Roman v. Ecuhome, 2011 HRTO 327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Solomon Roman

Applicant

-and-

Ecuhome Corporation

Respondent

DECISION

Adjudicator: Mark Hart

Date: February 15, 2011

Citation: 2011 HRTO 327

Indexed as: Roman v. Ecuhome

APPEARANCES

Solomon Malak Roman, Applicant ) Joseph Kary, Counsel

Ecuhome Corporation, Respondent ) A. Shawn Richard, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code) dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) sometime on or about November 26, 2007.

2A preliminary hearing was held in this matter on November 20, 2010 to hear evidence and oral submissions in relation to the respondent’s Request to dismiss the Application on the following three bases: (1) that the complaint had been withdrawn and so was not a “continued” complaint within the meaning of s. 53(5) of the Code; (2) that the Application should be dismissed as an abuse of process; and (3) that the Application should be dismissed pursuant to s. 45.1 of the Code on the basis that its substance already had been appropriately dealt with in another proceeding.

3Due to my disposition of this matter, it is only necessary for me to address the second issue raised by the respondent, namely whether the Application should be dismissed as an abuse of process.

BACKGROUND

4The respondent Ecuhome Corporation (“Ecuhome”) is a charitable organization which provides housing and support services for disadvantaged and street people. The applicant was a tenant in one of the homes operated by Ecuhome during the period from December 1, 2005 to February 12, 2008.

5On October 16, 2007, the applicant made a complaint to the Commission alleging that he had experienced discrimination and harassment by Ecuhome and certain named individuals because of creed, ethnic origin, place of origin, race and citizenship contrary to sections 2 and 9 of the Code, arising out of allegations of discriminatory comments and adverse treatment by other tenants and of Ecuhome’s failure to take adequate steps to address the situation. This complaint was accepted by the Commission sometime on or after November 26, 2007 with changes including the addition of a further incident and the addition of a further personal respondent. The complaint was subsequently withdrawn as against all personal respondents.

6On September 15, 2008, the applicant also filed two applications with the Landlord and Tenant Board (“LTB” or the “Board”), one alleging a failure by Ecuhome as the landlord to properly maintain the premises (Form TR-6) and one alleging a violation of the applicant’s tenant rights (Form TR-2).

7The hearing before the LTB commenced on October 23, 2008. An audiotape of this hearing day was introduced into evidence before me, and was reviewed twice as part of the proceeding before me on November 30, 2010.

8At the commencement of the October 23, 2008 hearing before the LTB, Ecuhome’s representative raised a preliminary issue arising out of the human rights complaint that had been filed by the applicant. Ecuhome’s position was that certain allegations raised in the applications before the Board were duplicative of the allegations raised in the human rights complaint, such that Ecuhome should not be required to respond to such duplicative allegations in two different fora. It is noteworthy that what Ecuhome was requesting at this time was that the LTB defer to the process under the Code for dealing with the applicant’s human rights complaint and that the LTB not deal with those aspects of the applications before it that were duplicative of the human rights complaint.

9A copy of the applicant’s human rights complaint was provided by Ecuhome to the LTB and the applicant, and was before it at the time the preliminary issue was discussed. In her exchange with Ecuhome’s representative, the LTB member expressly raised differences between the allegations made in the human rights complaint as opposed to the allegations raised in the LTB applications. For example, the LTB member raised the fact that the human rights complaint alleged discrimination because of ethnic origin and religion, which was not expressly raised in the applications before her. The LTB member also raised that the applications before her alleged discrimination because of disability, which was not alleged in the human rights complaint.

10At the hearing before the LTB on October 23, 2008, the applicant was represented by a law student from a legal clinic operated at one of Toronto’s law schools. This law student made submissions in response to the preliminary issue raised by Ecuhome. The law student’s submissions clearly indicate the applicant’s desire for all of his issues to be addressed before the LTB. The law student states on the applicant’s behalf that the applicant was just protecting his rights by filing his human rights complaint and that the applicant was willing to have all of his matters resolved before the Board.

11After hearing from the applicant’s representative that he was willing to have all of his matters resolved before the Board, the LTB member sought to clarify the applicant’s position by asking, “are you telling me that [the applicant] is willing to undertake to withdraw his human rights complaint if I accept jurisdiction over the T2 and T6 applications?” At this point, Ecuhome’s representative stated that he would withdraw his preliminary issue if this undertaking were given. The law student then said “yes” in response to the LTB’s member’s question, to which the LTB member asked again “are you sure about that?” At this point, the law student can be heard referring to the applicant by name to elicit a response directly from the applicant, and the applicant directly said “yes”.

12After a brief exchange between the LTB member and the applicant’s representative, the LTB member then stated, “I just want to make sure you understand what you’re doing. . . . I will put in my order that the tenant undertook to withdraw his human rights complaint form, because if he doesn’t, the Commission will toss it.” While the words are inaudible on the tape, the law student can be heard conferring with the applicant. In his evidence before me, the applicant confirmed that he did confer with his representative at this point, but doesn’t recall what was said. This is followed by confirmation by the applicant’s representative that he was giving the undertaking on his client’s behalf.

13The hearing then proceeded on this basis and continued on December 15, 2008 and on March 23 and June 8, 2009. In her Order dated June 12, 2009, the LTB member summarizes the outcome of the preliminary issue as follows:

At the commencement of the hearing the Landlord raised a preliminary objection to the Tenant’s application concerning tenant rights because the Tenant had filed a complaint with the Ontario Human Rights Commission that pled some of the same facts as those contained in the application before me. In response to this objection the Tenant stated that he would withdraw the Human Rights complaint and the hearing continued on that basis.

14The material before me indicates that sometime on or shortly before November 19, 2008, the applicant requested that the legal clinic close its file on him and said that he was seeking other counsel. The applicant’s current counsel was retained sometime on or before November 26, 2008 and met with the law student on November 26, 2008.

15On November 25, 2008, in the course of sending out letters advising various people that the clinic was no longer retained by the applicant, the law student sent a letter to the Ontario Human Rights Commission which states:

[The applicant] has instructed [the legal clinic] to withdraw his Human Rights Complaint against Ecuhome as he has decided to allow the Landlord and Tenant Board to have jurisdiction over this complaint. Please stop any investigation with respect to this Human Rights Complaint and notify the respondent.

16On November 26, 2008, the Commission sent out a letter to the applicant and copied to counsel for the respondent confirming that his complaint had been closed as withdrawn and that no further action would be taken, in accordance with the request of his representative.

17That same day, on November 26, 2008, the applicant’s current counsel wrote to the Commission to advise that he had been retained, that he had just met with the law student, and that the November 25, 2008 letter had just come to his attention. Counsel’s November 26, 2008 letter states that in reviewing the file with the law student, it became clear that at least some of the claims made in the complaint could not be put before the LTB. Applicant’s counsel asked that the Commission not act on the request sent out by the law student the previous day until counsel could discuss the matter with his client and obtain clear instructions. This letter appears to have proverbially crossed in the mail with the Commission’s letter of the same date.

18On December 9, 2008, the applicant’s counsel wrote again to the Commission, this time to confirm that the applicant did not wish to abandon his human rights complaint. This prompted a telephone call from a Commission Manager to request a more detailed explanation of the applicant’s request to keep his file open, which was provided by applicant’s counsel by letter dated December 22, 2008. As a result of the Commission’s receipt of this letter, the Commission sent a letter to respondent’s counsel dated December 30, 2008 advising that the applicant’s complaint had been closed “in error” and had been re-opened.

19As a result of the transitional provisions of the Code, the Commission had no legislative authority to deal with the applicant’s complaint or any other complaint still in its process after December 31, 2008. As of January 1, 2009, individuals whose complaints had still been active at the Commission as of December 31, 2008 had a six month period within which to commence an application to this Tribunal based upon the subject-matter of the complaint as filed with the Commission. As stated above, the applicant filed his Application with this Tribunal on June 30, 2009.

20In the meantime, the LTB issued its Order on June 12, 2009. In that Order, the LTB member observes that most of the incidents underlying the applicant’s complaints about the conduct of other tenants occurred prior to September 15, 2007, which is beyond the one year limitation period under the Residential Tenancies Act, 2006, S.O. 2006, c.17, and so were beyond the LTB’s jurisdiction. The issue before the LTB member was not whether the applicant was treated badly by another tenant, but was about how Ecuhome as the landlord responded to the applicant’s complaints about how he was being treated by other tenants. In the end, on the basis of the evidence before her dealing with incidents that occurred on or after September 15, 2007, the LTB found that Ecuhome had not failed to reasonably address the applicant’s complaints concerning other tenants.

21The applicant’s counsel was very clear in his submissions before me that he is not asking this Tribunal to proceed with any allegations arising from incidents that occurred on or after September 15, 2007, whether or not such incidents were explicitly raised by the applicant before the LTB or addressed in the LTB’s Order. The only allegations that the applicant wishes to proceed with in his Application are those relating to events or incidents prior to September 15, 2007.

DECISION

22The respondent submits that it would be an abuse of process to allow this Application to proceed when it is based upon a human rights complaint that the applicant undertook before the LTB to withdraw. I agree.

23The applicant submits that this undertaking was given by the applicant and his then representative on the basis of representations by Ecuhome’s representative before the LTB and by the LTB itself that the LTB was able to deal with all of the allegations raised in his human rights complaint. It was stressed before me that the applicant’s then representative was an inexperienced first year law student up against a very senior and experienced representative for Ecuhome.

24I do not accept this submission. It must be borne in mind that at the hearing before the LTB, Ecuhome was not trying to get the applicant to withdraw his human rights complaint. To the contrary, Ecuhome’s position was that the applicant should be required to proceed with his human rights complaint, as he had filed his complaint there first and had selected that forum to address his human rights issues. What Ecuhome was seeking was a ruling from the LTB that the LTB would not deal with issues that were duplicative of those raised in the human rights complaint. The prospect of withdrawing the human rights complaint was raised by the LTB member in response to the statement by the applicant’s then representative that the applicant wanted all issues to be dealt with by the LTB, and the undertaking to withdraw the human rights complaint was confirmed twice directly by the applicant after he was cautioned by the LTB member about the implications of providing this undertaking, namely that if he didn’t withdraw his human rights complaint, it would be “tossed”.

25I also do not accept the submission that applicant’s then representative or the applicant himself relied upon a representation by Ecuhome’s representative that all of the issues raised in the human rights complaint would be dealt with by the LTB. Ecuhome’s representative made no such representation before the LTB. Further, in the exchange between Ecuhome’s representative and the LTB member, the LTB member expressly notes certain differences between the human rights complaint and the tenant rights application, including that the human rights complaint raised allegations of discrimination because of ethnic origin and religion that were not raised in the application before her. Indeed, far from this escaping the law student’s attention or grasp, it was the applicant’s representative himself who later made submissions to address the LTB member’s concerns and took the position that discrimination was addressed and relied upon in the application before her. Still further, both the human rights complaint and the LTB applications were before the applicant, Ecuhome and the LTB member at the hearing on October 23, 2008. The applicant and his then representative could review and see for themselves what allegations were raised in these two documents and the extent of any overlap. Indeed, the same legal clinic was also representing the applicant in relation to his human rights complaint, and so would have been familiar with its contents and the allegations raised therein.

26I also do not accept the submission that the LTB member represented that she would deal with all issues raised in the applicant’s human rights complaint. It was the LTB member herself who raised certain differences between the allegations in the human rights complaint and in the application before her, and it was the applicant’s then representative who submitted to the LTB member that the discrimination issue had been raised in the tenant rights application before her. The LTB member did not make any ruling that she had jurisdiction to address all allegations made in the human rights complaint. Rather, after being told by the applicant’s then representative that the applicant was willing to withdraw his human rights complaint, the LTB member took great pains to ensure that this was the decision that the applicant wished to make and that he understood the consequences of his decision.

27What the LTB member actually said at the hearing on October 23, 2008 was that if the applicant undertook to withdraw his human rights complaint, then she would assume jurisdiction over the TR-2 (tenant rights) and TR-6 (maintenance) applications. In the context of the preliminary issue raised by Ecuhome’s representative and that representative’s statement that he would not pursue the preliminary issue if the applicant undertook to withdraw his human rights complaint, the clear meaning of this statement by the LTB member is that she would assume the jurisdiction she had under the Residential Tenancies Act to deal with the matters raised in the applications filed with the LTB and would not decline to address some of these matters on the basis that they were duplicative of allegations raised in the human rights complaint. This is an entirely different statement than the LTB member saying that she would assume jurisdiction over all of the allegations raised in the human rights complaint.

28The real issue in this case is that it may not have occurred to the applicant or his then representative that the one year limitation period under the Landlord and Tenant Act would prevent the LTB from dealing with most of the applicant’s allegations about the conduct of other tenants. I say that this “may” not have occurred to the applicant or his then representative, because the law student was not called to give evidence before me as to his awareness of this limitation period at the time the undertaking was given by the applicant and because the applicant in his evidence could not recall what the law student had said to him at the hearing before the law student confirmed the undertaking the applicant had given.

29The applicant’s evidence before me was that he understood that the LTB would address all of the allegations raised in his human rights complaint. I am willing to proceed with my decision on the assumption that this was his understanding at the time. However, the applicant’s own evidence is that, as he proceeded to give his testimony before the LTB, it became apparent to him that the LTB would not be dealing with certain incidents raised in his human rights complaint, as the LTB member told him that she did not want to hear his evidence about these incidents. The applicant states that he didn’t raise with the LTB member his understanding that she would be dealing with all of the allegations in his human rights complaint because he felt very restricted by her regarding what he could give evidence about. This does not explain why he did not raise this issue with his then representative and ask his then representative to make submissions to the LTB member about the applicant’s stated misunderstanding.

30In any event, by November 26, 2008 when the applicant had retained new counsel, there is no doubt that it had become apparent that at least some of the claims in the human rights complaint could not be put before the LTB. This is expressly stated in the letter from applicant’s counsel to the Commission of that date. At this point, there can be no question that the applicant and his counsel understood the implications of the undertaking given to the LTB.

31I am not critical of the efforts by applicant’s counsel to get the Commission not to act on the withdrawal request made by the applicant’s former representative. In fact, given that applicant’s counsel had just been retained and had just become aware of the withdrawal request and its implications, in my view it was entirely appropriate for him to send his November 26, 2008 letter requesting that the Commission not take steps to act on the withdrawal request before he could review the matter with his client, the applicant, and obtain instructions.

32I also am well aware of the looming December 31, 2008 deadline at which point a complaint had to be active or “continued” at the Commission in order to form the basis of an application to this Tribunal. Given that deadline, there certainly was considerable urgency for the matter of the undertaking to withdraw to be addressed.

33Where I am critical of the applicant is in relation to his failure to address the matter of his undertaking with the LTB. He personally had given this undertaking to the LTB after being cautioned and warned about the consequences. The giving of this undertaking was the basis upon which the LTB proceeded with the hearing of the applications before it and did not address the preliminary issue raised by Ecuhome’s representative that the LTB should not deal with allegations that were duplicative of those raised in the human rights complaint.

34The applicant says he gave this undertaking on the misunderstanding that the LTB would address all of the allegations raised in his human rights complaint. Even if I accept this evidence, I find that once it became apparent to the applicant that his understanding was incorrect, which was either on October 23, 2008 during the course of giving his evidence or at the latest by November 26, 2008 when this was apparent to his new counsel, the applicant had an obligation to raise before the LTB this misunderstanding as to what the LTB would be addressing and to seek the LTB’s leave to resile from his undertaking. This could have been done by letter to the LTB or when the applicant and/or his counsel appeared before the LTB on December 15, 2008. This would have given the LTB the opportunity not only to consider whether there was a sufficient basis to allow the applicant to resile from his undertaking to withdraw his human rights complaint, but also if the LTB did allow the applicant to resile from his undertaking, to consider the implications of this for the ongoing LTB proceeding and what issues the LTB would consider in light of the preliminary objection raised by Ecuhome’s representative.

35However, none of this was done and the applicant simply proceeded to resile from the undertaking he had given by getting the Commission to unwind the withdrawal of his complaint and to re-open his file, without any notice to the LTB at any time: not at the hearing on December 15, 2008; nor at the hearing on March 23, 2009; nor at the hearing on June 8, 2009; nor at any time by correspondence to the LTB; nor at any time prior to the issuance of the LTB’s Order on June 12, 2009. The applicant’s counsel states that he was not aware that the applicant had given an “undertaking” to the LTB to withdraw his human rights complaint, and that may be. However, the applicant himself was aware and the applicant’s former representative was aware, as this specific word was used and stressed twice by the LTB member at the October 23, 2008 hearing. Further, the audiotape of the October 23, 2008 proceedings could have been obtained and reviewed if there was any uncertainty about this.

36At the very least, and whether the applicant himself appreciated the significance of the term “undertaking” as used by the LTB member, I find that the applicant was aware that he had agreed to withdraw his human rights complaint in response to the preliminary issue raised by Ecuhome’s representative, and subsequently confirmed his agreement to withdraw his human rights complaint in response to the LTB’s member pointed questions and cautions. I further find that he knew that his agreement to withdraw his human rights complaint resolved the preliminary issue raised by Ecuhome, that the LTB member would refer to and rely upon his agreement in her decision, and that his human rights complaint would be “tossed” if he didn’t fulfil his agreement to withdraw.

37The applicant takes the position that Ecuhome’s representative should have raised the issue before the LTB that the applicant had resiled from his undertaking, because only he had all of the pieces of the puzzle. It is submitted that he was present when the undertaking was given and that Ecuhome was aware that the Commission had re-opened the applicant’s human rights complaint, and therefore he was in the best position to raise this issue before the LTB if Ecuhome was truly concerned about it. It is submitted that the fact that Ecuhome failed to do so is a basis upon which I should deny its request to dismiss the Application.

38I see things another way. While there is no doubt that Ecuhome or its representative could have raised this issue before the LTB, it did not have an obligation to do so. In contrast, in my view, the applicant had an obligation to inform the LTB that he was resiling from the undertaking he had given, in order to give the LTB member the opportunity to assess and determine the consequences of that action for the purpose of the proceeding before her. These consequences could have ranged from dismissing the applications before her as an abuse of process, to requiring the applicant to follow through on his undertaking, to allowing the applicant to resile from his undertaking and considering anew Ecuhome’s preliminary issue about duplicative actions. Or she may have decided to take some other action. What the LTB member may have done will never be known, as the applicant failed in his obligation to notify her that he had resiled from his undertaking.

39In my view, it is an abuse of process for the applicant to have given his personal undertaking to the LTB to withdraw his human rights complaint, knowing that the LTB intended to rely upon this undertaking in disposing of the preliminary issue before it and knowing and being cautioned about the consequences of such an undertaking, and then for the applicant to resile from this undertaking without any notice to the LTB. In my view, in the face of this conduct, it would be an abuse of this Tribunal’s process to allow the applicant to proceed with his Application in these circumstances, when he had undertaken to the LTB to withdraw the very human rights complaint upon which this Application is based.

40For all of these reasons, the Application is dismissed as an abuse of process.