Simpson v. Transglobe Property Management Services, 2011 HRTO 1645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Simpson

Applicant

-and-

Transglobe Property Management Services Limited

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: September 2, 2011

Citation: 2011 HRTO 1645

Indexed as: Simpson v. Transglobe Property Management Services

WRITTEN SUBMISSIONS BY:

Richard Simpson, Applicant ) Peter A. Silverman, Counsel

Transglobe Property Management ) Matt Anderson, Counsel

Services, Respondent )

BACKGROUND

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 May 12, 2011, alleging discrimination on the basis of disability with respect to accommodation.

2On July 7, 2011, the applicant also filed a Request to Expedite Application.

3On July 19, 2011, the Respondent responded to the Request to Expedite Application and requested that the Application be deferred on the basis of an ongoing matter before the Landlord and Tenant Board of Ontario (LTBO), filed by the Applicant on April 29, 2011. A copy of the LTBO applicant was included with the Application and Response.

4The applicant provided submissions with regard to the Request to Expedite Application and request to defer on July 21, 2011.

5On July 22, 2011, the Tribunal Registrar notified the parties that the Request to Expedite Hearing was denied and requested further submissions from the applicant with regard to the request to defer.

6The applicant filed further submissions in opposition to the request to defer on August 4, 2011.

7The applicant notes that the LTBO hearing, originally scheduled to be heard on June 24, 2011, has been re-scheduled to be heard on September 13, 2011. The applicant blames the respondent for the delay in the LTBO hearing and appears to argue that the Tribunal Application should not be deferred because of that delay.

8The applicant also states in his submissions of August 4, 2011, that:

…the remedies provided by the HRTO are different from that which can be granted by the Landlord and Tenant Board, and which are being abused, and that the Human Rights of the Tenant, Mr. Simpson continue to be infringed upon, requiring immediate action by the HRTO.

DECISION

9Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent decisions on facts or law. The Tribunal has deferred past Applications when an LTBO matter is also ongoing. See Cailloz v. Buyer Broker Realty, 2010 HRTO 2113, and Prezio v. Calvert, 2011 HRTO 1265.

10While deferral is not automatic, it is granted to avoid adjudicative duplication. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Christianson v. College of Physicians and Surgeons, 2009 HRTO 438 at para. 10, Groves v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1779.

11With regard to remedial powers, the Supreme Court of Canada has found that statutory tribunals, like the LTBO, that are empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the Code to a matter properly in front of them (Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513).

12Based on the materials filed, I find that there is significant overlap between the subject matter of the Application and the application filed with the LTBO. In both matters, the applicant raise concerns that the respondent discriminated against him based on, amount other things, not properly accommodating the applicant’s need for a motorized scooter.

13Finally, while the applicant may be frustrated with the length of time the LTBO process has taksen, this is not a sufficient reason to proceed with the Application in all the circumstances. See, Law v. Organizational Solution, 2010 HRTO 1158 and Rego v. Mount Sinai, 2011 HRTO 458.

14I find that it is appropriate to defer this Application pending the completion of the LTBO process. There may be issues raised by the Application that go beyond those that will be litigated before the LTBO. However, given the considerable factual overlap between the two proceedings, the potential for the LTBO to determine some of the issues in this Application, and the advanced stage of that process, the rational and orderly litigation of the various issues between the applicant and the landlord respondent favours deferral. See O’Brien v. Burlington (City), 2009 HRTO 1818, and Prezio, above.

ORDER

15In these circumstances, the Tribunal finds that the most fair, just and expeditious approach is to defer consideration of the Application pending the conclusion of the LTBO process. The Tribunal directs the parties’ attention to Tribunal Rules 14.3 and 14.4 which outline the process by which a party may request, in accordance to Rule 19, the Tribunal to proceed with an application after the conclusion of another process.

16I am not seized of this matter.