HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary-Lou VandenBroek
Applicant
-and-
Villa Otthon, Aykler & Co. Realty Ltd.,
and Aykler Real Estate Inc.
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: VandenBroek v. Villa Otthon
WRITTEN SUBMISSIONS
Mary-Lou VandenBroek, Applicant ) Bruce Best,
) Counsel
Villa Otthon, Aykler & Co. Realty Ltd., ) David Strashin,
and Aykler Real Estate Inc., Respondents ) Counsel
1This Interim Decision addresses the applicant’s Request for an Interim Remedy which she filed together with her Application dated January 4, 2011. The Application was served on the respondents on January 20, 2011, who have filed a Response to the applicant’s request. The respondents have not yet filed their Response to the Application, as the time for doing so has not yet expired.
BACKGROUND
2The applicant self-identifies as having a number of disabilities, including a significant and debilitating sensitivity to environmental factors in her apartment. The applicant lives in an apartment building owned by Villa Otthon, which is a non-profit corporation that provides housing to low income persons. Aylker Real Estate Inc. is the property manager for the building.
3The applicant originally lived in Unit 1111, but requested and was granted a move to Unit 1105 due to her concerns about elevator noise. This move occurred in the spring of 2006. Shortly after the move, the applicant became concerned about smells in her apartment, including smoke, cooking smells, garbage smells and sewage smells, and she complained about these smells to the building superintendent. Based upon the material filed by the applicant to date, the situation appears to have worsened for her in the latter half of 2007, when she states that she had to go to the emergency department a number of times as a result of her sensitivity and reaction to these smells.
4The applicant’s complaints appear to have resulted in the respondents performing work on the ventilation in the applicant’s unit sometime in the latter part of 2007. The respondents state that they retained the services of a consulting engineer to investigate and to advise on the ventilation issues, and they implemented the engineer’s recommendations and completed the work mandated by the City of Toronto. Specifically, the range hood, duct and wiring in the applicant’s unit were removed, and a new kitchen exhaust fan motor, wheel, fan cover and duct work were completed. In addition, a wall box back draft damper was installed, which vents inside air from the applicant’s apartment to the outside and prevents outside air from entering. As well, the existing kitchen exhaust duct was cleaned, and the applicant’s entry door was weather-stripped to prevent entry of drafts into the unit.
5The applicant states that notwithstanding this work, she continues to experience problems. She states that new tenants moved into the apartment below hers in January 2008, and in the months that followed she states that she experienced four “respiratory events”, two of which she attributes to smoke drifting in from the tenant’s balcony below hers and two of which she attributes to smoke in the hallway from other units or from the stairwell.
6The applicant requests an interim order: (1) that the respondents provide sufficient patrolling of the stairwells and hallways of Villa Otthon to ensure that no person is smoking; and (2) that the respondents take the necessary steps to ensure that the applicant’s door provides an adequate seal to minimize the transfer of smoke and fumes from the hallway.
7The order is requested on the basis of the applicant’s belief that people are smoking in the stairwell near to her apartment, and that the smoke then drifts into her unit either through her door or through the ventilation system.
8In support of her Request, the applicant has submitted a letter from her family physician dated December 16, 2010. This letter confirms that the applicant is highly sensitive to fumes and smoke, and that the applicant feels suffocated and unable to breath when exposed to relatively small levels of smoke. The doctor expresses her opinion that, if steps were taken to address the source of the smoke and/or to ensure that such smoke cannot enter the applicant’s apartment unit, this would substantially reduce the immediate negative impact on the applicant.
DISCUSSION
9Rule 23.2 sets out the circumstances in which interim remedies will be granted:
23.2 The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
10The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA v. 60 Montclair, 2009 HRTO 369 (“TA”). TA articulated various principles that apply to requests for interim remedies. They include the following:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras. 15-27).
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras. 28-29).
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) and is fair in all of the circumstances (para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para. 36).
11There is a further principle that bears particular mention. The Tribunal is more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. Creating a new state of affairs that has never existed is a more extraordinary and serious remedy than maintaining what exists or has recently existed. Where the situation has existed for some time, this is a significant factor militating against the interim remedy: Williams v. Iroquois Falls (Town), 2010 HRTO 2350.
12I am prepared to assume, without deciding, that the Application has sufficient merit to pass the relatively low threshold imposed by the first requirement. What concerns me about the applicant’s Request is that the situation that the Tribunal is being asked to address has existed for some considerable amount of time. As stated above, the applicant moved into the unit in the spring of 2006 and she herself states that she immediately became concerned and complained about the smells. This was almost 5 years ago and almost 5 years before she commenced her Application and sought an interim remedy.
13While the applicant appears to have focused her efforts on getting the respondents to address the ventilation issues in her unit through the City of Toronto, the work required by the City was completed in late 2007, over 3 years ago and over 3 years before the applicant commenced her Application and sought an interim remedy. It appears to have been immediately apparent to the applicant that the problem persisted notwithstanding the work done by the respondents, as she states that she had four respiratory events in the months following January 2008 and she states that she raised this issue with the respondents in April 2008.
14While there is evidence on ongoing health issues that have persisted over the past 5 years, there is no evidence before me to support any recent and acute exacerbation of these problems. Indeed, based on the material before me, the applicant’s health issues appear to have peaked in the latter part of 2007 and in early 2008. Since that time, the only indication of a specific event described by the applicant relates to an incident two years ago in February 2009 when she states that she ended up in the hospital because the respondents were stripping grafitti from the stairwell walls.
15The medical evidence provided by the applicant does not support any recent acute exacerbation of her health issues, but merely states that reducing exposure to smoke would substantially reduce the immediate negative impact on the applicant. The same could have been said at any time over the past 5 years.
16I do not intend to be critical of the applicant for the delay in commencing her Application. It appears that she first attempted to resolve the issue by involving the City of Toronto, and then later has tried to explore the possibility of moving to another building or another unit. However, it must be remembered that the making of an interim order is an extraordinary remedy that is only to be granted when necessary to achieve the remedial purposes of the Code. The applicant is requesting that the respondents be ordered to do something that they are not currently doing without first having a determination under the Code that the applicant’s rights have been violated and that the respondents are required to do these things in order to remedy the violation. Where the underlying situation has existed for a considerable length of time, the Tribunal needs to consider why it is necessary to make an extraordinary interim order of this nature when the matter will be heard and determined in a relatively short period of time and the Tribunal will be in a position to decide whether such a remedy is warranted on the basis of a reasoned and thorough examination of all of the evidence and a determination as to whether the applicant’s rights under the Code actually have been violated.
17In the instant case, given the long period of time during which the underlying situation has existed and in the absence of any evidence to support a recent acute exacerbation of the applicant’s health issues, I find that the balance of convenience does not support granting an interim remedy of the nature requested and that it would not be appropriate and just to do so.
18I also wish to respond to the argument by applicant’s counsel that granting the first aspect of the relief sought is merely requiring compliance by the respondents with ss. 9(2) and (6) of the Smoke Free Ontario Act, S.O. 1994, c.10. It is not this Tribunal’s jurisdiction to enforce the Smoke Free Ontario Act, although the provisions of that and other legislation may be relevant considerations in the exercise of this Tribunal’s jurisdiction under the Code. In any event, I note that the first aspect of the interim order sought by the applicant is not merely requesting compliance with that legislation, but is assuming that “sufficient patrolling of the stairwells and hallways . . . to ensure that no person is smoking” is a legislative requirement. This is disputed by the respondents, who take the position that they are in compliance with the Act. No party has provided any authority to me to indicate how the provisions of the Act that are being relied upon have been interpreted. I also am concerned with the vagueness of the order requested, with the resulting uncertainty as to what “sufficient” patrolling would entail.
19With regard to the applicant’s door, I understand from the respondents’ materials that weatherstripping of the door to prevent entry of drafts was done in late 2007. It appears that the applicant is saying that her door frame is broken. It would appear that the appropriate way to deal with this would be for the applicant to request that her door frame be repaired in the normal course as a tenant. Making such a request would not require the invocation of the extraordinary powers of this Tribunal to provide interim relief.
20Finally, I note that this situation has been contentious for the parties over a considerable length of time. It is hoped that through the use of the Tribunal’s mediation process and the application of cool and reasoned heads to the matters at issue, an appropriate resolution to these longstanding issues can be found.
21The Request for Interim Remedy is dismissed.
Dated at Toronto, this 9th day of February, 2011.
“Signed by “
Mark Hart
Vice-chair