Howard v. Halton Condominium Corporation, 2009 HRTO 1919

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: November 10, 2009

Citation: 2009 HRTO 1919

Indexed as: Howard v. Halton Condominium Corporation

1In this Application, the respondents have filed a Request for Reconsideration of the Tribunal’s Interim Decision, 2009 HRTO 966, dated July 3, 2009 (the “July 3 decision”). The Tribunal has decided to treat the Request as a renewed request for deferral of the Application, pending the completion of arbitration proceedings.

2In the July 3 Interim Decision, the Tribunal denied the respondents’ request to defer the Application pending the arbitration proceedings. In arriving at this decision, the Tribunal stated, among other things:

[12]…. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

13Therefore, the initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues.

19The appointment of an arbitrator under the Act is based on a “disagreement” between the Corporation and an owner with respect to the Declaration. It is possible that, in deciding on the “disagreement” an arbitrator has authority to apply the Code and refuse to enforce a declaration that conflicts with the Code. But the caselaw I have been given does not clearly establish that an arbitrator interpreting the provisions of a contract, albeit governed by the Act and the Arbitration Act, S.O. 1991, c. 17, as amended, has such authority. In this respect, the circumstances here are different from applications that the Tribunal has deferred to grievance arbitrators, whose jurisdiction to apply the Code has a statutory and judicial basis.

20In this context, despite the centrality of the human rights issues to the dispute between the parties, I am not convinced that the potential arbitration will deal with those issues.

3Following the above Interim Decision, the parties appeared before the Superior Court of Justice on an application by the condominium corporation (the “Corporation”) for the appointment of an arbitrator, and a motion by the applicant to stay or dismiss the application to appoint an arbitrator.

4The Court was referred to the proceedings at the Tribunal, and to the Tribunal’s decision not to defer the Application pending arbitration proceedings. The Court ultimately refused the applicant’s motion for a stay, and granted the appointment of an arbitrator: Halton Condominium Corporation No. 59 v. Howard, 2009 CanLII 44710 (Ont. S.C.). The respondent’s renewed request for deferral of the Tribunal Application rests essentially on the reasons given by the Court.

5Among other things, the Court stated that where “the parties do not agree on which forum should decide the case, the courts have examined the timing of commencement of the respective proceedings, the subject-matter, the jurisdiction of the respective bodies and the procedural consequences to the parties of proceeding in one forum or the other.” These are not unlike the considerations the Tribunal has referred to in its decisions on whether to defer Tribunal proceedings to other proceedings.

6In the course of its reasons, the Court also considered the manner in which the Tribunal analyzed the question of whether an arbitrator under the Condominium Act, 1998, S.O. 1998, c. 19 has the ability to deal squarely with the human rights issues arising out of the dispute. The Court stated

As a matter of law, the arbitrator will have jurisdiction to deal with all questions of law that arise in the arbitration. Sections 6, 17, 31 and 45 of the Arbitration Act leave no room for doubt on this question.

7The Court expressed the hope that the Tribunal would reconsider its decision not to defer the Application stating that, “If not, two parallel proceedings may take place more or less at the same time.”

DECISION

8Although the Tribunal, as expressed in the Interim Decision of July 3, had some doubt about whether the potential arbitration would deal with the human rights issues between the parties, the Court’s decision provides clarity on this question. The Tribunal accepts the Court’s view that the arbitrator will have jurisdiction to deal squarely with the human rights issues arising out of the Application.

9Given this, the principles established by the Tribunal weigh in favour of deferral of the Application to the arbitration proceedings. As I stated in the July 3 Interim Decision, “[w]here the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding.”

10The Tribunal shares the Court’s concern about the prospect of parallel proceedings, and its decisions confirm the general principle that parallel proceedings ought to be avoided.

11I have considered the submissions of the parties on the respondents’ renewed request. Ultimately, the key consideration is the authority of the arbitrator to deal with the human rights issues. This point is not disputed by the applicant. The applicant’s submissions focus on the nature of an arbitration proceeding, which she describes as a “purely private forum”, her concerns about other aspects of the Court’s decision, and the relative expertise of the Tribunal and the arbitrator in human rights issues.

12The applicant’s concerns about the nature of the arbitration process are factors that she can raise if she seeks to continue with her Application following an arbitration decision, and the question arises of what effect to give to that decision.

13The applicant also submits that the Tribunal has set hearing dates on the Application, while hearing dates before the arbitrator are still pending. This is not determinative. There is nothing in the material before me that suggest there will be any inordinate delay in the arbitration process. The fact that hearing dates have been set by the Tribunal does not diminish the concern about parallel proceedings concerning the same facts and issues.

14For these reasons, I grant the respondents’ request to defer the Application pending the completion of the arbitration process.