Martin Simard v. Nipissing Condominium Corporation No. 4, 2009 HRTO 1150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martin Simard

Applicant

-and-

Nipissing Condominium Corporation No. 4

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: July 27, 2009

Citation: 2009 HRTO 1150

Indexed as: Simard v. Nipissing Condominium Corporation No. 4

1The purpose of this Interim Decision is to address the respondent’s request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant, who is an owner/landlord of several condominium units, filed an Application under s. 34 of the Code on March 24, 2009, which alleges discrimination with respect to housing because of family status. Specifically, he alleges that the respondent’s condominium board is trying to force him to infringe the rights of his tenants by enforcing a section of its Declaration, which restricts the occupancy of each unit to one family.

3The respondent filed a Response on July 15, 2009, which requests an early dismissal of the Application on the basis that a claim based on the same facts has been filed in civil court, which requests a remedy based on the alleged human rights violation.

4Specifically, the respondent submits that it filed a Notice of Application on February 11, 2009 at the Ontario Superior Court of Justice, which sought orders against the applicant under the Condominium Act, 1998, S.O. 1998, c. 19, and the applicant then filed a Notice of Motion on March 31, 2009, which requested a stay of the proceeding until the Human Rights Tribunal of Ontario (the “Tribunal”) had adjudicated his Application under the Code. The respondent further submits that the Court dismissed the applicant’s motion on April 8, 2009, but on May 5, 2009 the applicant filed a Notice of Appeal with the Ontario Court of Appeal.

5The applicant filed a Response to a Request for an Order on July 15, 2009, which opposes the respondent’s request for an early dismissal of his Application. The applicant admits that there are proceedings before the Superior Court and the Court of Appeal, but submits that his choice of venue to the Tribunal should be respected and upheld.

6Section 34 (11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

7Section 46.1 of the Code provides:

(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

8Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action: see Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10.

9In the case at hand, the applicant has requested that the Court of Appeal stay court proceedings before the Superior Court, which were initiated by the respondent, until the Tribunal has adjudicated his human rights Application. There is no indication in the parties’ pleadings, submissions or the attached court documents that the applicant has made a claim for remedies under section 46.1 of the Code in an ongoing civil proceeding. The respondent’s request for an early dismissal of the Application on the basis that it is barred by subsection 34(11) of the Code is therefore dismissed.

10I am not seized of this matter.