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Human Rights Tribunal of Ontario
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**Between:**
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Luke Dalinda
Applicant
-and-
Brookfield Residential Services, Metropolitan Toronto Condominium Corp. No. 1053 and Sandra England
Respondents
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Interim Decision
**Adjudicator:** Naomi Overend
**Date:** July 21, 2011
**Citation:** 2011 HRTO 1371
**Indexed as:** Dalinda v. Brookfield Residential Services Ltd.
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[1] This Interim Decision deals with the request made by the respondent Metropolitan Toronto Condominium Corp. No. 1053 (“MTCC 1053”), to defer the proceedings before this Tribunal pending the outcome of arbitration proceedings under s. 132 of the Condominium Act S.O. 1998, c. 19, as amended.
[2] The applicant filed this Application on November 25, 2010 against Brookfield Residential Services Inc. (“Brookfield”), the property management company, and Sandra England, a resident at the MTCC 1053, who lives directly below him. MTCC 1053 was subsequently named as a respondent by England.
[3] In his Application, the applicant alleges discrimination and harassment in housing on the basis of family status, age and reprisal contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he alleges that the noise complaints made by England, and followed up on by Brookfield, are discriminatory and reflect an anti-child (family) animus.
[4] Counsel for Brookfield and MTCC 1053 filed a Request for Order During Proceedings (Form 10) asking the Tribunal to defer this Application pending the outcome of the Condominium Act proceedings (discussed in greater detail below).
[5] The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
[6] In the instant case, the applicant is challenging England’s alleged intolerance of any noise emanating from this apartment and her improper attribution of noise as coming from his apartment even when his apartment is unoccupied.
[7] The applicant is also challenging Brookfield’s response to England’s noise complaints, which he alleges is an automatic acceptance of the validity of the complaints without any proper investigation. He asserts that these actions constitute discrimination and harassment on the basis of family status.
[8] England filed a Notice of Dispute on MTCC 1053 on October 19, 2010 alleging a violation of MTCC 1053’s Declaration, which prohibits the transmission of noise from one unit to another that is annoying, a nuisance or otherwise disruptive. Although the applicant was not named in this Notice of Dispute by England, MTCC 1053 has advised the applicant that should the matter proceed to mediation and/or arbitration it will have to name him as a necessary party.
[9] In an attempt to resolve the dispute, MTCC 1053 arranged to have noise transmission testing done by an engineering firm. This was done in April 2011 and apparently revealed that the flooring in the applicant’s unit is in compliance with the rules that were in place at the time the flooring was installed. This apparently does not fully resolve the dispute between England and the applicant, because it appears to be England’s contention that the applicant’s household is making an unreasonable amount of noise.
[10] To date the dispute under the Condominium Act has not proceeded to mediation and/or arbitration. Initially, the delay in proceeding was because the parties were negotiating in respect of the noise transmission testing. As this is now complete, England and MTCC 1053 state that they have delayed proceeding to the next step because they are awaiting the Tribunal’s decision on whether to defer to this process.
[11] The respondents advise that there are mandated timelines under the Condominium Act and therefore the process can happen fairly expeditiously once it is initiated. The applicant disputes this, although largely on the basis that the parties have taken so long to act on the Notice of Dispute. It would appear that the Condominium Act process could conclude before this matter proceeded to a hearing before the Tribunal.
[12] If that were the only consideration, then that would favour deferral to the mediation/arbitration process under the Condominium Act. However, on the face of it, the most that could be resolved by this process would be a determination of the factual issue of whether the noise from the applicant’s unit was annoying, a nuisance or disruptive to England.
[13] Justice J.A. Ramsay has found that an arbitrator appointed under s. 132 of the Condominium Act has the jurisdiction to apply the Code, and so in determining the factual issue about the noise, can take into consideration the applicant’s arguments about family status discrimination: see Halton Condominium Corporation No. 59 v. Howard, 2009 44719 (ON S.C).
[14] Although the factual issue about the noise may also be an issue in the matter before this Tribunal (and, if appropriate, any finding on the issue may be relied upon by this Tribunal), it is not the ultimate issue, which is whether the applicant was subject to discrimination and harassment by the respondents. In other words, at the end of the day, the applicant may get a ruling in his favour in the Condominium Act process and still not have his human rights issues adjudicated.
[15] Since the applicant did not initiate the dispute process under the Condominium Act, he is not entitled to any remedy if he prevails in that process. This is not to say that the parties could not privately choose to resolve all matters between them, but, there is nothing compelling them to do so in the other process.
[16] In light of the above, it is not appropriate to defer this proceeding to the conclusion of the proceeding under the Condominium Act. Accordingly, the respondent’s request to defer is dismissed.
[17] I am not seized of this matter.
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Dated at Toronto, this 21<sup>st</sup> day of July, 2011.
“Signed by”
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Naomi Overend
Vice-chair
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minicounsel