HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Brian Gittens
Applicant
-and-
Cando Property Management Ltd. and Anna Berwick
Respondents
DECISION
Adjudicator: Alan G. Smith
Indexed as: Gittens v. Cando Property Management
APPEARANCES BY TELECONFERENCE
Brian Gittens, Applicant ) Tony Jones, Counsel
Cando Property Management Ltd. and )
Anna Berwick, Respondents ) Samuel Korman, Counsel
BACKGROUND
1This is an Application filed on August 9, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination based on race, colour and ethnic origin with respect to his rental accommodation.
2In a Response dated January 10, 2011, the respondents requested dismissal of the Application pursuant to section 45.1 of the Code, relying on the terms of an agreement made under section 194 of the Ontario Residential Tenancies Act, 2006, executed by the parties on September 15, 2010.
2In response to the respondent’s request for dismissal the applicant filed written submissions on February 28, 2011,
3Pursuant to s. 43(2) of the Code a summary hearing by teleconference was held before me on July 20, 2011. Both parties participated and made oral submissions with regard to the Request for dismissal.
FACTS
4The pivotal facts are not in dispute. The applicant is the tenant of the corporate respondent. The personal respondent is the superintendent of the applicant’s rental premises.
5On August 16, 2010, the applicant filed an Application About Tenant’s Rights (Form T2) with the Ontario Landlord and Tenant Board (the “LTB”). It is important to note that the parties agree that the applicant’s allegations contained in both the Tribunal Application and the application to the LTB are virtually identical.
6Essentially, both Applications address two substantive issues:
a) That the occupants of the apartment unit next to that of the Applicant are making excessive noise and consuming illegal substances the smell of which permeates the applicant’s apartment unit: the “drug smoking issue”;
b) That the personal respondent has uttered racial epithets and made remarks amounting to negative racial stereotyping: the “racism issue”.
7On September 15, 2010, the applicant and the corporate respondent participated in a mediation facilitated by the LTB. The mediation concluded with an agreement as follows:
The Landlord shall use best efforts to encourage the Superintendent, their employee, to enrol (either online or in a classroom setting) and participate in a sensitivity training course.
The Tenant also hereby undertakes to himself enrol in a sensitivity training course, either online or in a classroom setting.
The signing parties do hereby accept this Agreement in full and final resolution of the Tenant’s application and all issues raised therein up to and including the date of signing.
ANALYSIS
8With this background, I turn to the application of section 45.1 of the Code to the facts of this case. Section 45.1 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.
9In Campbell v. Toronto District School Board, 2008 HRTO 62, and Pannu v. Peel District School Board, 2010 HRTO 1233, the Tribunal discussed some of the principles that apply to the interpretation of s. 45.1, which include:
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;
The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrine of issue estoppels and abuse of process;
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 was reached in the other forum.
10It is 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.
11The Tribunal has found that an application brought before the LTB is a “proceeding” pursuant to s. 45.1. See for example, Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448, and Johnson v. Thorold Municipal Non-Profit Housing Corporation, 2010 HRTO 687.
12The Tribunal has also held that a proceeding that concludes with a settlement may cause the exercise of its discretion under s. 45.1 on the basis that the matter has been appropriately dealt with. See Dunn v. Sault Ste. Marie (City), 2008 HRTO 149; Van Barneveld v. I.O.O.F. Seniors Homes, 2009 HRTO 448; and Virgin v. Dollar, 2009 HRTO 899. Otherwise, as was noted in Dunn, above, an “interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation”.
13I am therefore satisfied that the application before the LTB which concluded with the September 15, 2010, settlement agreement between the parties is sufficient to qualify as “another proceeding” for the purposes of s. 45.1.
14Having found that there was “another proceeding” in the present case the only remaining question for determination is whether the proceeding “appropriately dealt with” the substance of the Tribunal Application.
15As already noted, the parties agree that the Tribunal Application, in substance, mirrors the essential elements of the applicant’s LTB allegations that led to the September 15, 2010 settlement agreement. However, the applicant submitted that his allegations were not appropriately dealt with on the basis that the LTB process did not redress the allegations of racism on the part of the personal respondent. In this regard, he specifically referred to the public interest remedies sought in the Tribunal Application. The applicant further argues that the LTB settlement was intended to only deal with the drug smoking issue and not the racism issue. Additionally, he argued that the LTB process was unfair since he felt pressured to immediately sign the settlement agreement without having an opportunity to obtain independent legal advice.
16In my view, the assessment as to whether the settlement in question appropriately dealt with the issues before the Tribunal should not be so broad as to compel me to dissect and qualitatively assess the remedial terms of the settlement. See Pannu, above. When parties enter into a settlement agreement they are taken to be indicating their intention to voluntarily resolve the issues in dispute in a manner acceptable to all parties even when one or more parties may not have obtained everything sought. See Shannon v. Renfrew (County), 2010 HRTO 930. Indeed Dunn, above, provides the following guiding principle:
Every agreement to settle litigation involves fashioning an outcome acceptable to all parties, and a litigant may well not obtain everything sought. To examine whether a settlement was “appropriate” merely by comparing it to remedies that might be obtained if the applicant was successful in litigation would be to ignore this fact, and would not recognize that one of the benefits of settlements is that the solutions parties develop themselves are often different from what a tribunal might have ordered. It would also not be appropriate to examine the reasoning process of the parties.
17The applicant’s second argument, that the settlement was intended to deal exclusively with the drug smoking issue, must also fail. I agree the language of the settlement is somewhat vague, but pursuant to the principles enunciated in Dunn, above, I am not obliged to undertake an overly technical analysis of the terminology used in the settlement. Given that the LTB settlement agreement deals with the parties’ participation in “sensitivity training” I find it is impossible to imagine that it was not intended, at least partially, to address the allegations of racism on the part of the personal respondent.
18The applicant alleges that he was pressured to sign a hastily drafted settlement. Nonetheless, he was apparently an active participant in the settlement process and, although invited to do so during the summary hearing, declined to put forward an argument based on duress. In Dunn, above, and Hazel v. Ainsworth Engineered, 2009 HRTO 2180, the Tribunal noted the importance of finality in judicial and administrative proceedings. It held that absent evidence of duress or coercion, the Tribunal will not look behind a settlement which resolves a Tribunal Application. An applicant cannot come before the Tribunal and ask that a previous, voluntary settlement be reopened or rescinded. Once a matter has been settled, the parties are entitled to treat the litigation as having been resolved. In a settled case, parties know or ought to know that the substantive issues that were raised will not be brought up in a different forum, see Shannon, above. I therefore find that although the applicant may have subsequently regretted his decision or felt pressure to sign the settlement, there is no basis to negate the fact that he agreed to resolve essentially the same issues he had brought before the Tribunal.
19In my view, the LTB proceeding appropriately dealt with the substance of the Tribunal Application. It would be inconsistent with the purpose of s. 45.1. to allow the Tribunal Application to continue.
ORDER
20The Application is dismissed.
Dated at Toronto this 2nd day of August, 2011.
”signed by”______
Alan G. Smith Member