Petar Krpan v. George Nimer, 2012 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Petar Krpan Applicant

-and-

George Nimer Respondent

DECISION

Adjudicator: Brian Eyolfson Date: January 9, 2012 Citation: 2012 HRTO 33 Indexed as: Krpan v. Nimer

APPEARANCES

Petar Krpan, Applicant ) Self-represented George Nimer, Respondent ) Self-represented

INTRODUCTION

1The applicant filed an Application on November 15, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of age in housing. In particular, the applicant alleges that he was subjected to discrimination when the respondent landlord suddenly changed his rental policy to “students only” and evicted the applicant. The applicant indicated in his Application that the facts of the Application were part of another proceeding that was completed, namely a claim before the Landlord and Tenant Board (the “LTB”).

2The respondent filed a Request for Early Dismissal – With Full Response, submitting that the Application should be dismissed, pursuant to section 45.1 of the Code, because a proceeding before the LTB appropriately dealt with the substance of the Application. The respondent attached an Order and Reasons of the LTB, issued April 22, 2010, dismissing an application brought by the applicant before the LTB. The LTB’s Order and Reasons indicate that the applicant’s application before the LTB was dismissed based on the LTB’s finding that the tenancy agreement was exempt under section 5(i) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”), which provides as follows:

5. This Act does not apply with respect to,

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

3The respondent also relies upon the exemption with respect to shared accommodation found in section 21(1) of the Code, which provides as follows:

The right under section 2 to equal treatment with respect to the occupancy of residential accommodation without discrimination is not infringed by discrimination where the residential accommodation is in a dwelling in which the owner or his or her family reside if the occupant or occupants of the residential accommodation are required to share a bathroom or kitchen facility with the owner or family of the owner.

4In his Reply, the applicant disputes that the respondent resided in the house in which the applicant rented a room.

5By letter dated January 31, 2011, the Tribunal directed that a teleconference hearing be scheduled to hear submissions with respect to the respondents’ Request that the Application be dismissed pursuant to section 45.1 of the Code. The parties were also directed to be prepared to make submissions with respect to section 21(1) of the Code. In addition, at the teleconference hearing, the Tribunal raised the issue of the possible application of the doctrine of issue estoppel in the circumstances, and the applicant confirmed that he was able to address that issue at the teleconference and proceeded to do so.

THE PARTIES’ POSITIONS

6At the teleconference hearing, the applicant reiterated that he disagreed that the respondent resided at the house where the applicant rented a room. With respect to issue estoppel, the applicant submitted that the LTB decided that the respondent lived in the house in which the applicant rented a room; however, the LTB did not deal with the question of why the respondent evicted the applicant. The applicant submitted that the issue of why he was evicted was to be determined by the Tribunal.

7The respondent submitted that the LTB dealt with the issue of whether or not the respondent lived at the house where the applicant rented a room at the relevant time. The respondent submitted that section 21(1) of the Code would apply in the circumstances.

ANALYSIS AND FINDINGS

8In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the principles underlying the doctrine of issue estoppel, in the context of an application alleging employment discrimination, as follows, at paras. 36-40:

The doctrine of res judicata (of which issue estoppel is one part) has two common rationales: the first is the need for finality; the second is that a party should not be "vexed" twice by the same cause: Cremasco v. Canada Post Corp. (2002), 2002 CanLII 61852 (CHRT), 45 C.H.R.R. D/410 at para. 50, (“Cremasco, Tribunal”) aff'd (2004), 2004 FC 81, 49 C.H.R.R. D/172 (FCTD) (“Cresmasco FCTD”) and, 2004 FCA 363 (“Cresmasco FCA”).

The prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole: Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42; 47 C.H.R.R. D/182, at para. 50.

However, there has also been some reluctance to apply the doctrine of issue estoppel to the determination of human rights complaints by tribunals such as this one. One of the primary concerns is that the dismissal of a complaint deprives the parties of the opportunity to have the merits of the case determined by a tribunal that specializes in the adjudication of human rights disputes. Therefore, it is appropriate to use caution and restraint in the application of the doctrine of res judicata to the adjudication of human rights complaints: [O'Connor v. Canadian National Railway, 2006 CHRT 5, at para. 22.]

The application of the doctrine is to be determined on a case-by-case basis, paying close attention to the particular facts of the case, and adjudicators have the discretion to refuse to apply the doctrine if doing so would work an injustice.

There are two principal branches of the doctrine of res judicata. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. The issues in question in the second proceeding must have been necessary to the decision in the first proceeding. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar relitigation of only a discrete issue or it may bar the second action in its entirety. (O’Connor, supra at para 24). The second branch of res judicata, known as "cause of action" estoppel, is not raised in this case.

9In Snow, supra, the Tribunal summarized the criteria to be met for the application of issue estoppel, as follows, at para. 41:

• the same questions are being decided in both proceedings

• the judicial decision which is said to create the estoppel is a final decision

• the parties, or their privies, are the same.

Same questions

10In order to meet the first criterion, the Tribunal in Snow, supra, explained that the determination of the issue in the first litigation must have been necessary to the result. In other words, issue estoppel covers fundamental issues determined in the first proceeding that were essential to the decision. See also O’Connor, supra, at para. 28.

11In the present case, the LTB preferred the affirmed evidence of the respondent landlord that he resided at the rental unit, and the affirmed evidence of the respondent’s two witnesses, who confirmed that the respondent moved into the rental unit two weeks prior to the commencement of the tenancy agreement between the applicant and the respondent. The LTB also determined that the respondent shared kitchen and bathroom facilities with the applicant, and that the exemption in section 5(i) of the RTA applied. The applicant’s application before the LTB was, therefore, dismissed.

12With respect to the applicant’s Application before this Tribunal, section 21(1) of the Code provides an exemption to the right under section 2 of the Code to equal treatment where the residential accommodation is in a dwelling in which the owner resides, if the occupant is required to share a bathroom or kitchen facility with the owner. Consequently, in determining the Application before this Tribunal, the Tribunal would be required to determine whether or not the respondent resided in the dwelling in which the applicant rented, and whether or not the applicant was required to share a bathroom or a kitchen facility with the respondent. As it appears that the LTB has already determined these same essential questions, the first criterion for the application of the doctrine of issue estoppel has been met.

Final decision

13With respect to the second criterion, the Tribunal in Snow, supra, explained that, although originally developed in the context of the civil courts, over time the doctrine of issue estoppel has been extended to decisions by administrative bodies: Danyluk v. Ainsworth Technologies Inc., [2001] S.C.R. 460, at para. 21. Also, where there is a process of appeal or reconsideration that the party does not utilize, the decision at first instance is considered final: O’Connor, supra, at para. 46.

14In the present case, the LTB’s decision dismissing the applicant’s application before it is clearly a final decision of the LTB, and there is no indication that the applicant sought any review or appeal of that decision. Accordingly, the second criterion for the application of the doctrine of issue estoppel has been met.

Same parties

15As the parties in the present Application before the Tribunal are identical to the parties in the application before the LTB, the third criterion for the application of the doctrine of issue estoppel is also met.

Discretionary factors

16Having found that the criteria for the application of issue estoppel have been met, there remains the question of whether any discretionary factors apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way: O’Connor, supra, at para. 61. The Tribunal in O’Connor, supra, explained as follows, at paras. 62-63:

The Tribunal's discretion must be exercised in accordance with the particular facts of each case. The list of factors which may be taken into account is open-ended. In all cases, the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case (Danyluk, at para. 63).

The following factors should be considered in the exercise of the Tribunal's discretion:

a) the wording of the statute;

b) the purpose of the legislation;

c) the availability of an appeal;

d) the safeguards available to the parties in the administrative procedure;

e) the expertise of the decision-maker;

f) the circumstances giving rise to prior administrative proceedings;

g) potential injustice.

17The purposes of the RTA include providing protection for residential tenants from unlawful eviction, balancing the rights and responsibilities of residential landlords and tenants, and providing for the adjudication of disputes: RTA, s. 1.

18For the purposes of the present case, section 5(i) of the RTA exempts the application of the RTA where landlords and tenants reside in the same building and are required to share a bathroom or kitchen facility. Pursuant to section 168(2) of the RTA, the LTB has exclusive jurisdiction to determine all applications under the RTA, and with respect to all matters in which jurisdiction is conferred on it by the RTA. A Member of the LTB determined that the applicant’s application under the RTA was exempt under section 5(i) of the RTA, after hearing and weighing evidence from the parties and the respondent’s witnesses, under affirmation, and documentary evidence. With respect to safeguards, I also note that the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, applies with respect to all proceedings before the LTB: RTA, s. 184.

19The applicant’s application under the RTA was brought for different purposes than his Application under the Code, namely an order determining that the respondent seriously interfered with his reasonable enjoyment, and failed to give him 72 hours to pick up his property; however, both applications arise out of the same circumstances, and require a determination as to whether or not the respondent landlord resided in the same dwelling as the applicant, and whether or not they were required to share a bathroom or kitchen facility.

20Finally, while the LTB’s rules provide that requests to review orders may be made within 30 days of an order, and the RTA provides that the LTB’s orders may be appealed to Divisional Court on questions of law within 30 days, there is no indication that the applicant sought any review or appeal of the LTB’s order.

21Having considered all of the circumstances, including the above factors, I do not find that the Tribunal should exercise its discretion to refuse to apply issue estoppel in this case. In particular, I do not find that the application of issue estoppel in this case would “work an injustice”: Danyluk, supra, at para. 80.

22In the circumstances, it is not necessary for me to consider the remaining preliminary issues raised by the respondent. The Application is dismissed.