Kilfoyl v. Nipissing Condominium Corporation No. 4, 2010 HRTO 1036

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Kilfoyl

Applicant

-and-

Nipissing Condominium Corporation No. 4 and Barb Kimber

Respondents

DECISION

Adjudicator: Sherry Liang

Date: May 7, 2010

Citation: 2010 HRTO 1036

Indexed as: Kilfoyl v. Nipissing Condominium Corporation No. 4

1This is an Application filed on December 7, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application alleges discrimination on the grounds of family status, marital status and age as well as reprisal or threat of reprisal under the Code.

BACKGROUND

2The respondent Nipissing Condominium Corporation #4 (the Corporation) is a condominium corporation consisting of 60 townhouse units. The Application arises out of actions taken by the respondent to enforce its Declaration and By-laws which restrict the occupancy of units to families as defined in the Declaration. The applicant owns two units within the Corporation’s condominium complex, which are leased to tenants. In February 2009, the Corporation began an Application in the Superior Court of Justice (the court application) in which it sought, among other things, a declaration that the applicant was in breach of the Condominium Act, 1998 (the “Act”) and that the tenants in one of the units were in breach of the Act, the Corporation’s Declaration and By-laws. The Corporation sought an order from the Court terminating the tenancy of the occupiers of the unit in question.

3The applicant opposed the court application taking the position, among other things, that the relief should not be granted because “enforcement of the definition [of “family”] would require the questioning of prospective tenants in a manner which would infringe the Human Rights Code.” The court application resulted in a decision dated September 9, 2009. In the decision, Justice Stong stated

The issue in this application is whether the Declaration under Part III section 5 by the NCC No. 4 restricting the occupation and use of the units to that of a one family residence as defined in the Declaration, and as implemented by the applicant restricting occupants to members of a “family” who are related to each other, contravenes the Human Rights Code, and therefore is unenforceable as it stands.

4Justice Stong determined:

The restriction in the Declaration in relation to the use of the units does not infringe any grounds listed in section 2(1) of the Human Rights Code based on the facts of this case.

5This decision was upheld by the Court of Appeal, in an oral ruling issued on March 3, 2010. The Court of Appeal’s endorsement states:

In our view, the application judge correctly concluded that the only issue on the application was whether the occupancy provision violated the Human Rights Code, R.S.O. 1990, c. H.19. Further, he correctly decided that the occupancy provision does not infringe any ground listed in s. 2(1) of the Human Rights Code.

6The Application to this Tribunal was filed following the ruling of Justice Stong, and before the ruling of the Court of Appeal. The applicant states that the last event of discrimination was March 2009 and, in describing the alleged discrimination, he states that “Nipissing Condo Corp #4 gave me a court application because I was in breach of the declaration…” He states that “the NCC4 is forcing me to infringe on another rights. NCC4 is forcing unit owners to determine tenants’ family status, marital status and age.” As remedy, the applicant seeks a financial remedy which appears to be reimbursement of legal fees associated with responding to the court application as well as lost rental income. He also seeks the “removal” of the “families only clause” in the Declaration. The applicant provided a copy of the court application record, stating that “it shows all the applicable documents that force me to discriminate.”

7In their Response, the respondents request that the Tribunal dismiss the Application on the basis that a claim based on the same facts has been filed in civil court, requesting a remedy based on the alleged human rights violation. The respondents assert that the Application is accordingly barred under section 34(11)(b), which states:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

8Section 34(12) states that for the purpose of subsection (11), a proceeding or issue has not been finally determined if a right of appeal exists and the time for appealing has not expired.

9The respondents submit that the Application is based on the same facts as the court action and seeks the same remedy based on a violation of the Code as sought in court. The court has made its final decision and the applicant is barred from bringing this Application under section 34(11)(b). The respondents also submit that applying to the courts to seek direction cannot be considered punishment or reprisal against the applicant.

10The respondents note that to the extent the applicant seeks reimbursement of legal expenses, the courts have already decided this issue and in fact have not awarded costs in his favour but rather costs against him. Further, with respect to the second remedy sought, the removal of the occupancy provision in the Declaration, both levels of court have declared that provision to be valid and not in breach of the Code.

11The respondents submit that the Application is an abuse of process, as an attempt to overturn the court decisions. The respondents also rely on section 45.1 of the Code, which gives the Tribunal to dismiss an application in whole or part if it is of the opinion that another proceeding has appropriately dealt with its substance.

12The Tribunal invited the applicant to respond to the request for early dismissal. He has not done so and the time for filing a response to the request has passed.

DECISION

13The Tribunal finds that section 34(11)(b) applies to bar this Application. It is apparent that the Application is based on the same allegations under the Code as those considered and determined in the two levels of court proceedings. The applicant asserts in this Application that he is being compelled to violate the Code rights of his tenants in order to comply with the Declaration. He took this same position before the courts. In finding against him and upholding the terms of the Declaration, the courts have “finally determined the issue” of whether his rights under the Code have been infringed. There is no indication that the applicant has sought leave to appeal the decision of the Court of Appeal.

14Although the applicant checked off the box alleging a reprisal in his Application form, his narrative does not provide any explanation or particulars of what actions are said to constitute a reprisal under the Code. If the applicant believed that the actions taken to enforce the Declaration were themselves a reprisal, it was available to him to raise this argument before the courts, as a defence to the Corporation’s court application. I see no basis to consider the reprisal allegation separately from the main allegation that the applicant is being compelled to discriminate against his tenants, particularly since the Application itself provides no explanation or support for the reprisal allegation. I therefore find that the section 34(11) applies to bar the entirety of this Application.

15The Application is therefore dismissed.