Human Rights Tribunal of Ontario
B E T W E E N:
Mary-Jane Dann Applicant
-and-
Kim Coombs Respondent
Interim Decision
Adjudicator: Ena Chadha Date: February 19, 2009 Citation: 2009 HRTO 176 Indexed as: Dann v. Coombs
1The applicant alleges discrimination in the areas of housing and goods, services and facilities on the basis of race, sex, sexual orientation and receipt of public assistance and reprisal and/or threat of reprisal.
2The respondent requests early dismissal of the Application pursuant to section 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (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”). The purpose of this Interim Decision is to schedule an opportunity for oral submissions from the parties with respect to the section 45.1 request.
Request to Dismiss Under Section 45.1
3Section 45.1 of the Code provides as follows:
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.
4Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application, see for example, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, and Carlos v. 1174364 Ontario, 2008 HRTO 403.
5With regard to the second branch of the section 45.1 analysis, factors for consideration have included 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.
6The applicant has provided copies of two LTB Orders issued in relation to the facts alleged in her Application. A review of the LTB’s Order dated October 27, 2008, made under section 31 of the Residential Tenancies Act, 2006, indicates that the applicant (the tenant at the LTB) raised concerns of discrimination before the LTB. On pages 4 – 5 of the Order, under the heading of “Discrimination”, the LTB notes that “[t]he Tenant told the Board that she believes she is being discriminated against because of her colour, sexual orientation and her economic circumstances.”
7Rule 22 of the Tribunal’s Rules of Procedure provides:
22.1 The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.
22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.
8Having regard to Rule 22, the Registrar will schedule a conference call in order for the Tribunal to hear submissions regarding the respondent’s request for early dismissal pursuant to section 45.1 of the Code. For the purposes of the conference call, parties should be prepared to make oral submissions and, if necessary, provide evidence on the following issues:
a. Should the Tribunal dismiss the Application, in whole or in part, pursuant to section 45.1, because the substance of the Application has been appropriately dealt with by the LTB?
b. Is the applicant otherwise precluded from re-litigating some or all of the issues and facts that have been decided by the LTB?
9If the parties wish to rely on any supporting material for the purposes of the hearing of this issue (including submissions, facts or legal authorities), the parties are directed to serve the material on the other party and file the material with the Tribunal by no later than two weeks before the date scheduled for the hearing.
10The applicant is directed to Rule 1.13 which requires that a party notify the Tribunal and all parties and their representatives, in writing, of any change in their contact information