HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christina Lane
Applicant
-and-
Corrine McGill
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Lane v. McGill
1This is an Application filed on March 26, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in housing on the basis of disability, sexual solicitation or advances and reprisal.
2The Tribunal has not yet delivered the Application to the respondent. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application (NOID).
3The Tribunal sent the applicant a NOID on July 22, 2010. The NOID indicates that it appears that the Application is outside the Tribunal’s jurisdiction because the events described in the Application fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent, and the applicant has commenced a civil proceeding seeking an order under section 46.1 of the Code and accordingly is barred from having her Application proceed by section 34(11) of the Code. The NOID directed the applicant to provide written submissions within 30 days as to why her Application is within the Tribunal’s jurisdiction. The applicant has not provided any submissions as of the date of this Interim Decision.
4The applicant provides a brief narrative of events in her Application. She alleges that the respondent, her landlord, is evicting her for damages caused by a natural disaster that the respondent was supposed to repair. The applicant accuses the respondent’s family of having lied in front of the Landlord and Tenant Board (“LTB”) and having made false allegations against her to child protection authorities. The applicant provides with her Application the LTB decision of December 24, 2008 ordering the termination of her tenancy and ordering her to pay $3500 in damages to the respondent. The applicant provided numerous other documents related to her efforts since December 2008 to appeal the LTB decision to the Divisional Court and to further appeal the Divisional Court’s dismissal of her appeal to the Court of Appeal of Ontario. The applicant indicates that she has been the subject of five Notices of Eviction from the respondent and it appears that, as of June 1, 2009, the eviction order of the LTB was stayed pending the hearing of her motion for leave to appeal to the Court of Appeal.
5The Applicant alleges that she has been discriminated against on the basis of disability, sexual solicitation or advances and reprisal or the threat of reprisal. There is no reference to any of these grounds in the narrative the applicant provided in her Application when asked to describe the events that she believed were discrimination. The applicant’s stated concern was that the respondent was evicting her for damages caused by a natural disaster that the landlord was supposed to repair.
6However, the Application later states that the applicant has self diagnosed herself with celiac disease and that she found the respondent to be hostile and prejudiced towards her for health reasons (Question 9). Furthermore, Form 1-B of the Tribunal’s Application asks applicants to answer specific questions about why they believe they have been discriminated against. In response to the question as to why the applicant believed she had been discriminated against on the basis of her disability (Question B8) the applicant states that she was mistreated and harassed and slandered because she confided having been weakened by a lifelong case of undiagnosed celiac and because of having post traumatic stress disorder. The applicant further identifies an incident in Form 1-B that she believes may be related to sexual solicitation (Question B18, B19) and submits that the decision by the respondent and family to take the applicant to the LTB was a reprisal by the respondent who “knew full well of my health issues”.
Decision
7An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This has been established by the Tribunal’s jurisprudence (Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63). A decision to continue to deal with an application is not a final decision regarding the Tribunal’s jurisdiction in respect to the application (Rule 13.5).
8It is not plain and obvious to me, based on the information contained in the Application, that this Application should be dismissed at this preliminary stage and before it is served on the respondent. In my view it is not plain and obvious that the applicant’s allegations in relation to the respondent’s actions do not include allegations of discrimination that are Code-related.
9The NOID also raises the applicant’s commencement of a civil proceeding seeking an order under section 46.1 of the Code and accordingly is barred from having her Application proceed by section 34(11) of the Code.
10Section 34 (11) of the Code provides:
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,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
11Section 46.1 of the Code provides:
(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
12Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered when an applicant decides to raise the Code and seek remedies for its violation in a court action: see Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at para. 10.
13In the present case, the applicant has requested that the Court overturns a decision by the LTB in response to an application for an order to terminate the applicant’s tenancy and an order for damages made by the respondent. There is no indication in the applicant’s pleadings, submissions or the attached court documents that the applicant has made a claim for remedies under section 46.1 of the Code in an ongoing civil proceeding. Consequently, the Application is not barred from proceeding by section 34(11) of the Code.
14A copy of the Application and this Interim Decision will be served on the respondent who is required to submit a Response to the Application within the time frame set out in the Notice of Application.
15I am not seized of this matter.
Dated this 23rd day of September, 2010
”signed by”_______
Eric Whist
Vice-chair