HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Greta Wachmenko
Applicant
-and-
Chartwell Master Care LP (o/a Chartwell Collegiate Heights Retirement Residence) and Laurie Eaton
Respondents
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Wachmenko v. Chartwell Master Care LP (o/a Chartwell Collegiate Heights Retirement Residence)
APPEARANCES
Greta Wachmenko, Applicant
Self-represented
Chartwell Master Care LP (o/a Chartwell Collegiate Heights Retirement Residence) and Laurie Eaton, Respondents
Pamela Leiper, Counsel
Introduction
1This is an Application filed 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 because of disability. The respondent filed a Response requesting that the Tribunal dismiss the Application under s.45.1 of the Code on the basis that a proceeding at the Landlord and Tenant Board (the “LTB”) has appropriately dealt with the substance of the Application. A hearing by way of teleconference was held on June 13, 2014 to determine the respondent’s request.
decision
2The Application is dismissed pursuant to section 45.1 of the Code.
Background
3The applicant rents premises in the corporate respondent’s retirement residence. One of the care services provided by the retirement home is the provision of meals to residents. The applicant alleges that the respondents failed to accommodate the applicant’s gluten intolerance by failing to provide a gluten free diet. She also alleges that the respondents harassed her when she spoke out about this. The applicant responded by deducting $500.00 from her monthly rent.
4The corporate respondent applied to the LTB for an order to terminate the applicant’s tenancy and evict her because she did not pay the rent that she owed. In the LTB order, the LTB member wrote:
At the hearing the Tenant (the applicant) raised the following issues pursuant to section 82 of the Residential Tenancies Act, 2006:
The Landlord (the corporate respondent) failed to accommodate GW’s (the applicant) gluten intolerance by failing to provide a gluten free diet thus withholding the reasonable supply of a vital service (food), that it the Landlord is obligation (sic) to provide under the rental agreement.
The Landlord has substantially interfered with GW’s reasonable enjoyment of the premises.
That the Landlord’s employees (or agent) have harassed, obstructed, coerced threatened or interfered GW.
5The LTB member held that the Landlord had taken “reasonable and appropriate measures to provide GW with appropriate gluten free menu choices” and that the Landlord had taken “reasonable and appropriate measures to provide GW with information and resources designed to assist GW with managing a gluten free diet.”
6In addition the LTB member wrote; “GW claimed that some staff members have been rude to her and GW further alleged that she had been bullied and harassed for speaking out.” The member concluded that there was no basis for this allegation.
7The LTB member found that the Landlord was not in breach of any provision under the Residential Tenancies Act, 2006 and that the applicant was not entitled to compensation to offset the rent arrears claimed by the Landlord (corporate respondent).
analysis
8Section 45.1 of the Code states:
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.
Was there a proceeding for the purposes of s. 45.1?
9It is well established that a claim determined by the LTB is a “proceeding” for the purposes of section 45.1 of the Code. See for example: Benstead v. Niagara Regional Housing, 2012 HRTO 1557.
Did the proceeding “appropriately deal with” the substance of the Application?
10In dealing with this question the Tribunal will consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding. See Robinson v. Spanish (Town) 2009 HRTO 1484.
11The Tribunal may dismiss an application under s.45.1 even if the other proceeding did not specifically make a finding of a Code violation. See Paterno v. Salvation Army, 2011 HRTO 2298.
12In my view, the facts and issues in the LTB proceeding substantially overlap with those which form the basis of the Application. In the Application, the applicant claims that the respondents failed to accommodate her gluten intolerance and that the staff harassed her when she complained about this. Similarly, in the LTB proceedings the applicant alleged that the Landlord (corporate respondent) failed to accommodate the applicant’s gluten intolerance and that she was harassed by staff when she spoke out. In my view, the LTB addressed the same allegations and issues as set out in the Application and found that the allegations had no merit.
13Relitigating and making contrary or inconsistent findings of fact is a situation to be avoided. The applicant is unhappy with the LTB’s decision, but it is not for the Tribunal to comment on whether the LTB made the correct decision. As stated in Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, at paragraph 25:
The Supreme Court of Canada’s decision in Figliola provides guidance as to the interpretation of “appropriately dealt with” as it appears in s.45.1. The [Supreme Court of Canada in Figliola above] makes clear that the Tribunals’ role is not to sit in appeal of other decision-makers in the determination of human rights issues. Nor is it appropriate for the Tribunal to use s.45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through appeal or judicial review routes available in the other decision-making process.
14The LTB did not articulate its findings as a dismissal of allegations of discrimination under the Code. However, it dealt with the same facts and issues as those which form the basis of this Application. As such, I find that the LTB appropriately dealt with the substance of the Application in accordance with s.45.1 of the Code.
Order
15The Application is dismissed.
Dated at Toronto, this 20th day of June, 2014.
“Signed By”
Keith Brennenstuhl
Vice-chair