Damages - Re: Dignity, Feelings and Self-Respect (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-04
CLNP Page ID:	691
Page Categories:	Category:Human Rights (LTB)
Citation:	Damages - Re: Dignity, Feelings and Self-Respect (LTB), CLNP 691, <>, retrieved on 2024-05-04
Editor:	Sharvey
Last Updated:	2023/05/08

Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 SCR 513

22 I should emphasize at this point that, for an applicant whose application for income support is still denied after the internal review, the SBT is a forum that cannot easily be avoided. It is the SBT that is empowered by the legislature to decide income support appeals binding on the Director: s. 26(3). Given the existence of an appeal to the SBT, it is not at all clear that an applicant could seek judicial review of the Director’s decision without first arguing before the SBT: see Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at paras. 32-38, 112 and 140-53. And while an applicant who is denied benefits for discriminatory reasons may indeed seek recourse through the OHRC, applicants will not always realize that they are victims of discrimination. For instance, in the present appeal, the letters from the Director to the appellants concerning the initial application and the internal review never mention that the appellants’ alcoholism was being ignored as a potential basis for disability. The appellants were simply told that they were not found to be persons with a disability. The adjudication summaries of the cases raise the issue of alcoholism, but there is no evidence that these documents were appended to the Director’s letters; it would seem they were obtained by the appellants on discovery.

...

40 I therefore conclude that the SBT has jurisdiction to consider the Code. The ODSPA and OWA confirm that the SBT can decide questions of law. It follows that the SBT is presumed to have the jurisdiction to consider the whole law. More specifically, when it decides whether an applicant is eligible for income support, the SBT is presumed able to consider any legal source that might influence its decision on eligibility. In the present appeal, the Code is one such source.

41 There is no indication that the legislature has sought to rebut this presumption. To the contrary, the legislature has announced the primacy of the Code and has given itself clear directions for how this primacy can be eliminated in particular circumstances. The legislature has indeed prohibited the SBT from considering the constitutional validity of enactments, or the vires of regulations, but it did nothing to suggest that the SBT could not consider the Code. I cannot impute to the legislature the intention that the SBT ignore the Code when the legislature did not even follow its own instructions for yielding this result.

42 The ODSPA and OWA do evince a legislative intent to prevent the SBT from looking behind the statutory and regulatory scheme enacted by the legislature and its delegated actors. However, consideration of the Code is not analogous. Far from being used to look behind the legislative scheme, the Code forms part of the legislative scheme. It would be contrary to legislative intention to demand that the SBT ignore it.

...

46 Since the SBT has not been granted the authority to decline jurisdiction, it cannot avoid considering the Code issues in the appellants’ appeals. This is sufficient to decide the appeal.

TNT-04076-18 (Re), 2018 CanLII 113887 (ON LTB)

48. I find that the conduct of the Landlord in repeatedly and persistently pressuring the Tenant to move out of the rental unit because she was about to have a child, in entering the rental unit illegally, and in attempting to end the tenancy without complying with the requirements of the Act constitutes harassment of the Tenant by the Landlord and substantial interference by the Landlord with the Tenant’s reasonable enjoyment of the rental unit.

51. The Tenant did not request any rent abatement and because it was not requested, it cannot be awarded Beauge v. Metcap Living Management Inc., (2012) ONSC 1160 (Div. Ct.).

52. The Board has the authority, pursuant to subsection 31(1)(f) of the Act, to award compensatory damages for pain and suffering or mental distress in circumstances where the damages claimed are the result of a breach of the landlord’s contractual or statutory obligations. The Divisional Court confirmed this jurisdiction in Mejia v. Cargini, (2007) O.J. No. 437 (Div. Ct.).

53. I have already referred to the Tenant’s evidence as to the impact upon her of the Landlord’s actions. She also testified that she is a newly arrived refugee claimant in Canada and is alone without family in this country, and that the Landlord’s behaviour was traumatizing, intimidating and abusive. There is no evidence of medical treatment sought by the Tenant as a result of these events, and no medical evidence submitted by the Tenant. Despite the absence of such objective evidence, I accept her subjective evidence as to the impact upon her. The stress she experienced is shown in her text messages. The conduct of the Landlord contravenes the right of the Tenant under the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Code ”) to be free from discrimination in housing on the basis of sex (including pregnancy), although damages for that contravention are not awarded in this application. However, it adds to my finding that the conduct of the Landlord was serious. The Landlord was aware of the vulnerability of the Tenant, particularly at the time in question.

54. In considering the appropriate award of damages arising from the Landlord’s breach of his statutory obligations under the Act, I also take into consideration that the problematic conduct continued only for a period of about one month.

55. I have reviewed a number of the Board’s decisions in which damages were awarded for mental distress as well as Mejia v. Cargini, above, and Taft and Rumble v. Whitesands Apartments, [2009] O.J. No. 3198 (Div.Ct.). I have considered the fact that this award is intended only to compensate the Tenant; it is not intended to punish the Landlord. Having considered all the above factors, I find that an award of damages for mental distress in the amount of $1,500.00 is appropriate.

EAT-58948-16 (Re), 2016 CanLII 72081 (ON LTB)

34. The Tenant next requested $10,000.00 for “general non-pecuniary damages” and a further $10,000.00 for compensation for the injury the Tenant felt to his “dignity, feelings and self-respect” due to a breach of subsection 2(1) of the Human Rights Code.

35. First, the Tenant’s lawyer submitted no arguments as to how the Tenant’s rights under the Human Rights Code were breached. As a result, the request for compensation as a result of any alleged breach of the Human Rights Code is denied.

36. Second, on the question of an award for general damages, following the hearing, I researched whether the Board has the jurisdiction to award general damages, and found that it does. Subsection 31(1)(f) of the Act states that the Board may “make any other order that it considers appropriate”.

37. In considering whether and how much to award for general damages, I considered the impact that the Landlord’s many breaches of his obligations under the Act had on the Tenant. I accept the Tenant’s testimony that his pre-existing medical conditions of anxiety, a panic disorder, and major depression were exacerbated. I also accept that the Tenant felt exhausted, angry, frustrated, anxious, and bullied. I find that a reasonable award for general damages, given the extent of the Tenant’s distress, is $2,500.00. That amount shall be ordered to be paid by the Landlord.

TST-52022-14 (Re), 2014 CanLII 71137 (ON LTB)

1. At the heart of this application lies the Tenant’s allegation that the Landlord failed to respond reasonably to her complaints about the residential complex and the tenants she shared it with. She relies on the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2. The Tenant lives with a significant mental health disability; she self-identifies as having bipolar disorder. The Landlord is a social housing provider that aims to house vulnerable and hard to house tenants and provide some supports to its tenants.

3. The Tenant feels the Landlord abandoned her to the not so tender mercies of her housemates and left her struggling to cope on her own in dirty and poorly maintained housing. She seeks to hold the Landlord accountable for what happened to her.

4. The Landlord takes the position it acted reasonably in all the circumstances. It says the Tenant refused to co-operate with the Landlord’s attempts to mediate the conflicts that arose between the Tenant and her housemates; it addressed in a timely manner all of the Tenant’s complaints of disrepair; and if the residential complex was dirty, that was the responsibility of the Tenant and her housemates and not the Landlord.

The Accommodation Request

7. Prior to the start of the hearing the Tenant requested accommodation from the Board under the Code. She essentially stated that the nature of her disability was such that she could not participate fully and meaningfully in a hearing without some supports. She asked that a friend be permitted to accompany her, arrange presentation of documents and evidence on her behalf, and represent her. This request was granted at the commencement of the hearing.

8. The Landlord quite rightly objected when the Tenant’s friend veered into giving oral testimony on the Tenant’s behalf concerning events she has no personal knowledge of. In order to deal with this issue without slowing the hearing down or interfering with the Tenant’s ability to present her case with her friend’s assistance, I indicated to the parties that any such statements would not be considered as evidence for consideration properly before the Board and omitted them from my hearing notes.

96. On September 17, 2013 the Landlord wrote a letter to the Tenant asking her to attend a meeting with SA and the Housing Support Coordinator. In response to this short letter the Tenant wrote back the next day. Her letter of September 18, 2013 says in part:

I won’t be there on Friday because I am NOT ON DISABILITY, I might be BI-Polar but I am NOT a Mentally Unstable person, I am a fully active person; I know how to take care of myself just fine and get along with society fine. I am a nice person and people like me (people need to educate themselves on the different levels of Bi-Polar disorder) and realize it has nothing to do [with] Psychotic behaviour or tendencies… I am NOT Dangerous OR Crazy!! I am so tired of the stigma that people always seem to relate to ALL Emotional or mental disorders, they are not the same. In short writing letters is a better way for me to communicate my thoughts, because they come out clear this way and I write in a slower manner to properly express myself; when stressed emotionally it elevates my brain activity and I speak quicker because of the pressure, so I will use letters as a normal way of communicating with you because it is what works best for me! Thank-you for understanding.

[Emphasis added.]

97. This letter clearly states that the Tenant’s illness makes it difficult for her to communicate face to face in stressful situations; she explains in it that under pressure she tends to speak manically. I accept this is true because it was undisputed by the Landlord and it is consistent with the behaviour of the Tenant that I observed in the hearing room. It is also consistent with the Landlord’s case notes in which the Tenant is described as speaking too fast to be understood clearly.

98. That being said I note that a few lines after the paragraph quoted above the Tenant also says “I do not mind coming to the office to speak with you one on one…” thus creating some ambiguity about the Tenant’s needs and desires regarding accommodation of her disability. However, the Landlord’s case notes of September 18, 2013 indicate when the Tenant dropped off this letter in the Landlord’s office she said:

I cannot talk to you, I have no time, just read my letters, I don’t want to meet with you.

99. That statement is consistent with the paragraph quoted above from the Tenant’s letter of September 18, 2013. She did not want to meet with the Landlord. Her letter clearly connected that wish with the symptoms related to her disability and asked the Landlord to accommodate her by permitting the Tenant to use writing to explain herself.

100. The Landlord argues that the Tenant did not request accommodation of her disability. I disagree. In making the request of the Landlord set out above the Tenant was clearly doing exactly that.

118. The Tenant’s amended application quotes the Code and frames this issue as a human rights one. The Board is not the Human Rights Tribunal but it does have an obligation to consider the Code when making decisions under the Act. In the context of this application I believe it is not contested that if a landlord’s behaviour constitutes a breach of the Code that same behaviour is also substantial interference with a tenant’s reasonable enjoyment and a breach of s. 22 of the Act.

119. Given my findings of fact set out above I am satisfied that the Landlord did substantially interfere with the Tenant’s reasonable enjoyment by failing to respond appropriately to her September 18, 2013 request for accommodation of her disability. I say this for the following reasons.

120. Section 11 of the Code reads in part as follows:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

121. Here it was essentially the Landlord’s policy to deal with conflict between housemates through oral meetings and mediations. Although the Landlord is prepared to speak to feuding housemates separately, it nonetheless relies on face to face oral discussions. This way of doing things is sensible and pragmatic. The problem here is that it is a way of dealing with conflict that has a differential impact on the Tenant because of her disability. The evidence satisfies me that because of the Tenant’s bi-polar disorder she does not do well in oral confrontations; when upset she starts speaking very rapidly and she is difficult to understand.

122. As a result I believe the evidence supports a finding that the Tenant has established a prima facie case of discrimination.

123. When a prima facie case of discrimination is made out the onus shifts to the Landlord to lead evidence in support of a defence. The Landlord does not rely on a positive defence; rather it takes the position that its reaction to the Tenant’s complaint of September 4, 2013 was reasonable and bona fide.

137. In the absence of submissions from the parties or precedents from the Board I believe it is appropriate to look at decisions from the Human Rights Tribunal to determine an appropriate range for damages arising from the breach. I say this because under the Code the Human Rights Tribunal assesses damages “arising out of the infringement , including compensation for injury to dignity, feelings and self-respect” which is a sufficiently similar concept to damages arising from the breach of the Act to make its decisions helpful guides.

138. In Bali v. Madhavji, 2014 HRTO 1683 (CanLII), the Tribunal awarded $5,000.00 where a landlord’s agent’s behaviour demonstrated “a lack of understanding and respect for the applicant’s disabilities and his need for accommodation”. Although the incidents alleged in that case are different then here the underlying theme of a landlord simply failing to respond reasonably to a tenant’s disability-related needs is similar. However, that decision did not find that the breaches of the Code complained of induced the tenant to move out of the rental unit as is the case here.

139. Given all of the above it seems to me that a reasonable amount for damages arising from the breach in all the circumstances here would be $6,000.00. That amount recognises the Tenant’s intangible losses as well as her having to move. An order shall issue accordingly.