Judy Burnell v. 440 Rathburn Etobicoke Ltd., 2014 HRTO 727

Human Rights Tribunal of Ontario

B E T W E E N:

Judy Burnell Applicant

-and-

440 Rathburn Etobicoke Ltd. Respondent

Interim Decision

Adjudicator: Dawn J. Kershaw Date: May 21, 2014 Citation: 2014 HRTO 727 Indexed as: Burnell v. 440 Rathburn Etobicoke Ltd.

Written Submissions

Judy Burnell, Applicant Sheila Cuthbertson, Counsel

440 Rathburn Etobicoke Ltd., Respondent Self-represented

Introduction

1This Application alleges discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The respondent requested that the Application be deferred because of an ongoing matter before the Landlord and Tenant Board ("LTB").

3In November 2013, the respondent filed an Application to Terminate a Tenancy and Evict a Tenant, alleging that the applicant failed to remove a large freezer from her unit, which was a fire hazard. A hearing was scheduled before the LTB initially for December 12, 2013. This was adjourned to April 23, 2014 and adjourned again with no new date set.

4The applicant filed this Application on December 11, 2013, alleging that the landlord has discriminated against her on the basis of disability – she has arthritis and cannot attend the store frequently and therefore requires the freezer to store food.

5On May 14, 2014, the applicant responded to the request for deferral of this matter, asserting that although the subject matter of the LTB proceeding and this Application are the same, the applicant is a respondent in the LTB proceeding and will not be able to avail herself of remedies that are available in this Application.

6Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types 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.

7In this case, the factual underpinnings of these proceedings are the same. Despite the differences with respect to remedy, the fundamental issues with respect to the presence of a freezer and whether this is required because of the applicant's disability, are the same in both the Application to this Tribunal and the application before the LTB.

8I am of the view that a deferral is appropriate in this case given that the proceedings before the LTB will likely address facts and issues in this Application. There is a strong likelihood of the possibility of inconsistent findings of fact if this Application is allowed to proceed at this time.

9The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back before the Tribunal after resolution of the proceedings before the LTB.

10I am not seized of this matter.