Adrienne Weinberg/Hadley v. MTCC 1019, 2010 HRTO 1527

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrienne Weinberg/Hadley

Applicant

-and-

MTCC 1019

Respondent

DECISION

Adjudicator: Alison Renton

Date: July 13, 2010

Citation: 2010 HRTO 1527

Indexed as: Weinberg v. MTCC 1019

1This Application was filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") and alleges discrimination on the basis of disability in housing.

2The applicant lives in a townhouse which is attached to a condominium unit in the respondent's complex. Approximately 3 ½ years ago, the applicant's family acquired a dog which the applicant now claims is to assist her with a mental health condition. The respondent became aware of the dog and initiated an arbitration under the Ontario Condominium Act, 1998, S.O. 1998, c. 19 ("the arbitration") which resulted in an award dated February 27, 2009 ("the arbitration award") requiring the dog to be permanently removed from the property within one year of the date of the award.

3The respondent filed a Response in which they seek the early dismissal of the Application because another proceeding, the arbitration, has appropriately dealt with the matter. The parties have provided the Tribunal with a copy of the arbitration award.

4The applicant has not filed a Reply or otherwise responded to the respondent's request for early dismissal and the time for doing so has now elapsed.

5The Tribunal issued an Interim Decision, 2010 HRTO 1026, in which it requested that the applicant advise it within 10 days of the Interim Decision whether she would like an opportunity to make oral submissions on whether the Application should be dismissed pursuant to section 45.1 of the Code. The Tribunal stated that if the applicant did not communicate with the Tribunal, or if she indicated that she did not wish to make oral submissions, the Tribunal would determine the section 45.1 issue based on the materials already before the Tribunal. The Interim Decision sent by Purolator Courier to the applicant was returned, but the copy that was sent by regular mail was not.

6The applicant has not communicated with the Tribunal and the time for doing so has now passed. Accordingly, the Tribunal will determine the section 45.1 issue based upon the materials already filed by the parties.

Decision

7Section 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.

8In Campbell v. Toronto District School Board, 2008 HRTO 62, as cited in Akhtar v. Law Society of Upper Canada, 2010 HRTO 1057, the Tribunal discussed some principles that apply to the interpretation of section 45.1 that have been applied in many cases since then. Among them are:

• That the purpose of s. 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
• That the Tribunal should not be overly technical in determining whether another proceeding has appropriately dealt with the substance of the application;
• That the Tribunal does not act as an appellate court from the decisions of other tribunals and need not be satisfied that it would have reached the same conclusion as that reached in the other forum; and,
• That the other Tribunal need not be directly applying the Code so long as it is considering human rights principles, which may be applied through a different statutory framework.

9I find that the arbitration hearing was a "proceeding" within the meaning of section 45.1. The parties executed a Submission to Arbitration and Retainer Arrangement, naming the arbitrator as a sole arbitrator in accordance with the provisions of the Arbitration Act, 1991, S.O. 1991, c. 17, as amended, and the arbitration proceeded in accordance with section 132 of the Condominium Act. Both parties were represented by counsel and the hearing took place on February 2, 2009. The arbitrator heard oral evidence from the parties, including the applicant. In advance of the hearing, the parties provided the arbitrator with arbitration briefs, and the hearing concluded with oral argument. In her arbitration brief, the applicant filed medical documentation, including documentation from Dr. Borins, in support of her request to keep the family dog at their residence. The arbitration award, at page 9, noted that medical documentation had been provided by the applicant to the respondent. The arbitrator's decision was reserved and the arbitration award was subsequently issued.

10In my view, the arbitration award appropriately dealt with the substance of the issues that are raised in the Application and considered the Code in its deliberations. At issue in the arbitration award was the applicant's resistance to remove the family dog from their residence after being directed to do so by the respondent. She raised medical reasons as part of her justification to keep the family dog in their residence. The arbitrator accepted the respondent's position that the medical documentation did not establish a disability that would require accommodation and found that the Code was not violated.

11The arbitrator specifically addressed the issue of whether the respondent was required to accommodate the applicant and her husband because of disability. At pages 9 – 10 of the arbitration award, the arbitrator wrote:

The possibility that there was an accommodation required for a disability under the Ontario Human Rights Code was canvassed and Weinberg & Hadley tried to comply with this by obtaining several doctors' letters….It is clear from the case law that the Ontario Human Rights Code and its provisions requiring accommodation of disabilities would override the no pet provision, even of the declaration, if it could be established that a proven accepted disability required the specified accommodation….My reading of the cases concludes that, unless there is a violation of the Ontario Human Rights Code, which I find in this case there is not….the declaration should be enforced.

12In her Application, the applicant submits that she did not raise the full extent of her disabilities, specifically her psychiatric issues, at the arbitration because, amongst other reasons, she felt too uncomfortable to expose the extent of her emotional problems and wanted to protect her privacy. She states that she would be relying upon medical documentation by her doctor, Dr. Borins, in support of her Application and attached to her Application an unsigned letter on Dr. Borins' letterhead. This letter has a different date and different content then Dr. Borins' medical documentation put forward at the arbitration.

13While the applicant's reluctance to disclose personal information is understandable, she was involved in a legal proceeding and, as such, was required to put her best case forward in the arbitration. The applicant chose not to present the full extent of her medical condition in the arbitration proceeding and cannot now be permitted to raise a different medical condition pertaining to the same fact situation before the Tribunal. This concept was explained by the Supreme Court of Canada, albeit in the context of issue estoppel, in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 18, when Mr. Justice Binnie, wrote:

The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first call upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry….A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.

14It is evident that the arbitrator considered the issue of disability and the respondent's obligation to accommodate it. After considering all the evidence before him, the arbitrator concluded that he was unable to find the impugned declaration breached the Code. That is precisely the issue raised in this Application.

15Accordingly, I find that the Application cannot proceed because the requirements of section 45.1 of the Code have been met. The Application is therefore dismissed.