HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenneth Johnson
Applicant
-and-
Thorold Municipal Non-Profit Housing Corporation
Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Johnson v. Thorold Municipal Non-Profit Housing Corporation
APPEARANCES:
Kenneth Johnson, Applicant ) Self-represented
Thorold Municipal Non-Profit Housing ) Corporation, Respondent ) Bradley J. Troup, Counsel
1This is an Application filed September 30, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged discrimination on the basis of disability and age in receipt of goods, services and facilities and in the area of housing. He also alleged reprisal or the threat of reprisal.
2The respondent raised a preliminary issue seeking the dismissal of the Application on the basis of s.45.1 of the Code.
3The Tribunal issued a Decision, 2010 HRTO 685, noting that the applicant had not filed a Reply and that the time for doing so had elapsed. The Tribunal dismissed the Application on the basis that its substance had been appropriately dealt with in another proceeding. In fact, however, the time for filing the Reply had not elapsed.
4On its own motion, the Tribunal reconsidered the Decision, 2010 HRTO 787 , expedited the determination of the preliminary issue, and directed the applicant to advise the Tribunal whether he wished to make further submissions on the preliminary issue, either orally or in writing.
5The Tribunal delivered the Reconsideration Decision to the applicant by regular mail at the address identified in his Application. Administrative staff took the additional step of contacting the applicant by telephone. The applicant did not advise the Tribunal that he wished to make further submissions within the timeframe set out in the Reconsideration Decision.
6The Tribunal issued a further Interim Decision on May 31, 2010, 2010 HRTO 1214, indicating that, as the applicant had not filed any further materials, he appeared to have abandoned the Application. Nevertheless, the Tribunal gave the applicant a further seven days in which to respond, in writing, to the Tribunal and to advise why he had not complied with the timelines established in the Reconsideration Decision.
7On June 8, 2010, the applicant provided written submissions to the respondent and filed them with the Tribunal. The applicant stated that he did not receive the Tribunal’s Interim Decision until the date for filing additional submissions had expired and asked that the adjudicator recuse herself from this matter.
8The respondent filed correspondence with the Tribunal. It took the position that as the applicant had not complied with timelines set by the Tribunal or explained his failure to comply with these timelines, it would be appropriate for the Tribunal to determine the preliminary issue based on the materials already filed.
9A further Interim Decision was issued in which the adjudicator declined to recuse herself and set the matter down for a preliminary hearing, 2010 HRTO 1713.
10A preliminary hearing was held on May 19, 2011 in St. Catharines to consider the question of whether the Application should be dismissed, in whole or in part, because another proceeding has appropriately dealt with the substance of the matters before the Tribunal.
11For the reasons that follow, the Application is dismissed.
DECISION
12The respondent argues that the allegations made in the present Application were heard before the Landlord and Tenant Board (the “LTB”) on May 12, 2009, which is the date cited by the applicant as the last in a series of allegedly discriminatory events.
13Section 45.1 of the Code reads as follows:
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.
14The Tribunal discussed the general principles that apply to s.45.1 in Campbell v. Toronto District School Board, 2008 HRTO 62 :
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
15The applicant indicates that before he went to the LTB hearing he thought it was a mediation session. It is not at all apparent why he believed this but what is clear from the decision of the LTB is that the applicant called a number of witnesses and participated in the adjudication process.
16The Tribunal has held on a number of occasions that a hearing before the LTB is “another proceeding” for the purposes of s. 45.1 (Moyal v. Walmer Flats Property Management, 2010 HRTO 877, John v. Gateway Property Management Corporation, 2009 HRTO 2243).
17As a result, the only remaining issue is whether the substance of the present Application was appropriately dealt with by the LTB.
18I accept the respondent’s argument that the applicant made substantially similar allegations in both Applications. Specifically, the applicant alleges in both Applications that the landlord respondent or its employees or agents improperly entered his apartment, harassed and threatened him, failed to accommodate his disability by providing him with a disabled parking spot, and discriminated or reprised against him by towing his vehicle.
19I note that in paragraph 14 of the Reasons attached to her Decision, the LTB Vice Chair hearing the matter indicates that “the Tenant claims the Landlord has failed to accommodate his request for a designated handicap parking spot”. This confirms that the issue of the parking spot was squarely before the LTB during the hearing of May 12, 2009.
20In paragraph 20 of the same Reasons for Decision, the Vice Chair indicates that she was not satisfied “that the Tenant requested accommodation under the Human Rights Code”, noting that the landlord respondent had a waiting list for people whose disabilities required use of a designated parking spot and that the applicant had not sought to have his name added to the list despite having been invited to do so.
21In addition, I note that the allegations of harassment by employees of the respondent landlord and conduct characterized as reprisal by the applicant in the present Application were, similarly, thoroughly canvassed at the LTB hearing and findings of fact made with respect to them. Ultimately, the LTB ruled that the applicant had failed to prove on a balance of probabilities that he had been subject to harassment by the respondent or its employees and agents.
22In light of the above, I find that the substance of the matters before the Tribunal in this Application have been appropriately dealt with by the LTB. Accordingly, pursuant to s.45.1 of the Code, this Application is dismissed.
Dated at Toronto this 3rd day of June, 2011.
“Signed by”
Jay Sengupta
Vice-chair