’s rules for the residential complex. The applicant acknowledges putting an ad on Kijiji, but states that it was not for the rental of the basement and did not include the respondent’s phone number. She states that the ad indicated that she was looking for a female roommate to share the rental unit. Her evidence is that she specifically told the property manager that she had placed an ad for someone to move in with her. This is denied by the property manager.
23Both the property manager and the assistant property manager testified that a decision was made in the latter part of October 2014 to deny the applicant’s rental application on the basis of the information provided on the rental application form and the credit report, and as recorded on the applicant verification report. At the bottom of the applicant verification report, the property manager has written: “false information, poor credit, unstable employment, no landlord reference.” It is not clear from the evidence when these words were written on the report, although they generally reflect the respondent’s evidence as to why it says the applicant’s rental application was denied.
24With regard to “false information”, the property manager testified: that the applicant had given false information about having worked at her current job for 10 years, when this was only on and off temporary employment; that she had given false information in identifying the respondent as her landlord; and that she had given false information when she had identified herself as “Claire” to the assistant property manager’s husband.
25While not explicitly known to the respondent at the time, I also note that the applicant gave false information on the rental application form as to her gross monthly income, which she stated was $3,600. I understand that if the applicant worked on a temporary contract full-time for a full month at a rate of $20 per hour, then she could potentially earn up to $3,600. However, the reality is that, as she told the paralegal, she had only worked for 18 weeks in the past year. Based on a 40-hour week and at a rate of $20 per hour, this would amount to a total annual gross income of $14,400, or a gross monthly income of $1,200, which is one-third of what the applicant reported on her rental application form and less than the monthly rent for the unit. Indeed, it was on the basis of this very information that a paralegal at the legal clinic (the “paralegal”) expressed concern to the applicant in early October 2014 that she appeared to be unable to afford the rental unit where she was living and that her rental application was unlikely to be approved.
26As discussed above, the reference to “poor credit” relates to the credit report obtained by the respondent, and the concern about the account shown as being in collection. As also discussed above, the reference to “unstable employment” relates to the fact that the applicant did not have a permanent, full-time job, but was relying on temporary contract work. And finally, the reference to “no landlord reference” relates to the fact that the applicant was not a tenant at the respondent’s residential complex, and had not provided any previous landlord reference.
27As discussed below, all of these are legitimate, non-discriminatory reasons for denying a rental application, in accordance with O. Reg. 290/98 under the Code.
The communication to the applicant about her rental application
28The property manager testified that she contacted the applicant sometime in the latter part of October 2014 to advise her that her rental application had been denied. However, the property manager stated that she was aware that the applicant was looking for a roommate to share the rent, and the property manager states that she told the applicant that she could re-apply if she found a roommate as a co-signer or guarantor. She testified that she waited for a period of time to see whether the applicant re-applied with a co-signer or guarantor, but when she did not do so, the property manager proceeded to rent the unit to another party.
29All of this is denied by the applicant. Her evidence is that sometime in the latter part of October 2014, she received a voicemail message from the property manager saying that she had good news and that the applicant’s rental application had been approved. The applicant testified that she called the property management office shortly after receiving this message, and spoke directly to the property manager to thank her. There is no dispute that the applicant never signed a lease agreement, and never provided any deposit.
30The issue of whether the applicant was a “tenant” of the respondent was expressly dealt with the Landlord and Tenant Board (“LTB”) in its decision dated February 20, 2015, in which it is stated:
Having regard to the evidence, I am not satisfied [the applicant] is a Tenant. She did not have privity of contract with the Landlord for the rental unit. She may have completed an [application] but she has no objective evidence that her application was ever approved. I am not persuaded that the [property manager] left a voice message approving the [applicant’s] application. No lease was signed and no consideration was given to support that a new tenancy was created.
31Given that this factual determination was squarely within the LTB’s statutory jurisdiction, I ruled at the outset of the hearing, after inviting and hearing the parties’ submissions, that I would accept this determination as binding upon me. Moreover, having now heard all of the relevant evidence, I agree with the LTB’s finding on this point for the reasons stated in the LTB decision. To this I would add that it makes no sense that the property manager would have told the applicant that her rental application had been approved, but then re-rent the very same unit to another party by November 10, 2014 at the latest. The two simply do not hold together.
November 24, 2014
32As stated above, the applicant’s ex-spouse moved out of the rental unit on November 14, 2014.
33The applicant states that on November 24, 2014, she spoke with the property manager and told her that she was bringing the payment for the deposit and that her ex-spouse had moved out and she was by herself now. She states that this discussion took place in the parking lot just outside the property management office. She states that the property manager then told the applicant that she had cancelled the applicant’s rental application. The applicant states that she asked the property manager why, but the property manager did not give her a reason and told her that the rental unit had been rented out to other tenants.
34The applicant states that she asked what had happened to her rental application, and told the property manager that her daughter was coming back and asked where she was going to live. The applicant states that, in response, the property manager said, “go back and live where you came from.” The applicant states that she told the property manager that she cannot speak to the applicant like that, to which the property manager replied by saying that she would make sure that the applicant never rented at the respondent residential complex again. The applicant states that this was when she asked the property manager whether she wanted the applicant to pay her a year in advance, which was refused. The applicant states that the property manager also said that she could raise the rent as much as she wanted, to which the applicant replied by saying that she thought she would pay the same rent as before. The applicant states that the property manager replied by saying, “no, I don’t want to rent to you at all.” The applicant’s evidence is that the assistant property manager was present for this discussion.
35Neither the property manager nor the assistant property manager recalls having this discussion with the applicant on November 24, 2014. The property manager’s evidence is that, if the applicant had asked about the status of her rental application on November 24, 2014, the property manager might have said that she could not keep waiting for a co-signer or guarantor for the applicant’s rental application, and she might have said that she had “cancelled” the applicant’s rental application or the rental application process. The property manager emphatically denies telling the applicant to “go back and live where you came from”, even if this were to be interpreted as telling the applicant to go back and live where she had resided before moving in with her ex-spouse. The assistant property manager states that she never heard the property manager tell the applicant to “go back and live where you came from”, and she also never heard the property manager say that as long as the property manager was there, the applicant would never rent at the respondent’s residential complex.
36The applicant states that she called the legal clinic and spoke with the clinic’s receptionist on November 24, 2014 after the discussion with the property manager, and left a message for the paralegal to call her and mentioned that her rental application had been cancelled.
November 26, 2014
37There was some confusion in the applicant’s evidence at the hearing as to whether the following incidents occurred on November 25 or 26, 2014. In an addendum to her LTB application that the applicant filed with the LTB on December 16, 2014, the applicant identifies the following incidents as having occurred on November 26, 2014. As the addendum document was prepared by the applicant much closer in time to the events at issue in this proceeding, I find that the following incidents occurred on November 26, 2014.
38The applicant states that on November 26, 2014, she called the property manager and requested the reasons in writing as to why she had cancelled the applicant’s rental application. The applicant testified that the property manager started yelling and screaming at her, saying “get out of there”, “you are an illegal alien”, “you are a liar” and “we don’t give any reasons to liars like you.” The applicant states that she hung up the phone and went directly to the property management office.
39The applicant states that when she arrived at the property management office, the property manager was at her desk, and the assistant property manager, the assistant property manager’s husband and a cleaning lady were also present in the office. The applicant states that when she saw that, she did not want to intrude because she thought the property manager might be in a meeting, so she said to the property manager, “please let me know when I may have a word with you.” The applicant states that the property manager replied with a tone of voice that had so much anger, and said “anything you have to say, you can say here in front of everybody.” The applicant states that she then told the property manager that she should watch her language when she speaks to someone, because even though she may think that she knows the applicant, she does not know anything about the applicant. The applicant states that the property manager did not let her finish the sentence and was yelling that the applicant was an “illegal alien” and a “liar” and that the applicant should get out of the property manager’s office. The applicant states that she asked the property manager what she was lying about and why the property manager was accusing the applicant, and again asked to have this in writing. The applicant states that the property manager responded by saying, “get out, get out”, at which point the applicant left the office.
40The applicant states that after these events, she called a management representative of the respondent (the “management representative”) and left a voicemail message saying that there was an incident that she wanted to report and asked to arrange a time to meet with the management representative in person. The applicant acknowledged that she did not provide the management representative with any details about the incident or who was involved. The applicant’s voicemail message was not responded to by the management representative.
41The property manager recalls an incident where the applicant came to the property management office when the assistant property manager and the assistant property manager’s husband were also present. She does not recall speaking with the applicant by phone prior to this incident. The property manager does remember the applicant making a request for an explanation in writing as to why her rental application had been denied, but the property manager does not recall whether this was on the same day as the incident in the property management office. The property manager’s evidence, which is supported by the evidence of the assistant property manager, is that the respondent does not give written responses and never has. She states that it was not part of the respondent’s general procedures to do so. If there was any telephone discussion prior to the incident in the property management office on November 26, 2014, the property manager denies saying that the applicant was a “liar” or an “illegal alien.”
42The property manager’s evidence about the incident on November 26, 2014 differs markedly from that of the applicant. The property manager states that the applicant came to the office and was very threatening and was pointing her finger at the property manager. The property manager states that the applicant said, “you do not know who you’re dealing with, you better watch yourself.” The property manager acknowledges that she asked the applicant to leave the office. She states that she tried explaining to the applicant that she was an unauthorized occupant in the rental unit at the time, that her ex-spouse had given his notice and that she could not just stay in the unit, but the applicant was yelling and would not calm down. The property manager states that she may have referred to the applicant as an “illegal occupant” in the unit, but vehemently denies that she called the applicant an “illegal alien.”
43The assistant property manager also recalls this incident. She states that the applicant came in to the office and addressed the property manager. She states that the applicant was very upset at that time, and she raised her voice and wanted to know again why her rental application had been denied. She states that the applicant said that she had nowhere to go and wanted to stay in the unit. She states that the property manager told the applicant that the rental unit had been re-rented to another party, and that the applicant would have to leave because the respondent needed possession of unit back from the ex-spouse. The assistant manager states that the property manager did not tell the applicant that she was “cancelling” the applicant’s rental application, as the applicant’s rental application had already been rejected so there was no rental application to cancel. The assistant property manager states that the property manager did not call the applicant an “illegal alien”, and that she has never heard the property manager call anyone this or ever use similar words with any tenant or person. She states that the property manager did tell the applicant that she could not stay in the rental unit and that if she did, she would become an illegal occupant. She states that the property manager did not yell at the applicant, did not raise her voice, and was not rude to the applicant in any way. With regard to the applicant’s demeanour during this incident, the assistant property manager states that the applicant was very upset and raised her voice, but she would not describe the applicant as screaming or yelling. She states that during this incident, the applicant was very aggressive and intimidating. She also denies that the property manager called the applicant a “liar”.
44The assistant property manager’s husband also recalls this incident. He states that the applicant was very agitated, stressed out, and was raising her voice during the incident. He states that the property manager was keeping composed, and appeared stressed but was keeping her voice to a reasonable level. His evidence is that the applicant was definitely yelling and screaming during this incident. He states that the property manager was encouraging the applicant to pack her things and move on. He states that the applicant’s reaction was to say that she did not want to leave and was refusing to remove her things, although he does not remember the exact words. He states that the applicant said that she wanted to stay in the rental unit, and the property manager said that if she stayed, she would be an illegal occupant. He states that the applicant was not really listening at that point and was trying to talk over the property manager, so it did not seem like she was absorbing much information. He states that the property manager did not call the applicant an “illegal alien” or a “liar.”
The applicant’s discussion with the paralegal and the N14 form
45The applicant contacted the legal clinic on November 26, 2014, following the incident in the property management office, and spoke with the paralegal the following day.
46Before delving into the evidence regarding the applicant’s discussion with the paralegal, I wish to address the issue of the privilege that would normally attach to this discussion. In a Case Assessment Direction (“CAD”) that I issued on July 22, 2016, I addressed the issue of privilege that had arisen at the July 13, 2016 hearing as follows:
In the materials filed by the applicant in advance of the hearing, the applicant indicated her intention to call [the paralegal] as a witness to testify as part of her case. [The paralegal] is a paralegal employed by Halton Community Legal Services, who provided legal advice and assistance to the applicant during the relevant period.
At the hearing on July 13, 2016, I explained to the applicant that any communications between her and [the paralegal] and anyone else at the legal clinic were protected by solicitor-client privilege. I explained to her that while she as the client had the ability to waive this privilege, the consequence of her doing so would be that all communications between her and [the paralegal] and anyone else at the legal clinic would become producible in evidence in this proceeding. I expressly cautioned her that, as the primary issue in this case relies upon my assessment of credibility, to the extent that there are any disparities between the applicant’s evidence regarding the events at issue and any notes, records or recollections of [the paralegal] or the legal clinic, this may have an adverse impact on my assessment of the applicant’s credibility. I explained that this issue would not arise and such communications could not be entered into evidence before me if the applicant chose to rely upon the existing solicitor-client privilege, but that if she waived that privilege, then all such communications would come into evidence and I would need to consider them in assessing credibility. While the respondent could have taken the position at the hearing that the applicant already had waived privilege by indicating her intention to call [the paralegal] as a witness, the respondent was nonetheless prepared to allow the applicant as a self-represented litigant the opportunity to claim solicitor-client privilege at the hearing by not calling [the paralegal] as a witness and by not testifying herself as to any privileged communications she had with [the paralegal] or anyone else at the legal clinic.
Having had this discussion at the hearing, the applicant chose to waive solicitor-client privilege and chose to testify as to communications that she says she had with [the paralegal] and others at the legal clinic. While the applicant is a self-represented litigant, I am nonetheless satisfied that she was made fully aware of the implications of waiving privilege and understood them.
47The applicant’s waiver of privilege regarding her communications with the paralegal and the legal clinic resulted in me ordering disclosure by the applicant of all documents relating to such communications, as well as ordering the legal clinic to disclose all such documents.
48Section 3(2) of O.Reg. 516/06 under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, states:
If a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2(1) of the Act.
49Essentially, this provision means that if a tenant leaves a rental unit without giving proper notice to the landlord and the spouse is still living in the rental unit, the spouse can become the tenant. Section 3(3).3 of O.Reg. 516/06 states that, in these circumstances, where the tenant is not in arrears of rent, the spouse can advise the landlord that she or he intends to remain in the rental unit.
50The paralegal’s evidence is that, as of November 27, 2014, she understood that the ex-spouse had given his notice to terminate the tenancy in early October, which would not have been valid notice to terminate the tenancy by November 30, 2014. The paralegal’s evidence is that it was only confirmed to her that the ex-spouse had given proper notice when she spoke with the respondent counsel’s office the following day. This is disputed by the applicant, who says that she made the paralegal aware that her ex-spouse had given the required 60 days’ notice and that his notice had been accepted by the respondent landlord.
51In any event, this misunderstanding caused the paralegal to believe that section 3(2) of O.Reg. 516/06 applied. As a result, on November 27, 2014, the paralegal faxed the applicant with some information about this regulatory provision, including a Form N14 which is a “Notice to Landlord and Agreement to Pay the Rent Owing” (“Form N14”). This form confirms that the signatory is the spouse of the tenant who vacated the rental unit, that the spouse wishes to stay in the rental unit and become the tenant, and that the spouse agrees to pay the amount of rent owing for the unit.
52It is clear to me that the applicant did not understand at the time that this form was only applicable and effective if her ex-spouse had failed to provide proper notice to terminate the tenancy. As a result, even though the ex-spouse had given proper notice and the termination of the tenancy had been agreed to by the landlord, the applicant genuinely believed that by signing the Form N14 and delivering it to the landlord, she had the right to remain in the rental unit as a spouse.
53The applicant completed and signed the Form N14 on November 27, 2014, and brought it down to the property management office together with a letter from her ex-spouse’s insurer confirming her status under the policy as “common law spouse” and a document from Revenue Canada showing the rental unit as the applicant’s address and referencing her marital status as “married or living common law.” Only the assistant property manager was in the office when the applicant arrived with these documents. The applicant states that at first the assistant property manager refused to take the documents, but ultimately did take the Form N14 and a copy of the insurer’s letter, and signed on the Form N14 to confirm that these documents had been received. There is no dispute that while the applicant was in the office, she called the insurer and put them on speakerphone to confirm the information contained in the letter.
November 28, 2014
54On the morning of November 28, 2014, the property manager delivered a letter addressed to the applicant, which states:
Please be informed that the Notice you provided to us is an illegal document. As stated, you have no claim to the unit and if need be we will contact the Police to have you removed should you not voluntarily do so by NOON on November 30th and they will escort you out of the unit.
55The applicant’s evidence is that the property manager came to the rental unit very early in the morning, at about 7 a.m., and knocked on the door very hard. She states that she was in bed at the time, but came downstairs to open the door, at which time the property manager handed her the letter. The property manager’s evidence is that she placed this letter under the door to the rental unit.
56The property manager’s evidence is that she called the ex-spouse on the morning of November 28, 2014 because she felt she was obligated to let him know as the leaseholder that the applicant had brought in a document claiming that she was his spouse and that she was intending to stay in the rental unit, and to let the ex-spouse know that he would be accountable if the rental unit was not vacated. This prompted the ex-spouse to send an e-mail to the property manager at 9:23 a.m. on November 28, 2014, stating that the applicant was not his spouse, that she had been given two months’ notice to move out, and that she had acknowledged this and stated that she would move. The ex-spouse asked the property manager to change the locks on the rental unit, and to call the police to escort the applicant out of the unit or take whatever steps were necessary to force her to vacate the unit.
57The ex-spouse then attended at the respondent’s residential complex. The property manager states that she explained to the ex-spouse that the respondent could not call the police to have the applicant removed, that this was not how it worked, and that the respondent would have to go through a legal process at the LTB to have the applicant removed from the rental unit, and that the ex-spouse would be responsible for any legal costs. It is not clear from the property manager’s evidence whether she said this to the ex-spouse during a phone conversation prior to his arrival at the residential complex, or after he arrived. In any event, it was the ex-spouse who made the initial call to the police on the morning of November 28, 2014. While the ex-spouse did not testify before me, I have a document that he prepared indicating that he was told by the police that this was not an urgent matter and that they would not send an officer.
58The ex-spouse provided the respondent with a signed letter dated November 28, 2014, confirming that he had handed in his keys to the rental unit on that date and requesting that the locks be changed. The applicant believes that this letter was prepared by the property manager for the ex-spouse to sign. This is denied by the property manager.
59The applicant’s evidence is that, after receiving the letter from the property manager, she waited until 9 a.m. when the legal clinic was open to try to get an urgent message to the paralegal for her to call the applicant. The paralegal was out of the clinic office at that time on other matters. The applicant made several calls that morning to the legal clinic, as well as a call to the LTB.
60The applicant states that she then received a call from her ex-spouse, who said, “you told me that you were going to leave tomorrow.” The applicant states that she told him that she has the option as a spouse to stay. She states that as soon as her ex-spouse heard the word spouse, he started saying, “What spouse? We broke up. How can you be a spouse now?” She states that she was trying to explain to him, but the call was cut off. The applicant believes that her ex-spouse called her at about 12:30 p.m.
61The applicant states that very shortly afterwards, her ex-spouse showed up in her bedroom, which she believes was at approximately 1:00 p.m. She states that at this time, she was on the phone again with the legal clinic. She states that her ex-spouse left as soon as saw her on the phone. She states that she knows that her ex-spouse left the rental unit after coming to her bedroom, because she heard the door close.
62The applicant then sent a text message to her ex-spouse to ask why he was in her bedroom, to which he responded that he came because he thought they could talk, but the applicant had called the police as soon as he entered. The applicant clarified that she had not called the police on her ex-spouse, and asked him why he was there. The ex-spouse replied that he was going to invite the applicant for coffee or lunch, but she was not approachable at that time. He later sent a text at 1:08 p.m. stating that he was getting lunch.
63A short time later, the applicant states that she heard a noise downstairs in the rental unit while she once again was on the phone to the legal clinic. She states that at first she thought that someone was taking her possessions, so she called 911. While she was on the phone with 911, she went halfway down the stairs and saw the property manager and two men with black hats. The two men with black hats were the property manager’s husband and the assistant property manager’s husband, who were there to change the locks as requested by the ex-spouse. The evidence of the assistant property manager’s husband is that the locks to the rental unit were changed after the police arrived.
64The applicant states that the property manager said that the applicant had to go move her car because it would be towed and might be damaged and this would be at the applicant’s cost. The applicant states that she replied by questioning how she could be parked illegally when she has a parking sticker from the respondent residential complex in her car window. She states that her ex-spouse then appeared inside the rental unit and said that he had given up the keys to the unit. She states that the property manager then asked the applicant to come to the property management office to sign an agreement. The applicant states that she was still in her pyjamas at this time, so she said that she was not ready right then, but suggested that they make an appointment and the applicant would come to the office. The applicant states that she then said that she had to get dressed because she had called the police, to which the property manager replied that she could not wait because the applicant would be charged with trespassing.
65The applicant states that she went upstairs to change her clothes, and was trying to buy time so that the police could arrive. She states that the police arrived shortly afterwards while she was still in her bedroom, and called up to her to ask if she had any weapons. After the applicant confirmed that she did not have any weapons, the police came upstairs to speak with her.
66The property manager’s evidence is that sometime after the ex-spouse arrived at the residential complex, she, her husband and the assistant property manager’s husband accompanied the ex-spouse to the rental unit at the ex-spouse’s request. She states that the ex-spouse invited them into the rental unit. She states that she could hear the applicant yelling and screaming. She states that at this time, the ex-spouse told her that the applicant had barricaded herself in her bedroom and that she may be suicidal. She states that at this point, she was concerned for the applicant’s safety, so the group left the rental unit and went back to the property management office and her husband called the police, saying that they had a tenant who had barricaded herself in her room and may be suicidal.
67Police records in evidence before me indicate that an initial call was made to the police at 11:22 a.m. on November 28, 2014. Police records further state that at approximately 12:58 p.m., police were called to deal with a barricaded person at the rental unit. It appears to me, and I find, that the initial call at 11:22 a.m. represents the call made by the ex-spouse, while the 12:58 p.m. call represents the call from the property manager’s husband. It is unclear to me from the evidence before me whether the property manager, her husband and the assistant property manager’s husband had accompanied the ex-spouse at the time the applicant describes him as having come up to her bedroom, but the timing of the second call to the police suggests that this may have been the case. I have no evidence before me to indicate that the applicant had actually barricaded herself in her bedroom at this time or that she was suicidal, both of which are denied by the applicant. However, this does not necessarily contradict the property manager’s evidence, which is supported by the evidence of the assistant property manager’s husband, that the ex-spouse told them that the applicant had barricaded herself in the bedroom and may be suicidal.
68I have no police records before me indicating when the applicant’s 911 call was made. The applicant’s phone records show this call as having been made at 12:28 p.m., which does not correspond with the chronology of events given by her in evidence before me, particularly that her ex-spouse appeared in her bedroom at approximately 1:00 p.m. and exchanged text messages with her shortly afterwards, both of which the applicant says occurred prior to her 911 call. The applicant suggests that the time of 12:28 p.m. shown on her phone records may be in error, perhaps because she had not changed the time on her phone when the clocks had changed in the fall (meaning that her 911 call in fact may have been made at 1:28 p.m.). However, this also does not make sense to me, as it suggests that the police took more than 30 minutes to arrive at the scene from the time of the call at 12:58 p.m. While the police records do not show the specific time that the police officers arrived on scene, I find it hard to believe that it would have taken them half an hour to do so. As a result, I am left in a state of uncertainty as to the precise sequence of events that transpired on November 28, 2014 prior to the arrival of the police.
69The applicant states that after the police arrived at the rental unit, one of the police officers came up to her bedroom and was standing at the door. She states that this police officer told her that in his experience the police do not remove people from their home, to which she replied that the paralegal had already advised her of this and had told her that, in a situation like this, she should call the police. She states that this police officer was very polite and very nice. She states that she then saw a second police officer, who had been talking to the property manager and her ex-spouse downstairs. She states that this second police officer asked, “why would you want to stay in a place where they don’t want you?”, to which the applicant replied that this is where she lives. She states that this police officer asked what documents the applicant had, and the applicant produced the documents she had provided to the assistant property manager to show that she was the common law spouse of the tenant and also produced the Form N14 and the fax she had been sent by the paralegal.
70She states that she then heard the second officer talking to the first officer and saying, “Why now? Why do they want her out now?” She states that the officers then went downstairs and spoke to the property manager and her ex-spouse. She states that she then heard the property manager say to the police officers, “Who is the kind of woman who would stay with a man who does not love her?”
71The applicant states that the two police officers then came back upstairs and told her that she needed to leave with them right now or she would be arrested, because the property manager wished to press trespassing charges against her. She states that she asked, “How can I be trespassing when my bed hasn’t moved?” and said that she wanted to speak with her ex-spouse. She states that the officers told her that her ex-spouse was no longer there, that he had returned his keys to landlord, and that the property was no longer his. She states that the officers told her that as a result, she was trespassing and that this was serious.
72The applicant states that she thinks that at that time she received a call from the paralegal, and she asked what would happen if she let the police arrest her. She states that the paralegal told her not to do that and that there was nothing she could do at that time as it was a Friday afternoon. She states that while she was waiting, she had already called the LTB, and they had said that it was illegal for the applicant to be removed without an LTB order and had suggested that the applicant file an LTB application. The applicant states that she asked the paralegal to file an LTB application for her, but was told that she had to do this herself. The applicant states that the paralegal asked to speak with the police officer. The applicant could not hear what the paralegal said to the police officer, but states that she heard the second officer say, “who are you, I don’t take orders from you, I have my own orders to follow” and the officer hung up.
73The applicant states that she asked the police officers about her belongings that were still in the rental unit, and was told that she did not need to worry, as the property manager had promised the police that she would keep the applicant’s belongings safe and sound for 60 days until the applicant found another residence. The applicant states that she said that she wanted this in writing from the property manager, because the property manager was not trustworthy. She states that the second police officer yelled down to the property manager that the applicant wanted this promise in writing, and then went downstairs and talked to the property manager. She states that this police officer then came back upstairs and said that the applicant had to come with them, because they had taken too much time already.
74The applicant states that she then opened a suitcase to pack some belongings to take with her, and was trying to buy time because the paralegal had said she was trying to reach the police lawyer to get the police to cease their actions. She states that the paralegal was unable to get hold of the police lawyer. She states that she finished packing some belongings and was allowed to take pictures of the belongings she was leaving behind, and then she was escorted out of the rental unit by the police.
75The applicant states that when she came down the stairs, the property manager and someone else were there, and the property manager was gloating. She states that she said to the first police officer, “Look at her laughing and gloating. How can someone do this?” The applicant states that she then thought that she was leaving so many things behind that she should take and asked to go back and get some other things, but she was told no and that she had to leave and that everything would be kept for her.
76The property manager’s evidence is that the police were there to assist the ex-spouse in having the applicant removed from the rental unit. She states that the ex-spouse explained the circumstances to the police, that he had been in a relationship with the applicant that did not work out and that he was trying to get her to move out, as he could not have her in the unit because he needed to hand in the keys. She confirmed that she also had discussions with the police about the situation. The property manager denies saying, “what type of woman stays with a man who does not love her?”
77The property manager agrees that she had a discussion with the police about the applicant’s belongings, and told the police that she was happy to hold the applicant’s possessions for 60 days until the tenant came and picked them up. She states that she explained to the police and the ex-spouse that the ex-spouse would be responsible for the costs of this.
The aftermath
78The applicant states that as a result of the events of November 28, 2014, she was in the hospital for the next two days.
79The applicant states that on Monday, December 1, 2014, she went directly from the hospital to her local MPP’s office, where a staff member assisted her in preparing an LTB application. She states that this staff member also made a phone call to the property manager on the applicant’s behalf. She states that after reaching the property manager, the call was put on speakerphone because the property manager wanted to speak to the applicant. The applicant states that she told the property manager that she had just come out of the hospital and needed to get her reading glasses and hair dryer. She states that the property manager responded by telling the applicant to come and get all of her belongings or they would be thrown in the garbage. The applicant states that she asked the property manager whether she was going to honour her agreement with the police, but the property manager would not answer.
80She states that the staff member also placed a call to the respondent’s management representative, and left her name and phone number and the applicant’s name and phone number with someone. The applicant states that she never heard back from the management representative.
81The applicant states that after that, she called movers and asked for an estimate, and told the movers that she could not accompany them because she had been locked out, so they would have to contact the property manager. She states that the movers called back the next day to say that because the locks had been changed, they felt that the situation needed to be sorted out between the applicant and the landlord.
82The property manager testified that she does not recall receiving a call from the MPP’s office staff member or speaking with the applicant on December 1, 2014.
83An e-mail was sent on December 4, 2014 by the property manager to the ex-spouse, saying that she had now spoken with legal counsel regarding the goods and belongings left in the rental unit. The e-mail states that the applicant had left goods and belongings in the rental unit and that, even though she had been asked to come pick them up, she had not done so. The e-mail states that the respondent was holding the ex-spouse responsible for all of the damages as a result of the goods left in the rental unit, including rent loss, moving and storage fees and legal expenses. The ex-spouse was asked to come to the rental unit to pick up and store the applicant’s goods and belongings, and advised that if he had not done so by December 8, 2014, the respondent would move and store the goods at the ex-spouse’s expense.
84The property manager’s evidence is that this e-mail was sent to the ex-spouse because this was regarded as a domestic issue between the ex-spouse and the applicant, and because the respondent as the landlord was only obligated to the tenant on the lease agreement.
85The ex-spouse came to the rental unit on December 7, 2014, and removed the applicant’s belongings. There is a dispute between the parties as to whether any of the applicant’s belongings were left behind in the unit. The applicant subsequently retrieved the belongings that had been removed and stored by her ex-spouse, and has filed a lengthy list of items that she says were in the rental unit when she was removed on November 28, 2014 but which were not retrieved by her ex-spouse. The respondent’s position is that all of the applicant’s belongings were removed by the ex-spouse except for some bags of garbage left behind in the living room, which were disposed of. The respondent’s position is that any items the applicant believes were not returned to her by her ex-spouse are not in the respondent’s possession. I ruled that this was a remedial issue that I would only need to address if I found that the respondent had violated the applicant’s Code rights.
86The applicant served the LTB application on the respondent by attending in person at the property management office on December 8, 2014. She returned again later, presumably to serve the addendum to her LTB application that was filed with the LTB on December 16, 2014. Following this, the applicant was issued a Notice under the Trespass to Property Act prohibiting her from entering upon the property of the respondent’s residential complex. This trespass notice refers to the applicant by her legal name, as well as two alternate names, including the first name “Claire” and the last name of the staff member from the MPP’s office. This trespass notice was given to the applicant at the LTB hearing on December 19, 2014.
The LTB proceeding
87The applicant filed a tenant’s rights application with the LTB. This application is dated December 1, 2014 and was served on the respondent on December 8, 2014. The applicant filed an amendment to her LTB application on December 16, 2014.
88The LTB application was initially returnable before the LTB on December 19, 2014. The respondent requested an adjournment in light of the recent amendment, which was granted. The LTB member initially indicated that he would make an interim order to permit the applicant to retrieve her personal belongings from the unit. However, on the basis of the respondent’s statement to the LTB that there was nothing remaining in the unit and that it was not holding any of the applicant’s belongings, the LTB member decided not to issue an interim order.
89The LTB application came back before a different LTB member on February 13, 2015. At that hearing, the LTB addressed a preliminary issue raised by the respondent challenging the LTB’s jurisdiction over the application on the basis that the applicant was not a tenant. The LTB member heard evidence from the applicant, the property manager, and the ex-spouse. At the conclusion of the hearing, the LTB member dismissed the LTB application on the basis that the applicant was not a tenant.
90The LTB member issued written reasons for her decision, which are dated February 20, 2015. In her reasons, the LTB member determined that the applicant was not a tenant, given that the lease agreement was only between the respondent and the ex-spouse. The LTB member specifically addressed the applicant’s assertion that her rental application with the respondent had been approved, and held that the applicant had “no objective evidence that her application was ever approved.” The LTB member stated in the decision that she was not satisfied that the property manager had left a voicemail message for the applicant approving her rental application, and noted that “no lease had been signed and no consideration was given to support that a new tenancy had been created.” The LTB member also ruled that section 3 of O.Reg. 516/06 did not apply to the applicant, because the ex-spouse as the sole tenant had given a valid notice of termination.
91The LTB member also held that she was satisfied that the ex-spouse had the legal authority to instruct the police to remove the applicant from the unit on November 28, 2014. The LTB member held that, despite the applicant’s belief that the ex-spouse had been forced by the respondent to do this, the ex-spouse very clearly testified that he returned to the property on November 28, 2014 because of his concern that the applicant was not moving and he did not want to be financially liable for the applicant’s unauthorized occupancy.
92The applicant requested review of this decision on March 3, 2015. This request was denied by LTB decision dated March 10, 2015 on the basis that the applicant’s submissions failed to demonstrate a serious error with the original decision.
93At the hearing before this Tribunal, the respondent took the position that I should consider myself bound by the LTB decision and the findings made in that decision. In this regard, I noted the LTB’s specific factual finding that it did not accept the applicant’s evidence that the property manager had initially agreed to grant her application for a tenancy. I further noted that this was an issue that was properly before the LTB for determination as part of its decision as to whether the applicant was at any time a “tenant” within the meaning of the Residential Tenancies Act. As a result, I ruled that I was not prepared to re-visit that factual finding in the context of the human rights proceeding and would accept the LTB’s determination that no such agreement was made.
94I noted, however, that this ruling did not dispose of the matter before me under the Code. I confirmed that there were two main issues that arise in this proceeding under the Code, namely: (1) whether the applicant’s ethnic origin, citizenship or marital status was a factor in the respondent’s decision to deny her application for a tenancy; and (2) whether the applicant’s ethnic origin, citizenship or marital status was a factor in the manner in which the applicant alleges she was treated by the respondent in relation to her occupancy of the unit, including such issues as the changing of the locks to the unit, the calling of the police and removal of her from the unit, and the disposition of her personal belongings. I indicated to the parties that these are the issues that the human rights hearing would be focused on.
95The respondent further asked me to rule on its submission that I am bound by certain other determinations made by LTB, namely: (1) that as of November 28, 2014, the applicant was an unauthorized occupant of the rental unit because it was the ex-spouse who required her to leave the rental unit; and (2) that the ex-spouse was the one who had legal authority to instruct the police to remove the applicant on November 28, 2014, and that it was the ex-spouse who instructed the police to remove the applicant from the unit on that day. After hearing the parties’ submissions, I noted that no issue was taken by the applicant with the LTB’s findings that as of November 28, 2014, she was an unauthorized occupant of the rental unit, and that the ex-spouse had legal authority to instruct police to remove her from the rental unit. I noted, therefore, that the only remaining issue was whether the LTB made a specific finding that it was the ex-spouse who had required the applicant to leave the rental unit on November 28, 2014 and/or that it was the ex-spouse who had instructed the police to remove the applicant from the unit on that day. I indicated that, having reviewed the LTB decision, I did not find that the LTB member made this specific factual finding. As a result, I ruled that I was not prepared to accept the respondent’s submission that I was bound by any such factual determination.
ANALYSIS
Assessment of credibility
96My determination of the issues raised in this case largely hinges upon my assessment of the credibility and reliability of the witness evidence. In making this assessment, I have been guided by the well-established principles as set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and particularly the following comments at pp. 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
97I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paras. 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
98While it appears to me that the applicant is sincere in her personal belief as to the truth of her allegations, I have significant concern about the reliability of the applicant’s evidence, especially in relation to what I regard as the most significant allegation she has made in this proceeding, namely that the property manager referred to her as an “illegal alien.”
99In this regard, I note that in evidence before me is a draft of the applicant’s version of events that was prepared sometime prior to December 7, 2014, and which was subsequently revised as the amendment to the LTB application that was filed on December 16, 2014. In the December 7 draft, the applicant states that she was told by the property manager that her rental application had been denied. In this draft, the applicant alleges that the property manager yelled at her over the phone that she was a “liar.” In this draft, the applicant states that she then went in person to the property management office and spoke to the property manager. The draft states that the property manager interrupted the applicant by saying, “you are an illegal person here, you should move out right now and get out of my office.”
100Of note in the December 7 draft is that there is no reference to the property manager referring to the applicant as an “illegal alien.” When questioned about this at the hearing, the applicant gave a series of differing explanations for this omission. One explanation was that little weight should be given to the December 7 draft because the applicant had been in the hospital twice during the preceding week. I first note that, while I do not doubt that the applicant was in the hospital twice during the preceding week, I do not have any medical evidence before me that would support this as a reason why the applicant would have misstated what she alleges that she actually heard from the property manager in relation to such a serious allegation. I do not regard this as a sufficient basis to account for the omission of any reference to the term “illegal alien” in the December 7 draft.
101Another explanation proffered by the applicant is that she did not know how to spell the word “alien”, which is why she used the word “person” instead. I do not accept such an explanation. While this might have accounted for an incorrect or phonetic spelling of the word “alien”, it in no way accounts for the applicant’s complete omission of this language. Finally, the applicant took the position that nothing should be taken or concluded from the omission of the phrase “illegal alien” in the December 7 draft, because to her, the terms “illegal person” and “illegal alien” are the same. Once again, I simply cannot accept this explanation for such a serious and significant omission. The terms “illegal person” and “illegal alien” certainly are not the same, and do not mean or signify the same thing, particularly in the context in which the applicant alleges such terms were used. In the context of a person who was not a tenant and who was trying to assert a right to remain in a rental unit, the term “illegal person” could simply mean that such a person was not legally authorized to remain in the unit beyond the end of the tenancy. “Illegal alien”, on the other hand, has no such meaning, and could only be understood as referring to a person’s legal status to be or remain in this country. Clearly, those are two entirely different things.
102I am further concerned about the manner in which the applicant’s allegation about what was said to her and when on November 26, 2014 has changed over the course of time. In the December 7 draft, there is no reference to the term “illegal alien” being used, and the allegation is that the applicant was referenced as an “illegal person” when she was in the property management office.
103In the document as filed with the LTB on December 16, 2014, the applicant alleges that, in a phone call on November 26, 2014, in response to the applicant’s request for reasons in writing as to why her rental application had been denied, the property manager referred to her as a “liar” and an “illegal alien.” Then, when the applicant went down to the property management office, she records the property manager as saying, in quotation marks, “you are an illegal person here, you should move out right away, and get out of my office.” Of note at this point, is that the use of the term “illegal alien” is alleged to have occurred on the phone prior to the applicant attending the property management office, and the allegation remains that the term “illegal person” was used by the property manager when the applicant was in the property management office.
104Then, at the LTB hearing on February 13, 2015, the applicant gave evidence that the property manager called her an “illegal alien” both on the phone on November 26, 2014, and then again when she went to the property management office.
105So the applicant’s version of the most significant and serious allegation in this proceeding has morphed from the December 7 draft, where she says she was called an “illegal person” in the property management office and no mention is made of this term being used on the phone beforehand or of the term “illegal alien” ever being used, to the December 16, 2014 LTB filing, where she says that she was called an “illegal alien” on the phone but referred to as an “illegal person” in the property management office, to the February 13, 2015 LTB hearing, where the applicant alleges that she was called an “illegal alien” on both occasions. In my view, the manner in which this serious allegation has changed over time provides a further basis to doubt its reliability.
106With regard to the other significant allegations raised by the applicant in the context of this proceeding, I note that the allegation that the property manager told the applicant to go and rent where she came from does not appear in the December 7 draft, and only appears for the first time in the December 16, 2014 filing with the LTB. And the allegation that on November 28, 2014, the property manager said, “Who is the kind of woman who would stay with a man who does not love her?”, does not appear either in the December 7, 2014 draft or in the December 16, 2014 LTB filing, and only emerged for the first time at the February 13, 2015 LTB hearing.
107With regard to the reliability of the applicant’s evidence, I also need to consider the fact that the LTB member did not accept her evidence that she had been told by the property manager that her rental application had been approved. This represents an adverse credibility finding against the applicant that I am entitled to take account of in assessing the credibility and reliability of the applicant’s evidence in the context of the instant proceeding. Not only do I accept the LTB’s finding on this point, I concur with it. If the applicant had received approval of her rental application through a voicemail message she alleges was left for her by the property manager on October 16, 2014, then I would have expected that there would have been further steps taken by the applicant to confirm any such alleged approval, such as paying a deposit and/or signing a lease agreement. However, no such steps were taken by the applicant. Further, had any such approval been communicated, certain e-mails in evidence before me that were exchanged between the respondent and the ex-spouse as the tenant would make no sense. For example, on October 18, 2014, in response to an e-mail from the ex-spouse, the property manager confirmed that from that point on, it would contact the ex-spouse about viewings of the rental unit by calling his cellphone. If, as the applicant alleges, her rental application had been approved two days earlier such that she would be becoming the tenant of the unit as of December 1, 2014, there would be no reason to contact the ex-spouse about future viewings. Further, on November 10, 2014, in response to the ex-spouse’s inquiry as to whether the applicant had been able to extend her living arrangement with the respondent, the property manager confirmed to the ex-spouse that the unit had been re-rented to another family for December 1, 2014, and that the applicant must vacate the unit. Once again, if the applicant’s rental application had been approved by the respondent as she alleges, it would make no sense that the respondent had not only continued viewings of the unit, but had actually re-rented the unit to another family.
108I also have serious concerns about the applicant’s differing reports of her financial circumstances. As already noted above, she recorded her employment income on her rental application as being $3600 per month. As stated above, I accept that if the applicant was able to work full-time at the rate she was being paid for her contract work, this would have been a reasonable estimate of her monthly income. However, the evidence before me indicates that the applicant in fact had only worked 18 weeks over the past year, which would make her employment income more like $1200 per month, or less than the monthly rent for the unit.
109Further, in records filed by the legal clinic, the applicant is recorded as having advised the clinic that she had no income and no money, did not have the money to pay the rent, and is referenced in a letter from the paralegal dated December 5, 2014 as having “no stable source of income.” This evidence is consistent with the respondent’s evidence that the applicant said that, if her rental application was approved, she would not have the money to pay the last month’s rent deposit. In contrast, the applicant alleges that she has a significant sum of money available in a bank account from the sale of her former home, and filed a bank statement showing a balance of over $3,000 in her personal banking account as of October 14, 2014. The applicant also alleges that she offered to pay the full rent a year in advance, which is denied by the respondent witnesses.
110It is clear to me that, at the relevant time, the applicant did not have stable employment, and had not earned sufficient employment income over the preceding year to be able to pay rent on the unit on her own. It may be, as the applicant alleges, that she has some other source of money available to her that would have enabled her to afford the rent and, as she alleges, even paid the rent a year in advance. However, if that is indeed the case, that would not explain the applicant’s statements to the legal clinic that she had no money. Quite simply, both cannot be true. Wherever the truth ultimately lies, the inconsistencies in the applicant’s statements over time regarding her financial circumstances give me even further reason to question the reliability of her evidence.
111I further note that the key comments alleged to have been made by the property manager, with the exception of the comment alleged to have been made on the phone on November 26, 2014, are alleged to have been made in the presence of others. In particular, the applicant’s allegation that on November 24, 2014, the property manager told her to go back and rent where she came from is alleged to have been made in the presence of the assistant property manager. In addition, the applicant’s allegation that she was referred to as an “illegal alien” in the property management office on November 26, 2014, is alleged to have been made in the presence of the assistant property manager and her husband. In order to accept the applicant’s evidence on these two critical allegations, not only would I have to disbelieve the property manager, but I also would need to disbelieve the assistant property manager and her husband. I appreciate that the assistant property manager and her husband remain employed by the respondent, and indeed have been promoted to the property manager’s position. I have taken this relationship and connection into account in assessing the credibility of their evidence. However, having had the opportunity to hear and observe these witnesses while they were testifying, I find them both to be credible witnesses. They provided their evidence in a clear and straightforward manner, there were no material or significant inconsistencies in their evidence, and their evidence accorded with what a practical and informed person would readily recognize as reasonable in that place and in those conditions.
112The comment alleged to have been made by the property manager on November 28, 2014, namely, “Who is the kind of woman who would stay with a man who does not love her?”, is alleged to have been made by the property manager in the presence of two police officers. Indeed, during the hearing, the applicant alleged that the police officers could testify to hearing this alleged comment and may have notes recording this alleged comment. However, despite this alleged comment being the primary basis upon which the applicant relies for her allegation of discrimination because of marital status, the applicant did not summons either police officer to testify before me in her case in chief. While I appreciate that the applicant is self-represented, she nonetheless is a highly intelligent person who not only knew how to summons a police witness and compel production of police documents, but had previously done so in the context of the LTB proceeding. As stated above, I denied the applicant’s request to call these police officers to testify as part of her reply evidence, on the basis that this was not proper reply evidence. If these witnesses had evidence to support the applicant’s allegation in this regard, they properly ought to have been called by her as part of her case in chief.
113In her final submissions at the end of the hearing, the applicant provided me with a list of reasons why she believed that I should not find the property manager to be a credible witness. The applicant submits that the property manager manufactured evidence such as the applicant verification report prepared in relation to the applicant’s rental application. The basis for this submission is the property manager’s evidence that she only learned about the “Claire” incident on November 26, 2014, and added it to the report at that time. I agree with the applicant that this evidence makes little sense, particularly given that the following notes on the report reference the assessment of the applicant’s credit report. However, I also note the evidence of the assistant property manager’s spouse that the “Claire” incident had occurred at a much earlier time, and that the property manager had been informed about it then. So I am not convinced that the property manager’s recollection is correct that she only learned about this incident on November 26, 2014. In any event, whenever the property manager’s handwritten comments on this document were made, the fact remains that the concerns that caused the respondent to deny the applicant’s rental application are relevant and sensible concerns supported by the evidence and are corroborated by the evidence of the assistant property manager.
114The applicant next submits that the property manager in her evidence pretended not to know whose belongings were in the unit on November 28, 2014, which the applicant submits is in conflict with the property manager’s e-mail to the ex-spouse on December 4, 2014. In her e-mail to the ex-spouse dated December 4, 2014, the property manager made reference to the applicant having left goods and belongings in the rental unit and not having come back to pick them up. The property manager requested that the ex-spouse come to the rental unit to pick up and store the applicant’s goods and belongings and remove all goods and belonging from the rental unit, failing which these items would be removed by the landlord and the ex-spouse would be held responsible for any costs associated with doing so. In cross-examination, the property manager acknowledged that she knew that some of the goods and belongings left in the rental unit belonged to the applicant, but stated that ultimately she cannot determine which goods and belongings belonged to the applicant and which belonged to the ex-spouse. She states that this was a domestic situation, and her obligation as the property manager was to the ex-spouse, who was the tenant named on the lease.
115In my view, there is no inconsistency between what is stated in the property manager’s December 4, 2014 e-mail and what she said in her testimony before me. It is clear that the property manager generally understood that some, and perhaps even most, of the goods and belongings left in the rental unit belonged to the applicant, as she was aware that the ex-spouse had already moved out. But that is a different matter than the property manager being able to say definitively that all of the goods and belongings left in the unit belonged to the applicant. What goods and belongings belonged to whom was a matter to be determined as between the applicant and her ex-spouse. I accept the property manager’s evidence that her obligation in this situation was to the ex-spouse as the tenant named on the lease.
116The applicant next relies upon the property manager’s evidence that she had called the applicant to give her the bad news that her rental application had not been approved, but the applicant asserts that the property manager then “forgot” what she said and said she was waiting for the applicant’s roommate to show up, even though the rental application was made only in the applicant’s name. With respect, that is not an accurate reflection of the property manager’s evidence. The property manager testified that she communicated to the applicant that her rental application had been denied sometime in the latter part of October 2014. The property manager further testified that, because the applicant had mentioned sharing the unit with another person, she told the applicant that if she had this other person on the rental application as a co-applicant or guarantor, then the landlord would consider that. The property manager testified, however, that no such other person came forward as a co-applicant or guarantor for the applicant, and at a certain point, the landlord could not keep waiting and needed to move forward to rent the unit to someone else. In my view, there is no inconsistency in the property manager’s evidence on this point. Her evidence is clear that the applicant’s rental application, made on her own, was not approved, but that the landlord would be prepared to reconsider if the applicant found a co-applicant or guarantor to support her rental application.
117The applicant asserts that the property manager gave the opposite evidence in the human rights proceeding when compared to the evidence she gave before the LTB. The applicant states that at the LTB, the property manager said that she came to the rental unit on November 28, 2014 for inspection, whereas at the human rights hearing, the property manager said that she came to the unit because the applicant was suicidal and had barricaded herself in her bedroom. The applicant then questions the property manager’s evidence at the human rights hearing that she saw the applicant on the stairs when she opened the door to the rental unit, but says that the applicant became suicidal after that. The applicant’s evidence is that she was not suicidal and had not barricaded herself in her bedroom, and no such statement is found in the police reports.
118While I am aware of the respondent’s objection to the admissibility of the recording of the LTB proceedings into evidence before me, I have nonetheless listened carefully to these recordings. First, I note that in the applicant’s cross-examination of the property manager at the human rights proceeding, she did not put to the property manager any alleged inconsistency in the property manager’s evidence before the LTB and before this Tribunal as to why she came to the rental unit on November 28, 2014. I appreciate that the applicant is self-represented in this proceeding, but if a party wishes me to make an adverse credibility finding on the basis of such an inconsistency, the alleged inconsistency does need to be raised with the witness during cross-examination. Moreover, in the recording of the LTB proceeding, the property manager did not give evidence as to why she came to the rental unit on November 28, 2014 for the simple reason that such evidence was not relevant to the preliminary issue determined by the LTB that the applicant was not a tenant. The property manager testified at the beginning of the hearing on February 13, 2015, and was re-called and testified again later during that hearing. On two occasions, the applicant tried to ask questions about the events of November 28, 2014 and afterwards, and on both occasions, such questions were ruled by the LTB member not to be relevant to the preliminary issue. So the bottom line is that there simply is no factual basis to support the applicant’s assertion that there is an inconsistency with the property manager’s evidence before the LTB on this point.
119The property manager’s evidence before me was that she first attended the rental unit on November 28, 2014, at the request of the ex-spouse in order to assist with the situation. Her evidence was that when she entered the unit, she could hear the applicant yelling and screaming. She testified that it was the ex-spouse who informed her that the applicant had barricaded herself in the bedroom and may be suicidal. She testified that it was on this basis and due to concerns about the applicant’s safety that they returned to the property management office, and the property manager’s spouse called the police. On cross-examination, the property manager acknowledged having seen the applicant briefly at the top of the stairs when she entered the unit with the ex-spouse. She testified that it was after this that the ex-spouse told her that the applicant had barricaded herself in the bedroom and may be suicidal. So, the applicant’s characterization of the property manager’s evidence before me is not correct. The property manager did not in fact testify that she came to the rental unit because the applicant was suicidal and had barricaded herself in the bedroom. Rather, the property manager testified that she came to the rental unit at the ex-spouse’s request, at which time the ex-spouse informed her that the applicant had barricaded herself in the bedroom and may be suicidal. I see no inconsistency in the property manager’s evidence that she saw the applicant at the top of the stairs when she first entered the rental unit, and was later told by the ex-spouse that the applicant may be suicidal.
120The ex-spouse did not testify before me in the context of the human rights proceeding. As I have said, I have listened carefully to the recording of the LTB proceeding, at which the ex-spouse did testify. I note in this regard that the ex-spouse’s evidence on this point is largely consistent with the property manager’s evidence. His evidence is that he went to the rental unit on November 28, 2014 with “staff.” He testified that the applicant was accusing him of killing her and was a little bit hysterical, which he said he understood in the context of the situation. He stated that the applicant was not talking to them, and they heard scurrying around upstairs. He stated that “we” thought that the applicant might be distraught and might try to hurt herself, which is why the property manager’s spouse called the police. I note that the ex-spouse did not testify before the LTB about telling the property manager that the applicant had barricaded herself in her bedroom, although he did testify about hearing her “scurrying around” upstairs. I further note that the ex-spouse’s evidence before the LTB confirms that there was a concern as to whether the applicant might hurt herself, although he characterized it as being a concern that “we” had as compared to the property manager’s evidence that it was the ex-spouse who shared this concern with the property manager.
121Once again, I appreciate the applicant’s own evidence that she was not in fact suicidal at that time and did not intend to hurt herself, and that she did not in fact barricade herself in the bedroom. However, even if I accept that as being true, that is not inconsistent with the property manager’s evidence that she was told by the ex-spouse that the applicant may be suicidal and that the applicant had barricaded herself in her bedroom.
122The applicant next challenges the property manager’s credibility on the basis that the property manager filled out a final inspection report regarding the rental unit on which she indicated that the mail box key had been returned, whereas the applicant was still in possession of the mail box key at the time of the human rights hearing. In my view, this is an entirely peripheral and inconsequential matter, which I have accorded no weight in my assessment of credibility.
123The applicant states that the property manager testified that the assistant property manager had reported to her that nothing had been left in the unit, which the applicant says is not true based upon the evidence of the assistant property manager’s husband and the summary of events prepared by the ex-spouse. I will not place any reliance on the summary of events prepared by the ex-spouse, as he was not called to testify before me. The evidence of the assistant property manager’s husband was that the only items left in the rental unit after the ex-spouse attended there on December 7, 2014 were some garbage bags left in the living room area, which were later removed. I see no inconsistency in the property manager’s evidence on this point.
124The applicant states that the respondent claimed to be concerned about the applicant’s financial situation, but the property manager admitted that she did not ask for a guarantor and refused to see the applicant’s bank account. I do not see this as being relevant to my assessment of credibility. A landlord is not obligated to ask a prospective tenant for a guarantor, although there are circumstances where it is permissible to do so. Nor is a landlord under any obligation to review a prospective tenant’s bank account. The concerns expressed by the property manager and the assistant property manager about the applicant’s rental application, as confirmed by the applicant verification report, were that she had unstable employment, poor credit and no previous landlord history.
125The applicant next raises the respondent’s alleged failure to disclose certain documents, such as a pre-inspection report and records of certain phone calls made to her ex-spouse. The respondent’s witnesses acknowledged that there should have been a pre-inspection report in the file, but there was not. With regard to the phone records, the respondent did produce phone records for calls from the phone number in the property management office as directed by me, but (unlike records for a cellphone) these records only show long-distance calls, which is why the calls to the ex-spouse do not appear. In my view, nothing turns on this.
126At the end of the day, while I am not completely satisfied with all of the property manager’s evidence, especially in relation to when her comments on the applicant verification report were filled out, I do not find the applicant’s evidence on the key points in support of her Application to be reliable for all of the reasons stated above. Accordingly, I am not prepared to rely upon the applicant’s evidence in support of the primary allegations she has raised.
Allegation re denial of rental application
127The first issue before me for determination is whether the applicant’s citizenship, place of origin or marital status was a factor in the respondent’s decision to deny her rental application.
128The respondent has provided a credible, non-discriminatory explanation for its denial of the applicant’s rental application. O. Reg. 290/98 under the Code permits a landlord to request and consider credit references, credit checks and rental history information in order to assess a prospective tenant: see s. 1(1) and (2). Further, this regulation permits a landlord who has requested the foregoing information also to request and consider income information in order to assess a prospective tenant, as long as such income information is considered together with all of the other information provided by the prospective tenant: see s. 1(3) and (4).
129In the instant case, the respondent did request rental history information and income information in the form of employment history and monthly earnings, and also advised the applicant that it would conduct a credit check. In my view, this was in compliance with the requirements of O. Reg. 290/98.
130Upon receipt and consideration of this information, the property manager and the assistant property manager, who were both involved in consideration of the applicant’s rental application, shared the same concerns about the applicant. The first concern was that the applicant did not have stable employment, and thus did not have a stable source of income to pay the rent on an ongoing basis. This in my view was a valid concern, which I note was shared with the applicant by the paralegal. While the applicant may have had other financial resources which she believed were sufficient to pay the rent, about which I make no specific finding, the respondent was entitled to consider her lack of stable employment in denying her rental application.
131The respondent also relied upon the lack of rental history on the applicant’s rental application form. The applicant had identified the respondent as her landlord on her rental application, but in fact she was not a tenant and was not responsible to pay the rent to the respondent. While the applicant previously had been a tenant of a landlord in another municipality, this information was not provided to the respondent. While I appreciate that the form only requests prior landlord information if the applicant had resided at her current address for less than one year, the applicant nonetheless could have provided this information to the respondent for its consideration, and the respondent was entitled to take the lack of rental history information on the rental application form into account in denying the application.
132The respondent also relied upon what was described as the applicant’s poor credit. I already have canvassed above the applicant’s explanation for the delinquent account shown on her credit report. Nonetheless, this explanation was not provided to the respondent at the time, and the respondent was entitled to consider the information as shown on the credit report in making its decision.
133The bottom line on this issue for me is that there is no reliable evidence before me to support that the applicant’s place of origin, citizenship or marital status was a factor in the respondent’s decision to deny her rental application. For all of the reasons articulated above, I do not accept the applicant’s evidence that she was called an “illegal alien” by the property manager. I find that she may have been referred to as an “illegal person” by the property manager on November 26, 2014, but find that any such statement was made in the context of telling the applicant that if she did not leave the rental unit as required, she would be an unauthorized occupant of the unit. I find that the respondent’s position in this regard had nothing to do with the applicant’s place of origin, citizenship or marital status, and had everything to do with the fact that the applicant was not the tenant of the rental unit and that the actual tenant, the ex-spouse, had given proper notice to terminate the tenancy.
134The only other evidence proffered by the applicant to support her allegation of discrimination because of place of origin and citizenship is her allegation regarding the statement alleged to have been made by the property manager on November 24, 2014, to the effect that she should go back and rent where she came from. Once again, for all of the reasons stated above, I am not prepared to rely upon the applicant’s evidence in this regard, and prefer the evidence of not only the property manager but also of the assistant property manager that no such statement was made.
135With regard to the allegation of discrimination because of marital status, the applicant testified at the hearing that she was relying upon two pieces of evidence: the statement alleged to have been made by the property manager on November 28, 2014, “who is this kind of woman who stays with man who doesn’t love her?”; and the reference in the November 28, 2014 letter to the applicant’s Form N14 as an “illegal document.” With regard to the former piece of evidence, once again I am not prepared to rely upon the applicant’s evidence that such a statement was in fact made, for all of the reasons articulated above. In any event, even if such a statement had been made by the property manager on November 28, 2014, which I do not accept, such a statement, while perhaps insensitive to the applicant’s situation, would not provide evidence to support that her marital status was a factor in denying her rental application. With regard to the second piece of evidence, in my view this provides no basis to support any conclusion that the applicant’s marital status was a factor in the denial of her rental application. While it may have been more accurate to refer to the Form N14 as an “inapplicable document”, the point being made by the property manager in this letter is that the Form N14 did not provide the applicant with a proper legal basis upon which to assert any right to become the tenant or to remain in the rental unit.
136As a result, I find that the evidence does not support that the applicant’s ethnic origin, citizenship or marital status was a factor in the respondent’s decision to deny her rental application, and this allegation is therefore dismissed.
Allegations re manner in which the applicant was treated
137The second issue for me to determine is whether the applicant’s ethnic origin, citizenship or marital status was a factor in the manner in which the applicant alleges she was treated by the respondent in relation to her occupancy of the unit, including such issues as the changing of the locks to the unit, the calling of the police and removal of her from the unit, and the disposition of her personal belongings.
138On the basis of all of the evidence before me, a number of things are clear to me. At least as of November 24, 2014, the applicant understood that her rental application had not been approved and she would not be able to become the tenant. As a result of her discussion with the paralegal and the information sent to her on November 26, 2014, I accept that at that time, the applicant wrongly believed that completing the Form N14 and providing it to the respondent would enable her as a spouse to become the tenant and remain in the unit. It is my view that, but for this unfortunate misunderstanding, none of the ensuing events would have occurred.
139On the basis of the interaction with the applicant on November 26, 2014, and the Form N14 provided by the applicant on November 27, 2014, it is entirely understandable to me that the respondent was concerned that it would not get vacant possession of the rental unit by noon on November 30, 2014. I accept the respondent’s evidence that the rental unit had already been rented to another family who were to take possession on December 1, 2014, so the ability to ensure vacant possession of the rental unit was an understandable and legitimate concern for the respondent.
140It is further entirely understandable to me that, in these circumstances, the respondent would contact the tenant, namely the ex-spouse, to advise him of the situation and that he, as the tenant, was potentially liable if vacant possession of the unit was not provided by him. I do not believe that there can be any real dispute that it was the ex-spouse, and not the respondent, who made the initial call to the police. This is consistent with the respondent’s evidence, the evidence given by the ex-spouse before the LTB and the reasons provided by the LTB for dismissing the applicant’s LTB application, and there is no evidence before me to the contrary. I also fully accept that the police did not immediately respond to the ex-spouse’s call, because the situation was not regarded as an urgent police matter.
141The evidence before me is clear that on November 28, 2014, the ex-spouse made the decision to terminate his tenancy as of that day, to return his keys and to authorize the locks to be changed. This is confirmed in the document in evidence before me as signed by the ex-spouse. Whether or not this document was prepared by the ex-spouse or the respondent makes no difference.
142I further accept the respondent’s evidence that the property manager and two other staff members attended at the rental unit at the ex-spouse’s request on November 28, 2014, to try to assist him with the situation. As discussed above, the property manager’s evidence that she could hear the applicant yelling and screaming when she attended the unit is consistent with the ex-spouse’s evidence before the LTB that the applicant was “a little bit hysterical”. Further, the property manager’s evidence that she was told by the ex-spouse that the applicant had barricaded herself in her bedroom and may be suicidal is largely consistent with the ex-spouse’s evidence before the LTB. In the absence of any contrary evidence before me, and in the absence of any testimony before me from the ex-spouse, I accept the property manager’s evidence that this is what occurred.
143There appears to be no dispute that, after returning to the property management office, a second call was placed to the police, this time by the property manager’s spouse, to relay the concern, which I find was conveyed to the respondent by the ex-spouse, that the applicant had barricaded herself in the bedroom and may be suicidal. It appears indisputable that it was this second call that prompted the police to respond. At that point, the police met with all of the parties involved, and decided to act upon the ex-spouse’s request for the applicant to be removed from the rental unit.
144In all of these events, I find no basis in the evidence to support the applicant’s allegation of discrimination because of ethnic origin, citizenship or marital status. Making this determination is my only jurisdiction under the Code. It is not for me to determine whether the respondent took the appropriate steps under the Residential Tenancies Act for the removal of an unauthorized occupant in these circumstances. As stated above, I have found the applicant’s evidence to be unreliable on the key allegations she has made to support her claim of discrimination, and I will not rely upon it for the purpose of this Decision.
145The bottom line for me is that the respondent was interested in getting vacant possession of the rental unit because new tenants were moving in. The ex-spouse was interested in providing vacant possession of the unit as promised in order to avoid potential liability beyond the expiry of his lease. But for the applicant’s misunderstanding that she had the right to remain in the unit as a spouse, it is my view that she is likely to have moved out of the rental unit before noon on November 30, 2014, and none of the unfortunate ensuing events would have occurred. But as a result of the applicant’s misplaced assertion of her rights as a spouse, the respondent and the ex-spouse were understandably concerned that the applicant was not going to move out of the unit, and this accelerated the timetable for the ex-spouse to give over possession of the unit and resulted in the applicant’s removal by the police. In my view, while this was certainly an unfortunate series of events for the applicant, there is nothing in this to support a claim of discrimination because of ethnic origin, citizenship or marital status.
146With regard to the applicant’s goods and belongings left behind in the unit, the property manager acknowledged in her evidence that she told the police on November 28, 2014, that she was happy to hold these goods and belongings for 60 days until they were picked up. This is consistent with the recollection of the two police officers on scene, as set out in the police Investigative Report dated August 13, 2015. While the applicant’s evidence is that she was told by the police that the property manager had agreed to store the goods and belongings at the landlord’s cost, this is not the property manager’s evidence and is not what is stated in the police Investigative Report. Indeed, the paralegal also expressed incredulity to the applicant that a landlord would agree to such a thing. I find that I have no reliable evidence before me to support that any agreement was made by the respondent to store the goods and belongings left in the rental unit at the respondent’s expense. In fact, the evidence of the property manager, which is uncontradicted, is that she told the ex-spouse and the police at the time on November 28, 2014 that he as the tenant would be responsible for any expenses in holding or storing these goods and possessions. This is consistent with the respondent’s position as set out in e-mail correspondence from the property manager to the ex-spouse on December 4, 2014.
147The applicant’s evidence is that she called the property manager from her local MPP’s office on December 1, 2014. The property manager does not recall this. But even if I were to accept the applicant’s evidence that this call occurred, her evidence is that she wanted access to the goods and belongings to retrieve a few personal items, whereas the property manager said that she wanted all of the items removed from the rental unit. While the applicant’s evidence is that she made an effort to make arrangements with a moving company to retrieve her items, it appears that there is no dispute that the applicant did not initiate any further contact with the respondent about retrieving the items left in the unit until some time after December 7, 2014.
148As discussed above, the respondent did send an e-mail to the ex-spouse requiring him to retrieve the goods and belongings left in the rental unit by December 8, 2014, failing which these items would be removed and stored at his expense. This communication went to the ex-spouse because he was the legally recognized tenant and was therefore the proper person for the respondent to deal with in terms of items left in the rental unit, and the proper person to hold responsible if the respondent incurred any expenses in removing and storing the items. There is no dispute that the ex-spouse attended at the rental unit on December 7, 2014, and removed certain goods and belongings, which he initially stored and were later retrieved by the applicant. The dispute between the parties relates to whether any items were left in the rental unit when the ex-spouse left on December 7, 2014. The respondent’s witnesses say that only some garbage bags were left in the unit, which were later disposed of. The applicant proposed to call a witness who had assisted the ex-spouse in removing the goods and belongings on December 7, 2014, who she says would testify that more was left behind than just garbage.
149Once again, it is not my proper jurisdiction under the Code to determine whether the respondent followed the proper procedures in dealing with goods and belongings left behind in a rental unit by an occupant who was not the tenant. Nor is it my proper jurisdiction under the Code to determine whether or not the respondent complied with whatever promise was made to the police. My sole jurisdiction is to determine whether or not the respondent’s actions in relation to dealing with the goods and belongings left in the rental unit following the applicant’s removal on November 28, 2014 amounts to discrimination because of her ethnic origin, citizenship or marital status. Such a conclusion is simply not supported by the evidence.
150It appears from the evidence that at least initially, the respondent was prepared to allow the applicant to come back to the rental unit to retrieve her goods and belongings. When she had not done so by December 4, 2014, the respondent contacted the ex-spouse as the tenant and the person properly held responsible for the failure to deliver vacant possession of the unit. The ex-spouse then came and removed all or most of the applicant’s goods and belongings. None of this has anything to do with the applicant’s ethnic origin, citizenship or marital status, and has everything to do with the fact that the respondent required vacant possession of the unit so that new tenants could move in, that this could not happen while there were still goods and belongings in the unit, that these goods and belongings needed to be removed, and that the ex-spouse as the tenant was the proper person for the respondent to hold responsible for ensuring that the goods and belonging were removed and vacant possession provided.
151There is one final matter that was addressed before me that was raised by the applicant, which relates to the Trespass to Property Act notice that is dated December 17, 2014 and was delivered to the applicant at the conclusion of the LTB proceeding on December 19, 2014. The evidence from the respondent’s witnesses before me is that there was concern about the applicant’s conduct when she attended the property management office on a number of occasions in late November 2014, most notably the incident on November 26, 2014. The applicant was described by the property manager as threatening and intimidating, and raising her voice and getting upset. The assistant property manager described the applicant as being upset and raising her voice, and also expressed concern that the applicant on some occasions appeared to be trying to deal with the assistant property manager in the absence of the property manager. On cross-examination, the assistant property manager testified that she did not find the applicant to be rude or abusive, but testified that it was unnerving when she was alone in the office and the applicant was blocking the doorway. The characterization of the applicant’s conduct by the respondent’s witnesses is disputed by the applicant.
152There is no dispute that after she was removed from the rental unit on November 28, 2014, the applicant came to the property management office on two subsequent occasions to serve materials relating to her LTB application.
153In relation to the issuance of the no trespass notice, the issue for me to determine in this proceeding is not whether such a notice was warranted in the circumstances, but whether the applicant’s ethnic origin, citizenship or marital status was a factor in the respondent’s decision to issue this notice. There is simply no basis in the evidence to support such a conclusion.
154The applicant also takes issue with the reference to her in the no trespass notice by a variety of different names. The use of one of these different names is based upon the evidence of the assistant property manager’s spouse that the applicant had identified herself as “Claire” on an earlier occasion. The use of the other different name appears to be based on a misunderstanding that resulted from the call placed on the applicant’s behalf from her local MPP’s office. While in the local MPP’s office, in addition to calling the property manager, it appears that a call also was placed to the respondent’s management representative. In an e-mail dated December 1, 2014 confirming the call, the applicant is identified by her correct first name, but by the last name of the assistant in the local MPP’s office who made the call on the applicant’s behalf. In any event, there is nothing about the use of alternate names for the applicant in the no trespass notice that is related to the applicant’s ethnic origin, citizenship or marital status.
ORDER
155For all of the foregoing reasons, the Application is hereby dismissed, and the hearing in this matter is now concluded.
Dated at Toronto, this 11th day of September, 2017.
“Signed by”
Mark Hart
Vice-chair