Barton v. Arnold & Simson Co., 2012 HRTO 621

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Glenn Barton

Applicant

-and-

Arnold & Simson Co. Ltd., and Yardena Goldshtein

Respondents

DECISION

Adjudicator: Ena Chadha

Date: March 26, 2012

Citation: 2012 HRTO 621

Indexed as: Barton v. Arnold & Simson Co.

WRITTEN & ORAL SUBMISSIONS BY

Glenn Barton, Applicant ) Self-represented

Arnold & Simson Co. Ltd. and ) Mitchell B. Rosenblatt,

Yardena Goldshtein, Respondents ) Counsel

1The applicant filed an Application with the Tribunal on July 13, 2011 pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal in the area of occupancy of accommodation (housing) on the basis of disability. The applicant alleges that he required a larger apartment in order to accommodate his disability and that the respondents refused to transfer him to a larger apartment.

2The respondents filed a Response on September 9, 2011, wherein they requested that the Application be dismissed, pursuant to section 45.1 of the Code, on the basis that another proceeding appropriately dealt with the subject-matter of the Application. The respondents assert that the facts and allegations raised in the current Application were also the subject of a Landlord and Tenant Board (“LTB”) proceeding and that a LTB Order and Decision, dated January 4, 2011, appropriately dealt with the applicant’s human rights concerns. The respondents also requested that the personal respondent be removed as a respondent in the Application.

3The applicant filed a Reply on October 5, 2011 opposing the respondents’ request to dismiss. The applicant submits that the LTB did not order an appropriate remedy for the alleged Code violations and failed to ensure that the necessary accommodation was actually provided. The applicant did not specifically address the issue of the removal of the personal respondent.

4By way of Case Assessment Direction dated October 21, 2011, the Tribunal directed that a teleconference be scheduled in order to hear the parties’ submissions regarding section 45.1 of the Code and whether the LTB appropriately dealt with this Application. The Tribunal indicated that, if necessary, the issue of the removal of the personal respondent will be dealt with at a later stage.

5The Tribunal convened a teleconference on March 5, 2012. The applicant and counsel for the respondents participated in the teleconference hearing. Prior to the conference call, the Tribunal received the respondents’ written submissions and case law regarding their request that the Application be dismissed on the basis that the LTB appropriately dealt with the substance of the Application. Although the applicant did not file submissions for the teleconference, the applicant had filed documents with his Application and a Reply which were before the Tribunal. The Tribunal considered these documents in arriving at its conclusion.

PARTIES’ SUBMISSIONS

6The respondents argue that all of the facts and issues raised in this Application are exactly the same as the applicant’s LTB application. The respondents submit that the applicant’s human rights concerns, specifically disability discrimination in refusing to provide him with a larger apartment, were raised and disposed of by the LTB. The respondents point out that the LTB upheld the applicant’s complaint and found that the landlord failed to accommodate the applicant’s disability-related need for a larger apartment. The respondents note that the LTB order required the respondents to consider the applicant for any available three bedroom unit or the next such available unit; however, the applicant voluntarily ended his tenancy prior to the respondents being able to comply with the LTB order.

7The applicant counters that the LTB proceeding did not address his human rights claim because he asserts the issue of discrimination was never discussed at the LTB hearing. The applicant further argues that, because the LTB did not immediately order the respondents to transfer him to a larger apartment, the LTB did not appropriately deal with his human rights concerns. The applicant alleges that the language of the LTB’s remedial order, specifically stating the respondents were “to consider” him for the next available larger unit, was not sufficiently strong enough for prompt and proper enforcement. The applicant contends that based on his past experience with the respondents he believed the respondents would not have complied with the LTB order so he had no choice but to move out.

DECISION

8For the reasons that follow, I find that the LTB appropriately dealt with the substance of the Application and, as such, the Application should be dismissed pursuant to section 45.1 of the Code.

ANALYSIS

9Section 45.1 of the Code reads as follows:

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.

10The Supreme Court of Canada recently considered a similar provision from British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210: s. 27(1)(f) in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”). In that decision, the Court underscored the importance of the finality of litigation and explained that the purpose of a provision like section 45.1 is to “deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.” (see para. 25). See also Campbell v. Toronto District School Board, 2008 HRTO 62.

11The Supreme Court summarized the key principles that underlie provisions such as section 45.1 as follows (at para. 34):

• 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.

12Section 45.1 has been considered in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application.

13The Tribunal has held in a number of decisions that a LTB hearing is a “proceeding” within the meaning of section 45.1 of the Code: see Verner v. Reginald Langlois, 2011 HRTO 2019 at para 9 and the cases cited therein. Consequently, the issue that needs to be determined for the purposes of the present Application is whether the LTB proceeding “appropriately dealt with” the subject matter of the Application.

14In Figliola, supra, the Supreme Court of Canada suggested that, in analyzing the application of section 45.1 to any particular application, consideration should be given to whether the essence or pith of the application was dealt in the other proceeding. See also Campbell, supra.

15Based on a review of the parties’ materials, including the LTB application and Decision, as well as the parties’ submissions, I find that the substance of the current Application was appropriately dealt with through the LTB proceeding.

16There is no dispute that the subject matter of this Application pertains to the allegation that the respondents discriminated against the applicant in the area of housing by refusing to accommodate the applicant’s disability-related need for a three bedroom apartment. There is no dispute that the business of the LTB, in considering the applicant’s LTB application, was to determine whether the respondent landlord interfered with the applicant’s reasonable enjoyment of his tenancy, in particular with respect to the applicant’s request for a larger unit.

17Based on a review of the parties’ materials, it is clear that the applicant’s LTB application raised the same facts and allegations as raised in this Application, i.e., refusal to transfer. It is also clear that the LTB application involved the same legal issues as underlying this Application, i.e., the duty to accommodate. I accept the respondents’ submissions that, in carrying out its assessment of the applicant’s reasonable enjoyment of his tenancy, the LTB considered the facts regarding the request to transfer and the issue of disability-related accommodation.

18Contrary to the applicant’s submissions, I find that the applicant’s human rights concerns were expressly considered and determined through the LTB proceeding. In her Decision, LTB Member Elizabeth Beckett made the specific following human rights determinations regarding the applicant’s case:

• The applicant is a person with a disability as defined in the Code;

• The applicant has a right to be free of discrimination with respect to housing under section 2 of the Code;

• The right to be free of discrimination includes the duty to accommodate short of undue hardship;

• The applicant’s request for a bigger apartment was a disability-related need;

• The respondent landlord denied the applicant the lawful right to accommodation by refusing to consider the applicant for a bigger unit;

• The LTB was obligated to apply human rights law and, therefore, has jurisdiction and power to require the respondent landlord to accommodate the applicant’s needs;

• The factors for considering undue hardship are set out in section 17(2) of the Code;

• The respondent landlord did not present any argument of hardship;

• Facilitating the applicant’s transfer to a bigger unit would not constitute undue hardship; and

• The respondent landlord was required to consider the applicant for any currently available three bedroom unit and if not available, the next such available unit.

19I find it would be inconsistent with the purpose of section 45.1 to allow the current Application to continue given the LTB Decision fully canvassed human rights principles and reached conclusions, as well as issued a remedial order, with respect to applicant’s allegations of discrimination based on disability and failure to accommodate in accordance with the Code.

20Further, I note that in the recent decision of College of Nurses (Ontario) v. Trozzi College of Nurses v. Trozzi, 2011 ONSC 4614, 2011 ONSC 4614, the Divisional Court emphasized that human rights tribunals are not appellate bodies of other statutory tribunals even in instances when Code-related issues are in dispute. It is in the public interest, as well as in the interests of the parties, that the finality of an administrative decision is respected and that parties must not bypass review mechanisms by approaching other forums to challenge or relitigate previously decided issues.

21In light of the foregoing principles, I am unable to yield to the applicant’s request to revisit the LTB’s Order. The fact that an applicant is unhappy with the scope or magnitude of a remedial order issued by another administrative tribunal is not a basis to find that the substance of an application was not appropriately dealt with. A section 45.1 inquiry into whether another proceeding “appropriately dealt with” the subject matter of an application, does not entail evaluating the features and quality of a remedial award. As such, it is not my place to consider whether the wording of the LTB’s Order issued in the applicant’s case is sufficiently binding to compel compliance. As stated in Figliola, supra, the Tribunal cannot “…‘judicially review’ another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome” at para 28.

22I conclude that the respondents have established that the substance of the current Application was appropriately dealt with through the LTB proceeding.

ORDER

23For the reasons stated above, I am satisfied that the LTB appropriately dealt with the substantive issues that were also raised in this Application. The respondents’ request to dismiss the Application, pursuant to section 45.1 of the Code, is granted.

24Accordingly, it is not necessary to deal with the request to remove the personal respondent and the Application is dismissed.