Monahan v. Cook, 2016 HRTO 1086

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Monahan Applicant

-and-

David Cook and Phyllis Cook Respondents

A N D B E T W E E N:

Brenda Monahan Applicant

-and-

David Cook and Phyllis Cook Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 15, 2016

Citation: 2016 HRTO 1086

Indexed as: Monahan v. Cook

WRITTEN SUBMISSIONS

Donald Monahan and Brenda Monahan, Applicants

Lori Mishibinijima, Counsel

David Cook and Phyllis Cook, Respondents

Self-represented

Introduction

1The purpose of this Interim Decision is to address whether the two Applications should be consolidated and heard together, and whether the Applications should be dismissed on a preliminary basis pursuant to s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because another proceeding has appropriately dealt with the substance of the Applications.

BACKGROUND

2The applicants, who are a married couple, filed separate Applications under s. 34 of the Code, which alleged that the respondents discriminated against them with respect to the occupancy of accommodation. The Applications deal with the same set of alleged facts.

3The respondents filed Responses, which denied the allegations of discrimination, and requested that the Applications be dismissed on a preliminary basis because proceedings before the Landlord and Tenant Board have appropriately dealt with the substance of the Applications. The respondents attached a number of Orders of the Landlord and Tenant Board in support of their dismissal request.

4The applicants filed Replies, which maintained the allegations of discrimination, and opposed the request to dismiss the Applications on a preliminary basis.

5The Tribunal sent the parties a letter, which notified them that it intended to consolidate and hear the Applications together, and if they objected to this process, they should file written submissions explaining their position. None of the parties filed submissions.

CONSOLIDATION

6Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

7In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

8In my view, the Applications should be consolidated and heard together. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating and hearing the Applications together will result in prejudice to any person.

9Accordingly, the two Applications are consolidated and will be heard together.

REQUEST TO DISMISS

10Section 45.1 of the Code and Rule 22 of the Tribunal’s Rules provide that the Tribunal may dismiss an Application, in whole or in part, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

11Section 45.1 of the Code requires a two-part analysis: (1) whether there was another proceeding and, if so, (2) whether it appropriately dealt with the substance of the Application.

12In the case at hand, there was no dispute between the parties that the proceedings before the Landlord and Tenant Board were proceedings within the meaning of s. 45.1 of the Code. As such, the main issue to be decided is whether those proceedings appropriately dealt with the substance of the Applications.

13I have reviewed the Orders of the Landlord and Tenant Board, which were submitted by the respondents. They deal with a number of landlord and tenant disputes between the applicants and the respondents, but do not deal with the substance of the Applications before this Tribunal. Specifically, the Orders did not consider and decide whether the respondents discriminated against the applicants with respect to the occupancy of accommodation. Therefore I find that the proceedings before the Landlord Tenant Board did not appropriately deal with the substance of the Applications before this Tribunal.

14That said, there is some overlap between the contextual facts in the proceedings before the Landlord and Tenant Board and the contextual facts in the proceeding before this Tribunal, and this Tribunal may be bound by the findings of fact made by the Board. See Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. The hearing adjudicator will decide this issue.

15Accordingly, the respondents’ request to dismiss the Applications on a preliminary basis pursuant to s. 45.1 of the Code is dismissed.

ORDER

16The Tribunal makes the following orders:

1. The two Applications are consolidated and will be heard together.

2. The respondents’ request to dismiss the Applications on a preliminary basis pursuant to s. 45.1 of the Code is dismissed.

17I am not seized of this matter.