HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.I. on behalf of U.N.
Applicant
-and-
Tarion Warranty Corporation and Tarion Ombudsperson Office
Respondents
DECISION
Adjudicator: Michelle Flaherty
Indexed As: U.N. v. Tarion Warranty Corporation
APPEARANCES
R.I., Applicant ) Self-represented
Tarion Warranty Corporation, Respondent ) David Outerbridge, Counsel
Tarion Ombudsperson Office, Respondent ) Raj Anand, Counsel
1This case is about the warrantability of alleged defects in a, home, pursuant to the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 (the “Act”).
2The Application, filed under s. 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in services on the basis of disability. It raises issues as to whether the determination of warrantability under the Act ought to include consideration of the claimant’s Code-related needs.
3The Application also raises important preliminary issues regarding the Tribunal’s ability to review a decision by an entity created under the Act for the purposes of administering the Ontario New Home Warranties Plan (“Plan”).
4For the reasons set out below, the Application is dismissed.
5Pursuant to s.45.1 of the Code, the Application is dismissed against the respondent Tarion Warranty Corporation (“Tarion”). The substance of the Application has been appropriately dealt with by a proceeding under the Act, which gave the applicant an opportunity to have her human rights concerns addressed by an adjudicator with the jurisdiction to decide them. Further, applying the Supreme Court of Canada’s reasoning in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), it is not the Tribunal’s role to determine whether Tarion correctly or appropriately decided the human rights issues.
6The Application against the respondent the Tarion Ombudsperson Office (“Ombudsperson”) is also dismissed. While the applicant complains that the Ombudsperson did nothing in the face of an allegedly discriminatory decision by Tarion, he does not allege that the claimant’s disability was a factor in the Ombudsperson’s treatment of her complaint. The mere fact that the Ombudsperson did not pursue the claimant’s human rights claim is not, in and of itself, discriminatory. Accordingly, the Application is dismissed against the Ombudsperson because it has no reasonable prospect of success.
7The claimant’s personal circumstances are unfortunate. I fully appreciate that the applicant’s interactions with the respondents were frustrating and deeply unsatisfying to him. Notwithstanding this, I am bound by the Supreme Court of Canada’s decision in Figliola. To continue with the Application against Tarion, in particular, would be to sit in appeal of a decision rendered under the Act and would improperly circumvent the review mechanism established by the Legislature.
OVERVIEW
8R.I. brings the Application as a s. 34(5) applicant on behalf of the claimant, U.N.
9The applicant asked that his and the claimant’s name be anonymized because the matter relates to sensitive issues about the claimant’s disability and its impact on her lifestyle. The respondents consented to the applicant’s request for anonymization.
10Rule 3.11 of the Rules of Procedure permits the Tribunal to, where it considers it appropriate, make an order to protect the confidentiality of personal or sensitive information. In order to determine the issues raised in this Application, it was necessary for me to set out some information about the applicant’s disability and its impact on her life. In my view, it is appropriate in the circumstances of this Application to anonymize the applicant and the claimant’s names.
11U.N. has a disability that is exacerbated by, among other things, loud noises. She purchased a home in 2006. Beginning sometime in early 2010, she alleges that the floors started making loud cracking and popping noises. She states that because noises emanate from the flooring in key areas of her house she cannot reasonably enjoy the use of her home. She is essentially confined to her bedroom and generally wears earplugs or a headset when using other parts of the house. U.N. states that the flooring in her home has exacerbated her disability and has very significantly and very negatively affected her life.
12The applicant states that Tarion discriminated against U.N. by concluding that the flooring was not warrantable under the Act and by failing to consider U.N.’s Code-related needs in reaching that conclusion. The applicant states that the Ombudsperson discriminated against U.N. by accepting Tarion’s position and by failing to take steps to obtain a different and fairer outcome.
13The respondents deny the allegations of discrimination and seek the early dismissal of the Application on a number of grounds, including because it falls outside the Tribunal’s jurisdiction, it has been appropriately dealt with in another proceeding, and the respondents have adjudicative immunity.
14Pursuant to a Case Assessment Direction (“CAD”) dated March 9, 2011, the Tribunal held a preliminary hearing on October 7, 2011. The purpose of the hearing was to determine the respondents’ request for dismissal.
15At the hearing, the Tribunal heard oral submissions from the applicant and from counsel for the respondents. On consent of all the parties, each of the parties’ books of documents were admitted into evidence. None of the parties called any witnesses.
16The key facts at issue in the Application are not contentious. While I identify those facts that are in dispute, as I explain below, it was not necessary for me to resolve any of the factual disputes in order to determine the preliminary issues.
17Following the hearing, the Supreme Court of Canada released its decision in Figliola and the Divisional Court released its decision in College of Nurses v. Trozzi, 2011 ONSC 4614 (“Trozzi”). In a CAD dated October 31, 2011, the Tribunal sought additional written submissions from the parties in regards to these two decisions and their application to this matter. All of the parties filed further written submissions in response to the CAD.
THE FACTS
The respondents
18The respondents describe the Act as consumer protection legislation. Among other things, the Act:
o establishes the Plan and creates a series of construction warranties, which the vendor of every newly-built home is deemed to give to the original owner of the home; and
o creates Tarion, whose mandate is to administer the Act and to establish and administer a fund to provide compensation for homeowners under the Plan.
19The Ombudsperson was established by Tarion. He describes himself as an independent, impartial and confidential department that promotes and protects fairness within Tarion. In a nutshell, the Ombudsperson’s role is to receive, investigate, and seek to resolve complaints against Tarion. He also provides information and advice to homeowners.
The statutory scheme
20As I have indicated, the Act sets out a series of statutory warranties available to owners of newly-built homes. The scope of the specific statutory warranties is set out in the Act and in the Regulations promulgated under the Act, in particular Regulation 892, R.R.O. 1990 (“Regulation”).
21The Regulation sets out how and in what circumstances home owners may file claims in order to seek compensation pursuant to the statutory warranties. It provides for a number of different types of claims, including initial claims, year end claims, second year claims, and major structural defect claims. As their names suggest, each type of claim applies to a specific period following the completion of construction.
22The actual warranties available to a new homeowner range over time. For example, in years three through seven, the only applicable warranty is for major structural defects: see s. 1 of the Regulation and s. 13 of the Act, below. More extensive warranties are available from the completion of construction to the end of the second year.
23For our purposes, the material portions of the Act are as follows:
- (1) Every vendor of a home warrants to the owner,
(a) that the home,
(i) is constructed in a workmanlike manner and is free from defects in material,
(ii) is fit for habitation, and
(iii) is constructed in accordance with the Ontario Building Code;
(b) that the home is free of major structural defects as defined by the regulations; and
(c) such other warranties as are prescribed by the regulations.
(2) A warranty under subsection (1) does not apply in respect of,
(a) defects in materials, design and work supplied by the owner;
(b) secondary damage caused by defects, such as property damage and personal injury;
(c) normal wear and tear;
(d) normal shrinkage of materials caused by drying after construction;
- (1) Subject to the regulations, a person who has entered into a contract to purchase a home from a vendor is entitled to receive payment out of the guarantee fund for the amount that the person paid to the vendor as a deposit to be credited to the purchase price under the contract on closing if,
(a) the person has exercised a statutory right to rescind the contract before closing; or
(b) the person has a cause of action against the vendor resulting from the fact that title to the home has not been transferred to the person because,
(i) the vendor has gone into bankruptcy, or
(ii) the vendor has fundamentally breached the contract.
14(3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,
(a) the person became the owner of the home through receiving a transfer of title to it or through the substantial performance by a builder of a contract to construct the home on land owned by the person; and
(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty.
14(4) Subject to the regulations, an owner who suffers damage because of a major structural defect mentioned in clause 13 (1) (b) is entitled to receive payment out of the guarantee fund for the cost of the remedial work required to correct the major structural defect if the owner makes a claim within four years after the warranty expires or such longer time under such conditions as are prescribed.
24As set out above, s. 13(1)(b) of the Act provides for a warranty against major structural defects, as that term is defined in the Regulation. Section 1 of the Regulation states:
“major structural defect” means, for the purposes of clause 13 (1) (b) of the Act, any defect in work or materials,
(a) that results in failure of the load-bearing portion of any building or materially and adversely affects its load-bearing function, or
(b) that materially and adversely affects the use of such building for the purpose for which it was intended,
Including significant damage due to soil movement, major cracks in basement walls, collapse or serious distortion of joints or roof structure and chemical failure of materials, but excluding any defect attributable in whole or in part to a Year 2000 compliance problem, flood damage, dampness not arising from failure of a load-bearing portion of the building, damage to drains or services, damage to finishes and damage arising from acts of God, acts of the owners and their tenants, licensees and invitees, acts of civil and military authorities, acts of war, riot, insurrection or civil commotion and malicious damage;
The claim under the Act
25The claimant purchased a condominium unit, which was ready for occupancy as of June 6, 2006. Protections under the Act became available to her as of that date.
26In order to obtain compensation pursuant to the Act, a new homeowner must file a Claim with Tarion: see s. 4 of the Regulation and s.14 of the Act.
27The claimant initially filed a warranty claim with Tarion for the 31-day period following the date of possession of the home. This initial claim references, among other things, a squeaky floor. In the end, the claimant did not follow up on the initial claim and, pursuant to s. 4.2(7) of the Regulation it was deemed to have been withdrawn.
28The claimant also filed a claim under the Act on May 31, 2010, approximately four years after protections became available to her under the Act. The May 31, 2010 claim alleges major structural defects in relation to the flooring of the home. In essence, it argues that noises from the flooring arise because of a warrantable major structural defect, as that term is defined in the Act and the Regulation.
29The applicant states that the meaning of “major structural defect” (and, in particular the term “use” of the home, in section 1 of the Regulation), ought to be interpreted in light of U.N.’s disability-related needs. The applicant argues that, while the noise from the flooring might not adversely affect someone else’s use of the home, the floor noises materially and adversely affect U.N.’s enjoyment of her home because of her disability. He argues that, in the circumstances, the floor noises amount to a warrantable major structural defect.
The decision-making process under the Act
30The Act sets out the steps Tarion is required to take when it receives a claim for compensation under s.14. The material provisions are s.16 and 17 of the Act, which state:
(1) Where the Corporation makes a decision under section 14, it shall serve notice of the decision, together with written reasons therefor, on the person or owner affected.
(1) The Corporation may, upon the request of an owner, conciliate any dispute between the owner and a vendor.
(2) Where there is a dispute between a vendor and an owner arising out of the contract, neither party shall commence any proceeding in respect thereof until after fifteen days after the party notifies the Corporation of the dispute for the purpose of giving the Corporation an opportunity to effect conciliation.
(3) Each party to a dispute shall supply the Corporation with such particulars thereof as the Corporation requires.
31In addition, s. 4.6(2) of the Regulation sets out the process to be followed where a claim relates to an alleged major structural defect. It states:
(2) In order to make a claim under subsection 14 (4) of the Act for a home, the owner shall complete and submit to the Corporation a major structural defect form during the major structural defect claim period.
(3) After receiving a major structural defect form for a home, the Corporation shall, within the time period specified in subsection (4),
(a) conduct an inspection of the home or an assessment of the claim items listed on the form, without doing an inspection of the home; and
(b) issue to the owner a report setting out the Corporation’s assessment of the claim items listed on the form.
32Importantly, under s. 16 of the Act, a party who disagrees with Tarion’s decision regarding a claim may request a hearing before the Licensing Appeal Tribunal (“LAT”). The LAT can substitute its own opinion for that of Tarion. In this way, the LAT process involves a de novo (fresh) determination of a claim under the Act: see s.16(3) of the Act.
33A party may request a hearing before the LAT within 15 days of receiving Tarion’s decision: s. 16(2) of the Act. Pursuant to s. 11 of the Licence Appeal Tribunal Act, S.O. 1999, c.12, Sched. G, the decision of the LAT may then be appealed to the Divisional Court.
Tarion’s involvement
34Tarion states that, pursuant to s. 17 of the Act, it first attempted to conciliate the dispute that gave rise to the claim. As part of this process, Tarion inspected the alleged defect. It also received submissions from the applicant.
35There is no dispute that the applicant raised Code-related arguments during the conciliation process. The Warranty Assessment Report (“Report”) issued at the conclusion of the conciliation process finds that the claim is not warrantable. It reaches this conclusion without addressing the human rights arguments.
36In his submissions to the Tribunal, the applicant made factual allegations that are disputed by the respondents. For example, he took issue with the timeliness of the Report and referenced the content of conversations he had with Tarion and its legal counsel. As I indicated to the parties at the hearing and as will become apparent in my analysis, it is not necessary for me to resolve these factual disputes to address the preliminary issues.
37If a matter is not resolved at conciliation, there is a process under s. 16 of the Act whereby Tarion renders a formal decision. However, in this case, the applicant initially asked Tarion not to issue a decision because he wished to pursue matters before this Tribunal.
38The applicant filed this Application on August 25, 2010. In the Application, he takes issue with the fact that Tarion had not issued a decision or addressed the human rights allegations he had raised.
39On November 11, 2010, Tarion issued a decision (within the meaning of s. 16(2) of the Act) (“Tarion Decision”) denying the applicant’s claim under the Act. The Tarion Decision finds that the claim is not warrantable. It addresses and rejects the human rights arguments advanced by the applicant.
40Although it is somewhat lengthy, it is helpful to quote the Tarion Decision’s human rights analysis in some detail:
However, the existence of the co-owner’s disability does not, in Tarion’s respectful view, transform what is otherwise acceptable construction into a construction defect
The Code is to be applied in interpreting the [Act] and its Regulation only if the wording of the Act or its Regulations is ambiguous. The wording of the major structural defect warranty is not ambiguous, however, and thus the Code does not play a significant role as an interpretive aid. The real issue raised by your claim is whether the existing definition of a “major structural defect” in Regulation in 892 is inconsistent with the non-discrimination requirements of the Code and must yield to the requirements of the Code. Tarion’s conclusion is that the definition of “major structural defect” does not discriminate on the basis of disability.
41The Decision goes on to consider direct and adverse impact discrimination and to set out some of the leading case law in the area. It then states:
The adverse effect you have claimed is that one of the co-owners of the home has experienced limitations on her use of the home, because the squeaking of the floor causes her to experience mental agitation as a result of her autism and developmental disability. Tarion has considered whether this adverse effect, if proved, would result in discrimination in a substantive sense on the basis of disability. Tarion’s conclusion is that, although the situation as described in unfortunate, there is no discrimination in a substantive sense that engages the purposes of the Code. Floor squeaks are a very ordinary and common occurrence experienced in the vast majority of homes in Ontario that have been in use of a period of time. It does not promote or perpetuate prejudice of stereotyping regarding mentally disabled persons for the [Act] to prescribe limits upon a construction defect warranty that recognizes and reflects this practical reality.
The Ombudsperson
42On July 28, 2010, the applicant emailed the Ombudsperson to complain of Tarion’s position and its failure to consider the Code in issuing the Report.
43On August 4, 2010, the Ombudsperson responded. He stated that he had considered and investigated the applicant’s complaint, but that he agreed with Tarion’s determination. The Ombudsperson stated that he would not take any further steps in the circumstances.
THE ISSUES
44Tarion argues that the Application ought to be dismissed against it because:
Tarion is subject to adjudicative immunity and its adjudication of the applicant’s claim is not a “service” within the meaning of the Code;
pursuant to s. 45.1 of the Code, the adjudication process provided for in the Act has appropriately dealt with the substance of the Application;
the Application is an abuse of process; and
the Code-related issues raised in the Application are moot because the applicant’s claim was dismissed on grounds that mostly do not relate to the definition of major structural defect. Among other things, Tarion argues that there is no defect and that the floor noises result from normal wear and tear, which is excluded from warranty coverage.
45The Ombudsperson argues that the Application ought to be dismissed against it because:
the Tribunal does not have jurisdiction over the Ombudsperson’s confidential, independent complaint resolution activities;
Tarion’s decision is protected by adjudicative immunity; and
the Application does not establish a prima facie case of discrimination.
46The applicant objects to the requests for dismissal and argues that the Application should proceed.
ANALYSIS
The Request to dismiss against Tarion pursuant to section 45.1
Legal principles
47Section 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.
48In Figliola, the Supreme Court of Canada considered a similar provision from British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210: s. 27(1)(f). At paragraph 34 of Figliola, the Court summarized the principles that underlie provisions such as s. 45.1 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.
49In Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, the Tribunal confirmed that the principles set out in Figliola apply to the interpretation of s. 45.1 of the Code: at para. 21. I do not accept the applicant’s argument that differences in legislative approaches in British Columbia and Ontario mean that Figliola does not apply to s. 45.1 of the Code. The Tribunal has addressed this argument in Gomez, supra, and I adopt the reasoning in that matter.
50Thus, the Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears at s. 45.1 of the Code. The Court 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 this is through the appeal or a judicial review routes available in the other decision-making process.
51According to Figliola, in considering whether the substance of an application has been “appropriately dealt with”, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: see Figliola at para. 38. See also Paterno v. Salvation Army, 2011 HRTO 2298, at para. 24.
52Thus, the Tribunal’s principal concern in applying s. 45.1 is not whether parallel litigation has correctly determined the human rights issues, but whether the applicant has already had an opportunity to have the human rights claim considered by an adjudicator who had jurisdiction to interpret and apply the Code: see Figliola, at para. 49; Gilinsky v. Peel District School Board, 2011 HRTO 2024; and Campbell v. Toronto District School Board, 2008 HRTO 62.
53While, in applying s. 45.1 of the Code, the Tribunal may have regard for basic principles of natural justice (such as notice of the case to be met and an opportunity to respond), it is not for this Tribunal to determine whether the other process’ procedural requirements were met or whether they equate to the procedural requirements that would have been available in a proceeding before this Tribunal: Figliola, at para. 49. See also Paterno, supra, at paras. 24 and 35.
Was there a proceeding for the purposes of s. 45.1?
54In Campbell v. Toronto District School Board, supra, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.
55The Act provides that new home owner warranty claims will be determined by Tarion: see s. 14 and 16. I have no difficulty concluding that Tarion’s decision-making process is an adjudicative proceeding under a statutory regime and therefore a “proceeding” within the meaning of s. 45.1 of the Code.
Did the proceeding “appropriately deal with” the substance of the Application?
56The applicant argues that the decision-making process under the Act did not appropriately deal with the substance of the Application because:
o the Report does not address the human rights issues raised in the Application;
o although the Tarion Decision addresses the human rights issues, its timing was in bad faith and, until the Tarion Decision was actually issued (and the Application had been filed), the applicant had no indication that his human rights concerns would be addressed under the Act;
o in any event, the Tarion Decision does not apply human rights principles correctly and the conclusions it reaches are erroneous; and
o s. 13(6) of the Act means that this case is materially different from Figliola.
57The applicant has also made a number of other arguments concerning Tarion’s decision-making process. He argues that Tarion did not respect timelines and that its decision-making was not objective, transparent or fair. Tarion vigorously disputes this.
58The role of the Tribunal is not to determine general questions of fairness. Nor is it to ensure that a body such as Tarion complies with the Act, the Regulation or its own policies. Rather the Tribunal’s jurisdiction is limited to the determination of whether an applicant experienced discrimination under the Code.
59Many of the applicant’s arguments are premised on the fact that the human rights issues were not determined in the Report. For example, he attempts to distinguish Figliola and Trozzi on the basis that Code-related issues were decided in the proceedings giving rise to those matters, suggesting that his Code-related allegations were not addressed by Tarion: see Trozzi, para. 32.
60I do not accept the applicant’s argument that Tarion failed to address the Code or that this case is distinguishable from Figliola and Trozzi on that basis. While the applicant clearly takes issue with the fact that the Report does not decide human rights issues, there is no dispute that these issues are addressed in the Tarion Decision or that Tarion had the jurisdiction to determine them.
61I find that that timing of the Tarion Decision is not material to my determination of the s. 45.1 issue. To determine the preliminary issue, it is not necessary or appropriate for me to make any factual findings regarding whether or not the timing of the Decision was in bad faith. It is sufficient for me to conclude that Tarion has issued the Tarion Decision, which addresses the substance of the Application. This is because, regardless of when it was rendered, the Tarion Decision considers the human rights arguments at issue in this Application. This fact alone is sufficient to warrant the dismissal of the matter pursuant to s. 45.1.
62To the extent that the applicant argues that the timing of the Tarion Decision raises procedural fairness issues, this is a question that should be raised on appeal or in judicial review. It is not one that falls within my mandate as a concurrent decision-maker under the Code: Figliola, para. 49. I reach the same conclusion in respect of the other alleged procedural flaws in Tarion’s decision-making. Whether or not Tarion is an impartial decision-maker, whether it respected timeframes, and whether its investigation and decision-making process were fair or appropriate is not for me to determine.
63To the extent that Figliola allows me to inquire into whether the claimant had notice of the case to be met and had an opportunity to respond, I find that those basic elements of procedural fairness were met in the proceeding under the Act.
64There is no dispute that the claimant had an opportunity to present arguments to Tarion and that she had access to the Act and Regulations, which generally set out the standards to meet for compensation under the Plan. The applicant argues that U.N. should have had an opportunity to present more formal submissions and that she should have been made aware of Tarion’s position before making these submissions. In my view, the applicant’s arguments go beyond the basic procedural fairness requirements referred to in Figliola and invite this Tribunal to delve more deeply into the procedural requirements of a concurrent proceeding. To do so would be improper. The Act provides for an appeal mechanism, and such procedural fairness considerations could have been raised before the LAT.
65The applicant also argued that the legislative scheme concerning the Warranty Plan left U.N. in an untenable position. He argues that there was no human rights claim until Tarion rejected (at least on a preliminary basis) the claim for compensation under the Act. When Tarion failed to address human rights arguments, the applicant brought those before the Tribunal. He states that this is not a case of forum shopping because, given Tarion’s apparent refusal to determine the human rights issues, the only way to have U.N.’s Code-related rights addressed was to proceed in the two forums.
66The difficulty with the applicant’s argument is twofold. First, there is no dispute that the applicant asked that Tarion not issue a decision. Although I understand that he did this because he felt Tarion would not address the human rights argument in any event, I do not accept that the only way the human rights issues could be addressed is through the Application.
67This brings me to a further point (also noted above), which is that the Act provides for a robust mechanism to challenge a decision by Tarion. I am satisfied the appeal process would have afforded the applicant with a further opportunity to raise human rights issues before a decision-maker with the jurisdiction to address them. The applicant’s concerns with Tarion’s decision-making process (including the fact that its Report did not address the applicant’s human rights arguments) are issues that could have been raised before the LAT.
68In terms of the applicant’s argument that Tarion’s application of the Code is incorrect, I rely on the Supreme Court of Canada’s decision in Figliola. At paragraph 28, the Court writes that provisions such as s. 45.1 of the Code are not:
…a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.
69Thus, it is not for this Tribunal to determine whether Tarion Decision is correct. The notion of “appropriately dealt with” is much narrower than this and is satisfied where the parties have had the opportunity to have their human rights issues heard and determined by an adjudicator with the necessary jurisdiction. As I have indicated, the applicant had this opportunity under the Act.
70The applicant also argues that s. 13(6) of the Act is material to the application of s. 45.1 in this case. Section 13(6) states:
The warranties set out in subsection (1) apply despite any agreement or waiver to the contrary and are in addition to any other rights the owner may have and to any other warranty agreed upon.
71The applicant argues that U.N.’s right to bring an action independent of her rights under the Act distinguishes this case from Figliola and is material to how the Tribunal should apply s. 45.1. In support of this argument, she cites: Griffin v. T & R Brown Construction Ltd., 2006 CanLII 39569 (ON SC); Radewych v. Brookfield Homes (Ontario) Limited, 2007 CanLII 23358 (ON SC), aff’d 2007 ONCA 721; and Frankson v. Workplace Safety and Insurance Board, 2011 HRTO 2107.
72These cases speak to instances of concurrent jurisdiction. Importantly, however, the fact that the Tribunal may have concurrent jurisdiction over the subject-matter of the Application does not necessarily mean that it is appropriate for the Application to proceed: Figliola, para. 49.
73In both Griffin and Radewych, Ontario courts concluded that the Act does not necessarily bar a claimant from also initiating court proceedings. In those cases, the courts declined to dismiss the action based on the doctrines of issue estoppel (Griffin and Radewych) or abuse of process (Griffin). These cases are factually very different from the Application, they do not implicate s. 45.1 of the Code, and, in my view, they do not assist me in determining the issues raised in this matter.
74This case is about whether the Application should proceed before the Tribunal, a concurrent administrative decision-maker bound by Figliola. Griffin and Radewych relate to a court of inherent jurisdiction and its application of the doctrines of abuse of process and estoppel. The courts’ application of these common law doctrines in a very different factual context does not assist me in determining how to apply s. 45.1 in this case. It certainly does not override the legal principles established in Figliola.
75I note that in Figliola, the Court explained that, in applying provisions such as s. 45.1, the Tribunal should be guided less by the technical application of common law doctrines (such as estoppel and abuse of process) and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them: at para. 36.
76Further, as Tarion points out, this Tribunal’s decision in Frankson does not concern the application of s. 45.1 of the Code. It speaks to the Tribunal’s jurisdiction over a claim of discrimination in the context of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. Unlike in Frankson, the issue before me is not whether the Tribunal has concurrent jurisdiction to determine the applicant’s claim in discrimination.
77Finally, the applicant argues that the Tribunal should not show deference to Tarion because it has only a limited public interest mandate. She relies on paragraph 64 of Trozzi, supra, which suggests that, in determining whether the substance of a matter has been “appropriately determined”, the amount of deference due to an administrative decision-maker will depend, in part, on the extent of its public interest mandate. The Divisional Court wrote (at para. 64):
Thus, it may be that the Licence Appeal Tribunal, which can be requested to conduct a hearing where it is proposed to refuse registration under these Acts, would not be given the same level of deference by the Human Rights Tribunal as [the Health Professionals Review Board]. This is something to be decided on the facts of each case.
78Given the Supreme Court of Canada’s reasoning in Figliola (which was decided after Trozzi), it is not clear to me that this passage reflects the current state of the law. Figliola stands for the proposition that it is not for a concurrent decision-maker such as the Tribunal to explore, to any degree, the correctness of the decision in the other proceeding. In my view, this approach renders the notion of a sliding scale of deference obsolete.
79I cannot conclude my analysis on this issue without stating that my decision must not be understood as an acceptance of Tarion’s conclusions or of its application of human rights principles. It may be that I would have approached the human rights analysis differently. However, as is clear from the Supreme Court’s decision in Figliola, that is not the applicable legal test. I make no finding on whether the Tarion Decision is correct because, as I have explained above, it is not for me to do so.
80For the above reasons, the Application is dismissed against Tarion based on s.45.1 of the Code. I find that the substance of the Application has been appropriately dealt with in another proceeding before Tarion.
81In light of this conclusion, it is not necessary for me to address any of the other arguments raised by Tarion as a basis for the early dismissal of the Application.
The Ombudsperson
82The crux of the allegation against the Ombudsperson is that he reaffirmed an allegedly discriminatory decision made by Tarion. The Ombudsperson is alleged to have failed to take steps to challenge a decision and decision-making process that the applicant states were improper. He is also alleged to have failed to properly investigate the applicant’s complaint, address the issues she raises, or respond appropriately to her complaint.
83The Ombudsperson argued that, in the circumstances of this case, his role analogizes to that of a union that decides not to pursue a grievance, in essence deciding not to challenge a decision made by an employer: see Holowka v. Ontario Nurses Association, 2010 HRTO 2171, and Traversy v. Mississauga Professional Firefighters Association, Local 1212, 2009 HRTO 996.
84In Traversy, supra, at paragraph 33, the Tribunal stated:
[A] claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
85The Ombudsperson states (and the applicant does not dispute) that he had no role to play in Tarion’s decision-making. The Ombudsperson further argues that, as with a union, his decision not to pursue a complaint is not, in and of itself, a violation of the Code.
86The applicant argues that “the differential treatment in the provision of a service arose from the fact that the case involved human rights” and the Ombudsperson condoned an allegedly discriminatory act by failing to take appropriate steps to challenge Tarion’s decision.
87I accept the Ombudsperson’s argument that, without some connection to a Code-related ground, the fact that the Ombudsperson decided not to pursue a complaint is not, in and of itself, a breach of the Code. In this regard, I find that the Ombudsperson’s role in this case analogizes to that of a union making a decision about whether to pursue a grievance against an employer. The Ombudsperson’s role was not to make a decision under the Act and I accept that he had no role to play in Tarion’s decision-making.
88Accordingly, to be successful in her allegations against the Ombudsperson, the claimant would have to show that a Code ground was a factor in the treatment she received from the Ombudsperson. In this case, there is no allegation that the claimant’s disability was a factor in the Ombudsperson’s behaviour towards her. Therefore, even if all of the allegations respecting the Ombudsperson’s actions or failure to act were accepted as true, they would not constitute an infringement by the Ombudsperson of the claimant’s Code-protected rights. For these reasons, I find that there is no reasonable prospect that the Application against the Ombudsperson could succeed, in whole or in part and it is dismissed on that basis.
89Given this conclusion, it is not necessary for me to address the Ombudsperson’s other arguments for dismissal of the Application.
ORDER
90For all of the above reasons, the Application is dismissed.
Dated at Toronto, this 27th day of January, 2012.
“Signed by”
Michelle Flaherty
Vice-chair