Castellanos v. Guise Street Housing Co-operative Inc., 2009 HRTO 1174

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaime Castellanos Applicant

-and-

Guise Street Housing Co-operative Inc., Dave Smart, John Turford, Debbie Schrader, Andrew Hoekstra, Wayne Stewart, Alan Skinner, Judy Skinner and Dale Unsworth Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: July 30, 2009 Citation: 2009 HRTO 1174 Indexed as: Castellanos v. Guise Street Housing Co-operative

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 23, 2008. The applicant alleges discrimination in housing based on race, place of origin, citizenship, family status, association with a person identified by a ground under the Code and reprisal. This Interim Decision deals with a request from the respondents for an early dismissal of the Application or, in the alternative, a deferral.

Dismissal

2The respondents indicate in their Response that they are seeking a dismissal of the Application on the grounds that another proceeding has dealt with the substance of the Application in whole or in part. The proceeding in question is a civil action for libel initiated against the applicant by the institutional respondent, Guise Street Housing Co-operative; one of the personal respondents, Dave Smart; and the Golden Horseshoe Co-operative Housing Federation. The statement of claim in this action argues that two letters written by the applicant and widely distributed are defamatory. Many, although not all, of the alleged defamatory passages in these letters are ones in which the applicant describes the plaintiffs’ actions as discriminatory, racist or as having violated the Code.

3The applicant opposes the request to dismiss arguing that the civil action is a retaliatory measure that was undertaken when the respondents learned that he was in contact with the Ontario Human Rights Commission.

4The Request to dismiss is denied. The authority for the Tribunal to dismiss on the grounds that there is another proceeding that has dealt with the substance of an Application derives from section 45.1 of the Code, which states:

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 Tribunal discussed the purposes of s. 45.1 in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 61:

(…) section 45.1 provides a basis for the Tribunal to preclude the re-litigation of issues that have been dealt with in another forum. This provision, along with other parts of the Code, gives expression to a legislative intention to avoid the duplication of proceedings.

6The applicant’s Application is not an effort to re-litigate a matter that has been dealt with. I am satisfied that the words dealt with indicate that the other proceeding will have made relevant preliminary decisions or come to a final determination before the Tribunal would consider dismissing an application under section 45.1. There is no evidence that the civil action undertaken by the institutional respondent and one of the personal respondents has been decided or made any determinations that deal with the substance of the Application.

Deferral

7The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1).

8Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

9Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer having regard to the nature and status of each proceeding and the steps that have been taken to pursue them.

10I am of the opinion that a deferral is not appropriate in this case. The civil action by some of the respondents is specific to the content of two letters. While the civil action and the Application might involve some of the same events, they deal with different legal theories. A finding that the applicant’s letters were libellous or not might not be significant in determining the applicant’s allegations of discrimination and whether there has been a violation under the Code.

11I note that the remedies being sought in each proceeding are decidedly different. The plaintiffs in the civil action are seeking significant financial damages while the applicant is seeking financial remedies as well as public interest remedies of his own. I also have no evidence that the civil action might be close to resolution, a factor that has been considered in other Tribunal decisions (Klein v. Toronto Zionist Council, 2008 HRTO 189). Finally, while I appreciate that potentially there may be some complications if the two proceedings overlap, I find that it would not be fair to the applicant to require that he wait to pursue his rights under the Code while the plaintiffs pursue their civil action.

12I am not seized of this matter.