Priscilla Mobin v. Clintwood Non-Profit Housing Co-operative and Lauren Hele, 2017 HRTO 1299

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Priscilla Mobin

Applicant

-and-

Clintwood Non-Profit Housing Co-operative and Lauren Hele

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: October 3, 2017

Citation: 2017 HRTO 1299

Indexed as: Mobin v. Clintwood Non-Profit Housing Co-operative

APPEARANCES

Priscilla Mobin, Applicant

Self-represented

Clintwood Non-Profit Housing Co-operative and Lauren Hele, Respondents

Luke Saites, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 8, 2016, in which she alleged discrimination in housing. The applicant indicated in the Application that the last incident of discrimination occurred in July 21, 2016.

2The narrative on to the Application contains details of alleged incidents of breaches of the applicant’s Code rights which date back to early May 2015. When the respondents filed a Response they raised the issue that all the allegations that are said to have occurred prior to August 8, 2015 must be dismissed on the basis that the Application was filed more than one year after the date of their alleged occurrence and therefore the Tribunal may not have the jurisdiction to hear these allegations.

3In addition, the narrative of the Application contains details of incidents in which the applicant alleges that she was subject to harassment and abuse by her neighbours on the basis of her race, colour, ethnic, origin, marital status and age. The Tribunal reviewed these allegations and raised the issue of whether the Tribunal has the jurisdiction to address the allegations made in the Application that relate to disputes between the applicant and other residents. These other residents are not named as respondents to this Application.

4The Tribunal held a preliminary/summary hearing to address the issues outlined in paragraphs 2 and 3.

5This decision is based on a review of the documents filed by the parties and the parties’ submissions made during the preliminary/summary hearing.

delay in allegations of incidents OCCURRING prior to August 8, 2015

6The applicant alleges that she has experienced discrimination by the respondents when she was treated differently on the basis of her race, colour, ethnic origin, marital status and age; that the respondents failed to adequately investigate and address her complaints about harassment and abuse by her neighbours and that as a result of the respondents’ failures she and her family were forced to endure a poisoned living environment.

7Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8These provisions have been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year of the last alleged incident. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their Application was “incurred in good faith” the applicant must show something more than the absence of bad faith. The applicant must at a minimum provide a reasonable explanation for the delay.

9The applicant submits that the incidents that occurred more than one year prior to the date she filed her Application are part of a series of incidents and that because the July 21, 2016 event was the last incident in the series and it is timely, the Tribunal has the jurisdiction to hear all the allegations.

Allegations about Neighbours’ Behaviours

10As is stated earlier, there are a number of incidents described in the Application that involve allegations of harassment and abuse of the applicant by her neighbours. These neighbours are not named as respondents.

11The Tribunal does not have jurisdiction to address the allegations of harassment and abuse by the neighbours. As a result, those incidents are not included in the Tribunal’s analysis of its jurisdiction over those incidents that occurred more than one year prior to August 8, 2015.

Allegations about Respondents’ Decisions and Actions

12The issue to be determined by the Tribunal is whether the allegations against the respondents that occurred prior to August 8, 2015 form a series of incidents with those incidents that occurred after August 8, 2015.

13In Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30 (“Garrie”), the Tribunal held that the following factors are relevant to a determination of whether the allegations form part of a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

14The allegations against the respondents are set out below in chronological order.

Early 2015

15The applicant alleges that in early 2015, Lauren Hele told her that she has heard what the applicant had been saying behind Ms. Hele’s back and Ms. Hele warned the applicant that anything that is said about her always comes back to Ms. Hele’s ears and the applicant will not like it.

May 19, 2015

16The applicant alleges that on May 19, 2015 she submitted a written complaint addressed the respondent Co-operative’s board of directors and Lauren Hele detailing the years of racism, harassment and abuse by her neighbours. That same day, there was a meeting with the applicant, her neighbours and Ms. Hele, and the applicant alleges that at this meeting, Ms. Hele gave her permission to plant hedges in her yard.

May 21, 2015

17The applicant alleges that on May 21, 2015, her neighbours cut down her flowers. She claims that she advised Ms. Hele and nothing was done.

May 25, 2015

18The applicant alleges that on May 25, 2015 she again received permission from Ms. Hele to plant hedges. She also alleges that she got confirmation from the president of the board of directors who advised her that he had planted hedges to separate himself from his neighbours.

May 25, 2015

19The applicant alleges that on May 25, 2015 one of her neighbours and the neighbour’s friends were yelling racial slurs and made threats of physical assault. She alleges that she complained to Ms. Hele and nothing was done.

May 26, 2015

20The applicant alleges that on May 26, 2015, she presented a letter to the board of directors about the harassment and abuse she alleges she experienced as a racialized young single mother. On that date she had a meeting with the board. She alleges that the board approved the planting of hedges in her yard. She alleges that she asked Ms. Hele for a letter that detailed the board’s decision and that letter was not provided. She alleges that no one else was required to go through this formal approval process and these multiple steps to be able to have bushes or hedges. She alleges that she received this different treatment because she is a young, racialized, single mother.

May 27, 2015

21The applicant alleges that on May 27, 2015 she received a letter from Ms. Hele that requested that she not install a hedge.

May 29, 2015

22The applicant alleges that on May 29, 2017, Ms. Hele was off work but she came to the Co-operative. She alleges that Ms. Hele was at the home of one of her neighbours’ home from where Ms. Hele was observing the applicant gardening. She alleges that later that day, this neighbour threatened that she and Ms. Hele were going to get rid of the applicant.

June 23, 2015

23The applicant received a letter on June 23, 2015 from Ms. Hele that states that the board had agreed that the applicant could put shrubs four feet from her fence. The letter discusses the allergies of one of the neighbours’ children, the length of one of the neighbours’ garden and explains some of the outstanding questions Ms. Hele has posed to the neighbours.

June 29, 2015

24The applicant alleges that on June 29, 2015 she received a letter from Ms. Hele in which Ms. Hele expressed displeasure with her garden and threatened to cut down her fence and demolish her garden unless she made her garden smaller than everyone else’s garden. The applicant alleges this is reprisal.

25She also alleges that in June 2015 Ms. Hele said, “The site[sic] of people who look at you...looking out the window or standing on the patio makes the neighbours uneasy. It is better for you to stay inside and don’t look out.” The applicant alleges this is a racist comment.

June 29, 2015

26The applicant alleges that on June 29, July 1, and July 2, 2015 she received a couple of letters and had discussions with Ms. Hele in which the respondents threatened to demolish the applicant’s garden and fence.

July 6, 2015

27The applicant alleges that on July 6, 2015 the garden in her yard was demolished by the respondents.

28The applicant alleges the respondent’s decisions about her garden were adverse differential treatment. She alleges that she was the only racialized person who had to go through this process and that other non-racialized persons were given preferential treatment.

July 14, 2015

29The applicant alleges that on July 14, 2015 she received a letter from Ms. Hele about the alleged behaviour of the applicant’s guests and advising the applicant to stop sending in complaints.

July 27, 2015

30The applicant alleges that on July 27, 2015 she sent a letter to Ms. Hele about the actions of her neighbour who she claimed had obstructed her enjoyment of the common areas and that the neighbour’s actions created safety concerns. She alleges that Ms. Hele did nothing to respond.

31The remaining allegations made in the Application are said to have occurred after August 8, 2015. There is not issue of the Tribunal’s has jurisdiction over these remaining allegations.

Analysis and Decision

32The applicant submits that I must find that the allegations that occurred prior to August 8, 2015 are part of the series that ends with the July 21, 2016 incident because all the incidents are connected. She submits that the incidents all involve the actions or inactions of the respondents when she made complaints that she was experiencing abuse and harassment as a young, racialized, single mother. She alleges that because she is a young, racialized, single mother her complaints were not properly investigated and addressed by the respondents and that failure had the domino effect of permitting a poisoned living environment for her. She also alleges that Ms. Hele’s actions contributed to the poisoned environment. The applicant relies on the Tribunal’s Decisions Manning v. Toronto (City), 2015 HRTO 1715 and Grange v. Toronto (City), 2014 HRTO 633 to support her submission that because she has made allegations of the existence of her poisoned living environment, the allegations that occurred outside the one-year jurisdiction should not be dismissed before the evidence is heard.

33The respondent submits that incidents do not have the characteristics of a series because they are not connected in nature. They submit that the pre-August 2015 incidents relate to allegations that the applicant was treated differently when she made requests about her garden and hedges in her yard while the incidents that are said to have occurred after August 2015 are about complaints of racial slurs, guest passes and reactions to disputes between neighbours.

34In Millien v. Toronto Police Services Board, 2012 HRTO 1034 at paragraph 13, the Tribunal discussed the meaning of “series of incidents” in the following terms:

In considering the meaning of the term “series of incidents” under s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457, at para. 25. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

35As no evidence on the allegations made by the applicant has been heard, there has been no determination of whether the alleged actions or inactions of the respondents amount to a breach of the applicant’s Code rights. For the purposes of this analysis, however, I must accept the allegations made by the applicant are true. All the incidents involve the interactions between the applicant and the Co-operative’s board of directors and Ms. Hele and she alleges that all the adverse treatment in the incidents in connected to the fact that she is a young, racialized, single parent.

36I do not agree with the respondents that the incidents that occurred prior to August 8, 2015 differ in nature from those that occur after that date. The applicant alleges that in May 2015 she made a complaint to the board that she had been experiencing abuse and harassment on the basis of her race, colour, age, and marital status. She alleges that in response to this complaint, she was given permission to plant hedges. I do not find that the nature of the incidents differ pre and post August 8, 2015. The incidents around the planting of the hedges was in response to a complaint of harassment and abuse and the nature of all the allegations is that the respondent’s did not properly investigate and respond to complaints of harassment and abuse. The incidents alleged are separate instances of potential Code breaches and she alleges that in each instances the adverse treatment she received was because of her race, colour, ethnic origin, age and marital status.

37I find that there is a sufficient nexus between the actors, the place and context of the incidents and the Code grounds allegedly breached by the respondents to form the characteristics of a series.

ORDER

38The Application shall proceed and the Tribunal will hear evidence on the incidents that are described in paragraphs 15 to 30 of this Interim Decision.

39The Tribunal will schedule a case conference by telephone in order to discuss the parties’ availability for hearing dates and the scope of the evidence to be presented at the hearing.