Selah v. Toronto Community Housing Corporation, 2014 HRTO 306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosemary Selah Applicant

-and-

Toronto Community Housing Corporation Respondent

DECISION

Adjudicator: Jennifer Scott Date: March 7, 2014 Citation: 2014 HRTO 306 Indexed as: Selah v. Toronto Community Housing Corporation

APPEARANCES

Rosemary Selah, Applicant Self-represented

Toronto Community Housing Corporation, Respondent Christina Henderin, Counsel

BACKGOUND

1This is an Application filed December 5, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in services and housing on various grounds including disability, citizenship, marital status and receipt of public assistance.

2The applicant is a tenant in a rental unit operated by the respondent. Among other things, the applicant alleges that the respondent has failed to accommodate her disability by not providing her with a transfer to a different unit, which she requires because of multiple allergies to scent, chemical fumes and environmental sensitivities, and by not using a different cleaning solution in the common areas of the building in the vicinity of the applicant's unit.

3In the Application, the applicant indicates that the facts of the Application are also part of a proceeding before the Landlord and Tenant Board (the "LTB") and states the "other proceeding" for the purposes of section 45.1 of the Code is a breach of a LTB Mediation Agreement. The applicant attaches the Mediation Agreement dated August 16, 2011 between the applicant and the respondent. The applicant states the other proceeding did not appropriately deal with the substance of the Application because it did not address the applicant's request for a priority transfer for medical reasons. It is on this basis the applicant states the Tribunal should consider her Application.

4In the Mediation Agreement, the respondent agrees, among other things, to investigate alternate cleaning solutions to use in the common areas in the vicinity of the applicant's unit and provide the applicant the addresses of other buildings that she would be eligible to transfer to when a unit became available. In the Mediation Agreement, the applicant agrees to repay rental arrears.

5On February 14, 2012, the respondent filed a Request for Order During Proceedings seeking a deferral of the Application because the application at the LTB and the first Mediation Agreement raise issues similar to those raised in the Application and that, as a result of a breach of the first Mediation Agreement, the respondent has re-opened the application at the LTB (File Number TNL-20176-11). The respondent subsequently advised the Tribunal that the applicant also re-opened her application at the LTB (File Number TNT-20042-11).

6By Interim Decision 2012 HRTO 765, the Tribunal deferred the Application pending the conclusion of the re-opened applications at the LTB.

7On May 6, 2013, the respondent filed a Request for Order During Proceedings seeking a dismissal of the Application (the "Dismissal Request") on the basis that the LTB appropriately dealt with the applicant's allegations regarding the respondent's failure to accommodate the applicant and that the remaining allegations have no reasonable prospect of success. The respondent submits further that to proceed with the Application would be an abuse of the Tribunal's process.

8Attached to the Dismissal Request was a consent order of the LTB dated April 26, 2013, reflecting the agreement reached by the applicant and the respondent on the re-opened applications. Pursuant to the consent order, the respondent was ordered to make all reasonable efforts to mitigate the use of chemicals in and around the vicinity of the applicant's unit by the use of "Swish cleaning products". The respondent was also ordered to offer the applicant transfers to three units reasonably suited to the applicant's needs (when they became available), at four different addresses. There was no time limit for the respondent to offer these transfers.

9By Case Assessment Direction dated August 29, 2013, the Tribunal determined that a summary hearing would be held to hear the parties' submissions on whether the Application should be dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application under section 45.1 of the Code and whether the Application has a reasonable prospect of success.

10A summary hearing was held by way of teleconference on December 9, 2013.

analysis

Failure to Accommodate Allegations

11Section 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."

12There are two issues to be determined here: whether the re-opened LTB applications and the consent order constitute a "proceeding" within the meaning of section 45.1 and, if they do, whether the consent order "appropriately dealt with the substance of the Application".

13The Tribunal has accepted that where a proceeding before another adjudicative body is settled, the settlement can constitute a proceeding for the purposes of s. 45.1. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, the Tribunal noted at para. 37:

...the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s.45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation.

14In this case, the parties to the LTB application agreed to an order of the LTB, and in doing so indicated their willingness to forgo a hearing in order to resolve the re-opened applications. In light of their actions and the principles outlined in Dunn, I conclude that the consent order amounts to a "proceeding" for the purposes of section 45.1.

15As to whether the consent order has "appropriately dealt with the substance of the Application", the applicant argues that it has not. She claims the consent order does not give her medical priority to transfer to a new building and that she has been in the wrong rental unit/building for four years, at great cost to her physical and mental health. She states further that the respondent's agreement to use "Swish cleaning products" does not address the problems associated with the fumes coming from the laundry room. Finally, the applicant argues the consent order does not address the respondent's delay in providing appropriate accommodation.

16In my view, there is no question that the consent order addresses the applicant's accommodation allegations set out in the Application. It deals specifically with the cleaning solutions used in the common areas close to the applicant's unit and it also addresses the applicant's request to transfer to a new unit. The consent order states there is no time limit on the transfer. It is not the role of the Tribunal to review consent orders or agreements between the parties to determine whether they are good settlements. Where the order or settlement deals with same allegations of discrimination set out in the Application, the allegations of discrimination have been appropriately dealt with. In this case, the consent order deals expressly with the applicant's accommodation allegations. For this reason, the accommodation allegations are dismissed under section 45.1 of the Code.

Reasonable Prospect of Success for Remaining Allegations

17In addition to the accommodation allegations, the applicant makes further allegations relating to citizenship and immigration, ODSP and CPP, and identity theft. In her Application and at the summary hearing, the applicant did not provide any information as to how these allegations relate to the respondent in this matter.

18The respondent seeks a dismissal of the remaining allegations on the basis that they have no reasonable prospect of success. The test for determining reasonable prospect of success is set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

19The additional allegations by the applicant have no facts to support the applicant's claim of discrimination and more importantly, they have nothing to do with this respondent. As such, they have no reasonable prospect of success and are dismissed.

20In my view, the Application is an attempt by the applicant to re-litigate the same issues that were addressed by the LTB. The consent order, reached by way of agreement between the applicant and the respondent, appropriately dealt with the substance of this Application. To allow the Application to proceed would undermine the public's confidence in the fairness and integrity of the judicial system by allowing the re-litigation of what is essentially the same dispute. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52.

21The Application is dismissed.