Moyal v. Walmer Flats Property Management, 2010 HRTO 877

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Moyal Applicant

-and-

Walmer Flats Property Management and Dustin Hanoski Respondents

DECISION

Adjudicator: Jennifer Scott Date: April 22, 2010 Citation: 2010 HRTO 877 Indexed as: Moyal v. Walmer Flats Property Management

APPEARANCES BY

David Moyal, Applicant ) On His Own Behalf Walmer Flats Property Management and ) Aaron Schwartz, Counsel Dustin Hanoski, Respondents )

BACKGROUND

1This is an Application filed June 30, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges discrimination in accommodation on the basis of creed.

2The respondents have requested early dismissal of the Application on the basis that: (a) many of the allegations of discrimination were made by the applicant in an earlier complaint that was settled by the Ontario Human Rights Commission (the “Commission”); and (b) the remaining allegations were appropriately dealt with by the Landlord and Tenant Board (“LTB”).

3A hearing was held on March 9, 2010 to deal with the respondents’ request to dismiss the Application.

THE FACTS

4The applicant is a tenant in a building owned by Walmer Flats Property Management (“Walmer Flats”). On October 17, 2006, he filed a complaint with the Commission alleging discrimination by Walmer Flats, the owner of Walmer Flats, Daniel Pang, and the property manager of Walmer Flats, Dustin Hanoski, because of his creed. The applicant alleged the respondents were hostile towards his religion because Mr. Hanoski had refused to allow him to build a Sukkah, a temporary structure celebrating the Jewish holiday of Sukkot (the “First Complaint”).

5The First Complaint was settled pursuant to Minutes of Settlement dated May 1, 2007 entered into between the applicant and Mr. Pang and Mr. Hanoski. Under the terms of the settlement, the landlord agreed the applicant could construct his Sukkah in the same location where he had built it in past years. The applicant agreed to advise Mr. Hanoski in writing the dates of the holiday and when he required access to the area where the Sukkah would be built. The applicant agreed further to use approved outdoor electrical cords and to protect all electrical plugs and outlets in an appropriate manner.

6On November 14, 2007, the applicant filed a second complaint against Walmer Flats, Mr. Hanoski and Mr. Pang with the Commission (the “Second Complaint”). In the Second Complaint, the applicant repeated some of his earlier allegations regarding the landlord’s hostility towards his religion. He also complained about the landlord’s conduct regarding the construction of the Sukkah in September 2007 after the settlement.

7Specifically, the applicant complained about the landlord’s refusal to open up all of the sections of the fence along the west side of the building. This allegedly required the applicant and his guests to jump over an irrigation ditch to build or to access the Sukkah. The applicant also complained about the landlord’s refusal to provide a reasonable electrical outlet. The applicant claimed he had to run his own extension cord from his apartment five stories up. This in turn required the applicant to remove a screen from his bedroom to run the electrical cord and there was a delay by the landlord putting the screen back into place. The applicant also complained about stolen bicycle seats and flooding of his locker.

8In the Second Complaint, the applicant stated he would be filing an application to the LTB on November 19, 2007 to stop the harassment and discrimination he was experiencing.

9On November 19, 2007, the applicant filed an application with the LTB alleging harassment and interference with his reasonable enjoyment of the rental premises. The applicant made the same complaints that were made in the Second Complaint. The application was heard by the LTB over the course of several days ending on July 17, 2008.

10The LTB released its decision, with reasons, on September 26, 2008. The LTB characterized the applicant’s claim as one of harassment/retaliation by the landlord and landlord’s superintendent because of the settlement of the First Complaint.

11The LTB dismissed the application on the basis that the applicant had failed to establish his allegations on a balance of probabilities. The LTB made the following factual findings:

• The applicant’s assertion that the superintendent stole one bicycle seat and attempted to steal another was based on pure speculation;

• The applicant had no evidence the superintendent intentionally flooded his locker. The flooding was likely caused by heavy rains in July 2007;

• With respect to the Sukkah:

a. It was not necessary for the landlord to take down the entire fence to allow the applicant to build the Sukkah;

b. The opening in the fence only became an issue for the applicant after the Sukkot festival was over and the landlord was not given the opportunity to address the concerns;

c. The alleged ditch was a small indentation with a drain to direct rainwater to the sewers and could not be covered;

d. The applicant failed to contest the landlord’s evidence that the landlord opened the very section of the fence that the applicant had requested;

e. The landlord tried to deal with the window screen, but the applicant was not available so the replacement of the screen took longer than expected.

12The LTB stated that whether the landlord breached the terms of the May 2007 settlement agreement was a matter for the Human Rights Tribunal to decide, but the facts did not establish the landlord harassed or interfered with the tenant.

13The applicant requested a review of the LTB’s decision on October 27, 2008. The review was denied. The review member held the member of the LTB did not err in refusing to hear evidence about complaints that were dealt with at the Human Rights Commission or in determining the mediated settlement was irrelevant.

14The applicant abandoned his Second Complaint with the Commission and filed his Application with the Tribunal on June 30, 2009.

15On August 13, 2009, the Tribunal received the respondents’ Request to dismiss the Application.

ANALYSIS

16The respondents submit the Application should be dismissed because the allegations were either settled by the Commission in the First Complaint or dealt with by the LTB.

Settlement of First Complaint

17The Application contains many of the same allegations that were included in the First Complaint. In general, these allegations concern the landlord’s hostility towards the applicant’s religion, and specifically, the landlord’s refusal to allow the applicant to build a Sukkah in October 2006. The First Complaint was settled on May 1, 2007.

18Section 53 of the Code governs complaints that were filed at the Commission and transferred to the Tribunal. Under section 53(5), the provision that relates to this Application, the Tribunal has jurisdiction to hear the Application if the Commission failed to deal with the merits of the complaint and the complaint was not withdrawn or settled on December 31, 2008, the end of the six-month period following the legislative amendments to the Code. The purpose of section 53(5) is to prevent complaints that were addressed by the Commission (on their merits or settled) from being transferred to the Tribunal.

19On May 1, 2007, the applicant, Mr. Pang and Mr. Hanoski entered into a settlement of the First Complaint. The applicant also signed a full and final release which clearly indicated that he was releasing Mr. Pang and Mr. Hanoski from any present or future complaints he may have under the Code. The Commission approved this settlement.

20It is clear that many of the allegations in the Application were resolved by the Commission on May 1, 2007. The applicant cannot resurrect these complaints by adding them to his current Application to the Tribunal. As such, the Tribunal has no jurisdiction to hear the applicant’s allegations against the landlord that pre-date the settlement of May 1, 2007.

LANDLORD AND TENANT BOARD

21The Application also includes allegations regarding the landlord’s conduct after the May 1, 2007 settlement. These allegations can be described as follows:

• The applicant’s bicycle seat was stolen and there was an attempt to steal his spouse’s bicycle seat;

• The landlord refused to open up all of the sections of the fence on the west side of the building causing personal injury to the applicant and his guests as they had to jump over an irrigation ditch to get to or build the Sukkah;

• The landlord refused to accommodate the applicant by providing a reasonable electrical outlet and asked the applicant to run an extension cord five stories up. This required the applicant to remove a bedroom screen which the landlord delayed putting back into place;

• The applicant’s locker was flooded causing extensive damage to his property.

22The respondents submit the LTB appropriately dealt with these allegations and as such, they should not be heard by the Tribunal. The respondents rely on section 45.1 of the Code which 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.

23In order to determine whether section 45.1 applies, two questions must be answered: (1) was there another proceeding; and (2) if so, did it appropriately deal with the substance of the Application? With respect to the second question, 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. See Robinson v. Spanish (Town), 2009 HRTO 1484.

24In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some of the principles that apply to section 45.1:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that was reached in the other forum

25The Tribunal has held an LTB hearing is “another proceeding” for the purposes of section 45.1. See John v. Gateway Property Management Corporation, 2009 HRTO 2243. Therefore, the sole issue before me is whether the LTB appropriately dealt with the substance of the Application.

26The application before the LTB and the Application before the Tribunal contain the same facts. Indeed, in the Application before the Tribunal, the applicant stated his express intention to bring an application to the LTB for the same allegations.

27The substance of the application before the LTB and the Tribunal is also the same. In both applications, the applicant claims harassment/reprisal by the landlord for the First Complaint.

28The LTB dealt with the applicant’s claim of harassment and determined his allegations were unfounded. The applicant’s complaint was correctly characterized by the LTB as one of harassment/reprisal because of the settlement of the First Complaint. It was not a claim of breach of settlement and therefore the question of breach of settlement was irrelevant. This was recognized by the member who conducted the review of the LTB decision.

29In determining whether another proceeding has appropriately dealt with the substance of the Application, the Tribunal should not be overly technical. I find the respondents have established that the Application was appropriately dealt with by the LTB: the facts and the substance of the claim (harassment allegedly related to the applicant’s creed) were the same. The LTB understood the central theory of the applicant’s claim and dismissed it on the basis that the applicant had failed to establish on a balance of probabilities the facts on which his claim was based.

30For all of these reasons, the Application is dismissed.