Sara Silverberg v. Nixon Lau and Valeri Moltchanov, 2014 HRTO 1521

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sara Silverberg Applicant

-and-

Nixon Lau and Valeri Moltchanov Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: October 10, 2014 Citation: 2014 HRTO 1521 Indexed as: Silverberg v. Lau

APPEARANCES

Sara Silverberg, Applicant Deepinder Loomba, Paralegal

Nixon Lau, Respondent No one appearing

Valeri Moltchanov, Respondent No one appearing

INTRODUCTION

1On June 25, 2013, the applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination with respect to occupancy of accommodation because of disability. Among other things, the applicant alleges that the respondents are landlords who failed to accommodate her disability-related need for housing that is free from mould.

2In their Responses to the Application, both respondents requested that the Tribunal dismiss the Application pursuant to s. 45.1 of the Code on the basis that another proceeding had appropriately dealt with the substance of the Application. Specifically, the respondents submit that the settlement of a number of applications to the Landlord and Tenant Board ("LTB") appropriately dealt with the substance of the human rights Application.

3Section 45.1 of the Code provides that:

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.

4On November 20, 2013, the Tribunal directed that a teleconference hearing would be held to determine whether the Application ought to be dismissed pursuant to s.45.1 of the Code. The Tribunal also directed the parties to be prepared to make submissions with respect to whether the Application ought to be dismissed as an abuse of process.

5The teleconference hearing was held on August 12, 2014. For the reasons that follow, I find that the substance of the Application was not appropriately dealt with in the LTB proceeding. Nor does the Application constitute an abuse of the Tribunal's process. I therefore decline to dismiss the Application on either of these bases.

6However, insofar as the applicant's representative indicated during the August 12, 2014 teleconference that he had not been able to contact the applicant for a number of months, it is unclear whether the applicant intends to pursue this Application. Accordingly, there are directions to the applicant below, requiring her to confirm her intention to proceed with the Application, failing which the Application may be dismissed by the Tribunal as abandoned.

RESPONDENTS DID NOT PARTICIPATE IN HEARING

7On February 26, 2014, the Tribunal sent the parties a Notice of Confirmation of Hearing advising them that the above-noted teleconference hearing would take place on August 12, 2014 at 9:30 a.m. The Notice also advised the parties how to connect to the teleconference.

8The Notice of Confirmation of Hearing advised the parties of the consequences of failing to attend the teleconference:

If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant).

9On August 12, 2014, I convened the teleconference hearing at the set time. The applicant's representative attended the teleconference on behalf of the applicant. Neither of the respondents attended the teleconference.

10At the time of the hearing, I was satisfied that the respondents had received timely and proper notice of the teleconference hearing. There was nothing to indicate that the respondents had notified the Tribunal that they would be unable to attend the teleconference. Accordingly, after waiting for the respondents for half an hour, and in the absence of any explanation for the respondents' failure to attend, I proceeded with the August 12, 2014 teleconference hearing in the respondents' absence.

APPLICANT'S REQUEST TO ADJOURN HEARING

11At the outset of the August 12, 2014 teleconference, the applicant's representative asked that the teleconference be adjourned on the basis that he had not been able to contact the applicant during the two- or three-month period leading up to the teleconference.

12As I explained during the teleconference, according to the Tribunal's "Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments", requests for adjournments which are made outside the ordinary time limit for rescheduling requests, as this one was, will only be granted in extraordinary circumstances. The onus of establishing that there are extraordinary circumstances rests on the party seeking the adjournment.

13In this case, I was not persuaded that there were extraordinary circumstances justifying an adjournment of the hearing. I denied the applicant's representative's request for an adjournment and proceeded to address the issues, which the teleconference hearing had been set up to address. The applicant's representative continued on the teleconference and made submissions on behalf of the applicant consistent with the written submissions he had previously filed on the applicant's behalf with respect to the s.45.1 issue.

WHETHER APPLICATION SHOULD BE DISMISSED UNDER S. 45.1 OR AS AN ABUSE OF PROCESS

14As noted above, the respondents submit that the substance of the human rights Application was appropriately dealt with in a proceeding before the LTB.

15According to a September 12, 2013 order of the LTB, which was filed with the Tribunal by the respondents, the parties to the human rights Application were also parties to three applications to the LTB: two June 2013 applications filed against the respondents (and another) by the applicant, alleging, among other things, that the respondents failed to maintain the applicant's rental unit and failed to comply with health and safety standards; and an application filed against the applicant by Mr. Lau, seeking to evict the applicant for the non-payment of rent.

16Copies of the LTB applications were also filed with the Tribunal. Having reviewed them, I am satisfied that the applicant raised concerns about mould and air quality in her rental unit in at least one of her LTB applications.

17The three LTB applications went before the LTB on August 29, 2013. At that time, the parties advised the LTB that they had reached a settlement of all matters raised in the LTB applications and asked that the LTB make certain orders, on consent, to give effect to the parties' agreement that the applicant's tenancy would terminate as of September 15, 2013, which the LTB did.

18Although the respondents did not attend the teleconference hearing and therefore did not make oral submissions in support of their s.45.1 request, in determining this matter, I have considered the respondents' written submissions on the s.45.1 issue. In their written submissions, the respondents submit that since the issues in the human rights Application were raised by the applicant in her LTB applications, and since those LTB applications were settled, the substance of the human rights Application was "appropriately dealt with" within the meaning of s.45.1 of the Code.

19For her part, the applicant denies that her human rights claim was appropriately dealt with in the LTB proceeding. The applicant submits that although the parties agreed to settle the case before the LTB, there was no agreement to settle the human rights Application. The applicant submits that the parties understood that the proceeding before the Human Rights Tribunal was to continue.

20The applicant's position in this regard is effectively confirmed by the respondent, Nixon Lau, in his January 14, 2014 written submissions to the Tribunal, responding to submissions from the applicant. Specifically, in his written submissions, Mr. Lau confirms that, during the settlement discussions which led to the resolution of the LTB applications on August 29, 2014, the applicant "blatantly refused" to "dismiss" her human rights claim as part of the LTB settlement.

21Consistent with this, Mr. Lau elected to submit a copy of a September 3, 2013 reporting letter from the lawyer who represented him in the LTB proceedings. In that letter, Mr. Lau's lawyer essentially reports that although at one point during the parties' August 29, 2013 settlement discussions, the applicant indicated that she might be willing to "dismiss" her human rights Application against Mr. Lau only (and not the respondent Valeri Moltchanov), the LTB applications were ultimately resolved without any agreement that the applicant would discontinue the human rights Application against either respondent. Mr. Lau's lawyer also confirmed in his September 3, 2013 letter that he had not been retained to represent Mr. Lau in the proceedings before the Human Rights Tribunal. In other words, the September 3, 2013 letter from the lawyer who represented Mr. Lau in the LTB matter evinces an understanding that the human rights Application would be proceeding.

22Based on all of the above, it is clear to me that the substance of the human rights Application was not appropriately dealt with in the LTB proceeding.

23Although the LTB made certain orders to give effect to the parties' settlement of the LTB applications, it did not actually make any decision in respect of the substance of the human rights Application. Accordingly, the LTB's decision and/or orders are not a basis upon which the Tribunal might conclude that the substance of the human rights Application was appropriately dealt with in a proceeding before the LTB.

24The Tribunal might still dismiss the Application under s.45.1 if it were satisfied that, in settling the LTB applications, the parties had also settled the human rights Application. However, it is clear that the parties did not settle the human rights Application when they settled the case before the LTB. On the contrary, all of the information before me indicates that when they reached a settlement in respect of the LTB applications in August 2013, the parties understood that the applicant was not agreeing not to pursue the human rights Application that she had filed against the respondents. Indeed, the parties expressly discussed the fact that the applicant intended to pursue her Application before this Tribunal.

25As for the abuse of process issue, since the applicant never settled the issues in her human rights Application with the respondents or otherwise agreed not to pursue a human rights Application against the respondents, it is not an abuse of the Tribunal's processes for the Application to proceed.

26For the above reasons, I find that there is no basis to dismiss the Application under s.45.1 or as an abuse of process. The Application will therefore continue in the Tribunal's process.

27This decision does not prevent the Tribunal from considering whether the parties' agreement with respect to the settlement of the LTB applications has any bearing on the remedy to be awarded to the applicant, in the event that she proves that the respondents infringed her rights under the Code.

DIRECTIONS

28The Application is not dismissed under s.45.1 of the Code or as an abuse of process. The Application will therefore continue in the Tribunal's process, subject to the following.

29Within 21 days of the date of this Interim Decision, the applicant is directed to confirm in writing, either directly or through her representative, that she intends to pursue this Application.

30In the event that the applicant does not confirm that she intends to pursue this Application, as directed, within 21 days of the date of this Interim Decision, her Application may be dismissed by the Tribunal as abandoned.

31I am not seized of this case.

Dated at Toronto, this 10th day of October, 2014.

"signed by"

__________________________________

Sheri D. Price Vice-chair