Pal v. 723736 Ontario, 2010 HRTO 1759

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Pal

Applicant

-and-

723736 Ontario Limited and Belmont Properties Ltd.

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: August 26, 2010

Citation: 2010 HRTO 1759

Indexed as: Pal v. 723736 Ontario

1This is an Interim Decision in respect of an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on October 7, 2009, in which the applicant alleges that he was discriminated against with respect to occupancy of accommodation on the ground of disability.

2In their Response, the respondents have asked the Tribunal to defer considering the Application on the ground that there is an ongoing proceeding before another decision maker which raises some or all of the facts and issues raised in this Application. In addition, the respondents have requested that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. The applicant has submitted a Reply opposing the respondents’ requests. This Interim Decision deals with these Requests.

3It appears that the applicant is not represented by counsel at this stage. The applicant has included with his Application a list of repair issues in respect of the respondent landlord. Only one of these has an apparent connection to the Code: the applicant alleges that the landlord would not allow him to make parts of his rented house wheelchair accessible. The respondents summarize the applicant’s allegations as refusal by the landlord to “permit the installation of a lift, power door opener and handicap accessible bathroom”.

4The respondents’ Response indicates that they served the applicant with three Notices to Terminate a Tenancy prior to the filing of the Application, on July 29, 2009. Copies of Notices have been included with the response. Most of the reasons given by the respondent to evict the applicant are allegations without apparent connection to the issues in this Application, such as alleged overcrowding, the operation of an allegedly illegal business, and alleged breach of fire and safety and zoning regulations. All Notices also allege that “the tenant has altered or has caused the premises to be altered contrary to the Building Code Act, and contrary to property standards and bylaws, by constructing walls doors and rooms not permitted, thereby causing damages to the premises either wilfully or negligently”. This may or may not be a reference to the matter raised in the Application.

5To summarise, the materials filed to date contain allegations that could engage ss. 2(1), 8 and 11 of the Code. The respondents have submitted some assertions of facts relevant to their denial of any breach of the Code. I stress that at this preliminary stage no conclusions respecting allegations or assertions can be drawn; at issue in this decision are only the questions of whether the Application should be dismissed without a hearing, or deferred to another proceeding.

6The respondents state that a hearing was commenced before the Landlord and Tenant Board (“LTB”) on September 22, 2009. They state that the last hearing in respect of the matter was June 28, 2010. They also state that the LTB has reserved its decision.

The Request to Dismiss

7Section 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.

(emphasis added)

8In this case, the proceeding before the LTB is expected to result in a decision, but there is no evidence that the decision has been made. The Tribunal’s Response form indicates that, where a respondent requests dismissal on the above grounds, it must attach a copy of the decision at issue. The respondents’ request under section 45.1 is premature; the Tribunal is not in a position at this point to decide whether the substance of the Application was “dealt with” at all by the LTB, much less “appropriately”.

9The respondents’ Request is dismissed without prejudice to the respondents’ right to raise this issue after they receive the decision of the LTB.

The Request to Defer

10Section 45 of the Code confirms the Tribunal’s discretionary authority to defer consideration of an Application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an Application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

11Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

12Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. Some of the factors that may be relevant in deciding whether to defer consideration of an Application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

13In this case, the nature of the other proceeding is an application before the LTB initiated by the respondents in their capacity as the applicant's landlord. The subject matter is an application for an eviction order. Documents filed with the Tribunal by the respondents do not refer in any way to the Code, but the respondents assert that the applicant “made the same or similar allegations before the Landlord Tenant Board”. This appears to be an assertion that the applicant argued that the Code should be taken into account by the LTB in deciding whether he should be evicted.

14In his reply, the applicant does not specifically deny raising the alleged comments, but asserts that “the facts he refers to were only raised as illustrative of the landlord's disregard of his obligations”. The applicant goes on to assert that the LTB lacks jurisdiction to deal with “the matter” because of a time limit in the Residential Tenancies Act. On the basis of the filed material, I can only conclude that some claim of discrimination may have been raised by the applicant before the LTB in attempting to defend against the application to evict him, but there is no evidence that the applicant made the same allegations as he did in his Application.

15Consideration of remedies requested is not relevant in this case as it is clear that the applicant was not seeking a remedy before the LTB, but defending against an application to evict.

16In McKinnon v. Young, 2010 HRTO 1183, the Tribunal deferred to a forthcoming hearing before the LTB, remarking in paragraph 9 that “[i]t would appear that the human rights issue is a smaller aspect in a larger landlord/tenant dispute. It would appear to be more fair, just and expeditious for this aspect of the dispute to be addressed initially by the body which can address the issue in the context of the larger dispute.” However, the fact situation in respect of this Application is essentially the reverse of that in McKinnon. This other proceeding has been initiated by the respondent, the Code is not specifically at issue, and there is not enough evidence at this early stage for me to conclude that a claim of discrimination similar to that made in the Application was asserted in the course of the proceedings by the applicant. The evidence of overlap in the subject matters of the LTB hearing and this Application is minimal at best.

17The material before me also indicated that it is impossible that the LTB matter and the Application will be heard concurrently. The Tribunal has refused to defer where there is no real likelihood of concurrent proceedings in several decisions (see for example, Lim v. Siu, 2009 HRTO 1885 and St. Louis v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1637).

18The LTB hearing has already occurred, and the decision is expected very soon. If this Application proceeds to a hearing, and if the LTB decision makes findings of fact in respect of allegations or assertions made by the parties to this Application, the parties may raise the findings made by the LTB at the hearing before this Tribunal. Further, once they have received the decision, the respondents may yet raise it at any time in an argument under s. 45.1 of the Code.

19The respondent's Request is dismissed.

20I am not seized of this matter.