Tsoref v. Frastell Property Management Inc., 2011 HRTO 1673

Human Rights Tribunal of Ontario

B E T W E E N:

Daliah Tsoref Applicant

• and -

Frastell Property Management Inc. Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 9, 2011 Citation: 2011 HRTO 1673 Indexed as: Tsoref v. Fastell Property Management Inc.

1The applicant filed an Application on May 19, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to housing on the basis of family status. The Application indicated that there are a number of outstanding Landlord and Tenant Board (“LTB”) proceedings that relate to the events alleged in the Application.

2On July 5, 2011, the Tribunal issued a Notice of Intent to Defer pending the resolution of another legal proceeding dealing with the subject matter of the Application. The parties were directed to file submissions with respect to the issue of deferral. The respondent was directed to not file a full Response at this time.

3On July 29, 2011, the respondent filed submissions indicating that the applicant commenced an application before the LTB on March 11, 2011 and that the respondent also has commenced an LTB application against the applicant. The respondent submits this Application should be deferred because the applicant can raise the human rights concerns as a defence to the respondent’s LTB application. The respondent provided a notice of hearing indicating that the LTB hearing into the applicant’s application was originally scheduled for April 8, 2011.

4The applicant filed submissions on July 31, 2011 opposing deferral on the basis that the LTB proceedings will not address the human rights issues and that the remedies sought in the human rights Application are not available at the LTB. The applicant indicated that her family may be leaving Canada by August 2012 due to the expiration of her temporary work visa in an oncology fellowship program. The applicant notes her concern that, if the Tribunal defers the Application, the family may not be able to conclude the human rights proceeding prior to their planned departure. The applicant requests that the Tribunal proceed with the Application without delay.

5By way of Case Assessment Direction dated August 17, 2011, the Tribunal required the parties to provide further information as to the status of the LTB matters. The Tribunal noted that the materials accompanying the Application indicated that a hearing of the respondent’s application to terminate the tenancy early was originally scheduled for June 10 and 16, 2011. The Tribunal required both parties to provide updated information with respect to the status of the LTB proceedings and to provide any further submissions on deferral in light of the current status of the proceedings.

ANALYSIS

6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

7The parties confirmed that the LTB has held two hearing days into the parties’ matters on June 10, 2011 and July 29, 2011 and that a third hearing day is set for September 19, 2011.

8Based on the materials filed and the parties’ submissions, I find that there is significant overlap between the subject matter of this Application and the proceedings currently before the LTB. In both of these matters, the applicant raises similar concerns that the respondent’s have mistreated her and her family in relation to the same facts. The applicant’s narrative and LTB pleadings are virtually identical. In both proceedings, the applicant has alleged harassment and discriminatory termination of tenancy and has specifically asserted that the respondent has failed to appreciate that her children have engaged in normal, age appropriate behaviour.

9In Golon v. Addison Chevrolet Buick GMC, 210 HRTO 448, the Tribunal noted a number of compelling reasons why the Tribunal should defer an Application when an applicant has commenced another proceeding that raises related issues:

First, it may not be fair to the parties to be required to pursue more than one proceeding dealing with substantially the same issues at the same time. Secondly, there is a potential for inconsistent findings in the two proceedings. Inconsistent findings by two different adjudicative bodies may occur because the cases are presented differently or because different statutes or rules may apply. However, it is generally preferable for one proceeding to be completed before the other starts so that the parties and the Tribunal can properly evaluate whether the other proceeding has appropriately dealt with the human rights issues.

10In light of the overlap between the two cases, and given that the LTB proceeding is at an advanced stage, it is appropriate to defer consideration of the Application pending the conclusion of the LTB matter. To continue with the Application when there is a concurrent legal proceeding hearing evidence and determining related legal issues regarding the same disputed facts risks inconsistent findings of fact and law.

DIRECTIONS

11The Tribunal directs the Application will be deferred pending the completion of the LTB hearing and receipt of the LTB Decision.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application be reactivated after deferral.

13I am not seized of this matter.