Simard v. Nipissing Condominium Corporation No. 4, 2011 HRTO 1554

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Martin Simard

Applicant

-and-

Nipissing Condominium Corporation No. 4

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: August 18, 2011

Citation: 2011 HRTO 1554

Indexed as: Simard v. Nipissing Condominium Corporation No. 4

APPEARANCES

Martin Simard, Applicant ) M. Kate Stephenson, Counsel

Nipissing Condominium Corporation No. 4 ) Sonja Hodis, Counsel

Respondent )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 24, 2009. The applicant states that as an owner/landlord he is being forced to discriminate against prospective tenants if he complies with a declaration made by the respondent to restrict the occupation and use of his units to a one family residence (the “Declaration”). The Application alleges discrimination in housing on the basis of family status, and in the related Form 1-B, checks off the reprisal section indicating that he refused to infringe another person’s rights under the Code.

2This Decision addresses two Requests for Order During Proceeding – the first filed by the applicant seeking an amendment of the Application (“Request to Amend”) to add marital status, age and reprisal to the Application; and the second filed by the respondent requesting that the Application be dismissed because of section 45.1 of the Code, section 34(11)(b) of the Code, and abuse of process (“Request to Dismiss”). The Request to Dismiss is based on the disposition of several related civil applications – one involving the applicant and another involving the disposition of a related case in which the Court of Appeal held that the occupancy provision in the Declaration in question does not infringe section 2(1) of the Code (Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2010 ONCA 217 (“Kilfoyl”)).

3A hearing was held by conference call to hear submissions on the Requests. I have based my decision below on the submissions made in the call, as well as the material filed in this Application including those submissions specific to the preliminary issues.

BACKGROUND

4The applicant is an owner of five units in the respondent’s condominium corporation, which is located in North Bay, Ontario. The applicant rents out the units that are the subject matter of the Application.

5The Application arises from the respondent’s actions to enforce the terms of a Declaration, which restricts the occupancy of units to a “one family residence” as that term is defined.

6On February 11, 2009, the respondent filed an application against the applicant and various tenants of his in Superior Court seeking to enforce the Declaration (“the court application”). Among other things, the court application required that the applicant take all reasonable steps to ensure that the occupiers of his units comply with the Declaration, the by-laws and rules of the condominium corporation.

7On March 24, 2009, the applicant filed the Application at the Tribunal. The applicant alleges that he is being forced to discriminate against prospective tenants since if he complies with the Declaration he is required to ask prospective tenants about their relationship between each other and if they do not meet the definition of family set out in the Declaration, he is to discriminate against them by refusing to rent to them. The applicant explains that it is his tenants that are being discriminated against based on their family status. The only remedy sought in the Application is that the respondent stop trying to enforce its allegedly discriminatory Declaration.

8On June 15, 2009, the respondent filed a partial Response seeking early dismissal of the Application on the basis that another proceeding had been commenced requesting a remedy based on the alleged violation, referring to the court application. The respondent states that the applicant had sought to have the court proceeding dismissed and/or stayed (the latter based on the Application at the Tribunal). The applicant’s motion was heard on April 8, 2009 and dismissed (Nipissing C.C. #4 v. Simard et al., Transcript of Endorsement by Howden J. dated April 8, 2008). In the course of dismissing the motion, Mr. Justice Howden described the issue in the court application as follows:

….In my view, this application is proceeding to a hearing at this stage without significant factual disputes and the sole issue comes down – not to factual and behavioural issues, perception of those issues by the parties and the meaning of rules or a Declaration provision (such as pet rules or unreasonable noise) as in the cases cited involving only the unit owner and the corporation – but to the validity in law of the family provision in the Declaration as well as whether reasonable steps have been taken by the Respondent unit owner. Even the latter must give way to the prime issue of validity in law. Unlike Peng, this is not, as far as I can see, a case involving issues of conduct and use and gradations thereof, but to whether a unit owner is bound by what he alleges to be a provision in violation of the Ontario Human Rights Code and is discriminatory.

(Emphasis added)

9On July 27, 2009, the Tribunal issued an Interim Decision denying the request for early dismissal on the basis that the Application is not barred by subsection 34(11) of the Code: 2009 HRTO 1150. In the Interim Decision, the Tribunal noted that the applicant had not made a claim for remedies under section 46.1 of the Code in an ongoing civil proceeding.

10On September 23, 2009, the respondent filed a complete Response. Thereafter, in the Response and in the subsequent Request to Dismiss the respondent continued to take the position that the Application should be dismissed. As the related civil litigation proceeded, the specific grounds evolved so that by the date of the conference call hearing, the respondent’s position was based on the disposition of both the court application and Kilfoyl.

11Kilfoyl involved another owner/landlord in the respondent’s condominium but was in respect of the same Declaration (the facts of which are summarized in the Tribunal’s decision Kilfoyl v. Nipissing Condominium Corporation No. 4, 2010 HRTO 1036). In that case, the respondent also commenced an application in the Superior Court of Justice in which it sought, among other things, a declaration that the applicant (in that case Mr. Kilfoyl) was in breach of the Condominium Act, 1998 (“CA”) and that the tenants in one of the units were in breach of the CA, the Corporation’s Declaration and By-laws. The applicant opposed the application on the basis, among other things, that the relief should not be granted because “enforcement of the definition [of “family”] would require the questioning of prospective tenants in a manner which would infringe the Human Rights Code.” The court application resulted in a decision (Nipissing Condominium Corporation No. 4 v. Kilfoyl et al, Superior Court of Justice, dated September 9, 2009, Stong J.) in which the issue was framed as follows:

The issue in this application is whether the Declaration under Part III section 5 by the NCC No. 4 restricting the occupation and use of the units to that of a one family residence as defined in the Declaration, and as implemented by the applicant restricting occupants to members of a family who are related to each other, contravenes the Human Rights Code, and therefore is enforceable as it stands.

12Justice Stong determined:

The restriction in the Declaration in relation to the use of the units does not infringe any grounds listed in section 2(1) of the Human Rights Code based on the facts of this case.

13This decision was upheld by the Court of Appeal in Kilfoyl in an oral ruling issued March 3, 2010. In the course of its decision, the Court of Appeal referred briefly to underlying facts noting the evidence showed that the appellants rented their units to students who were not living together because of some familial connection. The Court of Appeal’s endorsement states:

In our view, the application judge correctly concluded that the only issue on the application was whether the occupancy provision violated the Human Rights Code, R.S.O. 1990, c. H.19. Further, he correctly decided that the occupancy provision does not infringe any ground listed in s. 2(1) of the Human Rights Code.

14On April 15, 2010, the applicant in this Application provided his consent to a judgment in the court application pertaining to him. Among other things, the consent judgment declares that he is in breach of section 119 of the CA, that the units in question can only be occupied as a one family residence as defined by the Declaration and that he (and the other respondents in the related court application) are to comply with the occupancy restrictions found in Part III, Section 5 of the Declaration Approximately 55 minutes later the applicant’s counsel sent an email to counsel for the condominium corporation indicating that the consent was “without prejudice” to the applicant’s ongoing human rights proceeding. The Consent Judgment was taken out April 20, 2010 with no further discussion between the applicant and the respondent about the qualification made by the applicant to the settlement.

15There is an outstanding Request to Amend. On March 31, 2010 (amended April 6, 2010), the applicant filed with the Tribunal a Form 10 seeking to amend the Application to include age and marital status as grounds of discrimination. The applicant relies on the fact that for the most part the respondent has stated that the groups sought to be excluded are made up of students (relying on an affidavit filed by the respondent in the related Court Application in Kilfoyl). The applicant states that excluding students has a disproportionate impact on people who are single, thereby engaging the ground of marital status, and young persons, thereby engaging the ground of age.

16The request to add reprisal as a ground in the Application was made a day before the conference call hearing.

THE PARTIES’ SUBMISSIONS

17The respondent relied on similar submissions in opposing the request to amend and supporting its request to dismiss.

18The respondent argues that this is not an appropriate case to grant an amendment of the Application as the Tribunal has no jurisdiction to hear the Application, relying on section 34(11)(b) of the Code and the decisions disposing of the applicant’s court application, the court application in Kilfoyl, and a related application at the Tribunal brought by Mr. Kilfoyl (2010 HRTO 1036). The respondent submits that the applicant is not claiming that his right to occupancy has been discriminated against and instead his claim is based on reprisal for which he has not included any “evidence” on which to ground such a claim. Adding new grounds of discrimination, the respondent submits, will not address the substance of the Application.

19The respondent makes similar submissions in support of its request to dismiss. In addition to relying on section 34(11)(b), the respondent relies on section 45.1 of the Code and argues that the substance of the Application has been appropriately addressed by the consent judgment in the court application, the Court of Appeal decision in Kilfoyl, and by the Tribunal’s decision dismissing Mr. Kilfoyl’s application at the Tribunal (2010 HRTO 1036).

20The applicant argues that the amendments should be granted given that the request was made early in the proceeding and there is no prejudice to the respondent.

21On the request for dismissal, the applicant states that neither section 34(11)(b) of the Code, section 45.1 of the Code, nor abuse of process provide a basis to dismiss the Application. The applicant states that section 34(11)(b) does not apply as its application is limited to cases where the applicant invokes the court’s jurisdiction under section 46.1 of the Code. Moreover, the “matter” that was raised and settled in the court application was the question of whether the applicant was in compliance with the presumptively valid declaration and the consent given was “without prejudice” to the “continuing” human rights complaint. In these circumstances, the applicant submits that neither section 45.1 nor abuse of process has application.

22The applicant argues that Kilfoyl is not determinative of the present case for a number of reasons including that the argument to the Court dealt solely with family status and the Superior Court made its finding “based on the facts of this case” suggesting that the facts did not included the demographic characteristics such as age and marital status. Further, the applicant argues that the Court of Appeal decision in Kilfoyl did not contain any principled analysis since it did not acknowledge the basic principle that parties cannot contract out of the Code but instead focussed on the contractual basis of the condominium arrangement.

23The applicant states that although the respondent’s submission on the Request to Dismiss included arguments that there is no discrimination under the Code (by suggesting that the group affected by the exclusionary rule is not protected by any Code ground and that the applicant’s personal rights are not affected because he has no “right” to rent to whoever he wants) these arguments go to the merits of the case. In his oral submissions, the applicant clarified that his reprisal argument is based on the enforcement of the Declaration. The applicant views the Declaration as a contract (a contract which requires the applicant to breach the Code) and alleges that this requirement is a reprisal or threat of reprisal since the respondent will and did take action against him if he did not comply.

24The applicant relies on a number of additional facts in support of his position. These facts include reliance on written records of the respondent demonstrating that tenants who the respondent seeks to exclude are students; the fact that students at issue attend the nearby college or university; statistics which reveal that students are not generally local including those at Nipissing University; statistics that students are generally young, predominantly under age 25 in Ontario; census data that demonstrates that persons under age 25 are predominantly single or not married in Ontario and in North Bay; documents indicating that the Ontario Human Rights Commission has expressed ongoing concern about potential discrimination in policies limiting student access to housing; and that students who come from outside of North Bay need housing and that there is a lack of affordable housing. The applicant submits that these additional facts reveal that the exclusion of students from rental housing is a serious issue that “may” potentially be a Code violation based on age and/or marital status, which was not raised or considered in Kilfoyl.

REQUEST TO AMEND

25The applicant seeks to add three grounds to his Application: age, marital status and reprisal.

26Rule 1.7(c) of the Tribunal’s Rules of Procedure state that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.” In determining whether or not to grant an amendment the Tribunal considers a number of factors including the stage at which the request to amend is made, the nature of the amendment and whether there is any apparent prejudice (see for example, Dube v. Canadian Career College, 2008 HRTO 336 and Wozenilek v. 7-Eleven Canada, 2009 HRTO 926).

27In this case, I find it appropriate to grant the amendment to add reprisal to the Application. The applicant’s claim in the Application was clearly based on reprisal as he completed the reprisal section of the Application form (although he did not check off the box). There is no prejudice to the respondent as the respondent has already responded to that aspect of the Application. While the respondent takes issue with whether or not reprisal can be proven, that is a separate issue from whether it is appropriate to grant the amendment.

28I do not find it appropriate to grant the other amendments. While the applicant is correct in suggesting that the amendment to add age and marital status is being proposed at an early stage, I am not convinced that allowing the applicant to amend the Application to include age and marital status would provide for a fair, just and expeditious resolution of the Application.

29In the Application, the applicant indicates that he is alleging that it is his tenants who are being discriminated against by the respondent based on their family status. The substance of the applicant’s claim relates to his having to enforce what he views as a discriminatory declaration, i.e. a reprisal claim. In making a reprisal claim, I am not convinced that it is material to the claim of reprisal that the applicant now believes that he “may” be discriminating against tenants on other grounds such as age or marital status.

IS THE APPLICATION BARRED BY SECTION 34(11)?

30Section 34(11) provides as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled. 2006, c.30.s. 5.

31I do not find that the Application is barred by section 34(11)(b). Even assuming without deciding whether section 34(11)(b) could have application in a situation where a respondent commences a civil proceeding as found in the Tribunal’s decision Kilfoyl, in this case I am not satisfied that section 34(11)(b) applies to bar the Application. While the applicant consented to a judgment, he clarified that it was “without prejudice” to his human rights complaint continuing. While this qualification came after he provided his consent, it came before the judgment was taken out. No contrary position was taken by the respondent prior to the judgment being taken out. In these circumstances, I do not find that I reasonably conclude that the matter (i.e. the substance of the Application) was settled when the parties settled the civil application.

SHOULD THE APPLICATION BE DISMISSED ON ANOTHER GROUND?

32The respondent argued that in the alternative, the Application should be dismissed because of section 45.1 of the Code and/or abuse of process. In its submissions, the respondent relies on the related court proceeding that was settled and the Court’s disposition in Kilfoyl.

33Section 45.1 of the Code provides that 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.

34For reasons expressed above, I have difficulty relying on the settlement of the related court proceeding to support a dismissal on either section 45.1 and/or abuse of process. I find that the circumstances leading to the consent judgment being issued - consent followed by a without prejudice qualification - preclude a finding that another proceeding has appropriately dealt with the substance of the Application before me or that it would be an abuse of process to continue with this Application.

35This leaves the Kilfoyl decision and whether the disposition in that proceeding effectively disposes of the issue in this Application whether based on section 45.1 or abuse of process.

36I do not find that this is an appropriate case to exercise my discretion based on section 45.1 to dismiss the Application. While Kilfoyl was a proceeding, it was proceeding brought by a different applicant. I do not find that the disposition in Kilfoyl can reasonably be found to appropriately deal with the substance of “the application” in this case given that the applicant was not a party to the other proceeding.

37The final issue is whether or not the Application should be dismissed on the basis of abuse of process.

38In their submissions on the latter, relying on Kilfoyl, the respondent argues that the principle of stare decisis is a sub-category of abuse of process and where, as in this case, the applicant, is complaining about the same Declaration that the Court of Appeal has found is not discriminatory, the Tribunal is bound to follow that result.

39The applicant does not dispute that the Tribunal can consider abuse of process, but argues that the underlying concern of re-litigation does not apply here since there has been no litigation over the allegations concerning age and marital status and the facts which the applicant intends to call in support of those allegations.

40In their submissions, the parties referred to the Tribunal’s case law on abuse of process and the case law on stare decisis.

41Pursuant to section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22, the Tribunal may “make such orders or give such directions in proceedings before it considers proper to prevent abuse of its processes”. As noted by the Tribunal in Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 28, abuse of process is a legal doctrine “whose focus is the integrity and coherence of the adjudicative process” and a finding of abuse of process is not a conclusion that any party has acted with malice or in bad faith.

42The Tribunal has observed that the circumstances that might ground a successful abuse of process request are not closed and have included where the allegations of discrimination have been heard and determined in another forum. See Snow v. Honda, 2007 HRTO 45, at para. 54. Elsewhere the Tribunal observed that “abuse of process” has been applied to a variety of circumstances in which a tribunal has found it “unfair” to permit proceedings to continue. See Campbell, supra at para. 35.

43In Sagharian v. Ontario (Education), 2008 ONCA 411, the Court of Appeal addressed an appeal from a pleadings motion to strike a claim challenging the provision of autism and education services to children with autism. In respect of the age based discrimination claim, the Court found that the claim had no chance of success because of the Court of Appeal’s earlier decision in Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 82O.R.(3d) 561, leave to appeal refused, [2006] S.C.C.A. No. 441 and the principle of stare decisis. In general terms, the Court of Appeal found that absent different facts (which it found were not alleged in that case), the Court’s earlier decision in Wynberg disposed of the issue advanced by the appellants.

44The Tribunal has dismissed an Application where the issues raised were indistinguishable from issues already determined in another Court proceeding: Zavadsky v. Ontario (Ministry of Education), 2009 HRTO 756.

45In the proceeding before me as noted above, the parties relied on this case law albeit for differing ends. The respondent argued that the Court of Appeal’s decision in Kilfoyl was binding as the Application involves the same facts (students renting units), the same issue, and the same Declaration and the same condominium corporation. The applicant argued otherwise suggesting that it was relying on additional facts and issues related to the claims of age and martial status that were not before the Court of Appeal and, accordingly, the respondent’s request to dismiss should be denied.

46In addressing the significance of the Court of Appeal decision in Kilfoyl, I note that the parties framed the issue as one of an abuse of process and/or stare decisis. In Sagharian, the Court of Appeal dismissed part of the case on the basis that it had no prospect of success (which would appear to be analogous to the Tribunal’s Summary Hearing rule (Rule 19A) that permits dismissal of an application where there is no reasonable prospect of success). Regardless of how it is framed, in my view, the same concern underlies each approach which is – does the Kilfoyl decision effectively dispose of the issues in this Application because it is a determination by the Court of Appeal of the issues in this Application. I find that it disposes of the issues in part.

47This Application relies on two claims: a claim that the applicant has been discriminated against with respect to occupancy of accommodation because of family status. In addition, the applicant cites reprisal and specifically alleges that section 8 of the Code is violated on the basis that his right to “refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for doing so.”

48I agree with the respondent that there would appear to be an issue with the applicant establishing a violation based on discrimination because of family status. When asked to explain why he believes he was harassed or discriminated against based on family status or marital status the applicant clarifies in his Application “…that my tenants are being discriminated against based on their family status due to the discriminatory provision in NCC4 declaration mentioned in section 8…”.

49However, even if I consider the claim of discrimination in housing based on family status as valid at this stage, I find that the decision of the Court of Appeal is binding and therefore, this part of the Application should be dismissed. The Court addressed the same Declaration and had before it a case that was materially identical in facts (a landlord-owner renting to students in the condominium corporation). Even the applicant acknowledged that the “basic facts” were the same.

50I note that even if I had been inclined to permit the amendments of marital status and age, the result would not be different. While it would appear that the human rights argument advanced in Kilfoyl focussed on family status, the Court of Appeal’s decision went beyond family status. The Court of Appeal determined that the occupancy provision did not infringe “any ground” listed in section 2(1) of the Code. In the face of such an unambiguous ruling by the Ontario Court of Appeal I fail to see how in the circumstances of this case where the facts are materially identical, the decision in Kilfoyl would not be binding on the Tribunal in respect of the same Declaration.

51Moreover, even if I were to consider the additional facts asserted by the applicant in this case they would not persuade me that this is a materially different case. As noted above, apart from the reference to the students at issue attending local institutions, the additional facts seem analogous to social facts (the average age of students, the marital status of students in Ontario and North Bay etc.) and not facts relevant to the particular parties in this matter. In Sagharian, supra, the Court held that social and legislative fact evidence did not qualify as compelling circumstances necessary to revisit the same legal issue determined in the Wynberg decision and depart from the principle of stare decisis.

52This leaves the issue of reprisal (s.8 of the Code) and the applicant’s allegation that the respondent is forcing him to discriminate against prospective tenants if he complies with a declaration made by the respondent to restrict the occupation and use of his units to one family. The respondent argues that this issue was also disposed of by Kilfoyl. While I appreciate the view that in upholding the earlier decision, the Court of Appeal accepted the validity of Declaration. I cannot find based on the reasons provided that the Court of Appeal expressly addressed the issue of section 8 of the Code.

53In reaching this conclusion I am not suggesting that Kilfoyl is not relevant to the determination of whether or not reprisal can be established in this case. However, Kilfoyl did not deal with a section 8 claim such that it would be an abuse of process for this Application to continue at this stage.

ORDERS

54The applicant’s Request to Amend is granted in part. Reprisal is added as a ground.

55The respondent’s Request to Dismiss is granted in part. The allegations based on family status are struck.

56The Application will continue to be processed on the ground of reprisal only. The Tribunal will separately issue further directions as to the continuation of the Application.