HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kayla Pollock
Applicant
-and-
Carolyn Wilson
Respondent
DECISION
Adjudicator: Josée Bouchard
Date: November 8, 2017
Citation: 2017 HRTO 1476
Indexed as: Pollock v. Wilson
APPEARANCES
Kayla Pollock, Applicant
) Self-represented
Self-represented
Carolyn Wilson, Respondent
Robert Gill, Paralegal
INTRODUCTION
1This Application arises out of a dispute between neighbours who lived in a condominium building. The applicant, Kayla Pollock, first moved into the building in June 2014. In mid-2015, she moved directly across the hall from the respondent, Ms. Wilson. The dispute that is at the core of the Application began on August 12, 2015 and largely involves two incidents that occurred in August 2015.
2The applicant, who lives alone, has type 1 diabetes and often has severe low blood sugar. The applicant uses a service dog trained to recognize symptoms dangerous to people with diabetes, including blood sugar levels. Over the years, the applicant has had a number of service dogs all specifically trained to respond to her needs. The applicant is passionate about educating the public about service dogs and the rights of persons who use service dogs. She has advocated for those rights throughout her adult life.
3During the material time, the applicant had a service dog, Aspen, a Portuguese Water Dog fully trained to cater to her needs. The applicant received Ontario Disability Support Program allowance specifically for her service dog. The applicant also rescues animals that have been injured or abused. She takes care of them in order to save the animals’ life and finds them good homes. Until August 17, 2015, and for a period of approximately 7 months, the applicant took care of a rescued Miniature Poodle/Chinese Crested mixed breed, Hope Star. Hope Star was never a service dog. She was adopted on August 17, 2015 into a new family.
4The incidents that occurred between the applicant and the respondent appear to be a dispute about what is allowed to be posted on unit doors that are common elements in the building. However, at the core of the dispute are the respondent’s objections to the applicant’s dogs, criticism of how she communicates information about her service dogs and how she cares for her dogs.
5The applicant filed this Application on November 3, 2015 alleging discrimination with respect to housing because of disability and receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
6I find that the respondent created a poisoned environment, which subjected the applicant to adverse treatment and that her use of a service dog for her disability was a factor in that adverse treatment. I do not find, however, that the respondent discriminated against the applicant because she is in receipt of social assistance.
EVIDENCE
7The applicant testified for herself.
8In addition to the respondent Ms. Wilson, Michelle Geddes, Property Superintendent, and Randy Hughes-Guest, Property Manager for the condominium building testified.
Credibility
9While most of the facts of this case are not contested and/or are supported by documentary evidence, other facts require me to choose between the applicant and the respondent’s conflicting testimonial evidence. In evaluating the evidence, I have given consideration to the following analyses frequently cited in decisions of this Tribunal, see Kinanga v. Toronto (City), 2016 HRTO 577, at para. 63, and Marne v. Aptco Capital Corporation, 2014 HRTO 1756, at para. 11:
“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.” Reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events. Credibility goes to the propensity to tell the truth or the “sincerity” of the witness. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (ON C.A.) at p.205
Credibility can be determined by evaluating whether the story provided by the witness is consistent with the “preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions:” see Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.)
In evaluating the credibility or reliability of evidence, one looks to a number of interrelated factors such as its probability, logical connection with other findings and support from independent evidence. In evaluating the credibility of a witness, one looks to such factors as the ability to “perceive and recall,” “level of candour or evasiveness” and “attitude towards the parties.” See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 54
“A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable.” See Visic, above.
10Where it is necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so below. The following are general observations about the witnesses’ evidence.
General Comments on Credibility and Reliability
11The manner in which the applicant gave her evidence appeared sincere and straightforward. The applicant provided detailed accounts of incidents and was able to recall the behaviour she experienced in a believable manner. However, the applicant had difficulty recalling dates or periods of incidents. She explained that, as a result of a childhood injury, remembering such information was very challenging. Although she did not provide medical documentation to support this, I find that there is no reason to disbelieve the applicant. Her testimony was supported by documentary evidence, including dates and the timeline of events presented by the parties was not in dispute.
12The respondent’s testimony was honest but was sometimes inconsistent with the documentary evidence introduced in support. I note below the inconsistencies between the respondent’s testimony and the evidence, which lead me to question the reliability of some of the respondent’s testimony.
13Ms. Geddes and Mr. Hughes-Guest gave their testimony in a straightforward, honest and consistent manner. They provided details of incidents without hesitation. I find that their testimonies were generally credible and reliable.
Background
The Applicant’s Disability and Service Dogs
14The fact that the applicant has a disability or that she uses a service dog for her disability is not in dispute. The applicant’s service dogs are specifically trained to recognize the symptoms of the applicant’s disability and to react accordingly. During the material time, the applicant had Aspen, a trained service dog with a service dog identification number. The applicant testified that Aspen always wore his service dog vest in public. The applicant also introduced in evidence a doctor’s note, dated August 25, 2015, stating as follows:
I have treated Ms. Pollock for several years now as her primary family physician. […] She is legally disabled and receives Ontario Disability Support for her service dog. Ms. Pollock is required medically to have her service dog in the event of a seizure or diabetic issue which could be life threatening as she lives alone. The dog will be trained to do specific tasks in order to help Ms. Pollock lead a safer and more independent life.
15The applicant testified that she is often excluded from places because she uses a service dog. For example she is often barred from entering restaurants. However, because her service dogs have improved her way of life, she is a strong advocate for service dogs and loves educating others about them. When the dispute began with the respondent, the applicant found it very difficult as it happened where she lives.
16The applicant testified that she had been living in the building since mid-2014 and had never had any issues with neighbours. However, after the respondent moved into the condominium building in May 2015, she started receiving complaints. The applicant testified that she was never officially introduced to the respondent.
August 12 to 17, 2015 Events – The Signs on the Door
17The respondent sent an email to the property manager, Mr. Hughes-Guest, at 10:49 p.m. on August 12, 2015 stating:
Unit 306 [sic: the respondent testified that the applicant resided in 305 and that all references to unit 306 are errors] is sporting an “Employees Only” sign on the unit door, as well as a Service Dog sign and what appears to be a battery operated doorbell. Please advise the owner of 306 [sic] to advise the tenant that this building is not a “College Dorm”. Tasteful door decorations such as wreaths enhance the look of the building and are consistent with residential décor, however, signs like “Employees Only”, serve to lower the tone of the building. The Service Dog sign needs to be on the dog not the door. If the doorbell is required, for some reason, I can live with it, but the other paraphernalia needs to be removed.
Please let me know that these issues will be addressed with the board or the appropriate bylaw invoked if one exists today.
18The applicant testified that at that time, the only document on the door was a 8” x 11” sign stating “service dog inside. Attention EMS: There is a legal service dog inside this apartment”.
19The applicant testified to the importance of the sign on the door. While she was living in unit 305, she was found unconscious and the applicant’s previous service dog, Tiguan, a Great Dane, was found standing over the applicant growling. The police were called in and wanted to shoot Tiguan. The applicant’s mother removed Tiguan to the bedroom and the applicant was tended to and saved. The applicant was told by a friend who is also a police officer to put a service dog sign on her door with the notice: Attention EMS: There is a legal service dog inside this apartment. The applicant was told that police officers would not shoot a service dog.
20The applicant testified that Mr. Hughes-Guest told her about the complaint regarding the notice and the request to remove it. She was surprised because she had never received any complaints about her service dogs. According to the applicant, Mr. Hughes-Guest informed her that she was not allowed to have signs with letters on them. The applicant was doubly surprised by this, as other tenants had signs with words on them. For example, one tenant had a sign stating: “Don’t mind the dog, beware of the owner”. No one, including the respondent, had complained about that sign.
21The applicant proceeded to tell Mr. Hughes-Guest why she required the sign on the door but was told it had to come down.
22The applicant’s next action was to plaster information about her disability and need for a service dog on her door. She admitted during the hearing that this was an overreaction due to the frustration she was feeling. Without providing particulars, she testified that the respondent had complained four or five times about the service dog sign on the door. She admitted that posting numerous documents on her door was inappropriate and not allowed by the board. The following documents were posted on the door:
a. A note from a website regarding the Accessibility for Ontarians with Disabilities Act, 2015 entitled “Does a Service Dog Need to be Certified?”;
b. Three newspaper articles about the applicant and her service dogs;
c. Proof of receipt of benefits for the service dog;
d. Proof that she has a dog that is a service dog that tends to her disability related needs;
e. “service dog inside. Attention EMS: There is a legal service dog inside this apartment” notice.
23The applicant testified that the Superintendent took the notices and documents down immediately and she found that this was appropriate.
24The applicant observed that she wanted to educate the respondent and slipped an envelope with copies of the documents that had been posted on her door under the respondent’s door. She also corresponded with the respondent via email. The emails were not produced in evidence.
25On August 13, 2015, the respondent wrote to Mr. Hughes-Guest as follows:
Thanks for the discussion this afternoon. Unfortunately now the tenant in 306 [sic] has plastered her door with newspaper articles pertaining to Service Dogs and who knows what else.
She knocked on my door to alert me to this display. I was on a conference call so she basically disturbed me at work. All this to say, this is unacceptable. I believe that her landlord needs to be notified that her behaviour is disturbing to the other residents, and that she can’t put inappropriate items on her door as it is a common element.
Enough already.
26Mr. Hughes-Guest wrote back “I understand this problem is solved… until the next one…”
27The respondent replied on August 14, 2015 as follows:
The problem is NOT solved. She still as [sic] all the papers Beware of Dog and Private Signs etc… etc.. all over her door. This is not one sign but several now. She has posted Tiguan’s license though not his Service Dog docs. The Service Dog badge on the door is for her as a handler plus the docs associated with Dakota her old service dog. She is making this about the service dog, not the mess on the door which is the point.
This mess is devaluing the building and therefore my unit especially as it is right across the hall. This can not [sic] continue. I have talked to Michelle [Geddes] and she at first said she would tell her to take the stuff down except for the Service Dog badge. Then she said she would call you to have you call her landlord. My husband wants to have a meeting with you to discuss next steps. He is very concerned that [the Assistant Superintendent] is encouraging this behaviour.
Please let me know what is being done and when.
28Mr. Hughes-Guest replied on August 14, 2015 at 4:24 p.m.
Yet again the stuff has been removed from the door with a note added for this tenant to call me whereby I hope to educate her […]
29And the respondent replied:
I went out to the laundry room and found Michelle [Geddes] and [the Assistant Superintendent] at the door removing the stuff. When I came back from the laundry room about 4:30 p.m., I saw the door as you described it. Half an hour later I went out to move my stuff from the washer to the dryer and opened my door to find her and [the Assistant Superintendent] at the door. She was putting it all back on and asking [the Assistant Superintendent] if Michelle [Geddes] was still here as I believe we [sic] was telling her to take it down again. Clearly she is not prepared to cooperate and I am not prepared to go through the weekend with the stuff on the door, or any other demonstration of her “rights” she intends to display.
I know you are working on this. I appreciate that but we are extremely upset and looking for immediate and permanent resolution.
30After being informed by a police officer that specific signs are allowed, Mr. Hughes-Guest spoke to the applicant to let her know that she could leave some signs on her door, more specifically the “service dog sign”.
31On August 14, 2015 at 5:25 p.m. Mr. Hughes-Guest wrote to the respondent: “Problem solved as I just got off the phone with the tenant. Legally, because of her disability, there will be 3 signs on her door – 1) small door bell sign 2) small sign with the Canadian flag at top 3) Beware of dog sign. That’s it – trusting that we can now end all this nonsense.”
32The respondent replied:
I would love to agree. As noted previously I can live with the doorbell and the small sign with the Canadian flag at top. The Beware of Dog sign is 8 by 10. It is not necessary and needs to come down. She does have a discreet tape type sign that says Licensed EMS Dog Within which is sufficient to get the message across to anyone coming to the door and makes the large Beware of Dog sign unnecessary. Please ask her to remove the beware of dog sign.
33The respondent testified that she complained to the Property Manager about inappropriate signs on her neighbour’s door, which is a common element. There is a rule in the declaration of the condominium corporation that tenants are not to put signs on doors.
34The respondent testified that even though the condominium rules clearly state that there should be no signs posted on the common elements, the sign “world’s greatest grandmother” and a wreath are fine as they are decorations that denote that the building is a residence. The items on the applicant’s door were not decorative. The respondent explained that for those reasons she only complained about the signs on the applicant’s door and no other signs in the building.
35The respondent felt that the applicant’s signs were inappropriate. The respondent testified that the signs that were on the applicant’s door when she first complained were an “employees only” sign and a large 8” x 10” sign that said “beware of dog”. There was also a small sign that referred to EMS personel. She found that this last sign was fine. She recalled that the “service dog” sign was put up at the end of the dispute on August 18 or 19, 2015 and that she never objected to that sign. The respondent’s testimony on this point is in direct contradiction with the emails she produced in evidence. The first complaint email she sent to Mr. Hughes-Guest refers specifically to “Unit 306 [sic] sporting an “Employees Only” sign on the unit door, as well as a Service Dog sign and what appears to be a battery operated doorbell.” I find the respondent’s testimony on what was first posted on the applicant’s door unreliable and that the sign first posted on the applicant’s door was a service dog sign.
36On August 14, 2015, the applicant contacted the police to report that her service dog handler badge and her service dog’s vest had been stolen.
37On August 17, 2015, the respondent wrote to Mr. Hughes-Guest to complain as follows (the following are excerpts):
I am very concerned about the events of late Friday night/Saturday morning. As you know, [the Assistant Superintendent] knocked on our door about 11 p.m., and then phoned when we did not answer the door. He was knocking/calling on behalf of the tenant in Unit 306 [sic]. He asked if we had taken the Service Dog Handler Badge with the Canadian Flag on it from the door. Obviously we had not taken it, and my husband’s response […] was appropriately angry.
Later that night (about 12:15 a.m. or so Saturday), the police knocked on our door as the tenant in 306 [sic] had called the police, and accused us of stealing her Service Dog Handler Badge and of knocking on her door at all hours of the day and night and of stealing not only the badge but also her dog’s back pack/coat thing.
38The respondent testified that she followed up with police a few months later and was told that the investigation was closed for lack of evidence. The applicant acknowledged that she has no evidence to show that the respondent took the badge and vest and she is not relying on this alleged incident to prove discrimination.
39The applicant testified that she tried to move to another more affordable unit while she was living across the hall from the respondent, but because of the respondent’s complaints, Mr. Hughes-Guest failed to tell the landlord of that unit that the applicant’s dog was a service dog. The applicant believes that she was rejected as a potential tenant in that unit because of this.
40The respondent testified that shortly after her August 17, 2015 email, she and her husband attended a meeting with members of the board and Mr. Hughes-Guest and they agreed that the applicant could post the service dog sign on her door.
August 28, 2015 Incident – The Crying Dog
41On August 29, 2015, the respondent wrote again to Mr. Hughes-Guest to complain about the applicant’s dog crying all night:
The tenant in Unit 306 [sic] once again has an additional dog. You and Betty confirmed at our face to face meeting that there would be no more additional dogs that Tiguan was the only dog that would be allowed.
Now [the Assistant Superintendent] tells me that you have authorized this dog. He tells me that it is a Service Dog and that it is being trained as a replacement for Tiguan who is apparently getting old. I asked [the Assistant Superintendent] if Kayla is home this weekend and he said he “thought” she was. He told me that the dog had been neutered on Friday so that may have been why it was crying.
In fact the dog cried every time someone passed the door the way a dog would if it was left alone and afraid and hoping that someone would come home. When [the Assistant Superintendent] went in, I presume to check on it this morning at 7:30 a.m. it set up quite a fuss.
The [Assistant Superintendent] asked me to give it a couple of days for the dog to settle down after its operation which I am prepared to do on the assumption that Kayla is in fact at home. If she isn’t she needs to be told the next time that she leaves a dog alone overnight or for a weekend that the Humane Society will be called.
The [Assistant Superintendent] tells me that despite our discussion at the face to face meeting, that you have authorized her to have this dog in the unit. If that is true, I would have expected you to have advised [my husband] and I of that as a courtesy. Clearly one thing is said and another done by both board members and property management, with no explanation.
I believe that both the previous little (additional) dog and the present one, are dogs she has accepted as Service Dogs in Training and that this one (like the previous dog) will go to another handler once trained by Kayla. If this is the case it is completely unacceptable. We need proof that Tiguan is close to “end of life” based on age or health. A letter from her vet should suffice.
I will wait until Monday […] and if the crying/yelping dog does not stop, I will make a formal complaint to you to be passed to the board.
42The applicant provided a note from a vetenerian to prove that Aspen was admitted to hospital on August 28, 2015 for an anesthetic and orchiectomy (neuter). The post-surgical instructions included monitoring for increased sleepiness and decreased activity typically lasting 12 to 36 hours post anesthetic. The applicant testified that after surgery, Aspen stayed with her friend in a unit one floor below hers and the respondent’s.
43Mr. Hughes-Guest testified that he never relayed the respondent’s message to the applicant. Mr. Hughes-Guest asked a member of the board to respond to the respondent’s complaint. On September 1, 2015, that member wrote to the respondent as follows:
[Mr. Hughes-Guest] has left this up to me so here it goes I have received yet again your list of complaints regarding Kayla and her new dog (s), there is no limit to how many she may have and when [a tenant] moved in she had 3 dogs but since 2 have passed away. To me both you and your FRIEND [name of friend] are BULLY'S and you are picking on the weakest link “SHAME ON YOU BOTH”.
Kayla was home with her new dog all week-end and I have talked to several people in the Condo and the barking dog was not Kayla’s. I have all the documents from the Vet regarding this new dog and by the way she does not legally have to give them to anyone.You and your friend could be in serious trouble if you continue to keep up this BULLYING. This is not a threat to you both but I'm telling you it will happen. Also I will inform you it is against HUMAN RIGHTS OF ONTARIO to discriminate against someone with a disability.
[Your friend] was seen on Lobby camera receiving Kayla's ODSP cheque on Thursday and kept it until yesterday afternoon that is a CRIMINAL OFFENCE TRUST me when I tell you I have Friends and Clients in high places and I asked all these questions before sending this e-mail to you. Now it needs to stop.
Leave everyone alone, are you that bored that a little person like Kayla has to be BULLIED by you and [your friend]. I want this to stop and stop now!!!!!!!!!!!!!!!!!!!!!!!!!!!
44The applicant recognized that the member of the board was extremely harsh in her note to the respondent. She explained that the board had been dealing with a long list of complaints from the respondent that were not related to the applicant.
45The applicant testified that there are numerous dogs and animals in the condominium unit and a number of them bark regularly. For example, the Superintendant’s mother has a dog and everytime she hears something she barks. In both directions there are dogs that bark continuously. The applicant assumes that the respondent could hear them. She maintains that none of the other tenants have been asked by the respondent through Mr. Hughes-Guest or the board to tell the board when they get a new dog or to stop their dogs from barking.
46The respondent acknowledges that she complained about a dog crying on August 28, 2015 and that she believed the crying came from the applicant’s unit. The respondent recalls that every time someone went by the applicant’s unit the dog would cry, not bark or growl. The respondent described the sound as one coming from an animal in distress. The respondent testified that she did not sleep that night. At 7:30 a.m., she said that she heard a very big noise (yelping and crying) presumably coming from the applicant’s unit. That weekend, the respondent ran into the Assistant Superintendent in the laundry room. She told him what had happened and asked him if the applicant was in her room. The Assistant Superintendent replied that he thought she was. The respondent testified that the Assistant Superintendent told her he entered the applicant’s apartment at 7:30 a.m. on the Saturday in question and that is why the dog made a sound. The Assistant Superintendent did not testify. The evidence is hearsay and I am not prepared to attach any weight to it. The Tribunal generally will not rely upon hearsay evidence as the basis for important findings of fact. Harnock v. Campus Living Centres Inc., 2012 HRTO 2189.
47The respondent testified that she has never asked for proof from tenants, other than the applicant, that a dog is close to “end of life”. She also testified that she never asked to be informed when tenants, other than the applicant, get or adopt new dogs. She only complained about the applicant’s dogs.
48The respondent maintains that she asked Mr. Hughes-Guest and a member of the board what would happen if the applicant got another dog. She testified that the member of the board said there would be no other dog. The respondent explained that the applicant’s apartment is small and there are health hazards in having multiple animals in the unit. The respondent testified that Aspen never cried again so she did not complain again about the applicant’s dogs.
49Ms. Geddes testified that her mother, who lived down the hall from the respondent and applicant, has a Toy Poodle that barks regularly. Ms. Geddes noted that the respondent has never complained about her mother’s dog.
50Mr. Hughes-Guest testified that the respondent had never asked to be informed about tenants, other than the applicant, getting or adopting new dogs. Mr. Hughes-Guest confirmed that the respondent never asked him to request information from a veteranian about tenants’ dogs, other than the applicant’s dogs. In fact, Mr. Hughes-Guest noted that the respondent never asked any questions about anyone else’s dogs but the applicant’s.
The Cheque
51The applicant alleges that on August 31, 2015, she contacted the respondent’s friend (“the friend”) who also lives in the building to let her know that her disability cheque had been accidently put in her mailbox. The applicant explained that she needed the cheque to get her medication. The applicant testified that a number of employees and board members attempted to help her by trying to get the cheque back from the friend. The applicant understood that the friend was home all weekend and refused to give the cheque back to her. On the Monday afternoon, the friend returned the cheque to the applicant.
52The respondent testified that on or around August 31, 2015 her friend left for the weekend with her mail, including the applicant’s cheque which had been sent to her in error. She did not return until late Sunday night. The friend gave the cheque to the applicant on the Monday upon her return. The respondent states that it is only when her friend told her the story of the cheque that she found out the applicant was in receipt of social assistance.
53At the hearing, the applicant did not pursue these allegations and they are the only allegations in which she raised discrimination based on the receipt of public assistance. Consequently, the allegations of discrimination based on receipt of public assistance are dismissed.
The Dogs Wandering Around
54The respondent testified that on October 3, 2015, she and her spouse were leaving the building to go to a golf tournament. A lady and a man approached them in the parking lot and asked if they knew the “blonde young woman who owns the Great Dane and black dog”. They said there were a Great Dane and a black dog in their yard running the streets and the Great Dane had a bloody paw. She wanted to alert the owner of the dogs.
55The respondent recalled taking the woman to the lobby of the building to show her which unit was the applicant’s. Out of concern for the applicant, the respondent contacted Ms. Geddes to ask her to verify that the applicant was fine. She believed that if the dogs were the applicant’s, she must be in trouble. Later during the day, Ms. Geddes phoned the respondent’s friend to inform her that the applicant was fine.
56The applicant testified that one day, she was sleeping and her good friend burst into her unit with two other residents and said “thank god you are okay”. She was told that a Great Dane and a small black dog had been running around the street and that the respondent had contacted Ms. Geddes out of concern for her safety. The applicant submits that the respondent’s deemed concern for her health is disingenuous. She believes that this may have been another attempt by the respondent to show that she was neglecting her dogs.
57The respondent testified that the next day, a friend of the applicant’s knocked on her door and introduced himself, saying that Tiguan was no longer living in the building but had been living with him. He told the respondent that he and the applicant took very good care of their dogs and never allowed them to run loose. The respondent answered that she had no doubt but the call to the Superintendent was strictly as a response to the applicant’s previous medical emergencies. The applicant’s friend replied “this harassment must stop”. The respondent replied that there was no harassment, that she was acting out of concern for another human being. The applicant’s friend replied “fair enough”.
58The respondent testified that the applicant’s friend went back to the applicant’s unit and came back 10 minutes later. He handed her an envelope on which the applicant had written October 29th, 9:30 a.m., Human Rights Tribunal and said this was when the hearing was scheduled. The applicant’s friend then left.
59The respondent testified that she received an email from the applicant on October 5, 2015 offering to drop the Tribunal application for a payment of $5,000. The respondent did not respond to the email. This was followed by numerous emails pertaining to the Application
60The respondent believes that the applicant’s intention in submitting the Application is to intimidate and/or extort money.
analysis and decision
The Applicable Law
61Section 2 of the Code provides as follows:
Accommodation
- (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.
62“Disability” is defined in section 10 of the Code and the definition is very broad:
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.
63Subsection 2(1) of the Code provides the right to equal treatment with respect to occupancy of accommodation without discrimination because of “disability”. “Disability” is broadly defined in section 10.1 of the Code, and the parties did not dispute the fact that the applicant has a disability within the definition of the Code and that she uses service dogs for her disability.
64The next issue to consider is whether the concept of a poisoned environment applies in the context of this case. The Tribunal has held that the poisoned environment concept may constitute a violation of the general protections against discrimination under subsection 2(1) of the Code in the context of the occupancy of accommodation. See Messmer v. Piliwood Investments Ltd., 2011 HRTO 1421. The Tribunal has also found a poisoned work environment in violation of the Code in the context of harassment between co-employees, which is in my view analogous to the relationship between co-tenants. See Baisa v. Skills for Change, 2010 HRTO 1621 at para. 118.
65In determining whether or not a poisoned environment exists, relevant factors include: the number of comments or incidents; their nature; their seriousness; and whether taken together, it had become a condition of the applicant’s employment, or in this case occupancy, that she or he must endure discriminatory conduct and comments: see Crêpe It Up! v. Hamilton, 2014 ONSC 6721 at para. 19.
Was the Applicant subjected to a poisoned environment because of disability?
66In order to succeed, the applicant must establish, on a balance of probabilities, that she was subjected to adverse treatment with respect to the occupancy of accommodation, and that the treatment was related, in whole or in part, to her disability.
67I understand the applicant’s position to be that the respondent discriminated against her on the basis of disability when she repeatedly complained about the applicant’s dogs, more specifically her service dogs, and by asking intrusive questions about the applicant’s disability and service dogs. The applicant maintains that the respondent has singled her out by only complaining about her dogs and not the neighbours’ dogs. She believes that this is harassing or discriminatory behaviour based on her disability.
68I understand the respondent’s position to be that the applicant has not shown a link between the alleged incidents and a prohibited ground under the Code. It is the respondent’s position that she had a right to complain about the signs on the applicant’s door, as they were clearly in violation of the condominium rules. She also complained, only once, about the applicant’s dog crying at night because it disturbed her sleep and the peaceful enjoyment of her property. She never complained again as the applicant’s dog never cried again at night.
69The respondent did not deny that she knew during the material time that the applicant used a service dog for her disability. As such, the respondent knew that the applicant had disability-related needs and that Aspen and her other service dogs played a role in assisting those needs.
70I note that there was a discrepancy in the applicant and respondent’s testimony regarding whether one of the signs on the applicant’s door was a “service dog” sign or a “beware of dog” sign. I find it more plausible that the applicant’s sign on the door said “service dog inside” and not “beware of dog”. The applicant is extremely savvy about her rights and the right to use a service dog. She described in detail the difference between her service dogs and her rescue dogs. Her friend, who is a police officer, had told her that she should put a “service dog” sign on her door with the notice: Attention EMS: There is a legal service dog inside this apartment. I believe that the applicant placed the sign on her door following the incident when she was found unconscious on the floor and her service dog had protected her until the responders arrived. In addition, I note that neither the applicant nor respondent produced a “beware of dog” sign in evidence.
71I turn now to the issue of whether the respondent discriminated against the applicant because of her disability.
72The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that discrimination contrary to the Code has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.
73I find that there were a number of factors that contributed to the events of August 12 to 17, 2015; the dispute about the signs on the applicant’s door. One of those factors is the fact that the respondent was concerned about inappropriate signs posted in the common elements of the building where she lived. The applicant lived across the hall from her. It is not surprising that when the applicant posted signs on her door, the respondent reacted by complaining. It is also not surprising that when the applicant responded to the complaint by plastering her door with more signs, the respondent reacted very strongly. The applicant admitted that she had acted in frustration and it was inappropriate for her to plaster the materials on her door.
74However, I do not accept that the respondent’s concerns about inappropriate signs posted in the common elements of the building are the only factors that led to the respondent’s complaints. The respondent’s messages to Mr. Hughes-Guest showed a strong disrespect for the applicant’s rights. She made a number of comments that were demeaning to the applicant and linked to her use of a service dog. Examples include:
a. “Please advise the owner of 306 [sic] to advise the tenant that this building is not a “College Dorm” […] The Service Dog sign needs to be on the dog not the door. If the doorbell is required, for some reason, I can live with it, but the other paraphernalia needs to be removed.”
b. “Clearly she is not prepared to cooperate and I am not prepared to go through the weekend with the stuff on the door, or any other demonstration of her “rights” she intends to display.”
c. “ […] The Beware of Dog sign is 8 by 10. It is not necessary and needs to come down. […] Please ask her to remove the beware of dog sign.”
75Although there was no evidence that the respondent’s messages were shared with the applicant, it is clear that the respondent pressured Mr. Hughes-Guest and Ms. Geddes to immediately comply with her requests to take down the signs, including the sign about a service dog in the unit, and that the applicant was adversely affected by the respondent’s complaints. The evidence showed that the respondent singled the applicant out by only complaining about her and her dogs and not other co-tenants and their dogs. The service dog sign was posted for safety: it alerted others that the applicant uses a service dog. It was also meant to inform responders, in the event that the applicant was unable to communicate, that the dog was a service dog and should not be harmed. As a result of the respondent’s complaint, the applicant had to advocate for her rights to the condominium management and with the respondent. I find that the respondent discriminated against the applicant because of her disability in relation to the notes posted on the door.
76I find that, although the respondent’s complaint about the applicant’s signs on the door occurred during a brief period, between August 12, 2015 and about August 17, 2015, as outlined above there were a number of serious comments and incidents during that period that specifically targeted the applicant and her service dog. Those comments and incidents in my view amounted to discriminatory conduct and comments that the applicant had to endure in the context of her occupancy. I find that the respondent created a poisoned environment for the applicant.
77I find however that the applicant has not shown that she was adversely affected by the respondent’s complaint about a dog (which the respondent assumed was hers) crying all night on August 28, 2015. It is true that the respondent singled the applicant out again by only complaining about the applicant and her dogs. I also note that the respondent’s complaint was quite intrusive and harsh and included a threat that the respondent would call the Humane Society if there was a reoccurrence. However, Mr. Hughes-Guest testified that he did not relay the message to the applicant. Instead, a member of the board immediately responded to the respondent’s complaint by writing to her directly. The respondent never complained again about the applicant’s dog. In addition, the applicant testified that her dog was with a neighbour that night. The applicant did not introduce evidence that she was asked to silence her dog or part with the dog in any way. She has not shown that she or her dog were adversely affected by the complaint. I find that the respondent’s complaint about the dog crying does not amount to discrimination based on disability under the Code.
78I also find that the applicant has failed to show that the respondent was harassing or discriminating against her when she contacted Ms. Geddes about the Great Dane and the black dog wandering the streets. I have no reason to disbelieve the respondent that she acted out of concern for the applicant’s health when she contacted Ms. Geddes.
REMEDIES
79In her Application, the applicant requested the following remedies:
a. $20,000, including $5,000 for the discrimination regarding the use of service dogs, $12,000 for paying for her rent and the remainder would be used to compensate for some expenses related to maintaining her dogs and/or donated to service dog associations and to educate people about the rights of those who use service dogs; and
b. An apology letter from the respondent.
80Section 45.2 (1) of the Code provides:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Award for Injury to Feelings, Dignity and Self Respect
81In Sanford v. Koop, 2005 HRTO 53 (“Sanford”), the Tribunal outlined the following factors to assess the appropriate amount of the award for injury to dignity, feelings, and self-respect:
a. Humiliation experienced by the applicant;
b. Hurt feelings experienced by the applicant;
c. An applicant’s loss of dignity;
d. An applicant’ loss of self-esteem;
e. An applicant loss of confidence;
f. The experience of victimization;
g. The vulnerability of the applicant;
h. The seriousness, frequency, and duration of the offensive treatment.
82The following principles are also relevant:
a. An award for monetary compensation must not be set too low as to trivialize the social importance of the Code by creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 153 (“ADGA”).
b. The low end of the monetary spectrum involves circumstances of a few incidents, less serious incidents, and/or incidents that did not include physical touching. Conversely, the high end of the monetary spectrum includes multiple incidences, incidences of a serious nature and physical assault and/or reprisal or loss of employment. See Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695 at para. 55 (“Vipond”).
83The Tribunal has consistently held that monetary awards under the Code are compensatory in nature. The intention is to put the applicant into the position he or she would have been in but for the discriminatory act. See Insang v. 2249191 o/a Innovative Content Solutions Inc., 2017 HRTO 208 at para. 49 (“Insang”).
84The applicant seeks $5,000 in damages for restitution for injury to dignity, feelings and self-respect. I find, for the reasons outlined below, that the amount sought by the applicant for her injured feelings is not appropriate. I find that a nominal award of $200 in recognition of the inherent right to be free of discrimination is appropriate in the circumstances of this case.
85The Tribunal in Sprague v. RioCan Empress Walk Inc., 2015 HRTO 942, reviewed the Tribunal’s jurisprudence in awarding damages for injury to feelings, dignity and self-respect in cases that involve services animals or dogs, or guide dogs. The case law has generally awarded between $200 and $15,000 for such acts of discrimination (see Schussler v. 1709043 Ontario, 2009 HRTO 2194 ($500); Smolak v. 1636764 Ontario, 2009 HRTO 1032 ($2,000); Hill v. Bani-Ahmad, 2014 HRTO 937 ($5,000); Bourdeau v. Kingston Bazar, 2012 HRTO 393 ($15,000); Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 ($2,500).
86I find that the facts in Robdrup v. Werner Property Management, 2009 HRTO 1372 (“Robdrup”) most closely allign to the facts of this case. In Robdrup, the applicant was awarded $200. In that case the applicant’s tenancy in an apartment was terminated and he alleged that it was because he had a service dog. The Vice-Chair found that the tenant had been discriminated against during the tenancy because of the service dog but also that the applicant’s own behaviour contributed to what happened.
87It is clear that the applicant was distraught by being asked to remove the service dog signs from her door. To her, the sign is a safety precaution. However, I find that the applicant contributed to the incidents in mid-August, 2015 by acting in a way that she knew would aggravate the respondent. The applicant may have been motivated by her desire to educate her neighbour, but the means of doing so was excessive and inappropriate.
88The applicant testified that during the material period she had seizures on a weekly basis. She explained that her seizures are due to stress and that the tense relationship with the respondent caused them. However, the applicant did not provide medical documentation in support of her medical condition at the time. The applicant provided no evidence to show that the alleged seizures were caused by her stressful relationship with the respondent.
89I also note that, even though the incident related to the signs on the door had an impact on the applicant, she was not banned from continuing to use her service dog. She was also allowed to keep the service dog sign on her door. The applicant testified that she was so concerned for the safety of her dogs after the exchanges with the respondent, that Aspen was placed with her friend. When her friend became ill, Aspen was returned to the owner/kennel. She has been unable, since the incidents with the respondent, to find a service dog trained for her specific needs and she remains on a waiting list. That is extremely worrisome. However, there is no evidence to show that the respondent threatened the applicant to a point where the applicant would have felt that she had to remove her service dog or dogs from her unit. The only evidence of a threat is when the respondent emailed Mr. Hughes-Guest that she would call the Humane Society if the applicant left her dogs unattended overnight or for a weekend. Mr. Hughes-Guest testified that the email was not shared with the applicant.
Remedies for Rent and Other Incidentals
90The applicant requests compensation for her rent for the period when the respondent and applicant were neighbours because she could not peacefully enjoy her unit. The applicant presented no evidence that she suffered a financial loss as a result of the incident involving the papers posted on her door. Consequently, the request for compensation for rent is denied.
91In the Application, the applicant requests financial remedies to compensate for some expenses she incurred related to her dogs. At the hearing, the applicant did not pursue that request and introduced no evidence of such expenses. Consequently, the request for incidentals related to her service dogs is denied.
Letter of Apology
92The applicant requests that the Tribunal order the respondent to provide her with a formal letter of apology. As mentioned above, I found that the applicant knowingly contributed to the incident related to papers posted on her door and consequently, it is not appropriate to order that the respondent provide her with a letter of apology. Additionally, the Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate, or an ineffective remedy, and raise potential freedom of expression concerns. See, for example, Abdallah v. Thames Valley District School Board, 2008 HRTO 230, at para. 110, Li v. University Health Network, 2014 HRTO 1550 at para 150, and Turnbull v. Famous Players, (2001) 2001 CanLII 26228 (ON HRT), 40 CHRR 333 at para 264. In the present case, I decline to order the respondent to provide an apology.
Order
93For the reasons set out above, the Tribunal orders as follows:
Within 30 days of this Decision, the respondent shall pay $200.00 to the applicant in monetary compensation for injury to her dignity, feelings and self-respect.
Dated at Toronto, this 8th day of November, 2017.
”Signed by”________________________
Josée Bouchard
Vice-chair