Shaltout v. Toronto Community Housing Corporation, 2009 HRTO 2245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hossam Shaltout

Applicant

• and-

Toronto Community Housing Corporation, Anushia Mohan, Karen Philips and Mary Roknic

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: December 22, 2009

Citation: 2009 HRTO 2245

Indexed as: Shaltout v. Toronto Community Housing

AppearanceS BY

Hossam Shaltout, Applicant ) On his own behalf

Toronto Community Housing Corporation, ) Orna Raubfogel, Counsel

Anushia Mohan, Karen Philips and Mary Roknic, )

Respondents )

1This is an Application filed June 26, 2009 under section 53(5) of the Human Rights Code, R.S.O, c. H. 19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on February 11, 2008 and abandoned upon the filing of this Application with the Tribunal. The applicant claims that he has suffered discrimination in the area of accommodation in that he was evicted and denied occupancy of a rental unit because of sexual orientation and disability.

2The respondents state that the claims and fundamental issues raised by the applicant in this Application have already been adjudicated upon by the Landlord and Tenant Board (the “Board”) in accordance with the Residential Tenancies Act, 2006. The respondents ask that this Application be dismissed pursuant to section 45.1 of the Code. A hearing was held on December 3, 2009 to address this Request.

BACKGROUND

3The corporate respondent applied to the Board for an order to terminate the tenancy of Morton Kazzaz, who had vacated his rental unit, and to evict the applicant as an unauthorized person occupying the rental unit. The applicant had been rooming with Mr. Kazzaz and continued to occupy the rental unit following Mr. Kazzaz’s departure.

4The applicant also initiated an application against the corporate respondent at the Board alleging, among other things, that he had the right to occupy the rental unit and that he was wrongfully locked out of the rental unit by the corporate respondent. In that application the applicant was seeking an order that would allow him to remain in the rental unit. The same allegations that he was entitled to the rental unit and that he was wrongfully locked out of the unit by the corporate respondent are made in this Application and the applicant seeks the same remedy from this Tribunal, namely, an order that would allow him to continue to occupy the unit.

5Both applications were heard together by the Board. At the hearing, the applicant put forward the argument that he had been discriminated against by the corporate respondent and argued that the corporate respondent evicted him and refused him occupancy of the unit because of his sexual orientation and his disability and he sought relief from eviction on that basis.

DECISION

6The Application is dismissed.

ANALYSIS

7Section 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.

8The issue for this Tribunal is whether the Board appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

9In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was useful 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.

10Was there another proceeding? In my view, the definition of “proceeding” would include any formal legal proceeding in which disputes are disposed of in a manner which ensures that due process is accorded to all parties. I am satisfied that the adjudicative process engaged in by the Board which is established under a statutory regime is a proceeding within the meaning of s. 45.1 of the Code.

11Was the subject matter of the Application appropriately dealt with? This Tribunal has held, citing jurisprudence of the B.C. Human Rights Tribunal, that it will consider whether the human rights 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 in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405; Rush v. City or Richmond, 2008 BCHRT 62.

12In my view, there is no question that the subject-matter of this Application arises from the same facts that were before the Board.

13The next question is whether the substance of the issues was in pith or essence essentially the same. In my view, they are. The applicant raised the same issues at the Board as he raised in the human rights complaint filed with the Commission, namely that the corporate respondent denied him occupancy of the unit and locked him out of the unit because of his sexual orientation and his disability.

14The parties presented their evidence and made their arguments during the course of a four day hearing. The Board assessed the evidence including making credibility findings. In its reasons the Board found that: “The Unauthorized Occupant [the applicant] was not discriminated against on the basis of his sexual orientation by the Landlord or its staff [the respondents]. The Unauthorized Occupant was not discriminated against on the basis of a mental illness by the Landlord’s staff…”.

15In these circumstances, I am satisfied the proceeding before the Board appropriately dealt with the issues in dispute in this Application. Therefore, the Application is dismissed.