Human Rights Tribunal of Ontario
Between:
Mohamed Elkhouli Applicant
-and-
Ecuhome Corporation, Sally Murphy, Harry Fine, Jacqueline Beckford and Bruce Sexsmith Respondents
Interim Decision
Adjudicator: Naomi Overend Date: July 10, 2012 Citation: 2012 HRTO 1342 Indexed as: Elkhouli v. Ecuhome Corporation
Written Submissions
Mohamed Elkhouli, Applicant Self-represented
Ecuhome Corporation, Sally Murphy, Harry Fine, Jacqueline Beckford and Bruce Sexsmith, Respondents Gordon E. Wood, Counsel
Introduction
1This Application alleges discrimination with respect to the occupancy of accommodation because of disability and receipt of social assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application, the applicant advises that the facts of his Application are part of another proceeding that is still in progress. The Tribunal issued a Notice of Intent to Defer (“NOID”) on February 17, 2012 at the same time as it advised the respondent of the Application.
2There was some uncertainty about the status of the other proceedings, both before the Landlord and Tenant Board (“LTB”) and the Divisional Court, and the Tribunal issued two Case Assessment Directions asking the parties to update it on the status of these proceedings.
3On June 1, 2012, the LTB ruled that the applicant was able to proceed with his applications before it concerning mould in his apartment. The parties advised the Tribunal about this ruling shortly after it was released. This Tribunal is now in a position to make a determination with respect to its earlier NOID.
4In addition, on February 29, 2012, the applicant sought to amend his Application. This request to amend remains outstanding.
Decision
Request to Amend
5The applicant asks to amend the remedy he is seeking in his Application to include monetary compensation to allow him to “find suitable housing.” Although the applicant did not bring a formal Request for an Order During Proceedings to do this, the respondent filed a Response to a Request for an Order (Form 11) on March 8, 2012 indicating it was consenting to this Request.
6The respondent has not filed a Response to this Application and would not be prejudiced by the amendment given the early stage at which the applicant is seeking it. Accordingly, the applicant’s request to amend his Application to include this remedy is granted.
Deferral
7There have been at least three applications to the LTB brought by the applicant and the landlord. At issue in this proceeding are the applicant’s current two applications before the LTB concerning the mould in his apartment. As noted above, the LTB issued an Interim Order on June 1, 2012 in which it indicates that the applicant can proceed with these applications concerning the period from November 16, 2010 to the present.
8The 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 (Rule 14.1). 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. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.
9Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer having regard to the nature and status of each proceeding and the steps that have been taken to pursue them.
10The respondent submits that in light of the recent LTB ruling, the applicant is in the position of essentially seeking the same remedy before two tribunals, and the proceedings are “essentially duplicative.” The respondents’ counsel writes that the paralegal representing the organization respondent in the LTB matter advised him that the applicant was also seeking compensation for relocation costs before the LTB. This submission, dated June 13, 2012, was copied to the applicant. He did not file further submissions to contradict this assertion, although in earlier submissions, dated June 6, 2012, he noted that he amended his application to the LTB to seek rent arrears only. He opposes deferral on the basis that he needs financial assistance to move.
11It is not necessary to resolve this factual dispute about what remedy is being sought at the LTB. Despite the differences with respect to remedy, the parties seem to agree that the fundamental issues about whether there is mould in the unit, and whether the applicant has a disability that makes it inadvisable to live in a mouldy environment are the same in both the Application to this Tribunal and the applications before the LTB.
12I am of the view that a deferral is appropriate in this case given that the proceedings before the LTB will likely address facts and issues at the core of the Application before this Tribunal. There is a strong likelihood of duplication of proceedings and the possibility of the inconsistent findings of fact should this Application be allowed to proceed at this time.
13The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back before the Tribunal after resolution of the proceedings before the Landlord and Tenant Board.
14I am not seized of this matter.
Dated at Toronto, this 10th day of July, 2012.
Signed by
Naomi Overend Vice-chair