Laurie Bronson v. Kingston and Frontenac Housing Corporation, 2014 HRTO 619

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Bronson Applicant

-and-

Kingston and Frontenac Housing Corporation Respondent

INTERIM DECISION

Adjudicator: Kevin Cleghorn Date: May 1, 2014 Citation: 2014 HRTO 619 Indexed as: Bronson v. Kingston and Frontenac Housing Corporation

APPEARANCES

Laurie Bronson, Applicant William Florence, Counsel

Kingston and Frontenac Housing Corporation, Respondent Lulama Kotze, Counsel

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination in housing on the basis of disability. The applicant claims that the respondent failed to accommodate her for her disability (a mental health challenge) which necessitated that she have additional time to provide financial information to the respondent to remain eligible for subsidized housing.

2In its Response dated August 19, 2013, the respondent alleges that the subject matter of the application was appropriately dealt with in another proceeding. By letter dated October 9, 2013, the Tribunal directed that the parties make submissions on whether the application should be dismissed pursuant to section 45.1 of the Code and whether or not the principles of adjudicative immunity apply to decisions issued by the Landlord and Tenant Board (the "LTB"). Counsel for the respondent sought to make submissions on the issue of whether there is a "reasonable prospect of success" for this application. Since the parties had not been directed to argue that issue, I declined to hear argument on "reasonable prospect of success" and will not comment further on that issue at this time.

Section 45.1

3Section 45.1 of the Code reads as follows:

45.1 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.

4In Michalczyk v. Sudbury Condo Corp #9, 2012 HRTO 1736, this Tribunal stated at paragraphs (paras.) 25 and 26:

[25] In Campbell v. Toronto District School Board, 2008 HRTO 62, this Tribunal held that it was helpful to consider s. 45.1 in two parts: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the application.

[26] Since the Campbell decision, the Supreme Court of Canada has released its decision in British Columbia (Workers' Compensation Board) v. Figliola, [2011] S.C.R. 422. This Tribunal has determined that the analysis adopted in Figliola applies in Ontario and binds this Tribunal: see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25. As a result, in considering whether the other proceeding appropriately dealt with the substance of an application, this Tribunal may not evaluate the procedural or substantive correctness of the other proceeding: Figliola at para. 38.

The issue of dismissal of this proceeding under section 45.1 of the Code was raised by the respondent in its Response. As such, I directed that counsel for the respondent would argue first, counsel for the applicant would respond and then counsel for the respondent would have the right of reply.

Background

5The applicant was a tenant of the respondent. She occupied a housing unit owned by the respondent from October, 2008 until March, 2013. Her rental payments were subsidized, which required an annual up-date of her financial circumstances in order to maintain eligibility for the subsidy. The calculation of rental subsidies and determination of eligibility is done in accord with the Housing Services Act, 2011.

6In 2012, the respondent maintains it did not receive the requisite financial information from the applicant. The applicant states that she provided the required documentation, or, alternatively, that she should be accorded additional time to provide same in light of a mental health challenge The lack of such information, however, resulted in the respondent raising the rent of the applicant from the subsidized amount of $121.00 per month to market rent of $943.00 per month. The applicant did not make rental payments of any kind after December, 2012.

7The respondent brought an application to evict the applicant before the LTB in or about January, 2013. An order to evict the applicant was made on January 14, 2013. A review of that order was requested by counsel for the applicant on February 14, 2013; a stay of that Order was granted and a hearing was scheduled for March 5, 2013. The hearing before the Board did not have to proceed on the merits on March 5, 2013 as the applicant did not oppose her eviction and agreed to vacate her unit. The applicant was unable to pay market rent and therefore could not raise any appropriate defence before the LTB to avoid eviction. While the matter proceeded before the LTB, counsel for the applicant made several requests of the respondent to re-consider the subsidy issue. The subsidy issue was also mentioned in the course of the proceedings before the LTB.

Arguments of the Respondent

8The respondent argues that the proceeding before the LTB amounts to a "proceeding" within the meaning of section 45.1 of the Code. The issue before the LTB was whether the applicant paid her rent and, if not, whether she should be evicted from the respondent's housing unit. The essence of the human rights complaint was dealt with by the LTB. When the applicant lost her subsidy, she lost her housing. The LTB, in fact, delayed its decision to evict which granted the applicant more time to re-visit the provision of the subsidy to her.

9The decision as to whether or not to grant the subsidy is governed by the Housing Services Act, 2011. The remedy of the applicant was to seek judicial review of that decision, which she chose not to do. The respondent asserts that there is no basis for any allegations of bias or discrimination in the decision-making process involved with the subsidy determination. No evidence was provided by the applicant of any disability until the process before the LTB was engaged. The respondent further argues that additional time was requested by the applicant to resolve the subsidy question only after the eviction process was nearly completed. The proceeding before this Tribunal amounts to "forum shopping" but this Tribunal has no jurisdiction, in any event, to deal with the subsidy issue.

Arguments of the Applicant

10The applicant submits that the issue of adjudicative immunity is not engaged in this instance. The applicant has no issue with the LTB, or its decisions, and this does not amount to a collateral attack on any of those decisions. The applicant concedes that the subsidy issue is a matter to be determined under the Housing Services Act, 2011 and that the LTB cannot grant time for a tenant to deal with the subsidy issue. This Tribunal is the appropriate forum for a human rights complaint, which arises from the applicant's dealings with the respondent directly. This is not a matter of re-litigating the matters properly dealt with by the Board.

11The heart of this Application, according to the applicant, is that a reasonable accommodation should have been granted to the applicant, which may have impacted the process before, and ultimate decision of, the LTB. All damages sought from the respondent stem from that failure to accommodate the applicant for her disability, which ultimately prevented her from providing documentation in a timely fashion to continue her subsidy. But for the failure of the respondent to accommodate her, the resulting consequences (rental arrears, eviction, moving costs, etc.) do not arise. The applicant submits that in the proceedings before the LTB, the failure to accommodate the applicant was offered as an explanation as opposed to a legal justification. The LTB was not asked to consider, nor could it adjudicate upon, the substance of this Application.

Reply of the Respondent

12The respondent replies that the actions of the applicant have been prejudicial to other prospective tenants. Their applications for subsidized housing were delayed for many months due to the applicant's continuing occupation of subsidized space when she was no longer entitled to it.

The Law

13It is settled law that a hearing before the LTB is a "proceeding" within the meaning of section 45.1: See, for example, John v. Gateway Property Management Corporation, 2009 HRTO 2243, Moyal v. Walmer Flats Property Management, 2010 HRTO 877, Michalczyk, supra.

14The next question is whether that earlier proceeding appropriately dealt with the substance of the Application: See, for example, Sawnhey v. Law Society of Upper Canada, 2014 HRTO 129. The failure of the respondent to accommodate the applicant (i.e. as the basis for the requirement on her to pay market rent) was before the LTB merely as an explanation for why there were arrears of rent. It was provided as necessary background information and was alluded to in the various decisions of LTB in relation to this matter. The defence offered by the applicant to eviction was that she could pay rental arrears, and thus avoid eviction, only if the subsidy was reinstated. An adjournment was sought at different stages of the LTB process to allow necessary inquiries/discussions to be had toward the reinstatement of the subsidy. The failure of the applicant to obtain the rental subsidy retroactively made a hearing on the merits before the LTB moot; her eviction from the respondent's subsidized unit was the consequence arising therefrom.

15I appreciate that as part of the claim made in the Application, the applicant is requesting compensation not only for the differential in the rent charged when she lost her subsidy (i.e the extent of her arrears in rent), but also for the costs associated with moving out of her unit in the building. She also seeks general damages in as yet an undetermined amount for injury to her dignity. In this proceeding, if the applicant is able to establish on the balance of probabilities that the failure to accommodate for her disability was a factor that resulted in her eviction, the Tribunal would need to consider the costs arising from, and incidental to, the eviction as a matter of remedy. I emphasize that I make no finding at this time whether or not there was a failure to accommodate in this instance. I merely point out that the remedy being sought by the applicant is tied directly to all costs associated with the matter before the LTB and its aftermath (specifically the eventual move of the applicant to new premises). I do not consider that the nature of the remedy sought before this Tribunal to be suggestive of an attempt to re-litigate the original matter before the LTB.

16Both counsel submitted that the LTB has no jurisdiction to determine whether the applicant is entitled to a rental subsidy. The LTB, in a general sense, considers applications by landlords for eviction of tenants on the basis of non-payment of rent or for other lawful reasons. In the circumstances of this case, there is no proper basis upon which to find that the proceeding before the LTB dealt with the substance of the human rights application, which alleges failure to accommodate the applicant for a disability. The issue of the failure to accommodate is not an issue that the LTB dealt with, nor one that it was even asked to deal with. I find that the LTB considered the applicant's medical condition only to understand why she had been brought before the LTB and to ascertain if eviction could be avoided once discussions were had between the parties relating to an accommodation. LTB was never asked to rule on the accommodation per se.

17On the other hand, if the Tribunal were to determine that the applicant experienced discrimination because of disability (the failure to accommodate as alleged) and her eviction could have been avoided if the accommodation had happened, then this Tribunal may find that the applicant ought not to have been required to vacate the premises. In such circumstances, her claim for moving costs, etc. would be appropriate to consider as potential damages in that regard.

18In Sawnhey v. Law Society of Upper Canada, supra, this Tribunal stated, at paras. 24 and 25:

The majority of the Supreme Court of Canada in Figliola articulated a three-part test to determine whether the substance of an application before a human rights tribunal has already been "appropriately dealt with" in another proceeding. The three parts to this test were articulated as being: (1) whether there was concurrent jurisdiction to decide human rights issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. See Figliola at para. 37.

Significantly, the Supreme Court cautioned at para. 38 of Figliola that sections such as s. 45. 1 of the Code should not be seen as an invitation for a human rights tribunal to sit in appeal or judicial review of another tribunal's decision. As the Court stated:

The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.

19The pith and substance, or previously decided legal issue, of the proceeding before the LTB was eviction of the applicant for non-payment of rent. The pith and substance of the proceeding before this Tribunal is whether accommodation should have been afforded to the applicant for a disability which may have resulted in continuation of her subsidized rent. The lack of the subsidy was the reason for the eviction. This Tribunal has to decide if the applicant is entitled to a remedy for the failure to accommodate, not for whether the eviction should or should not have occurred. The applicant is not challenging any decision of LTB in any real sense- she is, in essence, challenging the decision of the respondent to deny her the subsidy. It is a significant distinction and one which will allow this application to proceed further.

20Neither party made arguments on the issue of adjudicative immunity nor raised the issue in any overt way. I decline to deal with this issue as it is apparent that there is no legitimate basis under the circumstances to even consider that as a viable argument for dismissal of this proceeding. The issue of the authority of LTB to order eviction was not challenged in this proceeding.

21For all of these reasons, I find that the LTB proceeding did not appropriately deal with the substance of the Application before this Tribunal.

Next Steps

22As a result of this Interim Decision, this matter shall continue to proceed in the Tribunal's process. If, in light of this Decision, the parties are now prepared to pursue mediation, then they shall advise the Tribunal within the next 7 calendar days from the date of this Decision and an appropriate date for mediation will be scheduled. If either party is not interested in pursuing mediation or does not respond within 7 calendar days, this matter will be scheduled for a hearing in the normal course

DECISION

23For all the foregoing reasons, the request to dismiss the Application pursuant to section 45.1 of the Code is hereby dismissed. I am not seized.