Spafford v. City Housing Hamilton Corporation, 2017 HRTO 1455

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Spafford Applicant

-and-

City Housing Hamilton Corporation Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: November 3, 2017 Citation: 2017 HRTO 1455 Indexed as: Spafford v. City Housing Hamilton Corporation

APPEARANCES

James Spafford, Applicant Holly Robertson, Paralegal

City Housing Hamilton Corporation, Respondent Roberto Henriquez, Counsel

Introduction

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") on June 10, 2016. The Application alleges discrimination on the basis of disability in employment, accommodation (housing) and contracts.

2A preliminary hearing was held on August 2, 2017 to address whether the Application should be dismissed in whole or in part on the basis that the substance of the Application had been appropriately dealt with in a decision of the Landlord and Tenant Board ("LTB"), and/or that the allegations had no reasonable prospect of success.

3After having reviewed the materials filed, and having heard the submissions of the parties, I find that the applicant's allegations related to the renewal of his contract in 2014 have no reasonable prospect of success, and should be dismissed. However, I cannot find that the remaining allegations can be dismissed at this stage.

4First, the respondent's claim that it was entitled to consider the employment relationship to have terminated based on frustration of contract will require the hearing of evidence, and, in the circumstances of this case, this issue cannot be determined at a summary hearing. I cannot find, therefore, that the Application has no reasonable prospect of success.

5Second, I find that the allegations should not be dismissed under s. 45.1 of the Code based on the decision of the LTB. Though the primary allegations raised in the Application were framed under both employment and housing because of the nature of the applicant's job as a building superintendent, the substance of these allegations are that the applicant was subject to discrimination in employment. If the applicant were able to ultimately establish that the termination of his employment was discriminatory, it would be unfair not to consider the impact that termination had on him, including the loss of his housing.

Factual Background

6The respondent is a public housing provider. The applicant was hired by the respondent as a building superintendent on a one-year contract, starting on June 16, 2013. As is typical for superintendents, his compensation included both a salary and the use of an apartment. The employment contract also specifically indicated that, pursuant to s. 93 of the Residential Tenancies Act, 2006, S.O. 2006 c.17 ("RTA"), if his employment was terminated he would have to vacate his apartment within one week.

7In July 2013, the applicant was assaulted by a tenant, resulting in his being hospitalized. After the respondent was unsuccessful in evicting the tenant, the respondent provided the applicant with a unit in another building in November 2013. The delay in providing him with another unit is one of the allegations respecting discrimination in housing; in particular, the applicant alleges that the fact that he remained in the same complex as the tenant caused him significant stress, and that the failure to relocate him sooner was a failure to accommodate his disabilities.

8Since the assault, the applicant has been receiving benefits under the Workplace Safety and Insurance Act, 1998. The applicant or the Workplace Safety and Insurance Board ("WSIB") provided the respondent with medical documentation confirming the applicant's ongoing inability to work after the assault. The documentation generally indicated that though the applicant was unable to work at the time, he may have been able to return after completing certain recommended treatments.

9In June 2014, the respondent renewed the applicant's employment contract for another year. The contract was largely the same as the original employment contract, though it noted that he was not working at the time of the renewal, and that further renewal of the contract would take into consideration whether he would be able to work in the foreseeable future. The renewal also removed two clauses from the original agreement; a severability clause, and a clause respecting independent legal advice. The changes to the June 2014 renewal are the basis for the allegation of discrimination in contracts under s. 3 of the Code.

10In a May 2015 letter, the WSIB indicated that it had obtained a medical report from January 2015 stating that the applicant's prognosis for recovery was guarded, and that the applicant was considered not employable. Based on this information, the respondent concluded that the applicant would not be able to return to work in the foreseeable future, and, taking into account that he had been off work for almost two years, the respondent met with the applicant and advised him that they considered his employment contract to have been frustrated. The respondent followed up with a letter to the applicant indicating that his employment would end on June 16, 2015, the termination date in the renewal contract, and gave the applicant until June 23, 2015 to vacate his unit, later extended to June 30, 2015. The applicant did not vacate the unit, and the respondent brought an application to the LTB under s. 94 of the RTA to evict the tenant from his unit.

11At the LTB, the applicant argued for relief from eviction under s. 83 of the RTA on the basis that because the termination of his employment, and as such the requirement that he vacate his unit, was discriminatory.

12The LTB noted, in its decision:

I have no jurisdiction over the issue of whether the Landlord terminated the employment in a discriminatory way that constitutes wrongful dismissal. My jurisdiction is limited to whether the Landlord discriminated either directly or indirectly based on the Tenant's disability as it relates to his housing which he happens to occupy as a result of his employment as a superintendent.

13The LTB concluded, at para. 11 of its reasons:

The Tenant's argument that the Landlord ended the tenancy as a result of discrimination due to disability was considered. I found, however the Landlord did not directly or indirectly discriminate on the grounds of disability with respect to housing. In this case housing and employment are so closely connected that the housing ended as a consequence of the employment ending. Once the employment ended, the tenancy ended under subsection 93(1) of the Act. The Code issues related to employment do not fall within the jurisdiction of the Board.

14The LTB granted the respondent's application for eviction under s. 94 of the RTA, but in light of the applicant's disability, delayed enforcement of the eviction order under s. 83 of the RTA until October 31, 2015.

Analysis

Section 45.1

15The respondent is asking that the claim of discrimination in accommodation (housing) under s. 2 of the Code be dismissed under s. 45.1 on the basis that this issue has been appropriately dealt with by the LTB. It is not asking that the allegations as they related to employment (s. 5 of the Code) or to contracts (s. 3) be dismissed based on the LTB decision, though, as addressed below, it is arguing that these latter allegations be dismissed as having no reasonable prospect of success.

16Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

17Sections 93 and 94 of the RTA provide:

93. (1) If a landlord has entered into a tenancy agreement with respect to a superintendent's premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.

(2) A tenant shall vacate a superintendent's premises within one week after his or her tenancy is terminated.

(3) A landlord shall not charge a tenant rent or compensation or receive rent or compensation from a tenant with respect to the one-week period mentioned in subsection (2).

94. The landlord may apply to the Board for an order terminating the tenancy of a tenant of superintendent's premises and evicting the tenant if the tenant does not vacate the rental unit within one week of the termination of his or her employment.

18Section 83 of the RTA provides:

83. (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

19The respondent relies on two Tribunal decisions, Grenier v. Kitchener Housing, 2017 HRTO 753 ("Grenier") and Peterson v. North44 Property Management – Parklane Townhomes, 2016 HRTO 1403 ("Peterson") in support of its position. These decisions indicate that a decision of the LTB can, in appropriate circumstances, give rise to a dismissal of an application under s. 45.1. In my view, however, those cases do not support the respondent's position that the Application as it relates to housing should be dismissed in the present case.

20In Peterson, the tenant/applicant had complaints respecting second-hand smoke in her complex. She raised the issues with the property management, and when not addressed, she filed a tenant's rights application with the LTB under s. 29(1)3 of the RTA, raising her disability issues and the duty to accommodate. Her application was dismissed. She then commenced an application to the Tribunal. That application was also dismissed on the basis that the issues raised at the Tribunal were essentially the same as those determined by the LTB, that the LTB had jurisdiction to determine the Code issues, and that it had in fact determined the issues. I note that in a tenant application such as brought by the applicant in Peterson, the LTB would have had broad remedial authority under s. 31(1) of the RTA to grant both monetary and non-monetary remedies had it found the landlord had substantially interfered with the tenant's reasonable enjoyment of the premises.

21The Tribunal further indicated in Peterson that it appeared that the application to the Tribunal was really an attempt to challenge to the LTB decision, and noted at para. 21 that the Tribunal was not an appeal body for decisions of other tribunals.

22In Grenier, the landlord/respondent had brought eviction proceedings at the LTB against the tenant/applicant. The LTB found that the respondent had established grounds for eviction under the RTA. The LTB, however, further refused to grant the application for eviction under s. 83(1)(a) of the RTA, subject to certain conditions. The applicant subsequently filed an application with the Tribunal, asking that the Tribunal "refuse" the eviction due to her disability. The Tribunal dismissed the application on the basis that the issue, namely whether the eviction should be refused because of her disability, had already been appropriately dealt with at the LTB.

23I find that neither Grenier nor Peterson support the respondent's request to dismiss the housing allegations under s. 45.1 in the present case. Unlike those cases, the applicant in the present Application is not arguing for what is essentially the same relief in a different forum. Rather, he is arguing for a finding that the termination of his employment was discriminatory, and is asking for the appropriate remedies that would flow from such a finding.

24Though raising both the areas of housing and employment, the substance of the present Application is not the termination of the applicant's tenancy, but the termination of his employment. As the LTB noted, housing and employment in this case are closely connected, and the applicant's housing ended as a consequence of the employment ending. The LTB further held, correctly, that it could not determine whether the termination of the applicant's employment was discriminatory.

25The applicant relied on Michalczyk v. Sudbury Condo Corp #9, 2012 HRTO 1736 ("Michalczyk") at paras. 28-30, also a case involving the application of s. 45.1 to a decision of the LTB under s. 94 of the RTA, the Tribunal held that s. 45.1 does not bar an application to the Tribunal given the fact that the LTB cannot make a determination whether or not the termination of a superintendent's employment was contrary to the Code. This finding is consistent with the finding of the LTB in the present matter. Michalczyk, however, did not expressly raise allegations of discrimination in housing at the Tribunal, and was only based on employment.

26I recognize that in the present case the LTB did specifically find that that the respondent "did not discriminate on the grounds of disability with respect to housing", and it is this specific finding which gives rise to the question of whether s. 45.1 is engaged. This finding of the LTB, however, has to be read in the context of the finding that the housing ended as a consequence of the termination of the applicant's employment, and in the context that the LTB agreed it had no jurisdiction to determine whether the termination of the employment was discriminatory.

27I do not see that the LTB was in any way intending to limit the ability of another decision maker, whether a tribunal or court, to make a determination on whether the termination of the applicant's employment was lawful, and, should it be determined that it was not, to limit what remedies would be available. Rather, the LTB determination was that the applicant's allegation of discrimination was with respect to employment, and outside the LTB's jurisdiction to consider.

28Even if it were the case that the LTB decision was making a finding respecting whether the applicant had faced discrimination, in my view it would nonetheless be unfair to the applicant to apply s. 45.1 in these circumstances. The decision of the LTB was decided in the narrow context of an application to the LTB pursuant to ss. 93 and 94 of the RTA. Given that the occupancy of his rental unit was part of his compensation, and was conditional on his continued employment, it would be unfair to the applicant to say that, even if he were able to ultimately establish that the termination of his employment was discriminatory, that he was precluded from pursuing any remedy relating to the loss of his housing as a result. The application of s. 45.1 is discretionary, and the allegations should not be dismissed if doing so would lead to unfairness. See Ontario (Correctional Services and Community Safety) v. De Lottinville, 2015 ONSC 3085 (Div. Ct.), at para. 83.

29For all the above reasons, I cannot find that the allegations respecting discrimination in housing should be dismissed under s. 45.1 of the Code.

No Reasonable Prospect of Success

30This Application raises allegations under ss. 2, 3, and 5 of the Code. These provisions read as follows:

2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

4. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

31The right to be free from discrimination under the above sections on the basis of disability is also subject to s. 17 of the Code, which states:

17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Discrimination in Contracts

32I cannot find that the circumstances around the contract renewal could be considered discriminatory. The particular elements of the renegotiation that the applicant raised were that the new contract removed the provisions respecting severability and independent legal advice, that there was no consideration, and that the new contract specifically referenced that subsequent renewal in 2015 would be based on the applicant's ability to work, i.e., that the respondent was raising the possibility of frustration of contract.

Frustration of Contract Clause

33The contract renewal contained the following clause:

At the time of this agreement, the Employee is not actively at work. At the end of the contract extension (June 16, 2015), should the Employee be unable to return to his duties as a Building Superintendent in the foreseeable future, a decision will be made at that time with respect to the future contract renewal.

34The applicant appears to be suggesting that absent this clause, the respondent would not have been able to rely on frustration of contract when it declined to renew the contract a year later. However, frustration of contract is a legal determination that arises because a contract has become impossible to fulfil. Its application does not depend on it being explicitly set out in a contract, and in fact will usually arise because the events were not contemplated, and for which no provision had been made. See Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 SCR 943, 2001 SCC 58, at para. 53.

35The specific wording in the renewal contract did not give the respondent any rights beyond what would be available to it in any case. Rather, I see the renewal as the respondent simply advising the applicant in 2014 that the current arrangements may not continue beyond June 2015. The clause did not provide the employer with a contractual basis on which to terminate the applicant's employment earlier than it might otherwise have done. As noted below, the question of whether the respondent's conclusion in 2015 that the contract was frustrated is an issue to be determined after considering the evidence, and, as noted in Senyk v. WFG Agency Network (No. 2), 2008 BCHRT 376 ("Senyk"), discussed in more detail below, whether the employer warned the employee that termination based on the employee's inability to work was being contemplated is a factor in determining when frustration of contract occurs. See Senyk, at para 389.

Severability and Independent Legal Advice Clauses

36It is not clear how the removal of the severability or independent legal advice provisions resulted in any harm to the applicant. Even if there was, there is nothing to indicate how the removal of these clauses was in any way related to a Code ground.

Consideration

37Third, it is unclear what the basis is for the claim that there was no consideration to the applicant in the renewal contract. The applicant appears to be suggesting that the renewal contract gave the respondent something, namely the ability to terminate his employment for frustration of contract, but gave him nothing in return. However, as noted above, the contract did not give the respondent any additional ground to terminate or decline to renew the contract that it did not already have, but rather simply put the applicant on notice that the respondent may not renew the applicant's contract further if he was still unable to work. Furthermore, if the contract had not been renewed in 2014, then the original contract would have come to an end at that time. Instead, because the respondent agreed to extend the contract, the applicant was able to remain in his unit for another year.

38Considering all the above, if the matter were to proceed to a full hearing, there is, in my view, no reasonable prospect that the applicant's allegations that the applicant was discriminated against under s. 3 of the Code with respect to the 2014 contract renewal could be successful, and this allegation is therefore dismissed.

Employment and Housing

39As noted above, the allegations respecting discrimination in employment and in housing are closely linked, given that provision of housing was part of the applicant's compensation in his employment as a superintendent. The one issue separate from his role as a superintendent is the allegation that the respondent did not act promptly to move him to another building after the assault in 2013, which is addressed below.

40There is no dispute that the applicant was unable to do his job throughout the time period in question. The respondent accommodated the applicant by allowing him a leave of absence, and to first continue and then renew the employment contract in case the applicant's condition improved such that he could return to work.

41During the first year of his leave, the medical documents confirmed his ongoing inability to work, though suggested this may change in the future.

42The respondent received a letter from the WSIB in May 2015 which provided a brief summary of a medical report which apparently indicated that the applicant was not employable, his prognosis was guarded, and that further treatment was recommended. Based on this letter from the WSIB, the respondent decided that the employment contract had been frustrated.

43Where an employee cannot, even with accommodation, perform the essential duties of a job for the foreseeable future, it is not discriminatory for an employer to terminate the employment. See Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, 2008 SCC 43 ("Hydro-Québec"), at para. 19, and Butcher v. Trillium Lakelands District School Board, 2016 HRTO 1545 ("Butcher") at para. 52.

44The Supreme Court succinctly stated, in Hydro-Québec at para. 19, that

The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

45The determination of whether the "employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future" is a factual determination that must be made on a case-by-case basis. Though it may be possible in some cases to make a preliminary determination that an application has no reasonable prospect of success based on frustration of contract, such as in Butcher at paras. 54-55, this is a determination that I can make based on the materials before me.

46The determination of when an employment contract has been frustrated is not straightforward, particularly when dealing with a case such as this where the nature of the applicant's disabilities make it difficult to determine a clear prognosis or expected recovery date. The applicability of the doctrine of frustration of contract in the human rights context was addressed in detail in the British Columbia Human Rights Tribunal decision Senyk, referred to above in para. 35, particularly at paras. 299-314. As can be seen from that decision, the determination of whether an employment contract has been frustrated is quite complex, involving a review of a number of factors, including the specifics of the employment contract, the expected duration of the employment absent sickness or disability, the nature of the employment, the nature of the illness and the prospect of recovery, the employee's length of service, the role the employer played in the development of the disability, and whether the employer gave the applicant warning that continued employment was in jeopardy. See Senyk, at paras. 302 and 357-392.

47The fact that I cannot find at this point that the Application has no reasonable prospect of success is not to be taken as indicating that the applicant will therefore ultimately be able to establish that the termination was discriminatory, nor to suggest that, if in fact there was a discriminatory element to the termination that the remedies the applicant is seeking are appropriate. It is still open to the respondent put forward its case that the contract was frustrated, or that continuing the employment relationship would have amounted to undue hardship.

48The Application summed up his allegations by stating that he was "terminated from his employment due to his inability to heal from the events that occurred during his employment with the respondent." This may well be true. However, even if true, this does not necessarily amount to discrimination under the Code. Whether or not the applicant was subject to discrimination, however, is an issue that cannot be determined at a summary hearing.

Delay in Relocating Applicant

49The final allegation is that the respondent's failure to relocate the applicant to another building promptly after the assault amounted to a failure to accommodate the applicant's disability. The applicant specifically argues that the delay in transferring him, and his being required to live in the same building as the tenant who assaulted him, caused a "vast amount of stress."

50Given the nature of the applicant's disability, I cannot find that this allegation has no reasonable prospect of success. However, it is also not clear to me that this allegation is timely, given that it relates to an incident or incidents that occurred in July to November 2013, more than two and a half years before the Application was filed.

51Sections 34 (1) and (2) of the Code read as follows:

(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.

52The issue of whether the application is either part of a series of incidents for the purposes of s. 34(1)(b), or that the delay in raising the allegation was incurred in good faith for the purposes of s. 34(2), is an issue that will have to be determined. The parties should be prepared to address this issue at the hearing of this matter.

Orders and Directions

53The allegation that the respondent discriminated against the applicant in renegotiating the employment contract in 2014 is dismissed as having no reasonable prospect of success.

54The parties should be prepared to address as a preliminary issue at the hearing in this matter the timeliness of the allegations respecting the alleged failure to accommodate the applicant from July to November 2013.

55The remaining allegations may continue in the Tribunal's process.

56I am not seized.