Galipo v. St. George Property Management, 2009 HRTO 1704

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Galipo

Applicant

-and-

St. George Property Management Inc. and Sid Moshenberg

Respondents

AND B E T W E E N:

Maria Galipo

Applicant

-and-

Metropolitan Toronto Condominium Corporation #658,

Susan Walsh, Dorthy Freitag and Maxine Marz

Respondents

interim DECISION

Adjudicator: Judith Hinchman

Date: October 19, 2009

Citation: 2009 HRTO 1704

Indexed as: Galipo v. St. George Property Management

WRITTEN SUBMISSIONS BY

) Maria Galipo, Applicant ) Michael Weissenborn, ) Counsel )

St. George Property Management Inc. ) Metropolitan Toronto Condominium Corporation #658, ) Raj Anand, Sid Moshenberg, Susan Walsh, ) Counsel Dorthy Freitag, and Maxine Marz, ) Respondents )

)

1The applicant filed two complaints dated August 5, 2005 (the “Complaints”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the Complaints and filed Applications TR-0558-09 and TR-0558-09 (the “Applications”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. By previous order of the Tribunal, these two files are being processed together. The applicant alleges discrimination in relation to accommodation on the basis of disability and reprisal.

2In their Response to the Applications, the respondents raised as a preliminary issue that the Applications are barred pursuant to section 34(11)(b) of the Code or, alternatively, should be dismissed either pursuant to section 45.1 of the Code or for abuse of process. If the Applications are not dismissed for these reasons, they ask that the personal respondents be removed as parties to the Applications.

3The Tribunal requested submissions from the parties on the jurisdictional issue.

BACKGROUND

4At the time of the alleged incidents, the applicant and her husband lived in a condominium building unit managed by the respondent, Metropolitan Toronto Condominium Corporation #658 (“MTCC”). Providing a doctor’s note in support, in February 2000, the applicant’s husband wrote to the MTCC Board of Directors requesting outdoor overnight parking privileges and a key to the “tower stairwell” as accommodation of the applicant’s disability.

5On March 7, 2005, the applicant commenced a claim for damages in the Toronto Small Claims Court in connection with this matter. The applicant relied on the Code to support her claim for damages resulting from the defendents’ failure to accomodate her disability and because of other alleged discriminatory acts. The defendents were Barry Murphy, not named in the Applications, and Sid Moshenberg, St. George’s Property Management Inc., and MTCC, all of whom are named as respondents in the Applications.

6In the meantime, on January 12, 2006, the applicant and MTCC entered into a parking agreement (the “Parking Agreement”) that was withdrawn by the respondent, MTCC on November 30, 2007 because it claims that the applicant breached the agreement.

7On April 7, 2008, the parties consented to an order in Small Claims Court dismissing the Small Claims Court action.

Decision

8The respondents argue that because the applicant filed a Small Claims Court action, the subject matter of her Applications was dealt with in a civil court proceeding where she requested a remedy based on the human rights infringements alleged in her Applications. They also rely on the fact that the applicant’s Small Claims Court action was dismissed to submit that the matter has been settled. Alternatively, the respondents argue that the accomodation portion of the Applications was settled in 2006 by the Parking Agreement.

9The applicant argues that because the defendents in the Small Claims Court action contested the jurisdiction of that court to hear a matter under the Code, both parties consented to dismiss the action so that the Complaints could proceed before the Commission.

Section 45.1

10The Legislature has indicated its intention to prevent duplication of proceedings by its enactment of s. 45.1, 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.

11The Small Claims Court action was dismissed on consent before that court proceeded to deal with any of the issues presented. Thus the court did not deal with the substance of the Applications and consequently s. 45.1 does not apply.

Section 34(11)(b)

12Section 34(11)(b) bars an application to the Tribunal when a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

13It is clear from the parties’ submissions and filings that the Small Claims Court did not determine whether or not the applicant’s Code rights had been infringed.

14The remaining question is whether, as a result of that dismissal, the matter has been settled. The respondents submit that they brought a motion to dismiss the action and to recoup its costs. The motion relied on unreasonable delay, the Parking Agreement, and lack of jurisdiction. The corporate respondent also reserved its right to collect unpaid parking fees from the applicant. The respondents submit, “[t]he parties ultimately settled the motion and the action by agreeing to a consent dismissal of the action without costs.” (emphasis added) In support, they rely on a letter dated March 24, 2008 from applicant’s counsel that states in its entirety:

We have been retained with respect to this matter.

Our client consents to an order dismissing this action, without costs. Please also treat this as a formal offer to settle the motion returnable April 10, 2008.

15The applicant does not agree that this is proof that she settled the action. On the contrary, she alleges that the parties agreed to the order in Small Claims Court dismissing the case so that the matter could proceed to the Commission.

16The respondents have not filed a settlement agreement pertaining the the above and thus there is no evidence that the applicant’s interpretation of the reasons the parties chose to consent to the dismissal order is not accurate. A plain reading of the letter above suggests that the applicant chose to settle the motion, which was seeking costs, without costs. It does not support that the subject matter of the original action was settled.

17There is no evidence that the parties to the Applications entered into a settlement of the issues in dispute in the Applications as a condition of the consent to dismiss the Small Claims Court action. The respondents have not provided any release documents to support such a finding and the fact the matters proceeded before the Commission would appear to suggest otherwise. In the circumstances, I find the Applications are not barred by s. 34(11)(b).

Parking Agreement

18The respondents argue that the Parking Agreement settled the accomodation issues in the Applications. The Parking Agreement has not been filed. There is no evidence that this was a final settlement or release of the issues presented in the Applications. In these circumstances I am unable to find the parking agreement settled the accommodation issues in dispute in this proceeding.

Abuse of Process

19With respect to abuse of process, in Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 the Supreme Court of Canada held that abuse of process may apply to prevent relitigation of issues previously determined in a different proceeding. In Snow and Ontario Human Rights Commission v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal identified some of the factors that human rights adjudicators have considered in deciding whether it would be an abuse of process to determine issues which have been decided by another decision-maker in another forum.

20There is no evidence in this case that the Small Claims Court decided the issues raised in that action. The evidence is that it was withdrawn by mutual consent prior to any determination of the issues.

21I am not satisfied the evidence before me supports finding that proceeding with these Applications would amount to an abuse of process.

Request to remove personal respondents

22The respondents request that the personal respondents should be removed as parties to the Applications. They rely on Rule 4.3(b) and jurisprudence of the Tribunal including Persaud v. Toronto District School Board, 2008 HRTO 31. Their submissions are:

The addition of the individuals (in this case, a property manager who has since retired) was unnecessary and inappropriate in applications relating to the accommodation obligations of a condominium corporation and a property management company in relation to the applicant’s parking privileges.

23Pursuant to Rule 4.3(b) of the Rules of Procedure for Transitional Applications, the Tribunal has the power to “add or remove a party.” In Persaud the Tribunal suggested that the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the persoal respondent who sought to be removed?

3. Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

24The Tribunal continued to suggest that “one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just, and expeditious resolution of the merits of the complaint.” Persaud, supra.

25In its direction to the parties to make submissions on the issue of jurisdiction, the Tribunal did not direct the applicant to make submissions on this request or invite further submissions from the respondents. It would be helpful for the respondents to make more complete submissions explaining their request and to hear from the applicant as well.

26The parties may wish to review the Tribunal’s case law, including Persaud, supra, prior to providing their submissions on this issue.

ORDER

27According to the following timetable, the parties are directed to make submissions on whether or not the personal respondents in the Applications should be removed.

a. The parties shall each file and serve their submissions by November 4, 2009.

b. The parties shall each file any reply submissions by November 18, 2009.

28The Tribunal may decide this issue on the basis of the written submissions. If the Tribunal determines that an oral hearing is required it will notify the parties.