Gorgiev v. Peel Condominium Corporation No. 542, 2012 HRTO 1874

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jimmy Gorgiev

Applicant

-and-

Peel Condominium Corporation No. 542,

Joanna Castellano and Brian McClure

Respondents

DECISION

Adjudicator: Caroline Rowan

Date: October 2, 2012

Citation: 2012 HRTO 1874

Indexed as: Gorgiev v. Peel Condominium Corporation No. 542

APPEARANCES

Jimmy Gorgiev, Applicant ) Self-Represented

Peel Condominium Corporation )

No. 542, Joanna Castellano, ) Michael Gwynne, Counsel

and Brian McClure, Respondents )

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 housing because of disability. The Application was filed on January 24, 2012 (the “January 2012 Application”).

2In the January 2012 Application, the applicant, Jimmy Gorgiev, alleges that the respondents discriminated against him and harassed him on the basis of disability by refusing to allow him to widen his driveway. The applicant contends that he needed to widen his driveway in order to permit him to park two cars in it, since he is unable to use his second parking space in the parking garage for disability-related reasons (i.e. claustrophobia).

3Pursuant to a Case Assessment Direction (“CAD”) dated June 4, 2012, the Tribunal convened a teleconference on September 21, 2012, to determine whether all or part of the Application should be dismissed because another proceeding has dealt with the substance of the Application within the meaning of section 45.1 of the Code. At the hearing, the Tribunal entertained submissions from the applicant and counsel for the respondents in this matter.

4For the reasons that follow, I find that the subject matter of the January 2012 Application has been appropriately dealt with in another proceeding and should be dismissed.

BACKGROUND FACTS

5The applicant, Jimmy Gorgiev, is the owner of a condominium townhouse with one indoor and one outdoor parking space available to him. In 2011, he requested and was denied permission to widen his driveway in order to create a second outdoor parking spot. Mr. Gorgiev nonetheless engaged a contractor, who performed the necessary work to widen his driveway. He maintains that he needs a second outdoor parking spot as he is unable to use his indoor parking spot in the garage due to his disability (i.e. claustrophobia).

6In or about August 2011, the corporate respondent, Peel Condominium Corporation No. 542 (“PCC” or the “Condominium Corporation”), brought an application before the Ontario Superior Court of Justice against Mr. Gorgiev (the “Court Proceeding”). In the Court Proceeding, PCC sought an Order requiring, among other things, a declaration that Mr. Gorgiev altered the common elements of PCC in contravention of the Condominium Act, 1998, S.O. 1998, c. 19, as amended (the “Condominium Act”) and the Declaration, By-laws and Rules of PCC. The Condominium Corporation alleged that Mr. Gorgiev cut the common element curbs, dug out the common element lawn and installed an asphalt parking pad on the common elements next to his residence.

7The Court Application came before Bielby J. on September 15, 2011, at which time Justice Bielby endorsed the record as follows:

The applicant is requesting Mr. Gorgiev remove the changes he made to the common elements in front of his residence.

Mr. Gorgiev without permission paved the grass area wanting a second outside parking space. He argues he has a disability which includes claustrophobia which on some days prevents him from using his garage. The garage and driveway to the garage provides him 2 parking spots already.

Respondent advises he wishes to buy a second car so needs a second outside spot which because of his disability should be accommodated by the Condo Corp. and its Board.

It is quite clear he hired contractors, had the curb cut and driveway laid without approval of the Board and in the face of being told to stop. He also is in contravention of the City by-law.

Because Mr. Gorgiev has mental health issues I will allow an adjournment for him to consider his position, to consider the Human Rights Board claim he is talking about and consider how to legally challenge the Board. He has been advised to get legal advice.

8The matter was then adjourned for a period of one month and came back before Lemon J. on October 14, 2011.

9According to Mr. Gorgiev, in the intervening month, he contacted the Human Rights Legal Support Centre and was given legal advice to the effect that the Ontario Superior Court can address his human rights issue and that he should return to Court and advise the judge as to what he needs by way of accommodation and why he needs it. Mr. Gorgiev consequently returned to Court on October 14, 2011, before Lemon J., and provided the Court with a medical note from his general practitioner. Mr. Gorgiev also states that he offered to provide additional medical information if the Court so ordered, but the judge declined to make such an order on the basis that it was too late.

10In granting PCC’s Court Application in December 2011, Justice Lemon made the following findings under the heading “Human Rights Issues”:

In considering whether there is discrimination, the court or tribunal should consider whether the declaration, by-laws or rules, whether expressly or by necessary implication contain a provision that prevents the person suffering from the disability or handicap from residing in the subject premises.

In order to find the discrimination necessary to defeat the Declaration, the provision must have the effect of preventing Mr. Gorgiev from living in his residence.

The principles associated with the duty to accommodate suggest that there are certain obligations on person (sic) seeking accommodation. The person requesting accommodation must do his part as well. There is a duty to facilitate the search for such an accommodation. In determining whether the duty of accommodation has been fulfilled, the conduct of the person requesting accommodation must be considered. The request will be dismissed if the person requesting accommodation fails to take reasonable steps.

A person requesting a particular accommodation of disability must provide sufficient evidence to establish the accommodation is required. Mr. Gorgiev has provided nothing other than a note from his general practitioner. That is not sufficient for him to uphold his end of the investigation. While Mr. Gorgiev has now agreed to provide medical information to support his claim of disability, he is too late. He was given an opportunity to do so and has not proceeded with his application with the Human Rights Tribunal, nor provided that information to this Court.

11Shortly after that December 2011 decision was issued, Mr. Gorgiev filed the January 2012 Application against the Condominium Corporation and the personal respondents, who are both members of PCC’s board of directors. The factual basis of his complaint against the respondents set out in the January 2012 Application is contained in two affidavits sworn by Mr. Gorgiev and appended to the January 2012 Application. Those affidavits are identical in content to his two affidavits filed in the Court Proceeding, which were before Justice Lemon. The style of cause of the Court Proceeding has simply been removed from Mr. Gorgiev’s affidavits appended to the January 2012 Application (the “Affidavits”). The January 2012 Application also contains an acknowledgment that the facts of this Application are part of another proceeding and, more specifically, the Court Proceeding before the Ontario Superior Court in CV-11-0000323900.

12The Affidavits refer, among other things, to Mr. Gorgiev’s claim to have a medical condition which requires accommodation in the form of a widened driveway to park two cars outside. They also refer to the threatening and harassing behaviour of the Condo Board, including his claim to have been personally harassed by the personal respondents, one of whom is referred to in the Affidavits as “an individual living in unit 118”, who is alleged to have leered at him on multiple occasions through his second floor window and to have repeatedly opened and shut his blinds. More specifically, Mr. Gorgiev complained about being terrorized living in his townhouse complex by such conduct of members of the Condo Board as being constantly watched. He asked the Court to order that the harassment and threatening behaviour cease and to order the Condo Corporation and the Condo Board to sign the authorization so that he can apply for the minor variance required to widen his driveway.

13During the course of the oral hearing the applicant attempted to raise additional allegations beyond the scope of the Application as filed on January 24, 2012. He acknowledged these allegations post-dated the filing of the Application. The applicant brought no formal request to amend his Application and in any event the new allegations were raised without notice and well after the matter had been set down for a preliminary hearing on whether the matter should be dismissed because another proceeding had appropriately dealt with the substance of the Application within the meaning of section 45.1 of the Code. Accordingly, this decision deals with the allegations made by the applicant in the Application as filed on January 24, 2012, and makes no comment on additional allegations which the applicant raised during the teleconference hearing.

DECISION

14Section 45.1 of the Code states:

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.

15In the present case, there can be no doubt that the Court Proceeding is “another proceeding” within the meaning of section 45.1 of the Code. The remaining issue is whether that proceeding may be said to have “appropriately dealt with” the “substance of the application”.

16The applicant argues that it did not. Although the applicant acknowledged during the course of the teleconference that he was “of course” seeking to re-litigate the human rights issues raised before Justice Bielby and Justice Lemon, he explained that he was seeking to do so because his issues have not been addressed. More specifically, the applicant does not agree with Justice Lemon’s determination that he was too late to present further medical evidence concerning his need for accommodation and expressed the view that the Court’s determination was not in the spirit of the Condominium Act and the Code. The applicant further submits that the issues raised in the January 2012 Application have not been appropriately dealt with in the Court Proceeding because the medical evidence he did provide the Court has not been considered and the issues he raised concerning the way he was treated by the Condo Board were never addressed.

17Section 45.1 does not, however, permit the Tribunal to stand in review of the Court’s decision on the human rights issues already raised by the applicant in the Court Proceeding. In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Supreme Court of Canada held that a provision nearly identical to the one found in section 45.1 of the Code was intended to prevent parties from re-litigating issues that had already been decided by a decision-maker with the authority to resolve them. In Figliola, the Supreme Court emphasized that a party who wishes to challenge an unfavourable decision by a court or administrative tribunal, acting within its jurisdiction, must do so through the appropriate channels; that is, by appealing the decision or bringing an application for judicial review, as applicable. Such party cannot launch a “collateral attack” on a decision made by an adjudicator in another forum by filing an application under human rights legislation in view of provisions which are similar to the one contained in section 45.1 of the Code. (Figliola, supra, at para. 35-38)

18The Tribunal has found that the analysis adopted in Figliola, supra, applies to the interpretation of section 45.1 of the Code (Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, at para. 21) and that the reasoning in Figliola, supra, suggests that an issue will have been appropriately dealt with for the purposes of section 45.1 as long as the applicant had an opportunity to raise human rights issues before a decision-maker with the jurisdiction to address them (Gilinsky v. Peel District School Board, 2011 HRTO 2024).

19The principal concern in applying section 45.1 is not whether there has been related or parallel litigation or whether the other proceeding has correctly decided the human rights issues raised in the Application, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code. (See, for example, Campbell v. Toronto District School Board, 2008 HRTO 62; Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690; and Noble v. York University, 2009 HRTO 1201).

20In the present case, the applicant had the opportunity to raise his human rights issues in the Court Proceeding and did so in almost identical affidavit format in the context of that proceeding. The applicant should not be permitted to re-litigate those issues simply because he is dissatisfied with the way in which those issues were dealt with in that proceeding. In this case, the substance of the applicant’s claim of discrimination based on the applicant being treated differentially on account of his disability lies at the heart of the January 2012 Application and that human rights claim was appropriately dealt with in the Court Proceeding before an adjudicator with the jurisdiction to address them. To the extent that the applicant is dissatisfied with the Court’s decision, he must follow the appropriate channels to challenge its decision and should not instead be permitted to launch a “collateral attack” on that decision in another forum.

21In my view, the substance of the January 2012 Application has been appropriately dealt with within the meaning of section 45.1 of the Code in the Court Proceeding. Accordingly, the Tribunal exercises its discretion pursuant to section 45.1 of the Code and dismisses the January 2012 Application.

The Respondents’ Request for Costs

22At the teleconference hearing, the Respondents sought the dismissal of the January 2012 Application with costs and requested an opportunity to address the issue of costs at a later date. As the Respondents had the opportunity to make full submissions on the costs issue at the teleconference hearing, I decline to grant that request. I also decline to make any order as to costs, since this Tribunal has no jurisdiction to award costs. (See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.)

The Respondents’ Post-hearing submissions

23The respondents filed unsolicited post-hearing submissions on October 1, 2012. In arriving at my conclusions, above, it was unnecessary for me to consider these submissions and accordingly I have had no regard to them. In addition, I note that both parties had a full opportunity to make any submissions they wished on the issues before the Tribunal during the course of the teleconference hearing.

Disposition

24For all these reasons, this Application is dismissed without costs.