HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anne Barot
Applicant
-and-
Buyer Broker Realty Inc.
Respondent
A N D B E T W E E N:
Thierry Cailloz
Applicant
-and-
Buyer Broker Realty Inc.
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Barot v. Buyer Broker Realty
written submissions
Anne Barot and Theirry Callioz, Applicants ) Self-represented
Buyer Broker Realty, Respondent ) Trelawny Howell, Representative
1The applicants each filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of ethic origin, place of origin and citizenship with respect to accommodation. The Applications raise the same issues based on the same factual allegations and the same preliminary issues are raised in both Applications. The preliminary issues are, therefore, being considered together.
2In two earlier Interim Decisions, 2010 HRTO 2113 and 2010 HRTO 2114, the Tribunal denied the respondent’s request for an early dismissal of the Applications. Instead, it deferred the Applications pending an ongoing matter before the Landlord and Tenant Board (“Board”).
3On February 3, 2011, the applicants each filed a Request for an Order During Proceedings (“Request”) seeking to reactivate their Applications. The applicants state that the Board rendered a final decision on December 8, 2010, that does not address their concerns under the Code.
4The respondent has filed a Response to the Request seeking the dismissal of the Applications pursuant to section 45.1 of the Code, because it says another proceeding has appropriately dealt with the substance of the Applications.
REQUEST TO REACTIVATE
5The Tribunal is satisfied that the Applications may be reactivated. The applicants’ Requests are therefore granted.
REQUEST TO DISMISS
6Section 45.1 of the Code provides:
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.
7For section 45.1 to apply, the respondent must demonstrate that:
a. the matter before the Board is a proceeding within the meaning of the Code; and
b. the matter before the Board has reached its conclusion and has “appropriately dealt with” the substance of the Applications.
8The Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1; however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. See Campbell v. Toronto District School Board, 2008 HRTO 62.
9The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of an application. See, for example, Byaruhanga v. Toronto Police Services Board, 2010 HRTO 2273.
10On November 2, 2010, the Board issued a decision, concluding that the tenancy agreement between the parties was terminated and requiring the landlord to pay a sum of money to the applicants. In that decision, the Board wrote:
At the first hearing, the Tenants stated that the Landlord discriminated against the Tenants in contravention of the Ontario Human Rights Code arising out of interactions between the Landlord’s Real Estate Agent and the Tenants, and the Landlord’s subsequent actions. On September 22, 2010, the Tenants informed me that they were not pursuing that issue before the Board as they had elected instead to proceed before the Ontario Human Rights Tribunal.
11On December 8, 2010, at the respondent’s request, the Board issued a Decision on Request to Review that upholds the original decision.
12I have reviewed the Board’s decisions and I find that they do not address the issues raised in the Applications in regards to the Code. For this reason, the Request to dismiss the Applications pursuant to section 45.1 of the Code is denied. While the Board matter was a proceeding, it cannot be said to have dealt with the substance of the Applications.
ABUSE OF PROCESS
13It may be, however, that to allow the Applications to proceed would be an abuse of process. The Tribunal has recently addressed this issue in Cunningham v. CUPE 4400, 2011 HRTO 658. In that case, the Tribunal held that it is an abuse of process for a party to pursue a human rights claim before the Tribunal where it was involved in a previous proceeding in which it could have (but did not) raise human rights issues.
14Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions.
15Within five days of this Interim Decision, the applicants are directed to advise the Tribunal and the respondent whether they wish to made oral submissions on the issue of abuse of process. If the applicants indicate that they wish to make oral submissions, the Registrar will schedule a two-hour telephone conference hearing to address the following issue:
Should the Applications or a part of the Applications against the respondent be dismissed because it would be an abuse of process to allow it to proceed?
16The following directions shall apply to the hearing:
a. The respondent should be prepared to proceed first at the hearing;
b. Any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Applications or Responses must deliver such documents or information to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.
17If the applicants do not communicate with the Tribunal within the timeframe or if they indicate that they do not wish to make oral submissions on the issue of abuse of process, the Tribunal may determine the issue based on written submissions.
18In the event the applicants elect not to make oral submissions, the parties may file further written submissions regarding the abuse of process issue according to the following schedule:
a. within two weeks of this Interim Decision, the applicants may file written submissions with the Tribunal and provide them to the respondent;
b. within four weeks of this Interim Decision, the respondent may file written submissions with the Tribunal and provide them to the applicants;
c. within five weeks of this Interim Decision, the applicants may file reply written submissions with the Tribunal and provide them to the respondent.
19I am not seized of this matter.
Dated at Toronto, this 19th day of April, 2011.
”signed by”____________
Michelle Flaherty
Vice-chair