Ebrahim v. Toronto Standard Condominium Corporation No. 1690, 2012 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheliza Ebrahim by her Next Friend May Onas

Applicant

-and-

Toronto Standard Condominium Corporation No. 1690,

Lingham Kularatnam and Zainab Gangji

Respondents

DECISION

Adjudicator: Mary Truemner

Date: January 3, 2012

Citation: 2012 HRTO 1

Indexed as: Ebrahim v. Toronto Standard Condominium Corporation No. 1690

APPEARANCES

Sheliza Ebrahim by her ) Omar Sherman, Counsel

Next Friend May Onas, Applicant )

Toronto Standard Condominium Corporation ) Brad Chaplick, Counsel

No. 1690 and Lingham Kularatnam, Respondents )

Zainab Gangji, Respondent ) Self-represented

1This Decision addresses the issue of whether this Application, filed under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), should be dismissed pursuant to s. 34(11) as outside the Tribunal’s jurisdiction. The applicant uses a wheelchair. The Application was filed on June 21, 2010, and alleges reprisal and discrimination with respect to services, goods and facilities because of disability and age. The Application essentially describes the applicant’s ongoing efforts to obtain support from the respondents in making the Condominium unit in which she lives accessible.

2Zainab Gangji, a personal respondent, was added by the other respondents. She is the applicant’s aunt and the owner of the unit in which the applicant lives. She did not support the other respondents’ request for the dismissal of the Application, and, when reference is made to “respondents” in this Decision, only Toronto Standard Condominium Corporation No. 1690 and Lingham Kularatnam are meant, not Ms Gangji.

3On June 19, 2007, the applicant filed a Plaintiff’s Claim in the Superior Court of Justice (the “Claim”). The respondents allege that the Claim seeks human rights remedies with respect to allegations which are essentially the same as those in the Application. Accordingly, the respondents request that the Application be dismissed.

4A hearing was held by way of teleconference on October 13, 2011. Although other issues involving whether the Application should be dismissed on a preliminary basis had been previously identified by the respondents, the respondents agreed that the only basis for dismissing the Application early would be that s. 34(11)(a) of the Code applied.

5Section 34(11) of the Code reads as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

6Section 46.1 of the Code reads as follows:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

7In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

8In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11 the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

9In the HRTO Application, the applicant alleges that commencing in 2005, she required and asked for the respondents’ cooperation in installing a lift to the entrance of the unit in which she lived, and that the respondents failed to make efforts to do so until 2009.

10The Claim does not specifically cite the Code, but counsel for the applicant conceded during the conference call that the situation covered by the Claim is the inaccessibility of the applicant’s condominium unit, and that they are the same facts as found in the Application. He argued that while the applicant may have raised the same facts and issues in her Statement of Claim as in her HRTO Application, she did not seek damages for the infringement of the Code under s. 46.1(1). Therefore, he argued, s. 34(11)(a) cannot apply.

11While the Claim does not specifically cite the Code, it describes the respondents’ communications with the applicant’s aunt, the owner of the applicant’s home, in the context of obtaining authorization from the respondents for the installation of the wheelchair lift to the unit. The Claim is not clearly drafted, but it implies that the respondents have delayed the installation of the lift, that funding from charities for the lift may be lost as a result, and that the applicant intends to hold the respondents responsible for the financing of the lift if the funding is lost. The applicant seeks $10,000 in the Claim without explaining how the figure was calculated, but the final paragraphs of the Claim state:

The Plaintiff claims for the Defendant – specifically – that if the Defendant refuses to exercise due diligence and keep up their intentional violation of the “laws” in their dealings with the Plaintiff and furthermore if this funding… [from the charities] …expires the Plaintiff will hold the TSCC 1690 responsible and completely liable for financing this project.

The Plaintiff claims that the harmful and vindictive actions of the TSCC against her has and is causing the Plaintiff repairable [sic] damage.

The Plaintiff claims that this harmful and vindictive [sic] has also caused damage to the Plaintiff’s mother and father.

12There is nothing in the Claim to suggest that its reference to the respondents’ “intentional violation of the ‘laws’” could mean any laws other than a violation of the Code. Similarly, the only actions described in the Claim that might be “harmful and vindictive”, as alleged by the applicant, are the alleged hurdles the respondents put in the way of the installation of the lift. I therefore find that the $10,000 being sought by the applicant in her Claim could only be damages described by s. 46.1(1)1. Even if I am wrong in thus characterizing the damages sought in the Claim, and the damages sought in the Claim are instead meant to be something other than those described by s. 46.1(1)1 of the Code, I agree with Beaver v. Dr. Hans Epp Dentistry Professional Corporation, supra, in that allowing an Application to continue on the basis of a technical interpretation would defeat the purpose of s. 34(11) which is to guard against duplicate court and Tribunal proceedings.

13I find that the applicant is precluded from bringing this Application by s. 34(11) as the factual and legal foundations for the Code-based allegations are the same in the Application and the civil action.

14Accordingly, I find that the Application is outside the Tribunal’s jurisdiction. The Application is therefore dismissed.