LONDON (September 27 - 30, 1993) - A shock-wave was sent to the heart of the Ontario Human Rights Commission with the hearing of final arguments regarding a filed complaint alleging racist comments made by London landlord Elijah Elieff.
The alleged racist comments were printed by the London Free Press on November 8, 1989, and have since led to the loss of Elieff's two apartment buildings, the loss of his submarine sandwich shop, and an end to his plans to purchase two other buildings next to his. He has additionally suffered a public indignity caused by his being forced to appear before an HRC Board of Inquiry and by being subjected to false and inaccurate coverage of his plight by the London Free Press.
The Board is now faced with the task of responding to a defence that has charged that the Board itself systemically discriminates against the very people it pretends to protect, and that it advances racist agendas. Relatively few Boards of Inquiry ever get to the final argument stage, since most respondents soon come to recognize that the cards are stacked against them before a Board of Inquiry, and that they would be better off accepting a "settlement" offered by the Human Rights Commission.
Elieff, who had been defending himself (beginning in November 1992) without counsel before a HRC Board of Inquiry into the alleged comments, was later represented by Freedom Party leader Robert Metz beginning on the fifth day (February, 1993) of what would turn out to be thirteen full days of hearings. Metz's service as Elieff's representative was voluntary and without compensation.
Metz is not a lawyer, nor did he have any previous experience as a paralegal. He is, however, familiar with the workings and motivations of the Human Rights Commission.
Whereas Commission counsel Geraldine Sanson based her case against Elieff on an arbitrarily filed complaint that furthered the Commission's own policies and social objectives, Metz's defence of Elieff was based strictly upon evidence showing that the alleged charges of racism against him were contrived for purposes completely unrelated to racism. Specifically, those purposes related to the paid lobby efforts of United Church minister Susan Eagle (whose husband, Joe Matyas, is an editorial writer and reporter with the London Free Press) to have Elieff's Cheyenne Ave. apartment buildings converted into government-subsidized co-op housing.
Fundamentally, there were three pertinent witnesses supporting the complainant's case: Chippeng Hom, who was herself the complainant; Susan Eagle, whose interest in Elieff's Cheyenne Ave. apartment buildings included self-admitted plans to have them turned into co-op housing; and Greg Van Moorsel of the London Free Press, whose November 8, 1989 article containing Elieff's alleged "racist" comments was the precipitating event leading to the complaint being filed.
Supporting the respondent's (Elieff's) case, there were nine pertinent witnesses: Elijah Elieff, who himself was the respondent; Sultana Elieff, Zoranco Elieff, and Katrina Elieff, who are members of his family and who each had worked in his Cheyenne Ave apartment buildings; and Mike Sucur, Irina Sucur, Keith Ackworth, John Pipe, and Marie Mowat, all of whom were past or present tenants of the buildings in question, and some of whom were directly involved in the maintenance efforts to keep the buildings and property in proper repair.
"Given the numbers," argued Metz, "it is alarming how many inconsistencies and contradictions appear in the testimonies of the complainant's three witnesses, versus the consistency and credibility of the respondent's nine witnesses. One would assume, given the odds, that more inconsistencies would appear given a greater number of witnesses. But that has not been the case."
Metz began by pointing out overwhelming evidence that there was a planned and coordinated collective effort to take control over his buildings. He made it clear that the official complaint was not initiated by the complainant.
"As per the testimony of Susan Eagle, and as per numerous London Free Press newspaper articles," said Metz, "we know that a collective effort was made to seek out a complainant, an effort that did not exist before, and began on the day following, the appearance of the November 8, 1989 article quoting Mr. Elieff's alleged racist comments. It was not Chippeng Hom who sought out the aid of the 'community.' It was the 'community.' led by Susan Eagle, that sought out the aid of Chippeng Hom.
"Said Susan Eagle: '...so therefore although it is Chippeng filing the Human Rights complaint, it came out of the process of about 20 families gathering together to discuss what a community solution might be. Certainly, part of my job is to push people......'"
Metz went on to attack the credibility of both the complaint and the complainant, arguing that all three "witnesses" against Elieff (i.e., Hom, Eagle, the London Free Press) actually represented a single interest with the single objective of having Elieff's buildings converted into public housing.
But Metz did not stop there. He also directly attacked the credibility of the Human Rights Commission itself, arguing that it was a prejudiced organization advancing a racist agenda.
"Using statistics, ratios, financial records, and legal definitions that often have little or no resemblance to their dictionary counterparts, the Commission operates on the prejudiced assumption that this kind of statistical 'evidence' can somehow accurately define the deepest and innermost personal feelings and attitudes that individuals may have about each other, for whatever reasons," argued Metz. "I must argue my case that the Human Rights Commission and its Boards of Inquiry, by their actions and decisions, harbour a prejudiced view of the very people they purport to support, and that in so doing, they advance racist agendas."
To illustrate his point, Metz examined the "Hubbard Decision" in the matter of another HRC complaint filed by Ashit Kumar Ghosh against Domglas Inc.: This was one of the authorities cited by Commission counsel Sanson in her arguments against Elieff.
In that decision, Hubbard ruled:
"While there is nothing to suggest that Mr. Ghosh was harassed because of his race, in considering damages it is to be remembered that the wrongdoer takes his victim as he finds him. His membership in a visible minority may have had nothing to do with the harassment, but I have no doubt that that fact was a subjective element increasing his vulnerability and anguish."
"If these are the types of precedents to which I must refer in order to defend Mr. Elieff, I must respectfully suggest to this Board that this whole process of holding hearings is totally unnecessary," Metz sarcastically declared. "If the evidence presented does not have to relate to decisions handed down by the Board, why bother with hearings?" (Of course, this is exactly what the government's Cornish Commission has recommended.
"Commission counsel has not only failed to do so," emphasized Metz, "but has not even made any effort to do so, being guided as she is by the mandates and prescriptions of the Human Rights Commission. Indeed, what she is trying to do is to prove that the condition of Mr. Elieff's apartments is not equal to the condition of other apartments which are not owned by Mr. Elieff!"
"Ms. Sanson has argued that she wishes '...to demonstrate Elieff's comments were of a racial nature and conduct which amounts to unequal treatment.' Thus, the argument is a circular one: unequal treatment, based upon a comparison to circumstances not related to Elieff's properties or actions, therefore proves that his comments were of a 'racial nature,' which in turn proves that he is guilty of 'unequal treatment'."
Metz also attacked the Commission's assumed argument that because Elieff blamed some of his tenants for the damage at his apartment buildings, he was guilty of carrying "stereotypical assumptions that Cambodian persons seem to thrive in this kind of environment..."
"This again is part of the Commission's circular argument," illustrated Metz. "It denies the respondent the right to argue that certain tenants ARE responsible for the condition of his buildings, which is critical to his defence."
As a consequence, Metz was limited at
the conclusion of his arguments to asking for
the case against Elieff to be dismissed and
costs be awarded. On the other hand, Commission counsel Sanson had "quite a detailed
request for an order" and reminded Board
chairperson Ajit John about the "wide discretionary powers"
at his disposal, including his
right to order "anything" against the respondent.
Sanson requested that John make the
following orders against Elieff:
that Elieff pay Chippeng Hom $10,000 as compensation to her "dignity" and "self respect;"
that Elieff pay Hom an additional $10,000 for creating a "poisoned environment;" (which was the public notoriety surrounding the case)
that another $10,000 be awarded for "denial of equal treatment;" (meaning that Elieff's buildings were not "equal" to other buildings not owned by him)
that $10,000 be awarded for "reprisal;" (in reference to Elieff's attempts to have tenants evicted for non-payment of rent)
that Elieff arrange translation services in the first language of the tenants;
that Elieff identify and provide tenants with a "needs and resource person;"
that Elieff advise tenants who is responsible for the property;
that Elieff assure that all his tenants are advised of their rights and obligations in their first language; (i.e., Cambodian or Vietnamese)
that Elieff give his employees signing authority to sign cheques;
that Elieff set aside any and all transfers and conveyances of property made by him since the beginning of the hearings; (which have dragged on for almost a year)
that Elieff bring his outstanding mortgage payments up to date;
that Elieff pay $409,900 into a trust fund to be set up and managed by Susan Eagle's tenants' board;
that Elieff spend $70,000 to replace all of the single-glazed windows in his buildings with double-glazed windows;
that post-judgment interest be assessed against Elieff;
that Elieff and his son Zoranco enroll in and attend a government-approved "anti-racism" training course within one year;
that similar "training" be provided for all future superintendents;
that Elieff be forced to pay $6,000 to place a full-page ad in the pages of the London Free Press (the key "witness" against him!) which would be written by the tenants' board; and
that the Board of Inquiry "remain seized" (i.e., remain in operation) so that any party to the hearings can ask the Board to reconvene.
Metz called the Commission's requested orders a "cruel and unusual punishment" that rewards all those implicated in the concerted effort to discredit Elieff. Metz made it clear to Board chairperson Ajit John that he also considered the Human Rights Commission to be implicated in the effort against Elieff by its refusal to address the issue of Elieff's guilt or innocence before going about making "settlement negotiations" or awarding judgements.
Metz argued that it was the Board's responsibility under Part IV, Sec 39(1) of the Human Rights Code not only to determine whether a right of the complainant under the Act has been infringed, but also to determine who infringed the right. By requiring parties to conciliate on the basis of a complaint, the determination of who infringed the right has been bypassed, particularly in a case where a respondent believes himself to be innocent.
Metz illustrated by way of an analogy:
"If this were a criminal trial, and Mr. Elieff was charged with a crime, surely evidence showing that someone else committed the crime would exonerate Mr. Elieff. Yet, this is not the principle on which this board has proceeded. We have been constantly reminded that Susan Eagle or the London Free Press are "not on trial here," and that we should focus our attention on the specifics in Hom's complaint. Yet Mr. Elieff's only response to the complaint is that they (Eagle and the London Free Press) are the initiators of the whole process that has brought him before this hearing.
"Equitable principles?" asked Metz. "Not by a long shot!"
Meanwhile, Elieff's buildings have been sold under power of sale, while over $300,000 of renovations have already been made to the buildings by the now owners.
This presents a potential danger to the new owners, who, under HRC legislation, may become the target of the Board of Inquiry's assessed penalties. Under HRC legislation, penalties assessed to an owner of a building, business, or service can get passed on to subsequent owners.
Theoretically, in Elieff's case, this means that the now owners of the buildings could be forced to fund all or part of a $409,900 tenants' trust fund, should that be awarded. Queries were still being made by the Board as late as December 2, 1993, about the buildings' current status and the potential effect it might have on the Board's decision.
To add insult to injury, the NDP government has just announced financing for Susan Eagle's Cheyenne Co-op housing project! It would seem that her intensive five-year-plus lobby efforts have successfully combined with the editorial and news support of the London Free Press to make this project the politically correct thing to do. However, the government financing may have arrived too late, given that the buildings for which it was lobbied have already been renovated and upgraded by private interests. Nevertheless, the money is still available to Eagle, and she has already hinted that she may have to move to another area to build a new co-op housing project.
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last updated on April 28, 2002
