HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rosemarie Manradge
Applicant
-and-
Calvary House (Markham) Corporation
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Manradge v. Calvary House (Markham) Corporation
WRITTEN SUBMISSIONS
Rosemarie Manradge, Applicant
Self-represented
Calvary House (Markham) Corporation, Respondent
Jonathan Park, Counsel
Introduction
1This is an Application filed on October 5, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation (housing). The applicant self-identifies as Black from Jamaica. She alleges that the respondent, her landlord, has discriminated against her because of race, colour, family status and receipt of public assistance, and describes various issues involving the property management, including various altercations and exchanges. It appears that she lives in social housing, but has had difficulties paying her rent, arranging for her adult daughter to live with her, and dealing with the respondent’s staff.
2The respondent has not provided a full Response, but has instead requested that the Tribunal dismiss the Application under subsection 34(11) of the Code because, on September 26, 2012, approximately one week before she filed the Application, the applicant commenced a civil proceeding in Small Claims Court that is ongoing.
3This Interim Decision deals with that request and provides direction for the next step.
SUBSECTION 34(11)
1Section 34(11) of the Code reads as follows:
34(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
2Section 46.1 reads:
46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the Court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
3In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449, at para. 6, the Tribunal described the operation of s. 34(11) as follows:
If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.
4In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:
Section s. 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section s. 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.
To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
THE APPLICATION
5The Application alleges the following:
The respondent’s property manager called the applicant racist names, including “the N word”.
The respondent’s property manager refused to take money for the applicant’s rent from an agency because he wanted to evict the applicant, presumably for arrears of rent, because he would rather have a Korean renting her apartment.
The respondent’s property manager arranged to have the applicant’s car towed away from the rental property.
The respondent’s employee assaulted the applicant.
The respondent’s property manager refused to give a visitor’s pass to the applicant’s daughter and refused to put the daughter’s name on the lease, requiring the daughter to “sign paper” that she is going to school. It also appears that the applicant alleges that a camera was installed outside her apartment door in relation to her daughter’s suspected visits to the apartment.
The respondent’s property manager said that the applicant is not “paying much” for rent so that he will “do everything to get [the applicant] out.”
The respondent’s property manager threatened to evict the applicant if she went to “the Human Rights Board”.
THE STATEMENT OF CLAIM
6The Statement of Claim names two defendants. One is Samuel Parks, the respondent’s property manager. The other is Walter Mancini who appears to also be a property manager, although this is unclear.
7The Statement of Claim makes allegations that Mr. Mancini was charging the applicant an unfair rent on the basis of calculating that the applicant’s daughter’s income as part of the applicant’s income. It appears that the applicant, in her role as plaintiff, claims at the court that this constitutes fraud, and claims $20,200 for the alleged fraud.
8In her Statement of Claim, the applicant also makes allegations that Mr. Parks assaulted her, and she is claiming $5,000 for this, but does not explain on what basis she arrives at this figure. The Statement of Claim merely states, “I am sewing [sic] him for 5,000.00 dollars for hitting me.”
9In her Statement of Claim, the applicant also makes allegations that Mr. Parks had her car towed, and she is claiming another $5,000 for the expenses she incurred as a result, but it is unclear if she arrived at this round figure on the basis of special damages alone.
POSTIONS OF THE PARTIES
10In its submission, the respondent argues that the Application should be dismissed because the factual context upon which the Applicant relies in her Statement of Claim substantially includes the factual allegations included in her Application. The respondent points in particular to the overlap with respect to the allegations that Mr. Park assaulted the applicant and that he had her car towed. The respondent argues that the similarity between the amount claimed in the Application, $20,000, and the amount claimed in the Statement of Claim, $20,200, must be taken to imply that they must both represent human rights remedies.
11The applicant opposes the request, taking the position that the court matter contains different allegations and claims than what is contained in her Application.
ANALYSIS
Assault and Towing Allegations
12The Statement of Claim repeats the basic facts contained in the Application with respect to the alleged assault and the towing, but the fact that part of the Application is based on the same factual chronology as alleged in the civil action is not sufficient to bar those parts of the Application under section 34(11). If the alleged violations and legal theories asserted in the two proceedings are distinct and the remedial claims do not intersect, a mere overlap in factual background does not trigger section 34(11) of the Code. See Taylor v. Fastenal Canada Ltd., 2012 HRTO 1067, and Roycroft v. Premier Salons Ltd., 2013 HRTO 573.
13On its face, the Statement of Claim does not indicate that the remedies sought are with relation to human rights or an order under s.46.1 of the Code. I cannot imply, at this stage of the proceedings, that remedies being sought by the applicant in the Statement of Claim with respect to the assault and towing are human rights remedies or even remedies which overlap with remedies claimed in the Application. Nor can I imply that the basis for her claims relates to human rights issues. It would appear that the basis for the towing claim appears to be contractual.
14In conclusion, with respect to the alleged assault and towing, I find that the Statement of Claim does not come within the provisions of section 34(11) of the Code at this stage of the proceedings.
Allegations related to the Applicant’s Daughter
15The applicant’s rent is geared to her income. It appears in the Statement of Claim that the allegations with respect to the applicant’s daughter have something to do with the applicant receiving a subsidy for her rent calculated on the basis of the members of her household, and who in the household has an income. In the applicant’s Statement of Claim, the applicant repeats very few of the facts contained in the Application with respect to her daughter being allowed to live with her. Instead, the Statement of Claim focuses on the alleged wrongful inclusion of child support in the calculation of the applicant’s household’s income for the purpose of setting the applicant’s rent, and the remedy is claimed “for the money they took”.
16If any implication were to be made about the basis for the applicant’s claim for a remedy in the Statement of Claim, it would be that the applicant is looking for the replacement of rent money she paid in excess of what she would have paid if child support for her daughter (who the applicant alleges does not live with her) had not been included in the household income. This does not appear to be a remedy being claimed in the Application. The Application alleges that the respondent refused to allow the applicant’s daughter to move into the applicant’s apartment. Therefore, with respect to the alleged incidents involving the applicant’s daughter, I find that the Statement of Claim does not come within the provisions of section 34(11) of the Code at this stage of the proceedings.
Other Allegations
17The Statement of Claim is completely silent with respect to facts related to other allegations contained in the Application such as the allegation that the property manager used racial epithets and tried to encourage the applicant’s eviction, or threatened reprisal if the applicant contacted the Human Rights Tribunal.
CONCLUSION
18I find that the Statement of Claim does not come within the provisions of section 34(11) of the Code at this stage of the proceedings. The Statement of Claim does not reference human rights concerns or request human rights remedies. The two proceedings do not contain duplicative Code-related claims, and the respondent’s request for early dismissal is denied. I note, however, that both the Application and Statement of Claim are disorganized. Not all sentences and paragraphs are clear. As both the court matter and the human rights matter proceed, the applicant may need to become more focused and clarify her allegations further. The respondent may therefore renew its request for a dismissal under s.34(11) if any clarifications by the applicant in either proceeding deem it appropriate.
NEXT STEP
19Within 35 days of the date of this Interim Decision, the respondent is required to file a full Response (Form 2), ensuring it has at least addressed the allegations in the Application as listed in paragraph 5 above. Should the respondent also wish to renew its request that the Application be deferred pending the outcome of the court proceeding, then it may do so with additional written submissions attached to its full Response.
20I am not seized.
Dated at Toronto, this 13th day of May, 2013.
”signed by”
Mary Truemner
Vice-chair