CITATION: Tice v. The Human Rights Tribunal of Ontario, 2023 ONSC 5453
DIVISIONAL COURT FILE NO.: 671/22 DATE: 20230926
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Gordon & Schabas JJ.
BETWEEN:
MAUREEN TICE
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, PEGGY AND ANDREW BREWIN HOUSING CO-OPERATIVE AND ROSE SCHWARTZ
Respondents
Self-represented Applicant
Brian A. Blumenthal, for the Respondent The Human Rights Tribunal of Ontario
Ahmed Zohaib, for the Respondents Peggy and Andrew Brewin Housing Co-Operative and Rose Schwartz
HEARD at Toronto: September 26, 2023
SCHABAS, J. (Orally)
[1] The Applicant is a resident of the Peggy and Andrew Brewin Housing Co-Operative, where she has lived since 2007. She is a person with a disability (including claustrophobia) requiring her to live in an apartment with a balcony. In 2012, the Applicant was informed that she was ineligible for a housing subsidy because she was over-housed in her current two-bedroom apartment. She then requested a transfer to a one-bedroom unit.
[2] In 2015, the Applicant was offered a one-bedroom unit that had a balcony, but she rejected it as it was modified for people with physical disabilities and she did not feel it met her needs.
[3] The Applicant and the Co-op exchanged numerous communications about the availability and acceptability of units in the Co-op and the Applicant’s position on the Co-op’s waitlist, which was managed and prioritized in accordance with City of Toronto guidelines. Over the next few years, three one-bedroom units with balconies were offered to other individuals on the priority list.
[4] In February 2020, the Applicant applied to The Human Rights Tribunal of Ontario (“HRTO”) alleging discrimination by the Respondents, the Co-op and its manager, Rose Schwartz with respect to housing on the basis of disability, including harassment, receipt of public assistance, and reprisal or threat of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19.
[5] On its own initiative and in accordance with its rules, the HRTO ordered a combined summary and preliminary hearing to determine whether some or all of the application should be dismissed on two grounds: 1) whether there was no reasonable prospect all or part of the application would succeed; and 2) whether all or part of the application should be dismissed for delay.
[6] Although the Applicant informed the Co-op in March 2022 that she no longer wished to transfer to a one-bedroom unit, the HRTO acknowledged it was appropriate for her to continue to press her application.
[7] Following a hearing and a review of the amended application submitted on February 25, 2022, on July 25, 2022 the Tribunal dismissed the application on the basis that the application had no reasonable prospect of success: Tice v. Peggy and Andrew Brewin Housing Co-operative and Rose Schwartz, 2022 HRTO 927. In the decision, Adjudicator Mason wrote at para. 18:
Based on the submissions from the applicant, she did not point to any evidence in her possession or available to her that could show she was discriminated against based on her disability. The applicant submitted that she required a one-bedroom apartment so as to qualify for subsidies. I understand this was a pressing need for the applicant, but this is not covered under the Code. The Tribunal does not address issues of general unfairness.
[8] The Applicant applied for reconsideration on August 24, 2022. The Adjudicator dismissed the application because the Applicant had “not shown that any compelling and extraordinary circumstances exist which would warrant granting reconsideration” and which would “outweigh the public interest in the finality of the Decision”: Tice v. Peggy and Andrew Brewin Housing Co-operative and Rose Schwartz, 2022 HRTO 1327, at para. 6.
[9] The Applicant submits that the HRTO breached principles of procedural fairness and natural justice in conducting a combined hearing. As part of her submission, the Applicant complains that at the hearing on April 5, 2022, it became apparent that the Adjudicator did not have amendments to the application submitted in February 2022. The hearing was adjourned, and the Adjudicator then considered the amended material which was provided to her.
[10] The duty of procedural fairness in administrative law is variable and context specific. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Canada (Minister of Citizenship and Immigration) v. Vaviloy, 2019 SCC 65, at para 77. Procedural fairness is rooted in the right to be heard, and the principle that an individual affected by a decision should have the opportunity to present their case fully and fairly: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC) at para 28.
[11] However, the content of the duty will vary depending on the circumstances. As the Supreme Court stated in Baker at para. 22:
Although the duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected ... the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.
[12] Consistent with this flexibility, the Code permits the HRTO to use alternatives to traditional adjudication. This Court has also endorsed the HRTO’s power to control its own procedures and how it considers cases in an expeditious and proportional manner: Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840 at paras. 9-14.
[13] In this case, we see no procedural unfairness in the manner in which the HRTO conducted itself. The choice of proceeding summarily and, at least in part, in writing, is one usually best left to the Tribunal which has expertise in determining what procedures are appropriate having regard to all the circumstances: Baker, at para. 27. We are satisfied that the Applicant’s materials were all before the Adjudicator when she made her decision, including her amended application and the attachments sent to the HRTO on February 25, 2022. The Applicant was afforded an opportunity to be heard through written and oral submissions. Although there is no right to reconsideration, the Applicant’s request for reconsideration was rejected, as noted above.
[14] Turning to the HRTO’s reasons for dismissing the application, they are logical, coherent and transparent. As the Tribunal stated at para. 17:
The Applicant has not established a link between the escalating conflicts between herself and the respondents and the claim or enforcement of her rights. In essence she did not allege that the respondent treated her unfairly or took adverse action against her for asserting a Code-based right to a one-bedroom unit.
[15] The HRTO applied the correct legal test to the evidence and submissions before it, and concluded the application had no reasonable prospect of success as her complaint did not raise violations of the Human Rights Code but arose from concerns around fairness in the allocation of subsidized housing and how it is prioritized. While the Applicant maintained before us that housing was a human rights issue, the HRTO reasonably found that a denial of housing does not become a “human rights issue” unless that denial is based on a Code-related ground. In this case the Code-related ground was the Applicant’s claustrophobia, which required that she be housed in a unit with a balcony. At all times the Applicant has been housed in a unit with a balcony and the uncontradicted evidence before the HRTO was that the Co-op offered the Applicant a one-bedroom unit with a balcony, which she refused. It is not for this court to re-weigh the evidence and substitute its own decision in such circumstances.
[16] The application is dismissed.
COSTS
[17] Since none of the responding parties sought costs, no costs are awarded.
___________________________ Schabas J.
I agree
Sachs J.
I agree
Gordon J.
Date of Reasons for Judgment: September 26, 2023
Date of Release: September 29, 2023
CITATION: Tice v. The Human Rights Tribunal of Ontario, 2023 ONSC 5453
DIVISIONAL COURT FILE NO.: 671/22 DATE: 20230926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Gordon & Schabas JJ.
BETWEEN:
MAUREEN TICE
Applicant
– and –
THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SCHABAS, J.
Date of Reasons for Judgment: September 26, 2023
Date of Release: September 29, 2023