Mohit Bali v. Les Madhavji, 2013 HRTO 1025

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohit Bali

Applicant

-and-

Les Madhavji

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 6, 2013

Citation: 2013 HRTO 1025

Indexed as: Bali v. Madhavji

APPEARANCES

Mohit Bali, Applicant

Self-represented

Les Madhavji, Respondent

No one appearing

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 contracts because of age. A hearing by teleconference was conducted on June 5, 2013 commencing at 1:30 p.m.

2The respondent did not appear on the call. At an earlier stage in the proceeding, the respondent failed to file a response and failed to respond to the Tribunal’s Interim Decision (2012 HRTO 1822) setting out the consequences of ignoring the Tribunal’s directions. The respondent was served with the Notice of Summary Hearing setting out the date and time of the call and conference call numbers were provided for both local and long-distance locations. I am satisfied that the respondent had notice of the Application, has chosen not to participate, and understands that the consequence of his failure to participate is that the Tribunal will proceed with this Application in his absence.

3By Case Assessment Direction (“CAD”) dated February 29, 2013, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The CAD raised three issues for the applicant to address: the first is the link between the respondent’s conduct and the prohibited ground of age; the second whether the previous Landlord and Tenant Act proceedings have appropriately dealt with the substance of the Application before this Tribunal pursuant to section 45.1 of the Code; the third is whether there is evidence which will assist the applicant in establishing reprisal.

4To assist the applicant in his preparation, the CAD set out the following information on the subject of reprisal and section 45.1:

With respect to reprisal, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the ground of reprisal and the respondent’s alleged actions.

Section 45.1 of the Code, abuse of process and issue estoppel

It appears that the substance of the Application may have been appropriately dealt with, in whole or in part, by decisions of the Landlord and Tenant Board, including, in particular, decisions dated November 1, 2010, and December 8, 2011.

Section 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”.

The parties should be prepared to make argument about whether or not the Application should be dismissed, in whole or in part: pursuant to s. 45.1 of the Code; on the basis that it would constitute an abuse of process for the Application, or part of the Application, to proceed; or, on the basis of issue estoppel. With respect to s. 45.1 of the Code, the parties may wish to refer to the Supreme Court of Canada’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal’s decisions in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297, and Hunter v. Farlake Dairy, 2011 HRTO 1906. The parties may also wish to refer to decisions of the Tribunal addressing abuse of process and issue estoppel, such as Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, and Campbell v. Toronto District School Board, 2008 HRTO 62.

ANALYSIS

5The applicant filed an Application and hundreds of pages of documents by email in support of the Application. During the summary hearing, the applicant was given an opportunity to make oral submissions to assist the Tribunal in understanding the allegations. There is clearly a long history associated with the applicant’s tenancy, some of which has been dealt with by the Landlord and Tenant Board. However, the applicant’s oral submissions helped to clarify the allegations which relate to the Code. For example, the applicant is living with multiple disabilities. His access to the medications and medical equipment in the condominium unit he rents has been repeatedly disrupted by the respondent who has failed to provide him with a key-fob for the front door of the building.

6In my view, given the applicant’s disabilities which include anxiety and depression, the voluminous material filed by him, and the fact that the respondent is not participating, the fair, just and expeditious approach is to set this matter for an in-person hearing on the merits. To accommodate the applicant, the hearing will take place in the afternoon.

Directions

7The Tribunal will set a half-day, in-person hearing from 1:30 to 4:30.