Carabineiro v. Bracey, 2016 HRTO 1158

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jose Carabineiro

Applicant

-and-

Martin Bracey

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel
Date: August 31, 2016
Citation: 2016 HRTO 1158
Indexed as: Carabineiro v. Bracey

WRITTEN SUBMISSIONS

Jose Carabineiro, Applicant
Tony Dutra, Representative

Martin Bracey, Respondent
Self-represented

1In his Application, the applicant alleged that the respondent discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In particular, the applicant alleged that the respondent harassed him on the basis of race and other race-related grounds protected under the Code.

2This Interim Decision addresses the respondent’s request that the Tribunal dismiss the Application on the basis that another proceeding has appropriately dealt with the substance of the Application.

REQUEST TO DISMISS

3The respondent requests that the Tribunal dismiss the Application under s. 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with through a proceeding at the Landlord Tenant Board (“LTB”).

4The applicant is the superintendent of the building in which the respondent lives. The building is owned by two other persons who are the respondent’s landlords. The respondent and his landlords have been involved in various proceedings at the LTB. In particular, in or around January 2014, the respondent’s landlords applied to the LTB for an order terminating the respondent’s tenancy because he seriously impaired the tenancy of another person. The landlords relied upon two complaints to support their application to the LTB, one of which was a complaint from the applicant.

5By decision dated January 21, 2014, the LTB dismissed the application from the landlords. The LTB member held that the respondent’s conduct was not so serious as to amount to a serious impairment of safety. He stated as follows:

Had the Tenant made threats to the life or integrity of the others in the residential complex, there might have been grounds to terminate the tenancy. However, the evidence presented is that the Tenant used aggressive, intimidating and inappropriate language; he yelled, stomped and generally made a nuisance of himself. The behaviour depicted fell far short of the very serious conduct envisaged by the Landlord’s application.

6The respondent submitted that the Application should be dismissed because the events contained in the Application also formed the basis of the LTB proceeding. He argued that the landlords commenced the LTB proceeding as a result of a complaint by the applicant. He noted that the applicant’s letter of complaint alleged harassment and threatening behaviour by the respondent, even if it did not allege racial harassment. In addition, the respondent submitted that it is reasonable to conclude that the applicant would not have left out something as significant as racial harassment from his complaints to the landlords if the respondent had in fact racially harassed him. While the LTB did not specifically address any discrimination allegations, the respondent submitted that the LTB’s decision appropriately dealt with the substance of the Application. He also submitted that the LTB’s legal and factual findings would make it impossible for the Application to succeed.

7The applicant opposed the respondent’s request on the basis that the applicant has not himself been a party to any LTB proceeding against the respondent.

FINDINGS

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.

9The respondent’s request is denied. While an LTB application is a “proceeding” for the purposes of s. 45.1, I find that the LTB proceeding has not appropriately dealt with the substance of the Application. The applicant was not a party to the LTB proceeding. While the application by the respondent’s landlords in or around January 2014 was made following a complaint by the applicant, the applicant’s complaint was only one of two complaints they relied upon. The LTB’s decision does not address the issue of racial harassment or harassment on any other Code grounds. The respondent is correct in pointing out that this Tribunal has held in the past that applicants should not be permitted to split their cases by excluding human rights issues in a previous proceeding to later pursue them at the Tribunal. However, this case law is not applicable in the present circumstances, as the applicant was not a party to the previous proceeding. Therefore, he cannot be said to be splitting his case.

10As well, I do not agree that the LTB’s legal or factual findings make it impossible for the Application to succeed. While the LTB member held that the respondent’s conduct was not so serious as to amount to a serious impairment of safety, he did find that the respondent used aggressive, intimidating and inappropriate language.

11The issue before this Tribunal is focussed specifically on whether the respondent harassed the applicant on the basis of the grounds alleged in the Application. As for the respondent’s submission that the applicant never raised claims of racial harassment in his complaints to the landlords, this is a factor he can raise at the hearing that the adjudicator will weigh when making findings of fact and credibility in this case.

ORDER

12For the reasons set out above, the respondent’s request to dismiss the Application is denied.

13Since neither party has agreed to mediation, the Registrar will schedule the Application for a two day hearing.

14I am not seized of this matter.