Courts-human

Jean Lewis and OCC No. 14 & Linda Watt
Human Rights Tribunal of Ontario
File Number: 2015-20608-I
Date: 11 February 2016

The respondents’ requested that the applicant’s withdrawal of her Application be made on a “with prejudice” basis.

The applicant alleged that the respondents reprised against her contrary to the Human Rights Code. A mediation was scheduled to take place on January 27, 2016. On January 18, 2016, the applicant filed a Request to Withdraw her Application with the Tribunal.

Since the Tribunal did not receive a Response from the respondent within the timeframe set out in the Tribunal’s Rules of Procedure, the Tribunal confirmed the withdrawal and closed its file in the matter.

By letter dated January 22, 2016, the respondent requested that the Tribunal make the withdrawal “with prejudice” in order to prevent the applicant to relitigate the substance of the Application in the future.

While the Tribunal has the power to order that a withdrawal is made on a “with prejudice” basis, it has consistently refused to do so when the applicant has withdrawn his or her Application prior to a hearing.

Order
For these reasons, the applicant’s request to withdraw her Application is granted without terms.

top

Liu v. MTCC No. 541 & MTCC 566
Human Rights Tribunal of Ontario
Docket: 541; 2013-14005-S
Date: 2015-05-15

Had the initial behaviour here – the challenge by the security guard – been resolved immediately, it would have been an unpleasant, but fleeting reminder of the events that led to the initial Applications. I also accept the applicants’ testimony that if the respondents had attempted to resolve this issue in a timely manner, they would not have filed this Application.

Applicants settle human rights applications in good faith and they expect the terms of settlement to be followed. When they are not, the harm that results may be much more than simply a term of settlement not being implemented.

In this case, the respondents exacerbated the harm caused to the applicants by failing to take their complaint seriously, by failing to respond to their inquiries concerning the breach of the settlement in a timely manner, by suggesting (inaccurately) that it was the applicant’s own behaviour that was the problem, and by suggesting that the settlement was not effective until the waiver was signed. The net effect of all of these actions was more harmful to the applicants because they were directed at them personally, rather than simply being about a general policy directed at the membership as a whole.

Remedy
The applicants testified that in the intervening two years since the events giving rise to this Application, their son has chosen not to use the Recreation Centre facilities.

They also testified that, over the years, he has become wary about interacting with the other residents of the building – in particular the seniors – because of the cumulative effects of the interactions that led to the initial Applications.

It was also evident to me that the respondents’ failure to investigate and resolve this issue, coupled with their misguided attempts to blame the applicants for their difficulties, has caused the applicants a great deal of anxiety.

HRT—Remedial not punitive
The applicants have submitted that the award in this case should penalize the respondents for their conduct. The case law from this Tribunal has repeatedly refused to make such orders on the basis that the Code is remedial, rather than punitive, legislation. (Paragraph 56)

A compensatory award for the emotional impact of the respondents’ actions (or lack thereof) is appropriate in this case. Counsel for the respondents provided a series of cases for which the applicants were awarded from zero to $1,000 in damages for the emotional component of the contravention of settlement.

In light of the emotional toll on the applicants and their ability to enjoy the recreational facilities available to the residents of their building as a family, I award them $5,000.00 in general damages, inclusive of pre-judgment interest.

Order
The Tribunal orders as follows:

a.	The respondents shall jointly and severally pay the applicants $5,000.00 as monetary compensation for the damage to their dignity, feelings and self-respect within 30 days of the date of this Decision.
b.	Post-judgment interest shall be at the rate of 2.0% if the above amount is not paid within 30 days of the date of the Decision.

top

Moreau v. Essex Condominium # 22
Human Rights Tribunal of Ontario
File Number: 2013-15444-I
Citation:         2013 HRTO 1565
07 November 2013

This was an Application filed under s.34 of the Human Rights Code alleging reprisal with respect to housing. Since the Application has not yet been served on the respondent this Decision refers solely to the applicant’s version of events.

The Application alleges that employees in the condominium where the applicant resides have and continue to harass and intimidate him, including calling him names. The applicant states that he does not have money to seek recourse in the civil courts.

Having reviewed the Application and the submissions filed by the applicant it is plain and obvious that the Tribunal does not have jurisdiction over the subject-matter of the Application. The Application was dismissed.

It is unfortunate that many Canadians do not have the money to take their condo corporation to civil court so they turn to the HRT as a substitute. This is an avenue that cannot succeed.

top

Vinokur v. YCC No. 201, 2011
Human Rights Tribunal of Ontario
File Number: 2008- 00445-I
Citation:         2011 HRTO 962
19 May 2011

This is an Application filed on 26 September 2008 under section 34 of Part IV of the Human Rights Code alleging discrimination in housing, goods, services, facilities, and membership in a vocational association on the basis of race, ancestry, place of origin, ethnic origin, disability, family status, marital status, age, receipt of public assistance, association with a person identified by a Code ground, and reprisal.

The claim
It is one among several Applications filed by residents of condominium units against their condominium corporation and David Tartakovski.

The Applicant claimed that David Tartakovski created a “black list” with names of tenants, to which he assigned codes using derogatory names such as “whore’, “prostitute”, “idiot”, etc. to describe tenants he wishes to target. He claimed that his name is included in this list and based on this he was continuously denied services for a number of years.

He also claimed that the Respondent is the President of Condominium Board, yet at the same time he has hired himself as a Property Manager and is paying himself a salary, which constitutes clear conflict of interest and gives him total power and control over any decision-making process, to do and behave as he pleases, some of which behaviour includes targeting and bullying specific tenants, as well as using condo maintenance fees for his own purposes.

The Applicant also claims there is unethical and questionable use of proxies to support the Respondent’s position and keep re-electing himself as both President and Property Manager.

The applicant believes that his financial situation may be a reason for the personal respondent allegedly treating him worse than other residents in the building, particularly with respect to ignoring his demands for repairs and maintenance, and for allegedly placing the Russian word “svolach”, which he said means “scum of the Earth”, beside his name on the “black list”.

The Applicant further stated that the Respondent believes he can do as he pleases because he knows that I have a limited amount of money and am unable to hire a proper legal representation, while he uses condo corporation lawyer and money to obtain legal representation.

The Applicant further stated that he left his country to escape this sort of prosecution only to find it practiced here in Canada and in my own home.

The Adjudicator ruled
In the circumstances where the applicant has no evidence, just a belief, I find that there is no reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the alleged bad treatment of the applicant, including his inclusion on any “black list”, and the alleged prohibited ground of receipt of public assistance.

Even if his description is accurate, the Tribunal does not have the power to deal with all claims of unfairness. I have found that the Tribunal does not have the power to deal with the allegations in the Application because they are not sufficiently linked to the grounds listed in the Code and there is no reasonable prospect of success at a Hearing.

The Application was dismissed.

It is clear that the Human Rights Tribunal was not designed to these kind of condo disputes. It is also clear that the courts would not be able to assist these condo residents with their allegations. There may be or may not be an actual "Black List." Aside from that, what facts do the several applicants have?

So will the proposed Condo Office be willing to deal with this kind of dispute? I doubt it.

top

Shaw v. YCC No. 73
Human Rights Tribunal of Ontario
File Number: 201314127S
Citation:         2013 HRTO 1565
18 September 2013

Introduction
This was an Application filed under s. 45.9(3) of the Human Rights Code, alleging that the respondents contravened the terms of the settlement reached between the parties.

Background
The applicant commenced this Application on 09 April 2013. On 17 August 2012, the applicant signed a “Full and Final Release” containing the terms of settlement of his Application to the Tribunal. The respondents signed the release on 07 September 2012.

Shaw alleged that the respondent, YCC #73, failed to comply with the following terms of the settlement:

•	To adopt a formal policy, which may be enumerated in its bylaws or rules, requiring all current and prospective directors to undertake an educational requirement in the area of corporate governance, such as the CCI “Condo 101” and “Condo 102” courses, as a condition of being elected to office.
•	To adopt a formal policy, enumerated in its bylaws or rules, requiring all current and prospective directors to commit and agree to a Professional Code of Conduct as a condition for their eligibility to be elected and hold office, such as the Directors’ Code of Ethics published by CCI.
•	To adopt a formal policy, enumerated in its bylaws or rules, requiring all service providers and agents of the corporation to provide all documents (e.g., quotes, estimates, reports and contracts) in a fully accessible format, where reasonably possible, as a condition of engagement;
•	In a timely manner, to require its Directors to “obtain and receive awareness and sensitivity training with respect to the AODA and the Human Rights Code via the Ontario Human Rights’ Commission’s eLearning module “Human Rights 101.
The applicant also alleged that the respondent Pal/Max Property Management Inc failed to comply with the following settlement terms:
•	to require its employees to take the Human Rights 101 and other related e-training courses provided by the Ontario Human Rights Commission and to have all its property managers study the RCM [Registered Condominium Manager] courses provided by ACMO.

The applicant further alleges the corporation breached the confidentiality provisions contained in the settlement:
"I COVENANT AND AGREE not to disclose the terms of this settlement to any person other than as required by law."

Response
The corporation responed by stating:

•	The directors have now all attended the the Condo 101 and Condo 102 courses.
•	Pal/Max confirmed that their employees and managers had taken the required training, that PalMax was “ACMO certified” and all its property managers had completed or were completing their RCM.
•	The corporation submited that the Code of Ethics requirement has been enumerated in the rules, and the directors have signed the Code of Ethics.
•	It stated that it has implemented a rule requiring all service providers and agents of the corporation to provide all documents (e.g., quotes, estimates, reports and contracts) in a fully accessible format.
•	The corporation sent a letter to the offender about his comments at the AGM.

Board meetings
One point of interest is that the board meets only three or four times a year.

Ruling
The adjudicator found that there was a contravention with respect to the confidentiality terms. The release is very simple. The parties are not to disclose the terms of the settlement.

There is no prohibition on disclosing the fact that there was an application or that the application was settled.

In this case, disclosure was made by someone at the corporation to a person who was known to have an antagonistic relationship with the applicant, and who then disclosed the information at an AGM of condominium owners with whom the applicant lives side-by-side.

The corporation was ordered to pay to the applicant monetary compensation in the amount of $1,000 for contravention of the confidentiality term of the release.

My take on this
This was not a normal human right tribunal case because the applicant hired a law firm that specializes in condominium law and is a supporter of CCI. That is very obvious by the training demands made by the applicant.

The legal costs absorbed by the corporation must have been enormous.

The corporation sent a letter to the offender about his comments at the AGM.

top

Kong v. TSCC No. 1959 and Del Property Management Inc.
Human Rights Tribunal of Ontario
Adjudicator: Jay Sengupta
File No: 2012-10629-S
Citation: 2013 HRTO 687
Date: April 24, 2013

This was an Application for Contravention of Settlement that dealt with an application concerning second-hand smoke entering Ms. Kong’s unit. A settlement was entered into on August 31, 2011 and contained the following language:

The Respondents agree to pay the costs of physical repairs and other changes the applicant wishes to make to improve the air quality in the unit up to a total of $3,500 upon submission of receipts by the Applicant to the Toronto Standard Condominium Corporation No. 1959’s property management office.

The Applicant will affect these changes and submit all receipts within 6 months of the date of these Minutes of Settlement.

No timeline was specified
Ms. Kong submitted receipts for work completed in accordance with the Minutes of Settlement and has not been reimbursed by the respondents.

The respondents’ lawyer argued that there was no timeline for payment specified in the Minutes of Settlement, only a deadline for submission of the receipts by the applicant.

In response, the Tribunal noted that a significant amount of time has passed since submission of the receipts by the applicant and in addition, while there is no timeline specified, reasonable and good faith compliance with the Minutes of Settlement would suggest the payment not be withheld.

The Adjudicator further noted that in Sugarman v. St. Lawrence College,
2012 HRTO 664 (CanLII), 2012 HRTO 664, the Tribunal held as follows in interpreting a term in Minutes of Settlement where no specific date was specified:

It is true that there is no deadline by which the Code posters were to [be] posted; however, that does not, in my view, mean that the respondent could indefinitely hold off on its obligations to post the Code posters.

Instead, in the adjudicator’s view, the language of the settlement imported a standard of reasonableness into it and in order to avoid further disputes with respect to the August 31, 2011 Minutes of Settlement, the respondents should ensure that they are in immediate compliance with any and all outstanding obligations under the Minutes, such as reimbursement for receipts presented.

top

Box v. Middlesex Condominium Corporation No. 474
Human Rights Tribunal of Ontario
Adjudicator: Naomi Overend
File No: 2013-15255-I
Citation: 2013 HRTO 2057
Date: 12 December 2013

This was an Application filed under s.34 of the Human Rights Code alleging discrimination with respect to housing because of disability.

The parties entered into an agreement (“Minutes of Settlement”), dated 09 December 2013, which requests that the Tribunal issue an Order. The parties have agreed that this Decision incorporates the parties’ agreement and resolves the Application.

1.	The parties agree the applicant has a medical condition, the symptoms of which are treated by the use of a hot tub which the applicant owns and has installed on her exclusive use common element.
2.	The respondent shall permit the hot tub to remain in its current position to accommodate the needs of the applicant, on the following conditions:

There follows a list of 11 conditions that Ms. Box agreed to including:

•	She is the only person who may use the hot tub.
•	If and when she intends to sell the unit, the hot tub must be removed from the exclusive common area before the property is listed on the market and will be removed at the applicant’s expense before any showings of the unit are permitted. It will be made clear to any selling agent that the hot tub was not sanctioned by the board of directors and that the hot tub will not be sold with the unit.

top

DiSalvo v. HCC No. 186
Human Rights Tribunal of Ontario
Adjudicator: Michelle Flaherty
File Number: 2008-00613-I
Citation: 2009 HRTO 2120
08 December 2009

This Application, filed under s.34 of the Human Rights Code raised a legal issue about the content of the duty to accommodate.

The respondent is a condominium corporation by a volunteer board of directors. The corporation consists of a complex of approximately 24 townhouse units.

The applicant owns and resides in one of the townhouse units. He has muscular dystrophy, which, among other things, significantly limits his mobility, most notably, his ability to enter and exit his home through the front door of his unit.

In the spring of 2008, the applicant advised the respondent that he would require accommodation in the form of a ramp at the front door of his townhouse unit.

The respondent felt that, while a ramp is an appropriate form of accommodation in the circumstances, its up to the applicant to bear the full costs associated with it.

The parties agreed that the applicant has a disability and that, in order to enter and exit by the front door of his home, he required a ramp.

The parties agreed that a stainless steel removable (or semi-permanent) ramp with railings is appropriate accommodation in the circumstances, provided that it is properly installed and is covered with a non-skid surface.

The parties agreed that the approximate cost of the ramp is $1,350, including installation. The cost of necessary modifications to the walkway and curb is approximately $2500.

In addition to this, the parties agreed that there will be incidental costs related to the ramp, possibly insurance, storage, snow removal and costs associated with dismantling and reinstalling the ramp, likely two times per year. The cost of removal and storage of the ramp was estimated at $73 per visit (twice per year).

The Tribunal ordered that the condo corporation:

•	pay the applicant the sum of $12,000 in respect of compensation for loss arising out of the infringement of his rights, including injury to dignity, feelings and self-respect, within 60 days of the date of this Decision;
•	purchase, install, and maintain a semi-permanent (removable) ramp at the front entrance of the applicant’s town house according to the occupational therapist’s recommendations by April 1, 2010; and
•	within three months of this Order, retain the services of a human rights consultant in order to create and establish a human rights policy and complaint mechanism.

top

Morley v. London Condominium Corporation # 2
Adjudicator: Paul Aterman
Date: 17 March 2014
File Number: 2013-15000-S
Citation: 2014 HRTO 371

The applicant filed a successful complaint against her condo corporation to have a ramp built so she could access her townhouse unit. The Minutes of Settlement included two terms that are at issue in this Application.
Paragraphs 4 and 5 of the minutes read as follows:

4.	The parties agree that the negotiations leading up to and relating to this Agreement are strictly confidential, and that the Applicant, Maria Morley, shall [sic], without prior written approval of the Respondent, disclose the content of these negotiations and settlement documentation to anyone.
5.	The parties also agree not to provide copies of the Agreement, or otherwise make the Agreement available to anyone. Nothing in this paragraph shall prohibit disclosure of information relating to the Agreement as follows: (I) to the counsel or accountants of the parties; (II) as may be required by law, or by judicial process or order or in response to an inquiry by a governmental agency.

The parties agree that paragraph 4 should read “…Maria Morley, shall not, without prior approval…” and that “not” was inadvertently omitted in the drafting.

The applicant alleges that the condo corporation breached the above confidentiality provisions of the settlement.

The corporation argues that there was no breach because the minutes of settlement only bind the applicant to respect confidentiality and not the respondent. Paragraph 4 clearly stipulates that it is the applicant who is not to disclose the content of the negotiations and settlement documentation unless the respondent first agrees. The corporation argues that the Minutes of Settlement were deliberately drafted in this manner so as to enable the corporation to fulfill its obligation to report on condominium business to residents.

The adjudicator agreed that Paragraph 4 did not bind the corporation but it was bound by the wording of Paragraph 5.

Order
The Application is allowed in part. The respondent is ordered to pay the applicant $1,000 as compensation for contravention of the confidentiality provisions of the Agreement within 30 days of the date of this Decision.

Lessons to be learnt
If both sides agree to a confidentiality agreement, then they should honour the agreement.

The second lesson, is to read the agreement carefully. Not only should the wording be correct, clear and complete but also the condo owners should insure that the confidentiality agreement is equally binding on both sides.

top

Donna Fallow and DCC No. 35 & Brookfield
Adjudicator: Dawn J. Kershaw
Date: 31 July 2015
File Number: 2014-18796-I
Citation: 2015 HRTO 1022

Donna Fallow and her husband were fired from their positions as superintendents at a condo with cause. In return for accepting two-weeks pay she signed a full and final release.

The adjudicator ruled that since she accepted the two weeks pay and there was no "coercion of the will", she forfeited her right to complain to the Human Rights Tribunal.

top

[NAME_REDACTED] and [NAME_REDACTED] v. PCC No. 231 and [NAME_REDACTED]
Docket: 231; 2014-19412-I
Adjudicator: Mark Hart
Date:    29 February 2016

The applicants were owners of a condominium unit in the building operated by the respondent condominium corporation (“PCC No. 231”) and are the parents of two young children. They allege that they were unfairly accused and targeted by the respondents in relation to the alleged behaviour of their children, particularly in relation to alleged damage caused to the front gardens of the building which form part of the common elements.

The events underlying this Application were the subject of companion proceedings in the Ontario Superior Court of Justice, which were commenced on October 27, 2014. PCC No. 231 filed an application in the Superior Court pursuant to s. 135 of the Condominium Act, 1998, seeking a declaration that the applicants had violated that Act and the condominium rules, certain injunctive relief, and reimbursement for all legal costs. The respondents in turn filed a counter-application in the Court proceedings, seeking a declaration that PCC No. 231 had breached its obligations under the Act, certain injunctive relief, a declaration that they were not responsible for legal costs incurred by PCC No. 231, and their own legal costs.

The applicants thereafter sought re-activation of the human rights Application, which was granted by Interim Decision dated July 31, 2015.

Basicially, the issue was that since the grounds for the Application had been heard in a Superior Court case, should this Application be dismissed?

The Superior Court had jurisdiction to interpret and apply the Code, so this Application was basicaly a second kick at the can.

Accordingly the Application was dismissed pursuant to s. 45.1 of the Code.

Abuse of process
The respondents’ argued that the Application also should be dismissed as an abuse of process.

This Tribunal has held that it is an abuse of process for an applicant to deliberately withhold allegations of a violation of her or his rights under the Code in the context of another proceeding and then to bring a separate application before this Tribunal, when the allegations could have been raised in another proceeding that dealt with essentially the same underlying events.

The applicants had every opportunity to raise any alleged violation of the Code in the Court proceedings and to seek all of the remedies sought in the human rights Application in the Court proceedings on the basis of the very same events and allegations at issue in both proceedings, and, again for whatever reason, deliberately chose not to do so.

Accordingly, on this basis as well, the Application is dismissed as an abuse of process.

top

Senchire v. Beredan Management & Consulting Inc. and
Comfort Property Management Inc.
Date:                  15 March 2013
Adjudicator:       Judith Keene
File Number:     2012-12899-I

Introduction
This was an Interim Decision in respect of an Application filed under s. 34 of the Human Rights Code alleging discrimination with respect to the occupancy of accommodation because of race, color, creed and gender expression.

The applicant claims that he has been harassed and intimidated, and that respondent condominium corporation has dealt with his arrears of payment of common expenses in a way that is not in accord with the policy of the condominium corporation.

This Interim Decision deals with three Requests for an Order During Proceedings;

1.	the applicant's Request that counsel for the respondents be ordered not to represent the respondents because of alleged conflict of interest, (denied)
2.	and the respondents’ Requests that the Application be dismissed “in whole, or alternatively, dismissed in part” (denied) and
3.	for a summary hearing. (granted)

The applicant indicates that he was treated differently from other condominium owners in respect of the procedure employed by the corporation to deal with non-payment of common element fees. According to the applicant, and to a document entitled “common expense collection” he filed with his materials, the respondent corporation customarily deals with non-payment of common element fees by issuing two notices (one for each of the first two months overdue) that payment has not been made and is due. If payment is not made by the third month, the corporation sends a notice of intent to file a lien against the condominium unit, and registers a lien at the end of that month, charging unit owner on amount for collection and legal fees.

The applicant indicates that he failed to pay his fees in September, October, and November of 2012. According to the applicant, the corporation would have sent notice letters in September and October and notice of intent to file the lien in November.

Instead, it filed a lien on October 11, 2012. The applicant states that this was done because “I have been an outspoken against some unlawful and unjust practices being adopted by management towards certain groups of unit owners and origins in my condominium community”. He submits that a lien was filed prematurely against another condominium owner, but does not indicate any further information that might link that allegation to a ground of discrimination under the Code.

In their response, the respondents state that they sent the applicant a notice of lien on or about October 11, 2012. They take the position that they were entitled to register a certificate of lien immediately (allegedly because the applicant had been “regularly in arrears of common expenses”).

The respondents indicate that they actively pursue common expense arrears from all owners, with no discrimination. They state that in the applicant's case no certificate of lien was registered on title because the applicant brought his account into good standing. The respondents also indicate that they waved the collection fee.

The respondents state that the applicant's actual disagreement relates to the payment of monthly common expenses and is not properly the subject of an application under the Code. The respondents state that even if the applicant allegations are true, which they do not knit, the applicant alleges that the cause of the alleged harassment, intimidation or discrimination is his outspoken position as a named respondent in Superior Court of Justice proceedings in which the applicant and other condominium owners group opposed the reappointment of an administrator for the condominium corporation.

The Application does not outline what actions or omissions of the respondents are considered by him to be harassment; the only actions or omissions alleged in the Application to have an impact on the applicant are related to the procedures around registering a lien against his unit.

In the part of the Application that asks him to explain why he believes he was discriminated against based on creed, he wrote “I was discriminated based on what I stand for and believe. I believe everyone should be treated equal in society and stand for what is right in society and fight against injustice”.

The applicant appears to allege that he experienced two adverse impacts with respect to a social area covered by the Code; the registration of a lien, which the respondents dispute, and a deviation from policy as to when a notice of intent to file a lien is issued.

If the applicant alleges that his race or colour was a factor in the alleged registration of a lien or the alleged deviation from policy as to when a notice of intent to file a lien is issued, he must be prepared to state why he believes this.

Note:
It appears that this application was abandoned.

top

Tenants awarded $30,000 over vulgar posters
Toronto Star
05 January 2015
and
Toronto Star
By: Jacques Gallant
09 March 2016

In what is being described as a precedent-setting ruling, the Human Rights Tribunal has awarded $30,000 to a number of tenants at a Scarborough co-operative who say they were targeted by vulgar posters nearly four years ago.

While the culprit who put up the flyers has never been formally identified, it was still the responsibility of the volunteer board of directors at Rouge Valley Co-operative Homes Inc. to promptly address the issue and communicate with the tenants about actions the board was taking, ruled tribunal vice-chair Douglas Sanderson.

“The respondent (board of directors) was not responsible for the harassment, but was responsible for not addressing the harassment adequately,” he wrote in his 87-page ruling released last week, nearly a year after the hearing in the case ended.

“The respondent’s failure to take reasonable actions to address the harassment was objectively serious. The applicants felt completely unsupported by the respondent, and the harassment most likely would have ceased sooner had the respondent taken meaningful actions more promptly.”

The decision has precedential value because it clearly outlines a housing provider’s obligations for dealing with harassment under the human rights code, particularly keeping tenants updated on what actions are being taken to address the situation, said Karen J. Sanchez, who represented the tenants before the tribunal.

“We heard (board members) testify that they didn’t know who put up the posters, but as far as a housing provider is concerned, that’s far less important than assuring the victims that they have a right to live free from harassment and to say ‘Here are the steps we are taking to try and safeguard that right for you,’” she said.

top

Kamal v. Peel Condominium Corp. No. 51
Human Rights Tribunal of Ontario
Indexed as:       Kamal v. Peel Condominium Corp. No. 51
File Numbers:   2013-15958-I; 2013-15959-I; 2013-16113-I
Citation:            2016 HRTO 1282
Date:                 September 30, 2016
Adjudicator:      Sheri Price

Applicants
Ahmad Kamal,     Self-represented
Ashfaq Ali,         Self-represented
Farooq Minhas,    Self-represented

Respondents
PCC. No. 51 and Alba Property Management Inc., Carol Dirks, Counsel

Witnesses for the Respondents
Mr. Bhattacharya President
Mr. Bardhi            Property manager

Issue
The three Applicants alleged that the condominium corporation and the property management company discriminated against them because of their creed by holding a special owners’ meeting on the evening of October 16, 2013, which was Eid-ul-Azha (also known as Eid al Adha), an important religious holiday for Muslims.

Background
In or around June 2013, the condominium corporation obtained a condition survey from a professional engineering company that indicated that major repairs needed to be made to the common elements, particularly to the concrete balconies and exterior walls. Mr. Bhattacharya and Mr. Bardhi testified that many of the concrete balconies at the condominium property were in very poor condition and in need of immediate repair. They both testified that concrete had fallen from a number of the balconies due to the deterioration, and that the condominium corporation had had to take the extraordinary step of instructing unit owners not to use their balconies as a result of such hazard. Mr. Bhattacharya also testified that the condominium corporation’s insurer had threatened to stop insuring the condominium corporation based on the need for repairs.

Mr. Bhattacharya testified that an engineering firm retained by the condominium corporation estimated that it would cost approximately $2 million to carry out the necessary repairs. However, there was only $200,000 or so in the reserve fund account in 2013.

Mr. Bhattacharya explained that if the condominium corporation were to levy a special assessment, the total amount of funds needed for repairs would be divided by the 169 units and he anticipated that the special assessment could be paid by instalments over the course of one year at most, provided that the condominium corporation could find a contractor willing to be paid in instalments.

In order to raise $2 million for repairs to the concrete balconies and exterior walls, Mr. Bhattacharya testified that the condominium corporation would have needed to levy a special assessment of between $10,000 and $12,000 per unit. Levying a special assessment could result in some unit owners losing their homes.

Mr. Bardhi testified that, in 2011, when PCC #51 had to levy a special assessment of just $1,000 per unit, payable over two months, it ended up having to lien over 15 units in the condominium. Mr. Bardhi testified that he fully expected that the situation would have been much worse if PCC #51 had attempted to raise the funds needed for the major repairs through a special assessment of $10,000 or more per unit.

Proposed borrowing bylaw
Mr. Bhattacharya testified that, in order to ease the financial burden the Board of Directors decided to seek the unit owners’ approval to borrow the monies needed to repair the balconies and exterior walls.

Mr. Bhattacharya testified that whereas, in the best case scenario, a special assessment would require unit owners’ maintenance fees to be increased by $850 to $1000 per month for a one-year period (to raise the $10,000 to $12,000 required per unit), the unit owners could repay a loan over an extended period of time through a relatively modest increase to monthly maintenance fees. By way of example, Mr. Bhattacharya testified that an individual who had previously been paying $510 per month in maintenance fees would end up having to pay an additional $50 to $60 per month as a result of the loan.

Mr. Bhattacharya testified that the condominium corporation was also required to have a bylaw authorizing the loan registered on title before taking out a loan.

With the assistance of a broker the Board succeeded in negotiating with one of Canada’s major banks to borrow the needed funds at a much better interest rate than would have been available through private financing. Ultimately, Mr. Bhattacharya testified that the Board was able to negotiate a loan at a 3.69 percent interest rate, repayable over 10 years, subject to the approval of a bylaw by the owners authorizing the loan, and providing that the loan was finalized by December 31, 2013.

Special Owners’ Meeting is Scheduled for October 16, 2013
Accordingly, Mr. Bhattacharya testified, owners’ meetings need to be scheduled a minimum of four weeks in advance.

The Board wanted to have an owners’ meeting about the proposed borrowing bylaw as soon as possible so that the bylaw could be registered on title and the loan finalized prior to the bank’s December 31, 2013 deadline. The Board expected that it would take a minimum of eight weeks, following approval of the bylaw, to take these steps.

Taking all of the above into account, Mr. Bhattacharya testified that the Board decided at its September 9, 2013 meeting that a special owners’ meeting to vote on the borrowing bylaw would be held on October 16, 2013. In selecting the date for the meeting, Mr. Bhattacharya testified that the Board excluded Monday, October 14, 2013 as a possibility because it was a statutory holiday (Thanksgiving), and Tuesday, October 15, 2013, because it was Eid-ul-Azha. Mr. Bhattacharya testified that the Board determined that Eid-ul-Azha would be on October 15, 2013 by conducting a Google search.

On September 26 and/or 27, 2013, the property manager, Mr. Bardhi, mailed all unit owners a “Notice of Special Owners’ Meeting”, informing them that a special owners’ meeting would be held at the condominium property at 7:00 p.m. on October 16, 2013.

The meeting information packages that were mailed to unit owners also included, among other things: the meeting agenda; a copy of the proposed borrowing bylaw; a letter from the Board president, Mr. Bhattacharya, explaining the need for the loan and the consequences of not approving the loan (i.e. the levying of a special assessment); a copy of the condition survey recommending “immediate repairs” to the balconies and exterior walls; a “proxy and ballot for the approval of bylaw no. 8”, enabling unit owners to vote “Yes (In Favour)” or “No (Against)” on the proposed borrowing bylaw; and a separate sheet providing “instructions for balloting and proxy use.”

Mr. Bhattacharya testified that he reviewed the information package before it was sent out and he was very confident that it provided sufficient information to unit owners to enable them to decide whether or not they wanted to vote in favour of adopting the borrowing bylaw.

Mr. Bardhi, who is also Muslim, testified that he recalled talking to Mr. Ali about the fact that Eid-ul-Azha was approaching. However, Mr. Bardhi denied that Mr. Ali raised any concern with him about the date of the special owners’ meeting or suggested that it would fall on Eid-ul-Azha. Nor did he receive any telephone calls or inquiries from other owners in that regard (until he received a letter from the applicants’ lawyer on October 9, 2013, which is addressed below). Mr. Bardhi testified that he and his family, like many Muslims in Canada, celebrated Eid-ul-Azha on October 15, 2013, and that he only found out later than some people celebrated on October 16, 2013 based on the moon sighting.

Whether holding meeting on Eid ul Azha had a discriminatory effect on the applicants
In my view, Mr. Kamal and Mr. Ali have clearly failed to establish that they were negatively affected by the scheduling of the special owners’ meeting to the extent alleged.

PCC #51 has established on a balance of probabilities that it accommodated the applicants’ creed-based restrictions and/or needs by allowing them to participate in the meeting and vote on the borrowing bylaw by proxy.

As noted above, even if I found that the applicants were disadvantageously affected by the scheduling of the owners’ meeting, in the sense that it negatively affected their ability to adhere to the tenets of their faith, a respondent is not liable under the Code if it establishes either that it accommodated the applicants’ creed-based needs or that such needs could not have been accommodated without undue hardship. In this case, PCC #51 asserts that it did accommodate the applicants’ creed-based needs by permitting them to participate in the October 2013 special owners’ meeting and vote on the borrowing bylaw by proxy. I agree.

In a condominium corporation with 169 units, there will almost always be someone who is unable to attend a meeting for Code-related reasons, such as disability, family status (i.e. childcare and/or elder care), or creed. The evidence of Mr. Bhattacharya and Mr. Bardhi is that a unit owner who cannot or does not wish to attend a meeting for any reason may appoint any competent adult to act as his or her proxy holder.

Based on this evidence, to the extent that the applicants did have a creed-related inability to attend the October 16, 2013 meeting, I find that PCC #51 accommodated them within the meaning of the Code.

The applicants were clearly not satisfied with this option. However, this in my view is a reflection of the fact that the applicants were not really seeking an accommodation that would allow them to participate in the decision-making process about the loan; they were seeking to prevent that process from happening, because they were not in agreement with the majority’s decision to take out a loan.

I note that at one point Mr. Ali submitted that, while allowing owners to vote by proxy would be a reasonable accommodation of “personal” Code-related reasons for being unable to attend a meeting, such as disability or childcare, a creed-based inability to attend a meeting could not be similarly accommodated. I have to disagree with this submission, as it is well established that there is no hierarchy of Code grounds. Where an individual is disadvantaged with respect to a particular social area because of a Code ground, whether it is disability, family status or creed, the respondent’s obligation is essentially the same. Specifically, the respondent has a duty to accommodate the Code-related needs or restrictions, up to the point of undue hardship, with the goal of removing the disadvantage.

Applying this to the case at hand, assuming without finding that the applicants had a creed-related inability to attend the October 16, 2013 meeting and to vote on the borrowing bylaw in person, PCC #51 had a duty to accommodate the applicants by enabling them to participate in the decision-making about the loan in some other way. This the condominium corporation did by allowing the applicants to vote by proxy.

In sum, if the applicants were unable to attend the October 16, 2013 special owners’ meeting because of their creed, I find that PCC #51 accommodated such creed-related restriction by enabling the applicants to participate in the meeting and vote by proxy. Accordingly, there was no infringement of the applicants’ rights under the Code.

top

David Latendresse verse CCC # 8
Human Rights Tribunal of Ontario
Adjudicator:             Douglas Sanderson
Date:                        03 November 2016
File Number:            2016-25712-I
Citation:                   2016 HRTO 1431

Interim decision
This Application alleges discrimination with respect to occupancy of accommodation because of disability.

The applicant identifies himself as having mental health disabilities and uses a service dog. The applicant alleges that the condo corporation requires him to place his service dog in a carrier while in the common areas of the condominium. The applicant states that this rule interferes with his need to have immediate access to his service dog.

The applicant submitted that the respondent began fining him $50 every time he takes his service dog into common areas without a carrier. The applicant stated that to avoid the fines he has been putting his service dog in a carrier.

The interim remedy the applicant seeks is to require the respondent to allow him to have his service animal with him in common areas without being fined.

Mr. Sanderson lost this Interim Decision.

However what is very disturbing is that Carlton Condominium Corporation #8 fines owners who do not put their pets in a carrier. As far as I am aware, condo corporations in Ontario cannot fine owners.

top

Madkour v. Alabi
Human Rights Tribunal of Ontario
Citation:               2017 HRTO 436
File Numbers:      2015-22219-I; 2015-22220-I
Adjudicator:         Jo-Anne Pickel
Date:                    19 April 2017

Human Rights Tribunal rules Brampton landlord must pay Muslim couple $12,000
Toronto Sun
Michele Mandel
26 April 2017

It didn’t help his case that he shared a joke about a devout Muslim on his Facebook page.

Now the small landlord who rented out the main floor of his Brampton home to an Arab Muslim couple must pay them $12,000 for failing to accommodate their religious practices when showing their apartment to prospective tenants.

“harassed them and created a poisoned housing environment.”

The Human Rights Tribunal of Ontario also found that he “harassed them and created a poisoned housing environment.”

His sins? John Alabi refused to remove his shoes when showing the bedroom where the couple prayed and while he always gave them the mandated 24-hour notice before showings, he didn’t always provide the five-minute heads-up they’d requested to ensure the wife was modestly dressed and they weren’t in the midst of their five daily prayers.

“There was absolutely no evidence that the applicants’ requests for additional notice and for the removal of shoes in this case were an attempt by them to impose their way of life on the respondent or anyone else,” ruled vice chair Jo-Anne Pickel. “(They) were merely making simple requests for the accommodation of their religious practices ... their requests easily could have been met without any hardship to the respondent, let alone any undue hardship as that term is used in human rights law.”

In December 2014, Walid Madkour and his wife Heba Ismail moved from Montreal into Alabi’s ground-floor apartment. Following several disputes, including the couple allegedly wanting their landlord to be quiet after 10 p.m., they agreed to terminate the lease on Feb. 28, 2015.

In the meantime, Alabi tried to rent out the unit. Madkhour wanted a one-hour notification of any showing in addition to the 24-hour notice.

Alabi told him that by law, only 24 hours was necessary. Madkhour accused him of “racism and violation of our civil rights:” Since his landlord was well aware that Ismail was unemployed and always home, “he considered it harassment for (Alabi) to continue to say that he would enter the premises without permission.”

Alabi texted back: “Welcome to Ontario, Canada.”

The landlord told the hearing that he meant that apartment viewing rules were different in Ontario than in Quebec where the couple had last lived. The human rights tribunal saw it as another example of discrimination.

That same evening, Ismail heard loud pounding on the steps outside their door; Alabi said he was just shovelling the snow; she said it was intimidating and frightening.

The couple called police.

They were told that contrary to their understanding, their landlord had a right to show the apartment when they were home. As a “courtesy,” Alabi agreed to give them five minutes notice in addition to the 24 hours. But that negotiated detente ended two days later after Ismail videotaped Alabi refusing to remove his shoes when entering their bedroom. “She said it was disrespectful and an act of racism.”

Alabi told the hearing that his shoes had never been an issue before and accused his tenants of trying to set up roadblocks to his renting their flat. He also accused them of trying to impose their way of life on him and said “the fact that someone belongs to a religion does not permit them to inconvenience others.”

The tribunal didn’t see it that way — especially after the tenants introduced their landlord’s Facebook page that had a “joke” about a devout Arab Muslim that they found offensive. Alabi told the hearing “he had freedom of speech and could post what he wanted on his Facebook page ... He did not share the post to attack anyone. He said he shared it only because it made him laugh.”

Be careful what you post online — Pickel saw it as further evidence of his bias.

“When considered together, I find that the comment ‘welcome to Ontario, Canada,’ the making of loud pounding noises outside the applicants’ door shortly after making that comment, and (Alabi)’s refusal to remove his shoes when entering (their) prayer space amounted to harassment under the Code.”

In addition to paying them $6,000 each for injury to their dignity, feelings and self-respect, Alabi must also take an e-learning course on “Human Rights in Rental Housing.”

top

Moneta v. TSCC No. 1709
File Number:             2017-30002-I
Citation:                    2018 HRTO 1145
Adjudicator:             Jacek Janczur
Date:                        20 August 2018

Judi Ann Moneta Applicant      Self-represented
TSCC No. 1709   Respondent   Deborah Howden

Interim Decision
The applicant alleges that after she filed the Application, she has received noise complaints, notices regarding contravention of by-laws, enquiries about decisions she had made as a member of the condominium board four years previously and the disclosure of the fact the she had filed this Application at an Annual General Meeting along with disparaging comments about the applicant.

Decision
The Adjudicator granted the applicant’s request to amend the Application.

top