A Quick Guide to Dismissing Frivolous Human Rights Complaints Brought Against Condo Boards and Property Managers.
It is trite to say, but condo board members deal with a lot of complaints. Occasionally, these complaints become the subject of an Application before the Human Rights Tribunal of Ontario (“HRTO”). Some of these complaints are legitimate, many are not. It has become somewhat commonplace for a disgruntled tenant/owner to use the HRTO to air their grievances about a dispute involving their condo board and/or property manager. Often these complaints arise from unpleasant interactions between owners and board and/or property manager. The owner feels wronged because they believe they have been treated unfairly by the board and/or the property manager. This perceived unfairness is internalized and interpreted as discrimination.
When faced with such a Human Rights complaint, a Summary Hearing under Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) may be an appropriate avenue for adjudication.
The Summary Hearing is an expedited process where the HRTO will consider, early in the proceedings, whether an Application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
The Test For Summary Hearing
The test that is applied at the Summary Hearing stage was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraph 8-10:
[8 ] In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
[9] In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
[10] In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application be dismissed following the summary hearing.
At this stage, the HRTO is not tasked with determining the truthfulness of the owner’s claims or evaluating the impact of the treatment they experienced. The test for “no reasonable prospect of success” is applied by assuming that the owner’s account of events is true, unless there is clear evidence to the contrary.
However, it is important to note that accepting the facts as presented by the owner does not extend to accepting their assumptions about their perceived unfairness. The purpose of the summary hearing is to assess whether the applicant can provide any information that supports their belief that they have been subjected to discrimination or reprisal under the Human Rights Code(“Code”). The Tribunal’s role at this stage is to determine whether there is likely to be any evidence that the applicant could reasonably obtain to link the alleged unfair treatment with the protections afforded by the Code.1
For an application to continue in the HRTO’s process following a summary hearing, there must be a basis beyond mere speculation that an applicant could show a breach of the Code.2
Unpleasant Interaction Is Not Discrimination
Human rights complaints arising from disagreements or unpleasant interactions between tenants/owners and board members/property managers are often prime candidates for Summary Hearing consideration because the tenant/owner usually cannot present any objective evidence of discrimination under the Code.
To meet the traditional three step test for prima facie discrimination, as set out by the Supreme Court of Canada in Moore v. British Columbia (Education), the applicant must show that:
- The applicant has a protected characteristic under the Human Rights Code.
- The applicant suffered disadvantage or an adverse impact; and
- The protected characteristic was a factor in the disadvantage or adverse impact.3
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1 Nitunga v. 1749400 Ontario Inc. o/a Tim Hortons, 2023 HRTO 14 (CanLII)
2 Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389
3 2012 SCC 61 at para. 33
The HRTO has held that in order to prove discrimination:
An applicant must do more than simply rely on an “unpleasant interaction” and declare that it must result from discrimination. The HRTO has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred.4
The applicant may subjectively believe that the respondent has breached the Code; however, the HRTO has repeatedly held that it cannot make a finding that there has been a breach where the only evidence put worth is the applicant’s subjective beliefs.
In Exil v. Liberte Brand Products, the HRTO outlined the necessity for objective evidence as follows:
The applicant’s belief that the respondent mistreated him on the basis of such prohibited grounds is not evidence that the respondents did so. It is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant’s assertions, feelings or beliefs. The Tribunal cannot find that the respondent discriminated against the applicant unless there are facts alleged that, if true, would allow the Tribunal itself to conclude that the respondents’ actions towards the applicant were linked to a prohibited ground of discrimination under the Code.5
An example of a case where the HRTO found that “unpleasant interaction” did not result from discrimination can be found in Noble v. The Genuine Canadian Corp:
…The applicant arrived at the store only a few minutes prior to its scheduled closing time of 7:00 pm. By his own admission the applicant ignored Lizana’s initial announcement that the store was closing and continued browsing. Several minutes later she approached him again, told him that the store was closed and that he would have to take his items to the cash register. When he requested additional time and was denied he became angry. According to the applicant’s testimony he threw the items close to the racks where he was standing and informed her he would not be purchasing the items. He admits that he told her that she was rude and disrespectful and when she followed him to the door, so she could unlock it, he told her that she was acting like a bitch and told her she should lose weight.6
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4 Noble v. The Genuine Canadian Corp., 2023 HRTO 1788 (CanLII) at para. 79; Nitunga v. Tim Hortons, 2023 HRTO 14, at para. 25.
5 Exil v. Liberte Brand Products, 2012 HRTO 382
6 Noble at para. 71.
In Noble v. The Genuine Canadian Corp, the applicant simply believed he was discriminated based on race but provided no objective evidence to prove same. The HRTO dismissed the case, citing that the applicant experienced an “unpleasant interaction” that was not discriminatory in nature.
Conclusion
A Summary Hearing can be an effective tool in dismissing frivolous Human Rights complaints in expeditious manner. The HRTO, which is endlessly encumbered by an ever-growing caseload, is not shy in utilizing its powers to dismiss cases through the Summary Hearing process.
