Benstead v. Niagara Regional Housing, 2012 HRTO 1557

Human Rights Tribunal of Ontario

Between:

Jennifer Benstead Applicant

-and-

Niagara Regional Housing Respondent

Interim Decision

Adjudicator: Mary Truemner Date: August 13, 2012 Citation: 2012 HRTO 1557 Indexed as: Benstead v. Niagara Regional Housing

Appearances

Jennifer Benstead, Applicant Self-represented

Niagara Regional Housing, Respondent Michael Kyne, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to accommodation because of disability and association as well as reprisal. The respondent filed a Response requesting that the Tribunal dismiss the Application under s.45.1 of the Code on the basis that three proceedings initiated by the applicant at the Landlord and Tenant Board (the "LTB") have already dealt with the substance of the Application. A hearing by way of teleconference was held on July 9, 2012 to determine the respondent's request.

Position of the Applicant

2The Application alleges that the applicant was being abused and threatened by another tenant in her building. The Application states that the respondent, a public housing landlord, refused to transfer the applicant to another building because the respondent perceived her to be a person with a mental disability. In her description of what happened, the applicant wrote:

I have had an ongoing Health and Safety issue with Niagara Regional Housing which I have been denied any help with for over 10 months particularly due to Mary Ellen MacLellan's (Manager of Operations) opinion of my perceived Mental Health Issue/disability. She has denied me a Health and Safety transfer due to my affiliation with Canadian Mental Health Association...

3At the teleconference hearing, the applicant confirmed that the substance of her Application was that the respondent did not transfer her to another of its buildings when she needed to escape the threats and harassment of another tenant in her building for her safety, and that the reason the respondent refused the transfer was because it perceived that the applicant had mental health issues. She added that the respondent's perception of her mental health resulted in the respondent not taking her complaints seriously, particularly her complaint about the other tenant allegedly abusing her. The applicant argued that the applications she made to the LTB never dealt with human rights issues or disability, but simply whether the other tenant had abused or harassed her. She argued that the LTB never dealt with her allegation that the respondent refused to transfer her because it perceived that she had mental health issues. She argued, however, that the LTB was wrong in concluding that the other tenant had not abused or harassed her, and that she would like the Tribunal to hear the evidence again and make findings that are opposite to what the LTB found, particularly with respect to her and the other tenant's credibility.

Position of the Respondent

4The respondent argued that the applicant filed applications at the LTB three times "with respect to the issues", meaning the issues identified in the Application, and, after hearings for each, the LTB dismissed all three of those applications. Consequently, the respondent argued, the substance of the Application has been appropriately dealt with by the LTB and the Application should be dismissed.

Analysis

The First LTB Application

5The applicant indicated on the first LTB application filed by her against the respondent that the respondent had interfered with her reasonable enjoyment of her premises and harassed her, but it is clear from her narrative that she alleged that the harassing was done by another tenant in her building, not by the respondent directly. She was seeking to have the respondent stop the alleged harassing behaviour of that other tenant.

6The applicant's narrative on that first LTB application stated that the other tenant was abusive and aggressive towards the applicant, although none of the allegations involved grounds enumerated in the Code. The other tenant's alleged behaviour instead involved loud talking and threats to harm her. The applicant indicated in her narrative that when she complained to the respondent's management staff, they said there was nothing they could do, and that if the problems between her and the other tenant continued, they would evict both of them. That LTB application indicated that the applicant was seeking $1,000 for moving expenses and an order evicting or transferring the other tenant from the building.

7The LTB issued an Order, SOT-5333-10, on August 9, 2010 with reasons ("the first LTB decision"). The member heard evidence and attended the premises, and found that the respondent "reacted in a prompt and professional manner" to the applicant's complaints which "were unfounded and therefore no follow up was necessary from the respondent." The LTB preferred the evidence of the alleged harasser to the evidence of the applicant.

The Second LTB Application

8The applicant indicated on the second application filed by her against the respondent at the LTB that, again, the respondent had interfered with her reasonable enjoyment of her premises and harassed her, but, again, it is clear from her narrative that she alleged that the harassing was done by the other tenant described in the first LTB application, not the respondent directly. In her narrative in the second LTB application, the applicant stated that she wanted either the other tenant to be forced to move or a "health and safety" transfer to be given to her. As in the first LTB application, there was no indication in the second application that the applicant was alleging any discrimination contrary to the Code.

9The applicant did not appear at the LTB for the hearing of her second application, and the LTB issued a decision dismissing it as abandoned ("the second LTB decision").

The Third LTB Application

10The third application filed at the LTB by the applicant against the respondent is similar to the second and third, and the applicant again sought to be transferred. Again, while there is plenty of narrative describing the allegedly aggressive and abusive harassment by the other tenant, none of it referred to a ground enumerated in the Code. It was predominantly a description of alleged threats by the other tenant to get rid of or kill the applicant, and a description of police involvement with both the applicant and the other tenant.

11The LTB's decision issued on February 23, 2011, SOT-12051-11, ("the third LTB decision") dismissed the applicant's third LTB application. The relevant paragraphs of the third LTB decision state:

... 5. Despite her many complaints, the Tenant takes the position that the Landlord has failed to address the problem. She has applied for transfer to another rental unit. It is her view that the only solution is for her, or [the other tenant], to be moved.

6. In cross-examination, the tenant acknowledged that the Landlord attempted to refer her to alternate accommodations. One alternative was not acceptable, as it was for persons with mental health issues. There was also an offer to refer her to a private landlord at a subsidized rate...

... 13. I am of the view that the Tenant failed to prove that she has endured harassment from [the other tenant]. While her belief in his misbehaviour appears to be genuine, her evidence was not convincing. In particular, her allegations lacked specific detail and independent corroboration.

... 15. Even if there had been some evidence to show that the Tenant has endured harassment from [the other tenant], I am also of the view that the Landlord has properly investigated her complaints and has taken reasonable attempts to assist the Tenant to find new accommodations.

Section 45.1

12Section 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.

13Section 45.1 requires a two-part analysis: (1) whether there was another "proceeding" and, if so, (2) whether it "appropriately dealt with the substance of the Application."

Was there another "proceeding"?

14A claim determined by the LTB constitutes a "proceeding" within the meaning of the Code. See Johnson v. Thorold Municipal Non-Profit Housing Corporation, 2011 HRTO 1070; Moyal v. Walmer Flats Property Management, 2010 HRTO 877; and John v. Gateway Property Management Corporation, 2009 HRTO 2243. The only remaining issue is whether the substance of the present Application was appropriately dealt with by the LTB.

Was the substance of the Application "appropriately dealt with"?

15In British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola"), the Supreme Court of Canada considered a provision in British Columbia's human rights legislation which is similar to s.45.1 of the Code, and the principles set out in that decision apply to s.45.1. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. In Figliola, at paragraph 34, the Court summarized the principles as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on;
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings;
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature;
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision; and
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources.

16The Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was "appropriately dealt with" in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.

17The Tribunal may dismiss an application under s.45.1 even if the other proceeding found to have dealt appropriately with the allegations did not specifically make a finding of a Code violation. See Gidopoulos v. Weston Bakeries, 2011 HRTO 1925.

18As stated by the Tribunal in Paterno v. Salvation Army, 2011 HRTO 2298, at paragraph 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an application or part of an application to succeed, the application or part must be dismissed.

19The facts and issues in the LTB proceedings substantially overlap with those which form the basis of the Application. In essence, the LTB applications alleged that the applicant was being threatened and harassed by another tenant, and the applicant sought an order from the LTB for a transfer as a remedy. The human rights Application alleges that the other tenant threatened and harassed the applicant so that the applicant needed to transfer to a unit outside of the building, and the respondent refused to transfer her because they thought she was a person with a mental disability. In order for the Application to succeed, the applicant would have to establish that she needed to transfer away from an abusive tenant, and to establish that the respondent refused to assist with a transfer. The LTB decisions made the findings, however, that the other tenant did not, in fact, threaten and harass the applicant, and, in the third LTB decision, the LTB found that even without the threat to the applicant's safety, the respondent "properly investigated her complaints [of being threatened and harassed by the other tenant] and has taken reasonable attempts to assist the Tenant to find new accommodations." These LTB findings make it impossible for the Application before the Tribunal to succeed unless the Tribunal were to make contrary findings, (namely, that the applicant was threatened and harassed by another tenant in her building and that the respondent did not make reasonable attempts to assist her to find new accommodations).

20Relitigating and making contrary findings, as explained above in reference to the Figliola decision, is a situation to be avoided. The applicant is unhappy with the LTB's decisions, but it is not for the Tribunal to comment on whether the LTB made correct decisions. As stated in Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, at paragraph 25:

The Supreme Court of Canada's decision in Figliola provides guidance as to the interpretation of "appropriately dealt with" as it appears in s. 45.1. The [Supreme Court of Canada in Figliola, above] makes clear that the Tribunal's role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s. 45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process.

21While the LTB did not articulate its findings as a dismissal of an allegation of human rights discrimination, because it dealt with the same facts and issues as those which form the basis of the Application, and because its findings make it impossible for the Application to be successful, I find that the LTB appropriately dealt with the substance of that part of the Application that alleges discrimination because of disability, and that part is dismissed.

22With respect to reprisal, the applicant wrote that she believes she was reprised against because the respondent threatened to evict her if she did not agree to move out. It does not appear that there is any allegation of reprisal as defined by the Code, because there is no allegation that the eviction threat was made as a reprisal for the applicant attempting to claim and enforce her rights under the Code, or to institute and participate in proceedings at the Tribunal. At the teleconference hearing, the applicant confirmed that the substance of her Application was that the respondent perceived that she had mental health issues, and that was the reason for which she was denied a transfer. The parties did not address reprisal in the context of the respondent's request to dismiss the Application under s.45.1. It does not appear that the LTB dealt with the allegation, but there appears to be an issue as to whether there is no reasonable prospect of success for that allegation.

23Similarly with respect to discrimination because of association, the parties made no submissions that the allegation had or had not been dealt with by the LTB, but there appears to be an issue as to whether there is no reasonable prospect of success because the Application does not describe any association that the applicant had with a person identified by a ground identified by the Code. At the teleconference hearing, the applicant implied that she checked off the association box on the Application form only because of her association with the allegedly abusive other tenant.

Order

24The Application is dismissed with respect to the allegation of discrimination based on disability.

Direction

25Within 14 days of this Interim Decision, the applicant must contact the Tribunal to confirm whether she wishes to proceed with the remaining parts of her Application, namely, her allegations of reprisal and of discrimination because of association with someone identified by a ground in the Code. If the applicant does not do so, the remaining parts of the Application will be dismissed as abandoned.