Elizabeth Carlos v. 1174364 Ontario Ltd. and Manuel Ferreira, 2008 HRTO 403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Carlos

Applicant

-and-

1174364 Ontario Ltd. and Manuel Ferreira

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: December 17, 2008 Citation: 2008 HRTO 403 Indexed as: Carlos v. 1174364 Ontario

APPEARANCES BY

Elizabeth Charlotte Carlos ) on her own behalf

1174364 Ontario Ltd. and Manuel Ferreira ) Hugh R. Scher, Counsel )

1This Interim Decision addresses the respondents’ request for the dismissal of the Application pursuant to s. 45.1 of the Ontario Human Rights Code (the “Code”) on the basis that the substance of the Application has been appropriately dealt with by a decision of the Landlord and Tenant Board (LTB), or in the alternative, by the application of the principles of issue estoppel and abuse of process.

2The Application in this matter was filed on August 11, 2008. It relates to a complaint filed with the Ontario Human Rights Commission on November 6, 2007 alleging the personal respondent, the building manager in the applicant’s apartment, sexually solicited the applicant on August 5, 2007. The applicant further alleged the personal respondent harassed her during a conversation on September 17, 2007, tried to persuade her to leave the apartment, and issued notices of eviction under the Residential Tenancies Act, 2006 which contained sexually demeaning comments.

3At the case resolution conference I gave an oral ruling denying the request to dismiss the Application at this time. These are the reasons for my decision.

Request to Dismiss Under Section 45.1

4Section 45.1 of the Code provides as follows:

a. 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.

5The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

6It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application. With regard to the second issue, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

Is the Previous Process a Proceeding within the Meaning of Section 45.1?

7There is no dispute that an LTB hearing meets the requirements of section 45.1.

Did the Previous Proceeding Appropriately Deal with the Substance of the Application?

Does the Application Raise the Same or Substantially the Same Facts and Issues?

8The respondents applied for an order to terminate the tenancy of the applicant and her co-tenant on the basis on non-payment of rent and/or substantial interference with the reasonable enjoyment of the landlord or other tenants. The co-tenant filed his own application to the LTB alleging substantial interference, harassment, obstruction, coercion, threats and interference by the landlord, the personal respondent and two other persons. The LTB application asserts that part of the alleged interference or harassment were the notices of eviction, which alleged that the applicant was engaged in illegal sexual activity. The notice of application to the LTB also indicates that other evidence of harassment will be raised at the hearing.

9One aspect of the Application before the Tribunal is whether the details contained in the landlord’s notices of eviction contained sexually demeaning comments and whether this could amount to a breach of the Code. One issue before the LTB was whether the landlord’s notice of eviction constituted harassment because of the manner in which it was worded.

10I find that one issue raised in the current Application is substantially the same as was raised before the LTB and they also raise substantially the same factual basis.

11However, there is nothing else in the documentary evidence presented or the LTB’s decision to suggest the alleged sexual solicitation and harassment was considered by the LTB.

Was the substance of the Application “appropriately dealt with” in the other proceeding?

12The LTB concluded the evidence did not establish that the landlord initiated the notice of eviction in order to harass, coerce, threaten or obstruct the tenant.

13The LTB made no assessment of the content of the notices, whether they contain sexually demeaning content or whether that content amounts to a form of sexual harassment. The LTB did not consider any human rights principles in determining the notices of eviction did not amount to harassment.

14The LTB concludes the evidence did not establish that the personal respondent substantially interfered with the applicant’s reasonable enjoyment of her rental unit or that that he harassed, threatened, coerced, obstructed or interfered with her. There is no analysis of the evidence or indication of the human rights principles applied. There is no explanation why the Board rejected the applicant’s evidence or preferred the evidence of the respondents. Having regard to the seriousness of the allegations, I am not satisfied that the LTB dealt appropriately with the allegations of sexual solicitation and sexual harassment.

15Accordingly, I conclude that the respondents have not established that the substance of the Application has been appropriately dealt with in the proceeding before the LTB and thus have not satisfied the requirements of s. 45.1 of the Code.

Issue Estoppel and Abuse of Process

16In the alternative, the respondents submitted that the applicant was barred from raising the issues of sexual harassment or sexual solicitation by the principles of issue estoppel or abuse of process.

17In order to establish an estoppel, the respondents must establish the parties to the two proceedings are the same, the two proceedings raise the same, or substantially the same, issues, and the judicial decision which is said to create the estoppel is a final decision. Even if these criteria are established, there remains a discretion in the decision-maker to decline to apply this equitable principle.

18The abuse of process doctrine has been considered by the Tribunal in cases where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. Even if the criteria for abuse of process are present, there remains a discretion in the Tribunal to decline to apply the principle.

Are the Parties the Same?

19In the present Application the parties are the applicant and the respondents. In the proceedings before the Board, the parties named in the decision were the corporate respondent, the applicant and her co-tenant. The personal respondent was not specifically named in the LTB decision. It is unnecessary to determine whether the personal respondent was a privy to the corporate respondent, in light of my conclusion, below.

Are the Issues the Same?

20I have already decided that only one issue which is currently before the Tribunal was also before the LTB.

Is the Decision Final?

21The Residential Tenancies Act, 2006, S.O. 2006 c. 17 provides that an order of the LTB is final and binding, although a party may appeal to the Divisional Court on a finding of law. (ss 209, 210) . Neither party has filed an appeal and the decision of the LTB is therefore final.

Discretionary Factors

22Even where the requirements of issue estoppel or abuse of process are met, there remains a discretion to prevent these doctrines from operating in an unjust or unfair way: O’Connor v. Canadian National Railway, (2006) CHRT 05 (“O’Connor”) at para 61.

23The list of factors which may be taken in to account in exercising this discretion are open-ended and include:

a) the wording of the statute;

b) the purpose of the legislation;

c) the availability of an appeal;

d) the safeguards available to the parties in the administrative procedure;

e) the expertise of the decision-maker;

f) the circumstances giving rise to prior administrative proceedings;

g) potential injustice. (O’Connor at para 62 to 63).

24Whether the prior proceeding has “appropriately dealt with” the substance of the current proceeding may be a factor equally applicable to the application of the doctrines of abuse of process and issue estoppel. For the reasons expressed above, I am not satisfied that the prior proceeding dealt appropriately with any of the issues raised by the present Application and I am satisfied that it is an appropriate factor to take into account in this case in declining to exercise my discretion.

25Accordingly, the respondents’ request that the Application be dismissed either in whole or in part on the basis of the doctrines of issue estoppel or abuse of process is dismissed.

Opportunity to Raise Issues of Harassment Before the Board

26The respondents submitted that it should not matter whether the applicant actually raised the sexual solicitation or harassment allegations before the LTB. The fact that the applicant had the opportunity to do so should be sufficient to attract the application of section 45.1, issue estoppel or abuse of process. That submission is difficult to accept in light of the specific wording of section 45.1 which requires the Tribunal to be satisfied that the substance of the Application has been “appropriately been dealt with”. This can be contrasted to section 34(1)(a) of the previous Code which provided:

34(1) Where it appears to the Commission that:

(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;

The Commission may in its discretion, decide to not deal with the complaint.

27The change in wording from the old section 34(1)(a) to the present section 45.1 reinforces the approach that the Tribunal should not apply section 45.1 in circumstances where the substance of the of the Application “could have been appropriately dealt with” in another proceeding.

28With respect to the doctrines of issue estoppel and abuse of process the respondents emphasized that judicial economy would be undermined if the applicant were permitted to bring some of her concerns of harassment before the LTB and other aspects of harassment before the Tribunal. The respondents emphasized the LTB’s statutory mandate to expressly deal with issues of harassment by landlords and to make broad remedial orders.

29There may be concurrent jurisdiction between the LTB and the Tribunal with respect to some aspects of sexual harassment of tenants. In my view, the principles of judicial economy are not undermined by permitting tenants to raise issues before the LTB for which that Board has particular expertise and also permitting them to raise other issues before this Tribunal for which we have particular expertise.

Applicant’s Non-compliance with an Order of the Landlord and Tenant Board

30The respondents requested that I decline to hear the Application on the basis that the applicant had not complied with the earlier decision of the LTB to pay the rent arrears, plus interest. The respondents submitted that it would be an abuse of the Tribunal’s process to permit the applicant to pursue her claim before us when the applicant had refused to comply with the LTB order. The respondents did not present any case law to support their proposition that it is abuse of this Tribunal’s process to process an Application from an applicant who is not in compliance with an order from another administrative tribunal. While the jurisprudence of the Tribunal establishes that the categories of conduct which might give rise to a finding of abuse of process are not closed, I am not persuaded that the fact of non-payment of arrears in rent, flowing from an order of the LTB, is an abuse of this Tribunal’s process. It may be that the respondent may wish to raise the issue of a potential set off in respect of any award of damages, if a breach of the Code is proven. However, those matters are better addressed during the case resolution conference on the merits, than at this stage.