Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 1385

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Teresa Howard

Applicant

-and-

Board of Directors, Halton Condominium Corporation No. 59, Wilson Blanchard Management Inc. and Robert Wilson

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: September 1, 2009

Citation: 2009 HRTO 1385

Indexed as: Howard v. Halton Condominium Corporation No. 59

1This is an Application filed on February 2, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Interim Decision is to deal with the applicant’s Request for an Interim Remedy filed on July 17, 2009.

2The Application arises out of the terms of the Declaration of the Halton Condominium Corporation No. 59 (the “Corporation”), which provides that a unit within the Corporation shall be occupied and used only as a private single family residence and for no other purposes. The applicant is the owner or co-owner of four condominium apartments within the Corporation. According to the applicant, she rents her units to 17 individuals who are almost exclusively single, unrelated individuals between the ages of 20 and 23, most of whom are students at a nearby college.

3The applicant alleges that the respondents’ actions to enforce compliance with the Declaration requires her, as a landlord, to infringe the rights of her current and prospective tenants to equal treatment with respect to the occupancy of accommodation without discrimination because of age, family status or marital status, contrary to the Code. She also alleges that the Corporation’s stated intent to recover costs and expenses incurred by the Corporation in connection with the compliance proceedings constitutes a reprisal for her refusal to infringe the right of another person.

4The circumstances underlying the Application are also the subject of parallel proceedings under the Ontario Condominium Act, 1998, S.O. 1998, c. 19, as amended, (the Act), in which the Corporation seeks to obtain the applicant’s compliance with its Declaration. In those proceedings, there is an Order of the Ontario Superior Court of Justice, dated May 21, 2009, in which the applicant is directed not to renew any existing leases or enter into any new leases until the matter is dealt with by the Court.

5As of June 1, a new group of students moved into one of the condominium units owned by the applicant. The applicant sought to obtain access cards for each of the four students, for purpose of entry into the building. The Corporation has resisted the issuance of card to the students unless certain conditions are met and information provided about their leases. Despite the dispute between the applicant and the Corporation, it appears that temporary access cards have been issued to least two of them.

6The applicant has filed this Request seeking an order from the Tribunal directing the Corporation to provide permanent access cards to the four tenants. She seeks an order that “these tenants, and any subsequent tenants, are entitled to remain in possession of a permanent access card until such time as it is determined, or agreed by the parties, that they are no longer entitled to reside there.” With the Request, the applicant filed a declaration from herself and one of the tenants.

7The Corporation responded to the Request. Among other things, it has provided copies of correspondence between the applicant’s counsel and its own counsel, in relation to the issuance of access cards. The correspondence indicates that the Corporation was willing to provide access cards upon certain conditions being met. The Corporation wished to meet with the students, and have them produce the original, executed lease agreement signed with the applicant and acknowledge its terms and their signatures on the agreement. It required that the students complete Leasing Covenants, and complete a Resident Information Form. The Corporation also required the applicant to sign an acknowledgement as to her responsibility to ensure the tenants’ compliance with the Act, declaration, by laws and rules.

8The correspondence submitted by the Corporation includes the applicant’s response, through counsel, to the conditions required by the Corporation. There is also subsequent correspondence from the Corporation’s counsel further addressing the terms under which it is prepared to issue access cards.

9The Tribunal requested that the applicant reply to the Corporation’s response. In her reply, the applicant does not take issue with the documentation filed by the Corporation setting out the positions of the parties on the access card issue. She does state what she is willing or not willing to do to meet the Corporation’s conditions.

10In support of her Request, the applicant submits that the respondents are withholding permanent access cards making it impossible for the tenants to live in peaceful enjoyment of their home, and driving them to threaten to withhold rent and potentially break their tenancy agreements. She states that this is a calculated effort by the respondents to circumvent the proper legal process. In effect, she suggests that the respondents are using the technique of withholding access cards as a means of bringing an end to the students’ tenancy.

11The respondents oppose the Request. They state that the applicant and her tenants will suffer no harm if they provide the information requested of them in order to obtain access cards. They state that they wish to ensure that the lease for the unit in question was entered into before the May 21, 2009 Court Order. In addition, they state that the information requested is required under the provisions of the Act and is sought as part of the Corporation’s obligations.

DECISION

12The conditions for awarding an interim remedy are set out in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

13In TA v. 60 Montclair, 2009 HRTO 269 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

14At para. 29, the Tribunal noted that an applicant has a “significant onus” in establishing that an interim remedy request meets the conditions of Rule 23.2.

15The interim remedy requested here is that the Corporation issue access cards to the applicant’s student tenants. On my review of the material before me, it does not appear that the Corporation is refusing to issue the access cards altogether. Nor does the applicant disagree with some of the Corporation’s preconditions for issuing the cards. I find that the nature of the issue in dispute is whether or not the applicant may obtain access cards for her tenants on the fulfillment of the terms she is prepared to accept, or on the fulfillment of all the terms required by the Corporation. The interim remedy requested is essentially that the applicant’s tenants be issued access cards on the basis she has proposed.

16Even assuming that the applicant has met the first criteria in Rule 23.2, that the Application appears to have merit, I am not satisfied that the balance of convenience favours the interim remedy requested, or that it is just and appropriate in the circumstances to grant it.

17It does not appear from the material before me that refusing the order requested will result in the end of the tenancies. Although this is the potential harm cited by the applicant, it is more accurate to conclude that the consequence will be that the applicant and her tenants will have to comply with the Corporation’s requirements for obtaining access cards. The material before me does not suggest that those requirements will be impossible or impracticable to meet. It is therefore not apparent to me that the interim remedy sought is necessary to the Tribunal’s ability to grant an effective remedy at the conclusion of the proceedings, if liability is established.

18Further, the Corporation has provided reasons for the conditions it has imposed. One of the reasons is that it has an interest in ensuring that the leases covering the new tenants were not entered into in breach of the May 21 Court Order, which the applicant does not dispute is a legitimate interest. Whether or not the Corporation’s other requirements are strictly necessary, I cannot conclude that the balance of convenience clearly favours the applicant’s position.

19In sum, I am not satisfied that it is just and appropriate to grant the interim remedy sought. The Request is denied.