Howard v. Halton Condominium Corporation No. 59, 2009 HRTO 966

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Theresa 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: July 3, 2009

Citation: 2009 HRTO 966

Indexed as: Howard v. Halton Condominium Corporation No. 59

1This is an Application filed on February 2, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application arises out of the terms of the Declaration of the Halton Condominium Corporation No. 59 (the Corporation), which provides that a unit within the Corporation shall be occupied and used only as a private, single-family residence and for no other purposes. The applicant is the owner or co-owner of four condominium apartments within the Corporation. According to the applicant, she rents her units to 17 individuals who are almost exclusively single, unrelated individuals between the ages of 20 and 23, most of whom are students at a nearby college.

3The applicant alleges that the respondents’ actions to enforce compliance with the Declaration requires her, as a landlord, to infringe the rights of her current and prospective tenants to equal treatment with respect to the occupancy of accommodation without discrimination because of age, family status or marital status, contrary to the Code. She also alleges that the Corporation’s stated intent to recover costs and expenses incurred by the Corporation in connection with the compliance proceedings constitutes a reprisal for her refusal to infringe the right of another person.

4Subsequent to filing the Application, the applicant made a Request for Interim Remedy, in which she sought an order from the Tribunal staying “compliance proceedings initiated by the Respondents under sections 132 and 134 of the Ontario Condominium Act, 1998” (the “Act”), pending a decision from the Tribunal on her Application.

5In their Response, the respondents in turn request that the Tribunal defer the Application until the completion of the arbitration proceedings under the Act.

6The Tribunal scheduled a hearing to receive oral submissions from the parties on the Request for Interim Remedy. The hearing was adjourned on consent as it appeared that the date scheduled, May 14, 2009, was the very day on which the parties were to appear in court on the Corporation’s application to appoint an arbitrator under the Act. In requesting the adjournment, the applicant stated that she intended to seek a stay of the Corporation’s court application before the Court, rather than through her request for interim remedy from the Tribunal.

7On May 22, 2009, the Tribunal requested that the parties provide it with information regarding the status of the arbitration process, following on the May 14 court appearance. The Tribunal requested confirmation from the respondents that they still sought deferral of this Application, and submissions from the parties on whether the court appearance affects their prior submissions on the issue of deferral.

8The Tribunal has received further submissions on the respondents’ request to defer this Application. The parties have advised that the applicant has delivered a Motion to stay the court Application in favour of the Tribunal’s proceedings and that both the court Application and Motion have been adjourned to the week of July 20, 2009.

9In sum, at this point, the Tribunal has received an Application from the applicant which it would normally process by scheduling mediation or, if mediation is declined, proceeding to a hearing. However, the respondents have requested deferral of the Application to another proceeding, and so I will now consider whether to grant that request.

10The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

11The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

12The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. 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.

14Other applications before the Tribunal may raise facts or issues which overlap with those in other concurrent proceedings, but in which human rights issues are not clearly engaged. In those cases, in exercising its discretion to defer, the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.

15The Tribunal has deferred an application, for instance, where the same facts underlay both a civil action and the application to the Tribunal on the grounds that, although the civil action did not raise human rights issues, it was close to its resolution (Klein v. Toronto Zionist Council 2008 HRTO 189). Even if the human rights issues will not be resolved by the civil action, if it is at an advanced stage, it may well be fair, just and expeditious to defer the Tribunal’s proceeding.

16In the case before me, there are concurrent proceedings raising the issue of the enforceability of the Corporation’s Declaration against the applicant. The Corporation views the matter as an issue of the applicant’s non-compliance with the terms of its Declaration. The applicant’s view is that the restrictions in the Declaration result in discrimination against a certain class of renters, identified by prohibited grounds under the Code.

17The parties disagree as to whether an arbitration proceeding under the Act will consider the applicant’s claims under the Code. The applicant states that it will not, in that the mandate of the arbitrator is to determine the issue of the applicant’s compliance with the Declaration. She submits that the issue before the arbitrator will be whether the applicant’s conduct violates the Declaration, not whether the Declaration violates the Code. The respondents, on the other hand, suggest that the applicant is free to raise her claim that the Declaration is discriminatory before the arbitrator. They state that the arbitrator will be bound to determine such a claim and that the applicant can also seek in the arbitration an appropriate remedy under the Code if she is correct in her claims. The respondents have provided me with cases in support of their position that an arbitrator appointed under the Act will deal with the applicant’s human rights claims.

18On my review, it is not clear to me to what extent an arbitrator under the Act will deal squarely with the human rights issues arising out of this Application. All except one of the decisions provided by the respondents arose out of proceedings before the courts. In one of these decisions, the Ontario Supreme Court (as it then was) refused to enforce a condominium declaration which it found which would result in a breach of the Code (Waterloo North Condominium Corp. No. 198 v. Donner, 1997 CanLII 12177). I have no doubt that such a matter was within the authority of the courts, but I have no clear guidance on the authority of an arbitrator under the Act to consider and apply the Code. The one decision of an arbitrator cited by the respondents, Peel Condominium Corporation 117 and Brenda Finhert and Walter Finhert (unreported, June 3, 2009), does not assist in clarifying the matter.

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.

21My above conclusion does not end the matter. As indicated above, even if it is not apparent that other legal proceedings will resolve the human rights issues between the parties, the Tribunal may nonetheless defer to those proceedings based on an assessment of other factors. In the present case, the Tribunal’s proceedings and the proceedings under the Act are at similar stages. Although a court application has been made to appoint an arbitrator under that Act, it has not yet been heard. The Tribunal’s proceedings are also at a preliminary stage, but if the parties decide not to engage in mediation before the Tribunal, the matter will proceed directly to a hearing.

22The parties do not agree about which proceeding was initiated first. Although this Application was commenced in February 2009, it was preceded by efforts by the Corporation to begin the compliance process, which in turn was preceded by efforts by the applicant to raise the human rights issues with the Corporation informally. The history of the proceedings does not permit a conclusion that the parties have chosen another forum that is well on its way to a resolution of the issues. It does not permit a conclusion that the applicant herself has pursued her remedies before another forum, to which the Tribunal ought to defer.

23Both of the parties have also pointed to the respective prejudice to them of proceeding with either the arbitration or the Tribunal Application. The respondents state that if the Application proceeds first, and the Tribunal rules in their favour, they will still have to initiate compliance proceedings, as the Tribunal will not be able to order the applicant to comply with the Declaration. However, if the Tribunal defers to the arbitration, the arbitrator will be able to dispose of all issues between the parties in one forum. The applicant states that litigation through the arbitration process may result in an order of costs against her if she is unsuccessful. I am not persuaded that consideration of the competing prejudice favours one party’s position over another.

24In conclusion, I am not persuaded that there is good reason to defer this Application until the completion of arbitration proceedings under the Act.

25The Tribunal will confirm with the parties whether they wish to engage in mediation and, absent consent to mediate, will issue a Confirmation of hearing setting a date for the hearing of this matter.

26I am not seized.