The BC Human Rights Tribunal has found that a gay, HIV-positive Victoria man was discriminated against when he tried to buy into a Burnaby cooperative apartment complex.
The tribunal has ordered the co-op board of Irving Apartments to pay 41-year-old Francis Outingdyke $6,500 for injury to dignity, and to refrain from discriminating against people in the future.
“I find that Mr Outingdyke’s sexual orientation was a factor in the board’s decision and that the board has failed to provide a convincing non-discriminatory reason for the denial,” tribunal member Judy Parrack wrote in her Sep 29 decision.
She did not, however, find that Outingdyke’s physical disability, namely his HIV status, was a factor in the co-op board denying his application to buy into the complex.
Outingdyke could not be reached for comment on the decision.
According to tribunal documents, Outingdyke had been doing renovation work in suite 306 of the Irving Apartments for Mabel Norcross after her sister died in the spring of 2003.
In June 2003, Norcross asked Outingdyke if he was interested in buying the suite for $60,000 with her two sons holding an interest-free mortgage. He would not be required to provide a down payment and his monthly payments would be $500, an amount he could financially manage.
Norcross agreed to pay the monthly fees for the unit until the board approved Outingdyke’s application to purchase it.
She then introduced Outingdyke and his partner to board secretary Julia Laing. The couple told her they were gay and would be living together in the suite. At the time, Outingdyke testified, Laing did not seem concerned about his sexual orientation.
Outingdyke submitted his application to purchase the suite the following month and provided four letters of reference, including personal and employment recommendations.
He then met with the board in Laing’s suite.
He had wanted to take a lawyer but the board denied the request, tribunal documents state.
Outingdyke was reluctant to provide detailed information when the board asked how he made a living, but told members he was self-employed. Tribunal documents show he provides “pet care, entertainment planning, personal shopping and meal preparation.”
Outingdyke says he was given no indication that the financial information he provided may have been inadequate. Nor was he asked for more information. His sexual orientation was not discussed at the meeting.
One stipulation for purchase was that owners be 40 years old or older. Outingdyke was 39 at the time.
A couple of days later, the board turned him down because of his age. No other reasons were given. Norcross encouraged him to try again in a year when his age would no longer be a problem. She said it would take her a year to settle her sister’s estate anyway.
Outingdyke reapplied the following spring.
In March 2004, Norcross was told Outingdyke was being turned down a second time.
She was told the board was not required to give a reason and that their lawyer had confirmed this.
Laing later testified that Outingdyke was turned down the second time because he had not provided all the financial information requested. She acknowledged that she had not provided this reason at the time of refusal.
Outingdyke said he learned of the second refusal from Norcross.
Norcross “believed that some of the owners were discriminating based on Mr Outingdyke’s sexual orientation as they refused to give a reason why he was denied,” Parrack found.
Outingdyke testified that he called Laing who pretended not to know him-although he acknowledged she had a hearing problem.
When he then called another board member, Harvey Meyer, he said the man hung up on him.
Meyer told the tribunal he had not discussed Outingdyke’s sexual orientation with him, nor did it matter to him if two men were in a homosexual relationship.
But, on cross-examination, Meyer produced a tape of a phone message from Outingdyke saying it was wrong for gay people to be treated the way the board had treated him.
Parrack said she found Meyer evasive when he was asked his views on homosexuality.
“In my view, Mr Meyer did not disclose the tape as it would have confirmed that he knew Mr Outingdyke was gay and that he based his decision to recommend that Mr Outingdyke’s application be denied at the second meeting, in part, because of Mr Outingdyke’s sexual orientation,” Parrack said in her decision.
Norcross also testified that Laing had asked if Outingdyke had AIDS, but Laing denied this to the tribunal.
After Outingdyke filed his complaint, Norcross testified she received a call from Laing asking why Norcross would say she had asked about Outingdyke’s AIDS status. Norcross said she felt Laing was attempting to intimidate her.
Parrack concluded that “Ms Laing had something to hide regarding her interactions with or views of Mr Outingdyke and her reasons for recommending that he not be approved as a purchaser.”
The “absence of direct evidence does not necessarily lead to the conclusion that discrimination was not a factor in the actions taken by the board,” Parrack noted. “It is a rare case that a person will explicitly say he or she is denying an opportunity because of the other person’s sexual orientation and/or physical disability. Discrimination is more often insidious and, as a result, the actions of the individuals involved in a complaint must be closely examined to determine if discrimination played a role in the decisions made.
“I have found that Mr Outingdyke’s sexual orientation was a factor in the decision of the board to deny him the opportunity to purchase an interest in Irving Apartments,” Parrack ruled.
Norcross eventually sold the suite to someone else for $70,000.