John v. Gateway Property Management Corporation, 2009 HRTO 2243

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Princely John

Applicant

-and-

Gateway Property Management Corporation

Respondent

interim DECISION

Adjudicator: Judith Hinchman

Date: December 22, 2009

Citation: 2009 HRTO 2243

Indexed as: John v. Gateway Property Management Corporation

oral SUBMISSIONS BY

Princely John, Applicant ) Self-represented

Gateway Property Management Corporation, ) Kristin Carnie, Counsel

Respondent )

INTRODUCTION

1This is an Application filed December 29, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights Complaint (the "Complaint") was filed with the Ontario Human Rights Commission on May 21, 2008 and abandoned upon filing this Application with the Tribunal.

2This Decision addresses respondents' Request (the "Request") to dismiss the Application under section 45.1 of the Code as a matter that has been appropriately dealt with in another proceeding. If the Application is not dismissed, the respondents request that the personal respondent Shannon Kiekens be removed.

NATURE OF THE DISPUTE

3In late 2001, the applicant entered into a lease with the corporate respondent, Gateway Property Management Corporation (the "Landlord"). In August 2006, the Landlord completed some construction work on the rental premises that caused some damage to the applicant's rental unit. The applicant also alleges that personal effects were damaged.

4When the Landlord did not repair the damages, the applicant stopped paying rent. Pursuant to the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "RTA"), both the Landlord and the applicant made applications to the Ontario Landlord Tenant Board (the "LTB"). These applications were heard together on September 20, 2007, November 1, 2007, and November 20, 2007. The LTB issued its decision on November 22, 2007 (the "LTB Decision").

5The law firm who the Landlord retained to represent it before the LTB in the above applications employed Paralegal Shannon Kiekens.

6On May 5, 2008, the applicant filed his Complaint alleging that the respondents discriminated against him in the social area of accommodation on the grounds of disability, colour, ethnic origin, race, and reprisal.

7In making its Request, the respondents' position is that the LTB Decision has appropriately dealt with the subject matter of the Application.

8The applicant's position is that the Code and RTA are two different legal schemes and that whereas his application before the LTB focused on the RTA and damages flowing from that, the LTB did not consider the discrimination issues in his Application such as his allegation that delay in repairing his unit was motivated by racial discrimination.

SECTION 45.1

9Section 45.1 of the Code provides:

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.

10It is helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application. With regard to the second part, the Tribunal may consider 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. See Robinson v. Spanish (Town), 2009 HRTO 1484.

11In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1, which include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that was reached in the other forum.

12Applying Campbell, supra, the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, stated that other relevant factors are the purpose of the statutory scheme governing the other proceeding, whether the same question was decided, whether human rights principles were applied, and the safeguards available to the parties in the other administrative proceeding.

ANALYSIS

Is the Previous Process a Proceeding within the Meaning of Section 45.1?

13The Tribunal has found that an LTB hearing meets the requirements of section 45.1. See Carlos v. 1174364 Ontario, 2008 HRTO 403. I find no reason to depart from that conclusion in the current case.

Did the Previous Proceeding Appropriately Deal with the Substance of the Application?

Does the Application raise the same or substantially the same facts and issues?

14The respondent Landlord applied for an order of the LTB to terminate the tenancy and evict the applicant and his spouse for failure to pay rent. The applicant applied for an order determining that the Landlord failed to meet its maintenance obligations under the RTA and failed to comply with health, safety, housing, or maintenance standards.

15The respondents argue that the facts are identical in each proceeding: construction work on the premises, alleged damage to a rental unit and personal property, alleged necessary repairs and replacement of personal property, delayed repairs of the rental unit, and the failure of the Landlord to meet its RTA obligations. In addition, the applicant alleges in this Application and alleged before the LTB that he suffered both an allergic reaction to, and asthma attack because of, the construction dust.

16The Application raises the following issues:

a. The Landlord failed to comply with its legal obligations respecting health, safety, housing, and maintenance standards. b. The Landlord's failures in these areas were motivated by racial discrimination. c. The Landlord failed to pay interest on the applicant's last month's rent, failed to properly notify him of rent increases, and failed until his last month of tenancy to send him rent receipts or statements of payments made. d. These failures evidence a pattern of racism. e. Construction work outside his apartment unit caused debris and water to be sprayed into the unit. f. The dust associated with the construction resulted in an asthmatic attack. And by not repairing the damage the Landlord took advantage of the applicant's asthma disability. g. Damage to the unit included damage to the applicant's personal belongings. h. Repair to the damage was delayed due to racial discrimination.

17The applicant requests the following remedies:

a. Abatement of rent (Jan. 07 to Aug. 07) b. Return of the last month's deposit c. If an adjustment of interest is not allowed then return the sum owed to him d. Application fee e. Return the amount charged for extra access card f. Compensation for damage to his personal property g. Reimbursement for cleaning he did after the construction h. Punitive damages i. Costs j. Other legal remedies

18In the LTB Proceeding the following issues, which overlap those in the Application, were raised:

a. Did the landlord fail its obligations under the RTA to comply with health, safety, housing, and maintenance standards? b. Was the applicant given proper notice of rent increases? c. Did the Landlord pay interest to the applicant on the last month's rent deposit? d. Did the Landlord fail to repair damage to the ceiling in the applicant's unit following construction work on the concrete wall of the residential complex? e. Were other damaged units repaired? f. Was the Tenant's personal property damaged from debris and dust from the construction? g. Did the applicant suffer either or both an allergic reaction and asthmatic attack from exposure to construction dust?

19The LTB awarded monetary damages to each party, applying appropriate set-offs.

20Following my review of the Complaint and the LTB Decision, I find that other than allegations of racial discrimination and reprisal the same or substantially same facts and issues are raised in both proceedings.

21The LTB Decision did not consider any allegations of racial discrimination or reprisal. The respondents' position is that adding the allegation of discrimination does not add to or change the essence of the issues that were considered by the LTB. They argue that the applicant is bringing this Application based on the same facts that have already been adjudicated in an attempt to secure remedies already denied by the LTB.

22In the LTB decision the adjudicator states that these parties had been before the LTB at least seven times within a few years. At the CRC the respondents claimed and the applicant admitted that in past LTB applications he had raised racial discrimination. He maintains however that in this LTB application he focused only on contract issues and did not seek punitive damages for discrimination.

23I agree with the applicant that in its latest LTB Decision, the LTB did not consider issues of discrimination. It did however consider and make findings with respect to all of the other factual issues raised in this Application.

24The Code s. 45.1 permits the Tribunal discretion to dismiss part of an application if it is of the opinion that another proceeding has appropriately dealt with that part of the application. This is in keeping with the legislative intent to avoid the duplication of proceedings and the re-litigation of issues as expressed by s. 45.1 of the Code.

Was the substance of the Application "appropriately dealt with" in the other proceeding?

25The question then is was the substance of the overlapping factual issues appropriately dealt with by the LTB Decision.

26In detailed reasons, the LTB made findings with respect to all the issues raised in this Application except for whether or not the Landlord was motivated by racial discrimination when: it failed to provide proper notice for a rent increase, delayed repairing the applicant's unit beyond its repair of the other damaged units, and failed to pay interest on his last month's rent deposit. The LTB found that the evidence did not support that the applicant's personal property was damaged by the construction or that he suffered an allergic or asthmatic attack. The LTB ordered monetary awards to both parties that reflect consideration of most of the applicant's remedies requested in this Application.

27The RTA provides that an order of the LTB is final and binding, although a party may appeal to the Divisional Court on a finding of law (ss. 209, 210). Neither party has filed an appeal and the LTB Decision is therefore final.

28In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical and I do not need to agree with the LTB's findings.

29I conclude that the respondents have established that part of the substance of the Application has been appropriately dealt with in the proceeding before the LTB and thus with respect to those portions of the Application the requirements of s. 45.1 of the Code have been met.

30I find that it would be appropriate to exercise my discretion to dismiss the parts of this Application that have already been considered and dealt with by the LTB and that it would not be appropriate to relitigate certain findings of the LTB that are based on the same factual disputes raised in this Application. The parties will not be permitted to relitigate these findings:

a. With respect to the construction, the LTB found that the Landlord failed to comply with its legal obligations respecting health, safety, housing, and maintenance standards.

b. Construction work outside his apartment unit caused damage to the applicant's apartment bedroom ceiling and wall, however, that damage did not extend to the applicant's personal belongings.

c. The LTB found that the applicant did not establish that the construction resulted in an asthmatic attack.

d. The Landlord improperly delayed in repairing the applicant's unit between March 2007 and August 2007. Of the nine units damaged the other eight were repaired within this period.

e. Any delay in repairing the applicant's unit past August 2007 was due to the failure of the applicant to permit access to his unit.

f. The Landlord failed to pay interest on the applicant's last month's rent, failed to properly notify the applicant of rent increases, and failed until his last month of tenancy to send him rent receipts or statements of payments made.

31The remaining issue in the Application thus is whether or not the Landlord discriminated against the applicant on the basis of colour, ethnic origin, race, or reprisal when: it failed to provide proper notice for a rent increase, for the period of March 2007 to August 2007 improperly delayed repairing the applicant's unit, and failed to pay interest on his last month's rent deposit.

REMOVAL OF PERSONAL RESPONDENT SHANNON KIEKENS

32Pursuant to The Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code, Rule 4.3, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal set out the following non-exhaustive list of factors to assess whether a personal respondent should be removed:

1. Is there is 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 personal respondent who sought to be removed?

3. Is there is 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?

33The Tribunal in Persaud, supra further stated that in considering whether any compelling reason exists to continue the proceeding against a personal respondent, 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.

34Personal respondent Shannon Kiekens was at the relevant time a Paralegal employed by the law firm who the Landlord retained to represent it before the LTB in the fall of 2007 proceedings. In the Application there are no specific allegations against this respondent. All the allegations pertain to actions of the corporate respondent. Thus it does not appear necessary to involve her as a party in order to have a fair, just, and expeditious resolution of the merits of the Application. As such I find that no prejudice would be caused to the applicant as a result of removing this personal respondent. Therefore there appears to be no compelling reason to continue the proceeding as against Ms. Kiekens and for all these reasons I order that Ms. Kiekens be removed as a party to this proceeding.

ORDER

35The respondents' Request to remove the personal respondent Shannon Kiekens is granted and the style of cause amended accordingly.

36The respondents Request that the Application is dismissed is granted in part. The LTB findings listed in paragraph 30 above shall not be relitigated. The remaining issue, as follows, will be scheduled for a Case Resolution Conference: