Elkhouli v. Ecuhome Corporation, 2013 HRTO 310

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamed Elkhouli

Applicant

-and-

Ecuhome Corporation, Jacqueline Beckford, Barry Espin, Harry Fine, Sally Murphy and Bruce Sexsmith

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: February 25, 2013 Citation: 2013 HRTO 310 Indexed as: Elkhouli v. Ecuhome Corporation

WRITTEN SUBMISSIONS

Mohamed Elkhouli, Applicant

Self-represented

Ecuhome Corporation, Jacqueline Beckford, Barry Espin, Sally Murphy, Bruse Sexsmith, Respondents

Gordon Wood, Counsel

Harry Fine, Respondent

Self-represented

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of a civil claim commenced by the applicant.

2The applicant filed an Application dated November 8, 2011, alleging discrimination with respect to the occupancy of accommodation because of disability and receipt of social assistance contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant claimed that he was discriminated against when his landlord allegedly failed to fix certain mould issues in his apartment which caused him health problems.

3By Interim Decision 2012 HRTO 1342, dated July 10, 2012, the Tribunal deferred the Application pending the outcome of two applications before the Landlord and Tenant Board ("LTB") concerning mould in the applicant's apartment.

4By communication dated December 4, 2012, the applicant requested that his Application be reactivated. In his request, he noted that the LTB has rendered a decision in his case. The LTB dismissed his application finding that he led insufficient evidence to show that the corporate respondent failed to meet its maintenance obligations under the Residential Tenancies Act. The applicant has decided not to appeal this decision.

5On December 6, 2012, the respondents requested that the Application be deferred pending the conclusion of a Superior Court action commenced by the applicant on September 27, 2012. The respondents submit that the Application and Court action concern the same facts and issues and therefore there is a possibility of inconsistent findings of fact and a potential for double recovery since the applicant has sought damages in both proceedings.

6In the Statement of Claim for his civil action, the applicant alleges that he experienced Sick Building Syndrome and anxiety due to the respondents' negligence in failing to maintain the rental premises in a proper state. Among other remedies in his civil claim, he is seeking $500,000 in damages.

7The applicant did not respond to the respondents' deferral request.

analysis

8Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. While deferral is not automatic, it is granted to avoid adjudicative duplication and inconsistent results. The Tribunal has held that some of the factors that may be relevant in deciding whether to defer consideration of an application are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

9In my view, the substantial overlap between the facts and issues in the two proceedings favours deferral in this case. While the two proceedings involve different legal claims, both proceedings challenge the same actions or inactions by the respondents. In such circumstances, there is a clear potential for inconsistent factual findings and substantial adjudicative duplication in the two proceedings. In the circumstances of this case, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the civil action.

10It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).