Tony Reed v. Marilynne Cumming and Michael Cumming, 2010 HRTO 144

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Reed

Applicant

-and-

Marilynne Cumming and Michael Cumming

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: January 22, 2010

Citation: 2010 HRTO 144

Indexed as: Reed v. Cumming

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), involves allegations of discrimination on the basis of disability, family status, and marital status in the context of housing. The applicant also alleges reprisal or threat of reprisal.

2In essence, the applicant alleges that the respondents have discriminated against him by attempting to evict him from his home.

3The respondent Marilynne Cumming is the applicant’s former sister-in-law. The applicant alleges that, but for the breakdown of his marital relationship with the landlord’s sister, the respondents would not have attempted to evict him.

4In the Response, the respondents ask for an early dismissal of the Application. They argue that a proceeding before the Landlord and Tenant Board (“LTB”) has appropriately dealt with the substance of the Application.

5The applicant has not filed a Reply and the time for doing so has elapsed.

6The respondents state that the applicant’s tenancy is in accordance with a provision of a will, which stipulates that, provided he continued to be in a “mutual binding relationship” with Naomi, the applicant could live in the property rent-free in exchange for maintaining it in good repair.

7When the relationship broke down and Naomi moved off the property, the respondents state they brought two applications before the LTB seeking first an order that the Residential Tenancies Act, 2006, S.O. 2006, c. 17, did not apply and then the eviction of the applicant. Both applications were unsuccessful.

8Section 45.1 of the Code states:

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.

9Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

10The Tribunal has found that an LTB hearing is a proceeding for the purposes 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.

11With regard to the second issue, whether the substance of the Application has been appropriately dealt with, 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: Campbell v. Toronto District School Board, 2008 HRTO 62; Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

12While there is a clear overlap in the facts which give rise to the two proceedings, the issues raised in each forum are substantially different. The matters before the LTB seem to relate to the appropriateness of the tenancy and there is no evidence that the allegations of discrimination raised in the Application were raised before the LTB. Based on the materials before me, I cannot conclude that the allegations of discrimination contained in the Application were dealt with in any way by the LTB.

13The Request for Dismissal is denied.

14I am not seized of this matter.