Heath v. Kantzas, 2008 HRTO 353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Heath

Applicant

-and-

John Kantzas

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: December 3, 2008

Citation: 2008 HRTO 353

Indexed as: Heath v. Kantzas

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in housing on the basis of disability and receipt of public assistance. This interim decision addresses the respondent’s request that the Application be dismissed.

BACKGROUND

2The Application was filed on August 12, 2008. In his Application, the applicant claims that he was subjected to ongoing verbal harassment and improper eviction proceedings by his landlord, the respondent.

3In its Response, the respondent sought an order deferring the Application on the basis that the subject matter was currently being dealt with by the Landlord and Tenant Board (“LTB”).

4On October 21, 2008, the Tribunal issued an interim decision requesting that the applicant provide submissions on deferral to the LTB matter. The respondent was directed to provide a response within 7 days of the receipt of the applicant’s submissions and include any information about the status of the LTB proceeding.

5Neither party filed submissions in accordance with the deadlines directed by the Tribunal.

6On November 17, 2008, the Tribunal received correspondence from the respondent reporting that the proceedings at the LTB had been completed. In its correspondence, the respondent states as follows:

…the LTB matter was heard on October 23, 2008 and October 27, 2008. On November 7, 2008 an Order was issued under Sections 69 and 87(1) of the Residential Tenancies Act, 2006 (the “Order”). Pursuant to this Order, the Landlord, my client, was granted expeditious eviction of the Tenant, David Heath, and awarded costs. In her determinations, the LTB member addressed the Tenant’s allegations of harassment which also form the matter before the HRTO. At paragraphs 23-31, she determined that the Landlord [sic] had not satisfied her that the activities in question constituted harassment of the Tenant. Attached is a copy of the Order dated November 7, 2008.

Moreover, pursuant to an Order under Section 31 of the Residential Tenancies Act, 2006 issued on October 27, 2008, the LTB Member, dismissed the Tenant’s application where it was alleged the Landlord harassed, obstructed, coerced, threatened or interfered with the Tenant. Attached is a copy of the Order dated October 27, 2008.

We respectfully request this Application be dismissed in light of the decisions hereto attached from the LTB.

7A review of the LTB’s order dated November 6, 2008 made under sections 69 and 87(1) of the Residential Tenancies Act, 2006 indicates that the applicant (the tenant in that proceeding) raised the issue of discrimination on the basis of disability. In particular, paragraph 34 of the Order states as follows:

The Tenant stated that he is a person with a disability as a result of having grade 4 whiplash and spinal stenosis. Although the Tenant alleged that he is being discriminated against as a person with a disability, the Tenant did not provide details of the alleged discrimination or evidence upon which I could make a finding. In addition, on the evidence before me, there was no discernable connection between the grounds for eviction claimed in the Landlord’s application and the medical conditions identified by the Tenant.

8The applicant does not appear to have been copied on the respondent’s correspondence to the Tribunal. Further, it appears from the LTB Order that the applicant was required to move out of the rental unit on or before November 11, 2008.

DECISION

9While the respondents did not expressly refer to the provisions of the Code or provide a legal theory for their submissions, I will treat their submissions as a request that the application be dismissed on the basis of section 45.1 of the Code.

10Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

11Rule 22 of the Tribunal’s Rules of Procedure provides:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

12Having regard to the facts as set out above and the respondent’s request, the Registrar is directed to schedule an oral hearing to determine whether the application should be dismissed on the basis of section 45.1 because of the LTB Orders. At the hearing, the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:

a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1, because the substance of the Application has been appropriately dealt with by the LTB?

b. Is the applicant otherwise precluded from re-litigating some or all of the issues and facts that have been decided by the LTB?

13If the parties wish to rely on any supporting material for the purposes of the hearing of this issue (including submissions, facts or case law not already provided in the Application and Response), the parties are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the hearing.

14The Registrar is directed to provide the applicant with a copy of the letter to the Tribunal from the respondent’s counsel, dated November 17, 2008, along with this decision.

15The applicant is directed to Rule 1.13 which requires that a party and a party’s representative notify the Tribunal and all parties and their representatives, in writing, of any change in their contact information, as soon as possible. Further, the applicant is directed to Rule 2.1 and the Tribunal’s Policy on Accessibility and Accommodation which addresses the procedure for making a request for accommodation in the hearing of an application.

16I am not seized of this matter.