Rankine v. Orchard Grove Housing Co-operative Inc., 2017 HRTO 1484

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Rankine

Applicant

-and-

Orchard Grove Housing Co-operative Inc.

Respondent

DECISION

Adjudicator: Mark Hart

Date: November 9, 2017

Citation: 2017 HRTO 1484

Indexed as: Rankine v. Orchard Grove Housing Co-operative Inc.

APPEARANCES

Andrea Rankine, Applicant

Self-represented

Orchard Grove Housing Co-operative Inc., Respondent

Katie Douglas, Counsel

1This is an Application filed on October 4, 2016 and completed on December 13, 2016 alleging discrimination with respect to the occupancy of accommodation because of race, colour, family status and receipt of public assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated July 19, 2017, this Tribunal directed that a summary and preliminary hearing be held by teleconference to determine whether the Application should be dismissed as having no reasonable prospect of success and/or for delay.

3By correspondence dated August 1, 2017, this Tribunal sent a Notice of Summary Hearing to the parties scheduling the summary and preliminary hearing to proceed by teleconference on November 2, 2017 commencing at 9:30 a.m.

4On August 29, 2017, the applicant sent correspondence to this Tribunal stating that she needed to retain a lawyer in light of certain new information that she had received, and requesting that the summary and preliminary hearing be re-scheduled.

5By e-mail correspondence dated September 21, 2017, this Tribunal advised the parties that, as the applicant’s request for re-scheduling had been received outside the 14 day period for re-scheduling a hearing, this matter would not be re-scheduled and the hearing would proceed on November 2, 2017.

6On October 23, 2017, the applicant made a further request for the summary and preliminary hearing to be re-scheduled. The applicant stated that she had done her due diligence to find a lawyer, but that none was willing to take on her case without having sufficient time.

7By e-mail correspondence dated October 25, 2017, the parties were advised that the applicant’s further request to re-schedule the hearing had been reviewed by me, and was denied. In this correspondence, the applicant was reminded that the Human Rights Legal Support Centre (“HRLSC”) provides free legal advice and may provide legal representation to persons making applications to this Tribunal, and the applicant was provided with the contact information for the HRLSC.

8On October 31, 2017, the applicant filed further correspondence with the Tribunal. In this correspondence, the applicant expressly stated that she had this Tribunal’s CAD dated July 19, 2017 and all documents filed with the Tribunal reviewed by a lawyer. The applicant then proceeded to make submissions in support of her Application. Near the end of this correspondence, the applicant stated that while she was within her rights to attend the summary and preliminary hearing, she will not be taking part because she does not have legal representation and had filed a request for the hearing to be re-scheduled. The applicant further stated that she is not going to be “bullied” into a hearing or take part in a hearing when she does not have the right representation.

9The preliminary and summary hearing proceeded as scheduled on November 2, 2017 commencing at 9:30 a.m. Respondent counsel and the respondent’s property manager were in attendance at the commencement of the hearing. The applicant failed to appear for the hearing at that time. In accordance with this Tribunal’s usual practice, I held the matter down for half an hour to give the applicant an opportunity to appear.

10The applicant appeared on the teleconference at 9:50 a.m. I commenced the preliminary and summary hearing by indicating the issues on which I wanted to hear the parties’ oral submissions, by identifying the documents filed with this Tribunal that I would be considering, and by setting out the order in which I wished to hear the parties’ submissions. In particular, I indicated to the applicant that I wished to hear submissions first from her in order to clarify the alleged incidents of discrimination that she was raising in her Application, to ascertain the date or dates on which some of the alleged incidents had occurred, and to hear her submissions as to how each alleged incident of discrimination was linked or connected to the grounds of discrimination cited in her Application. I advised the applicant that I had reviewed her Application and had identified to the best of my ability what I considered to be the alleged incidents of discrimination, and that I would guide her through this process by going to each alleged incident that I had identified and requesting her specific submissions in response to each alleged incident.

11In response, the applicant stated that while she was present for the preliminary and summary hearing, she would not be participating in the hearing without having legal representation. She stated that she had twice requested an adjournment of the hearing in order to obtain legal representation, which had been denied. She stated that she had contacted the HRLSC, but they would not take on her case because she had filed her Application on her own. She stated that she had received the same response from the African Canadian Legal Clinic. She stated that she also had contacted other lawyers, but they would not agree to represent her so close to the hearing date. As a result, the applicant stated that while she would be present, she would not be saying anything.

12I advised the applicant that approximately 60% of applicants appear before this Tribunal without legal representation, and that legal representation is not required in order to appear before this Tribunal and participate in this Tribunal’s processes. I advised the applicant that, in my view, she had had sufficient time to seek out legal representation and that the summary and preliminary hearing would not be adjourned on the basis that she had not been successful in doing so. I advised the applicant that it was her choice whether to participate further in the summary and preliminary hearing and make submissions in relation to the issues to be determined; however, I advised her that if she chose not to make submissions, then this Tribunal would proceed without the information from her that may be relevant in determining the issues before me. I advised the applicant that, if she chose not to make submissions, her Application may be dismissed.

13The applicant was extremely combative on the teleconference and frequently interrupted me when I was trying to speak and even when I was making my ruling after hearing and considering her submissions. I needed to raise my voice on the call in an effort to get the applicant’s attention and to try to get her to stop interrupting me. The applicant in turn characterized this as my yelling at her and being disrespectful to her. In fact, I was neither yelling nor disrespectful, but rather attempting to get the applicant to stop interrupting me and to listen to what I was saying, so that she could make an informed decision about how to proceed.

14In the end, I confirmed with the applicant that she did not intend to make any oral submissions at the summary and preliminary hearing to address the issues raised. As a result, I concluded the hearing.

15Given the applicant’s refusal to make oral submissions at the summary and preliminary hearing, it is my view that the Application should be dismissed on that basis alone. Nonetheless, I will proceed to consider the specific allegations raised by the applicant against the respondent on the basis of the written material before me, and will determine whether the allegations also should be dismissed for delay and/or as having no reasonable prospect of success.

16In the Application, the applicant alleges that the respondent sent letters to her if she did not pay her rent by the 1st of each month. She states that this stopped after she told the respondent that a tenant has 15 days from 1st of the month to pay the rent before letters can be sent out. The Application does not contain any specific information as to when the applicant was sent these letters or when she stopped receiving these letters, although from the Application as filed it appears that this occurred sometime prior to 2014. As a result, this allegation did not occur within the one year period preceding the filing of the Application. In addition, without any submissions from the applicant, I am unable to find that she has provided any good faith explanation for the delay in raising these allegations. Further, without any submissions from the applicant, I do not have any basis to connect or link this allegation to the grounds race, colour, family status or receipt of public assistance cited in the Application. As a result, this allegation is dismissed both for delay and as having no reasonable prospect of success.

17The next allegation raised in the Application relates to a period of time in 2014 and 2015 when the respondent was putting letters directly into the applicant’s mailbox. The applicant states that she advised the respondent that this was illegal, and that the respondent then stopped doing this. Once again, without more specific information from the applicant regarding when specifically this is alleged to have occurred, I am unable to find that this allegation occurred within the one year period preceding the filing of the Application. It is an applicant’s responsibility in an application to provide sufficient particulars of the allegations raised, including specifically when the alleged events occurred. By refusing to participate in the summary and preliminary hearing, the applicant has frustrated this Tribunal’s ability to get the required particulars. Given the lack of information before me, I find that this allegation does not fall within the one year period prior to the filing of the Application. In addition, without any submissions from the applicant, I am unable to find that she has provided any good faith explanation for the delay in raising these allegations. Further, without any submissions from the applicant, I do not have any basis to connect or link this allegation to the grounds race, colour, family status or receipt of public assistance cited in the Application. As a result, this allegation also is dismissed both for delay and as having no reasonable prospect of success.

18The next allegation raised in the Application relates to the respondent entering the applicant’s unit without authorization. Based on the Application, it appears that this occurred sometime before the applicant was pregnant with her son in 2014. This allegation is clearly beyond the one year time period set out in s. 34(1) of the Code. Once again, without any submissions from the applicant, I am unable to find that she has provided a good faith explanation for the delay in raising these allegations. Further, without any submissions from the applicant, I do not have any basis to connect or link this allegation to the grounds race, colour, family status or receipt of public assistance cited in the Application. As a result, this allegation also is dismissed both for delay and as having no reasonable prospect of success.

19The next allegation raised in the Application is alleged to have occurred a year after the applicant gave birth to her son. The applicant states that she ran into another tenant in the laundry room, who complained about how long it was taking for her to get a three bedroom unit. The applicant states that this tenant is close friends with another member of the respondent housing co-operative and who is on the board of directors for the co-op. The applicant states that she said to this tenant that this tenant must be the reason for the applicant getting a hard time from the respondent and the respondent trying so hard to get the applicant out of her unit by cutting her cable in May 2015 and by threatening eviction. In subsequent material filed with this Tribunal, the applicant states that this tenant is now occupying the unit previously occupied by the applicant, which I understand is a three bedroom unit.

20Without any submissions from the applicant, I am unable to discern how the applicant is connecting this statement made by another co-op member to actions for which the respondent is legally responsible under the Code. Further, without any submissions from the applicant as to when specifically this is alleged to have occurred, I am unable to find that this occurred within the one year period prior to the filing of her Application or that she has provided a good faith explanation for any delay. Without any submissions from the applicant, I also do not have any basis to connect or link this allegation to the grounds of race, colour, family status or receipt of public assistance as cited in the Application. As a result, this allegation also is dismissed both for delay and as having no reasonable prospect of success.

21The next allegation raised in the Application relates to the applicant’s eviction from the co-op. The respondent co-op has an occupancy by-law that sets out the circumstances under which its board of directors may terminate the membership and occupancy rights of a co-op member and a procedural code for doing so. Those circumstances include housing charges arrears and repeated late payment of the monthly housing charge. The process for eviction from the co-op is as follows. A co-op member who may be in violation of the occupancy by-law is served with a notice to appear before the board of directors to consider terminating the member’s membership and occupancy rights. The board then meets in camera at the appointed time and hears representations from the member, if they attend. Following any such representations, the board makes a decision about whether to evict the member. If the board decides to evict the member, the member is served with the decision and is advised of the right to appeal the decision and is given a date on which the member’s membership in the co-op and occupancy rights will terminate. Appeals are heard by the full membership of the co-op, which can uphold or overturn the decision to evict.

22If the member does not appeal the board’s decision to evict or if the decision is upheld on appeal and if the member fails to leave by the termination date, the respondent must then obtain an eviction order from the Landlord and Tenant Board (“LTB”). The first step in the LTB process is for the respondent to serve the member with the required forms, each of which sets out an eviction date. If the member either does not pay the arrears owing or fails to leave by the eviction date, then the respondent may apply to the LTB for an eviction order. The LTB then holds a case management hearing, which is essentially a settlement conference. If the respondent and the member reach an agreement, they will either sign a settlement agreement or the LTB will issue a consent order reflecting the terms agreed upon.

23Generally, settlement agreements and consent orders are enforceable by the respondent by a clause that allows the respondent to make a further application to the LTB for an eviction order, without notice to the member, if the member breaches the terms of the settlement agreement or consent order. If the respondent does so and the LTB issues an eviction order, the member may make a motion to the LTB to set aside the eviction order. If that motion is denied, the member may request a review of the order denying it. The member may then appeal the review order to Divisional Court.

24In the instant case, the material before me demonstrates that the applicant had been in arrears since June 2014 and had paid her monthly housing charges late numerous times. Ultimately, the respondent served the applicant with a notice to appear before the board of directors at its January 25, 2016 meeting to consider the termination of her membership and occupancy rights. The applicant did not attend the January 25, 2016 meeting. The board voted to terminate the applicant’s membership and occupancy rights as of February 8, 2016 due to the arrears owing. The applicant did not appeal the board’s eviction decision.

25As the applicant failed to vacate her unit, the respondent then served her with the notices required under the LTB process, stating that the respondent was pursuing eviction because of the arrears owing by the applicant and her late payments. When the applicant still failed to vacate her unit or pay the arrears owing, the respondent filed an eviction application with the LTB on April 7, 2016.

26The eviction application proceeded to a case management hearing on May 20, 2016. At this hearing, the parties agreed to a consent order allowing the applicant to continue her occupancy at the co-op on the condition that she would pay all new monthly housing charges as they came due on the first of each month and that she would make payments of a set amount towards her arrears on the 22^nd^ of each month for a period of 18 months. A consent order on these terms was issued by the LTB on May 26, 2016. The consent order provides that if the applicant failed to make any of the required payments, the respondent could immediately apply to the LTB for an eviction order without further notice to the applicant.

27During the period from June to September 2016, the applicant failed to make a number of the payments required pursuant to the LTB consent order. Accordingly, on September 22, 2016, the respondent applied to the LTB for an eviction order without notice to the applicant. The LTB issued the eviction order on September 30, 2016.

28The applicant then exercised her right to bring a motion to the LTB to have the eviction order set aside. This motion was heard by the LTB on October 24, 2016. On November 7, 2016, the LTB issued an order denying the applicant’s motion and ordered that the eviction could proceed. The applicant then requested that the LTB review the eviction order. The LTB did so, and issued an order on November 25, 2016 confirming the eviction order. On December 12, 2016, the respondent filed the LTB eviction order with the Court and asked the Sheriff to schedule an eviction. The Sheriff attended at the co-op on January 10, 2017 and provided the respondent with vacant possession of the applicant’s former unit. The applicant had moved her belongings out of the unit by that time.

29The applicant appears to make two allegations in relation to her eviction from the co-op. Her primary allegation is that the respondent disproportionately evicts Black members, which she alleges to constitute discrimination against her because of her race and colour. From the materials before me, it appears that one of the reasons the applicant wants to have legal representation in this matter stems from a visit she made to an organization called Toronto Housing Connection and its statement to her that there is a higher rate of turnover for members of racialized groups, and primarily for Black tenants, within co-ops and private buildings. She states that this organization told her that she would need to get a lawyer in order for it to become involved in her case.

30While this kind of general evidence about turnover rates in co-ops and private buildings may have some relevance to this proceeding as contextual evidence, such evidence would not be sufficient to establish that this particular respondent disproportionately seeks to evict Black members, including the applicant, in circumstances where it does not seek to evict White members. In the materials before me, the applicant makes reference to another Black member of the co-op who told the applicant that the respondent had taken her to the LTB. While this may be true, this does not provide any context or circumstances regarding why this other Black co-op member was being taken to the LTB, nor does it provide any evidence to establish that the respondent failed to evict White co-op members in similar circumstances.

31The applicant’s own material indicates that she served on the respondent’s board of directors for a period of time, and so would have been privy to the circumstances in which the board did or did not exercise its right to make a decision to terminate a member’s membership or occupancy rights or pursue the LTB eviction process in a way that differentiated between White members and members who are Black or belong to other racialized groups. All the applicant states in her Application is that she ultimately left the board because the members being called before the board “were always Black” and the board “was always quick to evict the members”. Again, whether or not that is the case, this does not provide evidence that White members were treated differently in similar circumstances, such as when White members were in arrears or were late in paying rent.

32As a result, I find that the applicant is unable to point to any evidence that she has or that is reasonably available to her to support her allegation that her race and/or colour was a factor in the steps taken by the respondent to evict her. Accordingly, I find that this allegation has no reasonable prospect of success.

33The second allegation that the applicant appears to be making is that the respondent proceeded to the LTB to obtain an eviction order after the applicant had threatened to report the co-op to this Tribunal. This allegation relates to a series of e-mails that were exchanged between the parties in late August 2016. On August 23, 2016, the respondent sent e-mail correspondence to the applicant setting out the payments required under the LTB consent order that the applicant had missed and requesting that the amount owing be paid in full by August 26, 2016, failing which the respondent would proceed with an eviction order. The applicant responded later that day to dispute the amount owing and threatened to report the respondent to this Tribunal, among other bodies. The respondent replied by sending a further e-mail to the applicant later that same afternoon correcting the total amount owing.

34This allegation appears to be an allegation of reprisal, even though reprisal is not specifically alleged on the face of the Application. In order to constitute reprisal, there must be some basis to connect or link the adverse action taken by a respondent, in this case seeking an eviction order, to an applicant having claimed her rights under the Code, which the applicant did in her August 23, 2016 e-mail. Establishing reprisal also requires an applicant to prove that a respondent intended to adversely treat her because she claimed her Code rights, although intention can be inferred from all of the surrounding circumstances.

35In the instant case, and without hearing any submissions from the applicant, I am unable to find that there is a sufficient link or connection between what the applicant stated in her August 23, 2016 e-mail and the respondent subsequently proceeding a month later on September 22, 2016 to obtain an eviction order from the LTB. The basis of the eviction application was the applicant’s failure to make either payment due in September 2016 pursuant to the consent order. Accordingly, I find that this allegation too has no reasonable prospect of success.

36In materials filed with the Tribunal, the applicant raised two further allegations, neither of which is set out in the Application. The first allegation relates to an exchange that occurred between a board member of the co-op and a driver on December 17, 2016, which is the day that the applicant states she moved out of the building. The applicant states that as she was moving out of the building, she encountered this board member and asked him to hold the elevator for her, which he did. The applicant alleges that the driver later had a brief conversation with this board member, who is alleged to have said, “I don’t need to fucking talk to her”. While, if true, this is clearly an inappropriate comment, there is no basis in the material before me to connect or link this alleged comment to the applicant’s race, colour, family status or receipt of public assistance. As such, I find that, even if the applicant sought to amend her Application to include this allegation, it has no reasonable prospect of success.

37The second allegation raised by the applicant is that sometime in 2014, the respondent’s property manager said to her, “You should find yourself a White man because all the thing the Black man is good for is getting you pregnant and leaving”. Once again, if true, this is a clearly inappropriate and racial comment. However, given that the comment is alleged to have been made in 2014, this allegation is well beyond the one year period under s. 34(1) of the Code for filing an application with this Tribunal. Once again, in the absence of any oral submissions from the applicant, I have no basis to support any good faith explanation on her part for the delay in raising this allegation. Further, again in the absence of any oral submissions from the applicant, I have no basis to connect or link this alleged comment to the applicant’s eviction from the respondent co-op, which is the only timely allegation raised in the Application.

ORDER

38For all of the foregoing reasons, the Application is dismissed due to the applicant’s refusal to participate in the summary and preliminary hearing, as well as for delay and/or as having no reasonable prospect of success.