HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Martin
Applicant
-and-
Your Choice Realty Corp.
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Martin v. Your Choice Realty Corp.
APPEARANCES
Andrew Martin, Applicant
Self-represented
Your Choice Realty Corp., Respondent
Amanda Gibson, Counsel
1This is an Application filed on November 26, 2015 alleging discrimination with respect to services because of disability and association with a person identified by a prohibited ground of discrimination, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2By Case Assessment Direction ("CAD") dated June 23, 2017, this matter was referred to a preliminary and summary hearing to hear oral submissions from the parties on two issues: (1) whether the Application should be dismissed for delay; and (2) whether the Application should be dismissed as having no reasonable prospect of success.
3The preliminary and summary hearing proceeded before me by teleconference on October 16, 2017, at which time I heard the parties' oral submissions on these issues. I also have considered all material filed by the parties for the purpose of the preliminary and summary hearing, as identified by me at the outset of the hearing. I have further considered e-mail correspondence sent to the Tribunal by the applicant later in the afternoon following the conclusion of the preliminary and summary hearing.
Background
4The applicant and his spouse resided in a waterfront home that they owned in Orillia. The applicant's spouse had a number of health conditions that she treats with medical marijuana as prescribed by her doctor and licensed by Health Canada. She also has a licence to grow medical marijuana for her own personal use. Pursuant to this licence, the applicant and his spouse had a medical marijuana garden in their home.
5On May 22, 2012, the police attended at the applicant's home after being called by a neighbour. At this time, the police found out about the medical marijuana garden in the home. The applicant states that the police proceeded to treat the garden as if it was an illegal "grow up", removed the applicant and his spouse from their home, and cut down and destroyed the medical marijuana being grown. After several weeks, the police ultimately decided not to lay any charges against the applicant or his spouse.
6In the meantime, however, the police had notified the City of Orillia about the alleged "grow op". The applicant states that the City then proceeded to put an order against the house. The applicant states that the City required him to have an air quality test done, which revealed that the house had no issues. As a result, the order made by the City was lifted. At this juncture, I pause to note that in early November 2015, the applicant filed an application with this Tribunal against the police and the City arising out of these events, which was dismissed for delay (see 2017 HRTO 1191 upheld on reconsideration at 2017 HRTO 1511).
7While the City ultimately removed the order against his home, it previously had contacted the bank that held the mortgage on the applicant's property and had advised the bank of the alleged "grow op". The applicant states that this resulted in the bank refusing to accept any further mortgage payments from him, and issuing a demand letter for the full amount owing under the mortgage. The applicant thereafter engaged in a long series of discussions with the bank, which ultimately did not resolve the issue. As a result, on May 6, 2014, the bank issued a writ of possession for the property, requiring the applicant and his spouse to move out within 7 days.
8The bank thereafter, through its legal counsel, took steps to list the property for sale with the respondent real estate broker. Instructions to list the property for sale were received by the respondent from the bank's legal counsel on August 15, 2014. The original listing price was $629,000, which the applicant regards as well below fair market value for the home. No offers were received on the property in response to this listing. As a result, sometime in the fall of 2014, the respondent was instructed by the bank's legal counsel to reduce the listing price to $594,500. On November 17, 2014, the bank entered into an agreement of purchase and sale to sell the property for $525,000. This agreement closed on January 30, 2015.
The Instant Application
9As stated above, the Application before me was filed on November 26, 2015. The Application as originally filed named the bank and its legal counsel as respondents, in addition to the real estate broker.
10On January 8, 2016, prior to service of the Application on the bank's legal counsel, the Tribunal sent a letter to the applicant (called a "Notice of Intent to Dismiss") stating that it appeared that the Application was outside this Tribunal's jurisdiction as against the bank's legal counsel on the basis that the applicant's allegations against this named respondent related to the conduct of a lawyer representing a person other than the applicant, and referencing this Tribunal's case law finding that the relationship between a lawyer and a person who is not the lawyer's client is not covered under the Code: see Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.
11Following receipt and consideration of the applicant's submissions, the Application was dismissed as against the bank's legal counsel, on the basis that it was plain and obvious that the allegations raised against this named respondent did not fall within this Tribunal's jurisdiction: see 2016 HRTO 608. The Tribunal found that all of the allegations raised by the applicant against the bank's legal counsel related to its representation of its client, the bank. As a result, the Tribunal found that the bank's legal counsel was not providing a service to the applicant, such that there was no service relationship between the applicant and the bank's legal counsel that would attract the protection of s. 1 of the Code.
12In the meantime, the bank filed its Response to the Application, taking the position that the Application should be dismissed as against the bank on the bases that the bank is federally regulated and thus not subject to the Ontario Code, and that the applicant had filed a complaint against the bank with the Canadian Human Rights Commission ("CHRC"). This ultimately led to the applicant withdrawing his Application as against the bank before this Tribunal. I understand that, at least as of the date of the preliminary and summary hearing, the applicant's CHRC complaint against the bank was still proceeding.
13This left the respondent real estate broker as the only remaining respondent to the instant Application.
The Allegations Against the Respondent Real Estate Broker
14The applicant takes issue with the fact that the respondent real estate broker listed the property as a "grow op" and told prospective purchasers that the house had been used as a "grow op". The applicant states that he communicated to the real estate broker that the house had not been used as a "grow op" but rather for the purpose of growing licensed medical marijuana, but that this did not change how the house was presented to prospective purchasers.
15The applicant's allegations in this regard are supported by documents filed by the respondent for the purpose of the preliminary and summary hearing. When retained by the bank's legal counsel to sell the property, the respondent was expressly advised by the bank's legal counsel that the property listing must include information identifying the house as a "Marijuana Grow-operation / Chem Lab". The respondent also was directed by the bank's legal counsel that any prospective purchaser would be required to sign a document acknowledging that the purchaser had been advised that the property "may have been used for the growth or manufacturing of illegal substances including but not limited to (Marijuana Grow-Operation, Meth Lab or Chem Lab)", and that such "illegal operations result in the property being modified for growth of illicit plants / chemical production" that are associated with the growth of toxic mould.
16The applicant alleges that these communications by the respondent stigmatize users of medical marijuana as being involved in illicit or illegal activity, and that the repeated reference to a "marijuana grow-operation" is suggestive of some kind of gang activity or other criminal enterprise. The applicant alleges that these communications constitute discrimination because of disability on the basis of this discriminatory stigmatization of medical marijuana users, and impacts him directly as a medical marijuana user (the applicant received his licence to use medical marijuana sometime after the police involvement in May 2012) and indirectly as a result of his association with his spouse. He alleges that this not only has caused him emotional distress, but also resulted in the sale of his former home for a much reduced value. He states that this ultimately affected his personal financial position, as any monies realized from the sale of his former home would be applied against his mortgage with the bank, and would impact any remaining amount owing by him under the mortgage.
Assessment of Reasonable Prospect of Success
17I certainly understand the applicant's allegations, and sympathize with his situation. But that is not sufficient to establish that his allegations against the respondent real estate broker fall within this Tribunal's jurisdiction.
18The material before me is clear and uncontradicted that the respondent was retained to sell the property by the bank's legal counsel, and not by the applicant. As a result, the respondent was providing a service to the bank and was not in a service relationship with the applicant. Further, it is clear that the instructions to list the property as a "grow op" and to use specific language in the listing and in the documents required to be signed by any prospective purchaser came directly from the bank's legal counsel, and were not statements made independently by the respondent.
19In these circumstances, I agree with the submission by respondent counsel that, if the applicant's allegations against the bank's legal counsel are beyond this Tribunal's jurisdiction due to a lack of any service relationship with the applicant, then so too must the applicant's allegations against the respondent real estate broker be beyond this Tribunal's jurisdiction, given that the respondent was retained by the bank through its legal counsel and only communicated what it was instructed to by the bank's legal counsel. Accordingly, due to the lack of any service relationship between the applicant and the respondent, I find that the Application is outside of this Tribunal's jurisdiction and therefore has no reasonable prospect of success.
20Given this finding, it is not necessary for me to consider whether the Application also should be dismissed for delay.
21In his oral submissions and in e-mail correspondence following the hearing, the applicant referred me to the decision of the Federal Court in McIlvenna v. Bank of Nova Scotia (Scotiabank), 2017 FC 699, which I have reviewed with interest. That case involved an application for judicial review of a decision by the CHRC not to refer a complaint to the Canadian Human Rights Tribunal for a full hearing. The underlying complaint in that case related to an allegation that the bank, as mortgage-holder, had called the complainant's loan at least in part because it discovered that the complainant was renovating his home to accommodate a medical marijuana garden for his son. The Court overturned the CHRC's decision and remitted the matter back for re-determination on the basis that the CHRC's decision was unreasonable and procedurally unfair.
22While this decision certainly may be of assistance to the applicant in relation to his complaint with the CHRC against the bank, it does not assist the applicant in establishing that his allegations against the respondent real estate broker fall within this Tribunal's jurisdiction. In this regard, I observe that there is no question that a mortgagor is in a service relationship with a bank as mortgagee. But that does not extend to encompass the creation of a service relationship with a real estate broker retained by the bank's legal counsel and acting on counsel's instructions.
ORDER
23Accordingly, for the foregoing reasons, the Application is dismissed as beyond this Tribunal's jurisdiction and therefore as having no reasonable prospect of success.
Dated at Toronto, this 20th day of December, 2017.
”Signed by”________________________
Mark Hart
Vice-chair```