Khan v. Peel Condominium Corporation No. 492, 2016 HRTO 1087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asad Khan

Applicant

-and-

Peel Condominium Corporation No. 492

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 15, 2016

Citation: 2016 HRTO 1087

Indexed as: Khan v. Peel Condominium Corporation No. 492

APPEARANCES

Asad Khan, Applicant

Joy Lewis, Paralegal

Peel Condominium Corporation No. 492, Respondent

Patrick James and Robert Tarantino, Counsel

1There are two Applications addressed in this Decision. The first Application was originally filed on October 30, 2014 and amended by amended Application dated November 6, 2015, and alleges discrimination with respect to services, goods and facilities and contract because of race and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The second Application is dated November 6, 2015 and alleges reprisal contrary to the Code.

2In brief, the allegations raised in these Applications arise in the context of a commercial condominium complex operated by the respondent in the Toronto area. The applicant operates a business in one of the units. One set of issues raised in the Applications relates to the location of an ATM machine pursuant to a lease agreement with the respondent, and allegations that preferential treatment was given to the operator of another ATM machine on the basis of race (the “ATM issue”). Another set of issues relates to the respondent’s denial of a request for designated use made on behalf of the business operated by the applicant, and the respondent’s alleged failure to exercise discretion to prevent another unit owner from operating a competing business (the “designated use” issue). The reprisal allegations arise from certain actions alleged to have been taken in relation to the ATM machine and a letter distributed by the respondent following the commencement of certain legal proceedings.

3This matter proceeded to a hearing on May 20, 2016. In advance of the hearing, I issued a Case Assessment Direction (“CAD”) dated May 18, 2016 advising the parties that at the outset of the hearing, I wished to hear oral submissions on two issues: (1) whether the first Application is barred pursuant to s. 34(11) on the basis of a Small Claims Court proceeding commenced on October 30, 2014; and (2) the standing of the applicant to bring these two Applications.

4I will address these two issues in the context of the issues raised in the Applications.

The ATM Issue

5In October 2007, PC Home Canada Ltd. (“PC Home”) entered into a lease agreement with the respondent to operate an ATM machine at a designated location outside the unit in which the applicant operates his business. This lease agreement was for a period of two years, expiring September 20, 2009. Thereafter, this lease agreement continued on a month to month basis until it was terminated by the respondent in late October 2014.

6Commencing in 2000, the respondent previously had entered into a lease agreement with another company (“Entrepreneur”) regarding the operation of an ATM machine at a designated location on the common elements, which was across the aisle from where the lease agreement with PC Home authorized it to operate its ATM machine. The lease agreement with Entrepreneur was renewed from time to time by the respondent, most recently in July 2007 for a two year period to expire on April 30, 2009. Thereafter, as with the PC Home lease agreement, the agreement continued on a month to month basis.

7By lease agreement dated May 28, 2013 between the respondent and Entrepreneur, Entrepreneur was permitted to change the location of its ATM to an area across from the elevators and closer to the mall’s food court area. This lease agreement was for a period of three years, to June 15, 2016.

8The applicant sent correspondence to the respondent requesting permission to move the PC Home ATM to a location in the same area across from where the Entrepreneur ATM was located. This request was denied by the respondent. In late October 2014, the applicant unilaterally moved the PC Home ATM to the requested location without the respondent’s permission. By letter from the respondent to PC Home dated October 27, 2014, the applicant was requested to remove the ATM by the end of the business day and was advised that failure to do so would result in confiscation of the ATM machine with costs charged back to the unit. The applicant refused to remove the ATM machine. As a result, on October 28, 2014, the respondent advised the applicant that the lease agreement with PC Home was voided and that the ATM machine would be removed. The PC Home ATM machine was removed by the respondent on November 6, 2014.

9The respondent’s voiding of the lease agreement and threat to remove the PC Home ATM machine from its unauthorized location prompted the commencement of two legal proceedings. First, as noted above, on October 30, 2014, the applicant commenced the first human rights Application to this Tribunal alleging discrimination because of race. The applicant self-identifies as a person of Pakistani ethnicity. His allegation of racial discrimination is based upon the tenants of the mall and the representatives on the respondent’s Board of Directors being predominantly Chinese, and he alleges that preferential treatment was given to Entrepreneur in relation to the location of its ATM because the principal of Entrepreneur is also Chinese.

10Second, as also noted above, on October 30, 2014, PC Home commenced a civil action in Small Claims Court raising essentially the same allegations in relation to the ATM issue as are raised by the applicant in the first Application. In particular, as originally filed, the civil action alleges that the requests for relocation of the PC Home ATM machine were turned down “due to racism” and monetary compensation is requested. Since the date of the hearing, the applicant filed certain documents including an amended Plaintiff’s Claim in the Small Claims Court proceeding which appears to have been prepared in December 2014. The amended claim continues to allege that the relocation requests were turned down “due to racism” and requests an increased amount of monetary compensation.

11The Small Claims Court action was stayed by order dated April 15, 2015, on the basis of the applicant’s statement to the Court that he had a matter pending before this Tribunal dealing with the same facts as the civil action. The Court’s order observes that, while the plaintiff in the civil action, namely PC Home, is not the same as the applicant in the human rights Application, namely Asad Khan, it was preferable to stay the civil action until the Tribunal matter is concluded. The respondent did not appear on the motion to stay, and it is recorded in the Order that it did not oppose the stay. The civil action was stayed and not to be revived without order of the Court on motion on notice.

12I will first address the issue of the applicant’s standing to raise the ATM issue. The allegation raised by the applicant is that his Code rights were infringed with respect to services, goods and facilities in violation of s. 1 of the Code and/or in relation to his right to contract on equal terms in violation of s. 3 of the Code. The problem with this allegation is that the applicant is not a party to the lease agreement with the respondent. PC Home is. While the applicant did sign the lease agreement, he signed it as a representative of PC Home. As a result, the right to contract is a right that belongs to PC Home, rather than to the applicant personally, and any “goods, services or facilities” provided under the lease agreement are provided to PC Home and not to the applicant personally.

13In law, PC Home as a corporation is a separate legal entity from the applicant personally. Material submitted to me at the hearing in this matter showed that PC Home was incorporated on March 7, 2005 with the applicant’s spouse as the incorporator and sole director. The applicant described himself at the hearing as an employee of the corporation.

14The simple reality of the matter is that the applicant personally does not have standing to raise the ATM issue when the rights asserted derive from a lease agreement entered into by PC Home, and not the applicant personally. These rights belong to PC Home as a separate legal entity.

15I note that the applicant previously had sought to amend his first Application to add PC Home as an additional applicant, which was denied by Interim Decision dated October 30, 2015, 2015 HRTO 1458, in part due to concerns about whether a corporation has a dignity interest that is protected under the Code. In any event, even if PC Home were an applicant to the first Application, I find that the ATM issues as raised in the first Application would be barred by s. 34(11) of the Code.

16Section 34(11) of the Code states:

11. A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

17In Linton v. Regional Municipality of Peel Police Services Board, 2009 HRTO 1449 at para. 6, the Tribunal described the operation of s. 34(11) as follows:

If a person raises in a civil proceeding an allegation of an infringement of a right under the Code arising out of a specific factual context, s. 34(11) bars that person from also filing an application before the Tribunal to claim a Code infringement arising out of the same factual context.

18In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 at paras. 10-11, the Tribunal discussed the purpose of s. 34(11) and held that a claim need not specifically plead s. 46.1 for the section to apply:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

19In Borden v. Toronto Grace Health Centre, 2010 HRTO 1109 at para. 11, this Tribunal held that s. 34(11) of the Code operates as a bar to an Application whether the civil action is commenced before or after the Application is filed:

In my view, s. 34(11) applies to bar an application from proceeding where a civil action has been commenced both after and before the application. The word “make” is intended to refer to both the commencement and continuation of the application. . . . The purpose of the provision is to avoid duplication of court and HRTO proceedings alleging particular breaches of the Code, and there is no logical reason why the order in which the two proceedings were commenced should affect whether the Tribunal has jurisdiction.

20The Tribunal’s approach to the interpretation of s. 34(11) of the Code to extend to civil proceedings commenced after the filing of an Application with this Tribunal has been upheld by the Divisional Court as reasonable and rationally supportable: Grogan v. Ontario Human Rights Tribunal, 2012 ONSC 319 (Div Ct).

21Further, in Kupiec v. Starburst Coin Machines, 2009 HRTO 75, this Tribunal held that it is not open to an applicant to try to avoid the application of s. 34(11) of the Code by subsequently withdrawing the portion of a civil action that raised a Code issue. The time for determining whether or not an Application to this Tribunal is barred is the time at which the Application was made to this Tribunal, and if at that time there was a civil action seeking a remedy for a violation of Code rights, then the Application is barred. See also Visic v. HRTO and University of Windsor, 2015 ONSC 7162 (Div. Ct.).

22As is apparent from the claim in the civil action, both in its original form and as amended, and as was candidly acknowledged by the applicant before the Small Claims Court, the ATM issue as raised in the first Application is premised on the very same underlying facts and allegations as raised in the civil action. As noted in Beaver, above, it does not matter that the Small Claims Court claim does not specifically refer to s. 46.1 of the Code. It is sufficient that the claim alleges that the respondent’s actions were “due to racism”, which is the same allegation raised in the Application before this Tribunal, and that monetary compensation is sought that flows from that allegation.

23This Decision does not mean that the applicant’s allegations will necessarily go unaddressed. It simply means that the applicant personally does not have the legal standing to raise these allegations, and that they will need to be addressed in the context of the Small Claims Court action commenced by PC Home.

The Designated Use Issue

24A similar issue arises in relation to the designated use issue as raised in the first Application as amended. The right to request a designated use for the business unit resides with the owner of the unit. The ownership documents for the business unit at issue in this proceeding are not before me. The respondent takes the position that the owner of the business unit is PC Home. The applicant states that the owner of the business unit is his spouse, which he supports by reference to a document in the materials before me dated May 17, 2012 which is a Notice of Lien to Owner issued by the respondent to the applicant’s spouse.

25Whether PC Home or the applicant’s spouse is the actual owner of the business unit at issue, the fact remains that the applicant is not the owner and therefore he lacks the legal standing to assert a right that belongs to someone else.

26Subsequent to the hearing in this matter, the applicant filed a Request for Order seeking to add his spouse as an additional applicant to this proceeding. This request is denied.

27This Tribunal has the power to grant a request to amend an Application pursuant to Rule 1.7(i)(c) of the Tribunal’s Rules of Procedure. The factors to be considered in deciding whether to grant an amendment request are: fairness and potential prejudice to the parties; the conduct of the party seeking the amendment; the impact of the amendment of the course of the hearing; the stage of the process; and the nature of the amendment requested. See Lo v. MCJFC Food Enterprise, 2011 HRTO 26; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

28I start by noting that the amendment request was made at a very late stage of the proceeding, after the hearing on May 20, 2016. In addition, one of the matters that I am directed to consider in deciding whether to grant an amendment is the nature of the amendment requested. This includes consideration of whether the requested amendment provides a basis to support an allegation violation of a Code right. See Sharma v. Waterloo (City), 2015 HRTO 1020.

29In the instant case, the material before me includes a list of owners who had been granted designated use by the respondent as of August 2006 and an updated list showing owners who had been granted designated use as of August 2014. These documents, which were submitted by the applicant, confirm the respondent’s assertion that no unit owner has been granted designated use since at least 2006. While the applicant asserts that he (or more properly the owner of the business unit at issue) met the criteria for granting of designated use when this was requested, the fact remains that the respondent since at least 2006 has simply not agreed to grant designated use to any business unit. As a result, even if the applicant’s spouse is the owner of the business unit and was added as an applicant, there is simply no basis in the material before me to support a potential violation of her rights under the Code.

30The first Application as amended also raises an issue regarding an adjacent business which started to engage in business activities similar to the applicant’s in competition with his business. The applicant alleges that the respondent has discretion to prevent the adjacent business owner from doing so, and failed to exercise this alleged discretion in his favour. The applicant has failed to show any legal basis or authority, in the absence of the granting of designated use to a unit owner, which would support any power or authority of the respondent to restrict the business which a unit owner can engage in. In my view, once again this is an allegation that can only be raised by the unit owner, who is not the applicant, and there is no basis to support any request to add the applicant’s spouse as an additional applicant at this late stage given the nature of this allegation.

Reprisal allegations

31As stated above, the reprisal allegations raised in the second Application are raised in relation to two broad issues: (1) certain actions taken by the respondent in relation to the PC Home ATM; and (2) a letter distributed by the respondent dated October 15, 2015 regarding the legal proceedings commenced by the applicant.

32With regard to the former issue, the reprisal allegations relate to the respondent’s removal of the PC Home ATM on November 6, 2014 and a letter from the respondent dated November 14, 2014 stating that the respondent would not discuss any further lease agreement at that time “due to the legal case that is currently ongoing”. For the reasons stated above, any rights in relation to the ATM issue are rights that belong to PC Home and not to the applicant personally.

33With regard to the latter issue, the October 15, 2015 letter is in the materials before me. This letter refers, incorrectly, to “the owner of PC Home” as being the plaintiff in the Small Claims Court action. The letter also refers to this same person as having commenced an application with this Tribunal. While it is PC Home and not the applicant personally who is the plaintiff in the civil action, nonetheless the October 15, 2015 letter refers to the applicant personally.

34The second Application alleges that the October 15, 2015 letter was issued with the intent of ridiculing the applicant and ensuring that he would not receive the support of other unit owners. The October 15, 2015 letter was written in response to the applicant circulating a petition among the other business unit owners in support of his actions. The respondent’s letter was written and circulated in an effort to set out its side of the story.

35While I appreciate that the applicant disagrees with the position taken by the respondent as set out in this letter, I fail to see anything in this letter that is capable of amounting to reprisal in violation of the Code. The applicant in particular points to a statement on the first page of this letter reminding the unit owners that: “It is essential to exercise extreme caution when giving your signature. Any signatures given before fully understanding the facts related to this case would affect the outcome of this case. Any loss from this case have to be borne by all unit owners including yourself.”

36The applicant stated at the hearing that the impact of this letter was to cause some unit owners to withdraw support for his actions and their signatures on the petition. That may be. However, that is not a sufficient basis to support an allegation of reprisal. On a clear reading of the foregoing statement from the respondent’s letter, what the respondent is saying is two-fold. First, the respondent is telling the unit owners to exercise caution and make sure they know both sides of the story before signing any petition. There is nothing about making such a statement that properly can be regarded as constituting reprisal in violation of the Code. Second, the respondent is advising unit owners that any losses incurred as a result of the legal proceedings commenced by the applicant would have to be borne by all unit owners. This is a true statement given that any amounts awarded to the applicant would need to be recovered by the respondent from its constituent unit owners. Once again, there is nothing about this statement that properly can be regarded as reprisal in violation of the Code.

37In my view, the applicant’s reprisal allegation arising out of the October 15, 2015 letter is not capable of amounting to reprisal in violation of the Code.

Material filed by the applicant post-hearing

38Subsequent to the hearing in this matter on May 20, 2016, the applicant filed certain further material.

39First, on May 24, 2016, the applicant filed a Request for Order seeking to amend his Applications and add certain parties to the Applications. The submissions filed in support of these requests largely consist of the applicant repeating material and submissions already filed with this Tribunal or made orally at the hearing, and largely do not bear on the specific issues addressed in this Decision. While I have reviewed and considered these submissions, there is nothing included in this material that changes my ruling as set out herein.

40With regard to the specific requests made in this material, the request to add the applicant’s spouse as an additional applicant already has been addressed and denied above. The applicant also seeks to add three individuals as personal respondents. For the reasons already articulated above, he lacks the standing or proper basis to do so. This request too is denied. The applicant further requests that a $50,000 penalty be imposed on former legal counsel for the respondent on the basis that she is alleged to have provided false and misleading information to this Tribunal. This Tribunal has no authority to make any such order. The applicant’s next request is to amend the second Application to “fix the November 6, 2014 and November 14, 2014 allegations as part of civil procedure and effects of these allegations”. I do not understand what the applicant intends by this request. In any event, these two allegations already have been addressed above as part of the ATM and reprisal issues, and the applicant has been found to lack the legal standing to raise these issues personally. Finally, the applicant asks for an order requiring the respondent to “switch” back to its former legal counsel. The Tribunal has no authority to make any such order, nor is there any proper basis to do so.

41By letter dated May 30, 2016 from the applicant’s representative, the applicant made further written submissions in relation to the issues addressed at the hearing, which I have reviewed and considered. The applicant asks that I consider this Tribunal’s decision in Baghdasserians v. 674469 Ontario, 2008 HRTO 404, which I have reviewed. That case dealt with a situation where the civil action did not raise any allegation of a potential violation of the applicant’s Code rights. This is distinguishable from the instant case, where the Small Claims Court action expressly alleges that requests for relocation of the ATM machine were denied “due to racism” and seeks monetary compensation flowing from that allegation.

42In this correspondence, the applicant further requests that he be allowed to defer his Applications. As I have found that the applicant lacks the proper legal standing to bring these Applications, there is no proper basis upon which to grant any deferral.

43The applicant also requests that I consider the Small Claims Court decision in Bray v Canadian College of Massage and Hydrotherapy, 2015 CanLII 3452, which confirms that Court’s ability to consider issues under the Code and award human rights remedies. This supports what I already have said above, which is that this Decision does not mean that the issues raised will not be addressed; rather, they will be addressed in the context of the proper party, namely PC Home, having raised these issues in the Small Claims Court proceeding.

44This correspondence also attached the original and amended claims filed with the Small Claims Court, which I have reviewed and considered.

45There is nothing in this post-hearing material that changes my Decision in this matter.

ORDER

46For all of the above reasons, both Applications are dismissed.