Judy Atkinson v. Essex Condominium Corp. #5, 2009 HRTO 1802

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judy Atkinson

Applicant

-and-

Essex Condominium Corp. #5

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 29, 2009

Citation: 2009 HRTO 1802

Indexed as: Atkinson v. Essex Condominium Corp. #5

INTRODUCTION

1The purpose of this Interim Decision is to request written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of another legal proceeding.

BACKGROUND

2The applicant, who is the owner of a condominium unit in Essex Condominium Corp. #5, filed an Application under s. 34 of the Code on March 24, 2009, which alleges that the respondent harassed and discriminated against her because of her disability and subjected her to reprisal with respect to accommodation. Her main allegation is that the respondent is attempting to remove her support dog, which she requires to decrease and treat the symptoms of her disabilities, from her condominium.

3The respondent filed a Response on August 21, 2009, which denies the allegations of harassment and discrimination, and 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. Specifically, the respondent submits that it filed a Notice of Application on August 27, 2008 with the Ontario Superior Court of Justice, which seeks an order against the applicant pursuant to the Condominium Act, 1998, S.O. 1998, c. 19 to enforce compliance with the respondent’s “no pets” by-law.

4In a previous Interim Decision, 2009 HRTO 1266, the Tribunal ordered the applicant to file the parties’ pleadings from the civil proceeding. The applicant submitted a Motion Record and a letter from her legal counsel, which stated, among other things, that the applicant’s position in the civil proceeding is that the enforcement of the “no pets” by-law effectively prohibits her living from independently within her unit, which amounts to discrimination based on disability.

5It is unclear from the pleadings and materials filed by the parties whether the applicant is seeking any remedies in the civil proceeding based on alleged human rights violations

DEFERRAL

6In my view, prior to considering the respondent’s request for early dismissal of the Application, it is appropriate to request submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of the civil proceeding.

7Rule 14.1 of the Tribunal’s Rules of Procedure states that the 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. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

8In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral 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.

Some 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 status of each proceeding and the steps that have been taken to pursue them.

9The Tribunal requests that the parties provide written submissions that address whether the Tribunal should defer consideration of the Application pending the outcome of the proceeding before the Ontario Superior Court of Justice. The submissions should address whether the applicant is seeking any remedies in the civil proceeding based on alleged human rights violations.

ORDER

10The Tribunal therefore makes the following Order:

(a) The respondent is directed to deliver to the applicant and file with the Tribunal by November 12, 2009 written submissions, including documents and case law, if any, which address the deferral issue.

(b) The applicant is directed to deliver to the respondent and file with the Tribunal by November 19, 2009 written submissions, including documents and case law, if any, in reply.

11The respondent’s request for early dismissal of the Application will be addressed, if necessary, after the Tribunal has made a decision with respect to the issue of deferral.

12I am not seized of this matter.