Robati v. The Corporation of the City of Markham, 2013 HRTO 1162

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ardalan Robati

Applicant

-and-

The Corporation of the City of Markham

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 4, 2013

Citation: 2013 HRTO 1162

Indexed as: Robati v. The Corporation of the City of Markham

WRITTEN SUBMISSIONS

Ardalan Robati, Applicant

Self-represented

The Corporation of the City of Markham, Respondent

Catherine Conrad, Counsel

1This is an Application filed on January 22, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of race, colour and citizenship. The applicant owns a home in the Unionville Heritage Conservation District and asserts that the respondent denied him permission to make certain alterations to his home for discriminatory reasons.

2On May 9, 2013, the respondent filed a Response in which it denied the applicant’s allegations and raised several preliminary issues. First, the respondent submitted that the Tribunal should dismiss the Application because another proceeding has dealt with the substance of the Application, in whole or part, pursuant to section 45.1 of the Code. Specifically, the respondent submitted that the issue of whether the applicant was entitled to pave his backyard was dealt with by the Ontario Court of Justice, which convicted him of violating The Ontario Heritage Act, R.S.O. 1990, c. O.18 for paving his backyard without a permit. Second, the respondent submitted that the Tribunal should dismiss the Application pursuant to section 34(1) because the applicant filed the Application more than one year after the alleged discrimination occurred. Finally, the respondent requested, in the alternative, that the Tribunal order a summary hearing to determine whether the Application has a reasonable prospect of success.

3The applicant filed a Reply on June 6, 2013 in which he stated his opposition to the respondent’s requests to dismiss the Application and the request for a summary hearing. In response to the respondent’s request to dismiss pursuant to section 45.1, the applicant submitted that he successfully appealed his conviction under The Ontario Heritage Act and a new trial was ordered. The applicant did not, however, submit any documentation, e.g., the appeal decision, confirming the successful appeal. The applicant submitted that the new trial has not yet started and in any event the issue of him paving his backyard is only one of several issues he raised in the Application. The applicant submitted that he filed the Application within one year of the last of a series of incidents; therefore, the Application is not untimely, pursuant to section 34(1)(b). Finally, the applicant submitted that the Application discloses clear examples of discriminatory treatment that were followed by a series of discriminatory acts against him by the respondent.

Analysis and Decision

4The respondent’s request for a summary hearing is denied. Pursuant to Rule 19A.5 of the Tribunal’s Rules of Procedure the Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.

5The applicant’s submissions regarding the proceedings before the Ontario Court of Justice indicate that consideration of dismissal under section 45.1 is premature. The fact that these proceedings are ongoing, however, raises the issue of whether deferral of the Application is appropriate. Deferral ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. In this case, the issue of whether the applicant was entitled to pave his backyard is in issue before the Court and the Tribunal.

6In the circumstances, the most fair, just and expeditious procedure is to direct the parties to make submissions regarding whether deferral is appropriate in this matter.

Order:

7The Tribunal orders as follows:

1. The respondent’s request for a summary hearing is dismissed; and,

2. Within 14 days of the date of this Interim Decision the parties shall file with the Tribunal and delivery to each other submissions regarding whether deferral of this Application is appropriate in light of ongoing proceedings before the Ontario Court of Justice. The applicant shall include in his

submissions the decision of the Court granting his appeal of his conviction under the The Ontario Heritage Act regarding the paving of his backyard.