B.L. v. Lake Promenade Apartments Ltd., 2015 HRTO 1155

Human Rights Tribunal of Ontario

B E T W E E N:

B.L.

Applicant

-and-

Lake Promenade Apartments Ltd. and Compten Management Inc.

Respondents

M.L

Applicant

-and-

Lake Promenade Apartments Ltd. and Compten Management Inc.

Respondents

A.L. by his litigation guardian B.L.

Applicant

-and-

Lake Promenade Apartments Ltd. and Compten Management Inc.

Respondents

DECISION

Adjudicator: Brian Cook

Date: August 31, 2015

Citation: 2015 HRTO 1155

Indexed as: B.L. v. Lake Promenade Apartments Ltd.

1These three Applications allege discrimination with respect to accommodation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents own or manage an apartment building. The applicants were tenants of a unit in the building and they have each filed a separate Application. In addition, a third Application has been filed on behalf of their child. In accordance with the Tribunal’s Practice Direction on Anonymization of HRTO Decisions about Applications that involve a minor, the names of all the applicants are indicated by initials only.

2The Applications all arise out of problems that the applicants had during their tenancy with the occupants of the unit above theirs. The applicants allege that they were subject to ongoing unreasonable noise and that there were a number of interactions where they were threatened, harassed and physically assaulted. It appears that these complaints were brought to the attention of the respondents and were denied by the occupants of the unit.

3The applicants filed a number of applications with the Landlord and Tenant Board (“LTB”) about the situation.

4According to a Review Order of the LTB dated October 13, 2014, those applications were “resolved by order TST-44773-13 issued on September 11, 2014.” The same Review Order indicates that the applicants asked for a review of the order. That request was denied in the Review Order.

5It appears that the applicants then filed another application with the LTB about the same issues. It was filed on November 7, 2014. It appears that a number of other tenants or past tenants may also have been applicants in that proceeding.

6An Interim Order of the LTB dated March 24, 2015 noted that under the Residential Tenancies Act, an application to the LTB must be brought within one year of the alleged conduct giving rise to the application. The LTB noted that the applicants to this Application moved out of the building in October 2013 and that the application to the LTB had therefore been filed more than one year after the events to which it related. The application before the LTB by the applicants to this Application was dismissed for delay.

7The allegations in the Application relate to events in the period from March to October 2013. The Applications to the Human Rights Tribunal were filed in June 2015. Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8The applicants concede that the Application was not filed within one year of the incidents to which the Application relates but argue that there is a good faith explanation for the delay. In particular, the applicants indicate that they believed that the human rights issues would be dealt with at the LTB. They state that the human rights issues, as well as the other issues related to their tenancy in the respondents’ building were not dealt with because of incompetence on the part of their former representative. The applicants indicate that the earlier applications at the LTB were withdrawn by their former representative without their consent. They indicate that they tried to resolve that in September 2013, but their requests to have the matter re-opened were denied by the LTB. They then filed another application but it was dismissed for delay.

9In summary, the applicants argue that they hoped to have their human rights issues dealt with at the LTB. It took some time to establish that the LTB was not going to deal with the human rights issues and this is the explanation for the delay in filing the Application with this Tribunal.

Conclusions

10The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraph 24 :

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

11The Tribunal has stated on a number of occasions that pursuing other legal remedies before turning to the Tribunal will not normally be accepted as a good faith explanation for delay. The Tribunal has also stated that an applicant who wishes to pursue remedies in other forums must also file an Application with this Tribunal to ensure the application is filed within the one-year time limit. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

12In this case, the fact that the applicants hoped to have their human rights issues dealt with at the LTB does not provide a good faith explanation for the delay in filing the Applications.

13The Applications are accordingly dismissed for delay.