Denomme v. Windsor Essex Community Housing, 2011 HRTO 117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ben Denomme

Applicant

-and-

Windsor Essex Community Housing Corporation and Robert Shpak

Respondents

DECISION

Adjudicator: David Shannon

Date: January 17, 2011

Citation: 2011 HRTO 117

Indexed as: Denomme v. Windsor Essex Community Housing

Appearances

Ben Denomme, Applicant ) Self-represented

Windsor Essex Community Housing Corporation ) and Robert Shpak ) David M. McNevin, Counsel, Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 7, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on October 28, 2008. It alleges the applicant experienced discrimination due to harassment based on sexual orientation and receipt of public assistance.

2This Decision addresses the respondents’ request to dismiss this Application pursuant to section 45.1 of the Code on the basis the substance of the Application has been appropriately dealt with in a proceeding brought under the Residential Tenancies Act, 2006 S.O. 2006, c.17 as amended.

BACKGROUND

3The respondent is a non-profit corporation engaged in the provision of subsidized and geared to income housing in the City of Windsor and throughout Essex County. It contends that the issue which forms the substance of the Application before this Tribunal has already been adjudicated by the Rental Housing Tribunal of Ontario (RHT). It alleges that the RHT adjudicated on the same facts and issue on February 5, 2008.

4In the proceeding determined by the RHT, the applicant alleged that he was discriminated against contrary to the Code arising from the incident related to the Application before this Tribunal. At the hearing under the Residential Tenancies Act the RHT made the following finding:

The incident of August 24, 2007 was not harassment. It was an immature and wholly avoidable exchange between two otherwise reasonable adults who, for a short time, treated each other badly. But the Residential Tenancies Act does not prohibit bad manners or bursts of bad temper.

REQUEST FOR DISMISSAL UNDER S. 45.1 OF THE CODE

5Section 45.1 of the Code provides 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.

6In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

7I find that a proceeding before the RHT pursuant to Residential Tenancies Act is a proceeding within the meaning of section 45.1.

8The issue on the second part of the test under s. 45.1 of the Code is 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 in pith or essence substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

9Based upon the material before me, I am satisfied that the decision of the RHT was the result of the entire factual underpinning of the applicant’s allegations of discrimination and or harassment by the respondents. The decision of the RHT makes reference to the same incidents that form the substance of this Application, and otherwise canvasses the same facts. In that hearing, harassment was argued before the Board Member, and the decision specifically noted the Code at paragraph 12, and considered and applied the meaning of harassment within the Code.

10Accordingly, in the specific circumstances of this case, I find that the issues raised in the complaint before RHT are in pith and substance the same as the issues raised in this Application. As a result, I find that the RHT appropriately dealt with the substance of the allegations in this proceeding. Consequently, the respondents’ request for dismissal of the Application pursuant to s. 45.1 of the Code is granted.