Phillips v. Montagnese, 2015 HRTO 190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Phillips

Applicant

-and-

Joe Montagnese

Respondent

DECISION

Adjudicator: Paul Aterman
Date: February 10, 2015
Citation: 2015 HRTO 190
Indexed as: Phillips v. Montagnese

APPEARANCES

Louise Phillips, Applicant Self-represented

Joe Montagnese, Respondent Steven Smith, Paralegal

1This Decision explains why the Tribunal is dismissing this Application. The 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 applicant was a tenant in a property owned by the respondent. She has a hearing disability. Her Application alleges that when she complained about noise made by another tenant in the property the respondent refused her request that he intervene. He also refused to modify the property with soundproofing so that she would not be disturbed. She alleges that this was a failure to accommodate her disability.

3The applicant made an application to the Landlord and Tenant Board (“LTB”) on May 9, 2014, alleging serious interference with her reasonable enjoyment of the property and harassment by the respondent. The LTB application requested a rent abatement and compensation totalling $14,700.

4On May 26, 2014 she filed this Application. The Application is based on the same facts and issues and makes the same allegations as the LTB application, but requests a lesser amount ($10,000) in compensation.

5The applicant amended her LTB application on June 2, 2014 by appending this Application to the LTB application. The LTB adjudicated her application on June 2, 2014. The applicant first consulted duty counsel at the LTB. Then she participated in a mediation session. As a result of the mediation the parties attended before an LTB member who issued a consent order. The order enabled the applicant to remain in the property until the end of July 2014 and that the tenancy would then come to an end.

6In filing its Response to this Application the respondent requests dismissal on the ground that the LTB proceedings appropriately dealt with the substance of the Application. A preliminary hearing was held by teleconference on January 29, 2015 to deal with that request.

7In s. 45.1 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.”

8The applicant maintains that the LTB did not deal with the substance of her allegation that the respondent failed to accommodate her disability.

9There are two issues to be determined here: whether the LTB hearing and its resulting consent order constituted a proceeding within the meaning of s.45.1 and, if it did, whether the consent order appropriately dealt with the substance of this Application.

10A hearing before the LTB is a proceeding within the meaning of s.45.1. This has repeatedly been explained by the Tribunal (see for example Carlos v. 1174364 Ontario, 2008 HRTO 403; Verner v. Reginald Langlois, 2011 HRTO 2019; John v. Gateway Property Management Corporation, 2009 HRTO 2243; Moyal v. Walmer Flats Property Management, 2010 HRTO 877; and Johnson v. Thorold Municipal Non-Profit Housing Corporation, 2011 HRTO 1070). In my view there is no basis for departing from this approach in the present case.

11In this case the LTB consent order was the product of a process of mediation that the applicant participated in willingly. In that sense it is no different from a negotiated settlement of the dispute before the LTB, because the applicant had the option not to agree to the consent order and instead to proceed to a full hearing before the LTB. The facts and issues in the proceeding before the LTB and in this Application are the same – both turn on the respondent’s conduct in dealing with the applicant as a tenant and on his response to her accommodation request. This is evident not only from a comparison of the pleadings in both proceedings, but also from the fact that the applicant amended her LTB application in order to put the present Application before the LTB.

12While the LTB order does not discuss allegations of a violation of the Code, and is limited to simply setting out how and when the tenancy is to end, I infer from the overlap of facts and issues in the two proceedings, the inclusion of this Application in the LTB pleadings and the fact that a settlement was reached on a voluntary basis to conclude that the LTB proceeding appropriately dealt with the substance of the Application. As the Tribunal states in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149 at para. 35, parties are entitled to rely on the settlement of a human rights dispute regardless of which forum is used to reach that settlement. To do otherwise would be to allow the applicant to litigate before this Tribunal the same matters that were resolved through the LTB’s consent order, and that would constitute an abuse of this Tribunal’s process.

13For these reasons I find that s.45.1 applies and the Application must be dismissed.

ORDER

14The Application is dismissed.