HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jasmine Peterson
Applicant
-and-
North44 Property Management – Parklane Townhomes
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Peterson v. North44 Property Management – Parklane Townhomes
APPEARANCES
Jasmine Peterson, Applicant
Self-represented
North44 Property Management – Parklane Townhomes, Respondent
Robert Tindall, Counsel
Introduction
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of disability.
2On May 10, 2016, the Tribunal decided to hold a preliminary hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application.
3The Tribunal held the preliminary hearing on October 25, 2016.
Factual Background
4The applicant resided in the respondent’s rental property from August 17, 2011 to December 1, 2015. The applicant claims that she has sensitivities to poor environmental air quality including cigarette smoke. She alleges that, while a tenant at the respondent’s housing unit, she was consistently subjected to cigarette smoke entering her place of residence through the windows. She maintains that she brought the matter to the attention of the property manager in June 2014 and submitted a letter indicating that she had environmental sensitivities, outlining the impact on her health and asking management to address the issue. According to the applicant, the issue persisted and on June 12, 2015, she complained again and was told that she had to speak to the head office. The applicant alleges that when she told the head office employee that if they did not address the issue she would complain to the LTB, the employee replied “If you take this to the LTB, I will not be happy”.
5On November 3, 2015, the applicant filed an application to the Landlord and Tenant Board (“LTD”) for an order that the respondent substantially interfered with her reasonable enjoyment of the rental unit or complex or with the reasonable enjoyment of a member of her household, and that the respondent harassed, coerced, obstructed, threatened or interfered with her.
6The LTB issued its order on December 18, 2015 dismissing the application. See December 18, 2015 Landlord and Tenant Board Decision, file No. NOT-21613-15 (“LTB Decision”).
7The applicant filed her Application with this Tribunal on February 16, 2016.
8The issue to be addressed is whether the LTB proceeding has appropriately dealt with the substance of the Application.
parties submissions
9The respondent argues that the LTB hearing is a proceeding pursuant to s. 45.1 of the Code. He admits that the application before the LTB and the present Application are slightly different, but the facts relied upon by the applicant are identical. The respondent maintains that the LTB Member considered and made human rights determinations about the following: whether the applicant had proven that she has a disability, whether there was evidence to show that the applicant’s sensitivities were aggravated by the cigarette smoke, whether the respondent had an obligation to accommodate the applicant, and whether the respondent failed in that obligation. The LTB Member also referred specifically to the allegations made under the Code.
10The respondent argues that the applicant had the opportunity to present her case before the LTB. He submits that the Application to the Tribunal appears to be an attempt to appeal the LTB Decision. He maintains that there is a right to appeal the LTB Decision but the applicant failed to avail herself of that process.
11The applicant indicates that there is a 30 day limitation period to appeal an LTB decision. She explains that the LTB sent the letter informing her of the right to appeal to the wrong address leaving her with only two weeks to file the appeal. In addition, she could not afford the $50 appeal fee. The applicant pointed to alleged inaccuracies in the LTB Decision and indicated that, because of these inaccuracies, she did not think the LTB was equipped to address her matter. As a result of these factors combined, she filed her Application with this Tribunal.
12The applicant further submits that she filed the application before the LTB for failure to provide reasonable enjoyment of a unit and not to address her human rights complaint. She maintains that, in the LTB proceeding, she only produced documents related to the proper enjoyment of the unit. She did not produce medical documents or evidence related to the human rights complaint. She admits to having supplemented the LTB application with the complaint about the alleged lack of accommodation but this was not the primary purpose of the LTB complaint.
analysis and decision
13Section 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.
14In interpreting this section, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”).
15In Post v. Stevens Resources Group, 2014 HRTO 1470 (“Post”), the Tribunal reviewed these decisions and concluded:
According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:
whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it;
whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?
16It is well established that a claim determined by the LTB is a “proceeding” for the purposes of section 45.1 of the Code. See for example: Benstead v. Niagara Regional Housing, 2012 HRTO 1557 and Wachmenko v. Charwell Master Care LP (o/a Charwell Collegiate Heights Retirement Residence, 2014 HRTO 908.
17I turn now to the three-pronged criterion outlined above.
18I find that the applicant knew the case she had to meet before the LTB and had full opportunity to present evidence and make submissions concerning those issues. The applicant specifically asserted that the respondent failed to accommodate her respiratory health disability pursuant to the Code and she provided detailed testimony of allegations and the incidents.
19I turn now to the question of whether the previously decided legal issues were essentially the same as what is being complained about in the Application before this Tribunal.
20I find that the legal issues decided in the LTB Decision were essentially the same as what is complained about before the Tribunal.
21Not only did the LTB Member have concurrent jurisdiction with this Tribunal to apply the Code, the facts and substance of the LTB Decision are essentially the same as the facts and substance of the Application. In both venues, the decision-maker is asked to consider whether the applicant has sensitivities that amount to a disability and whether the respondent failed to accommodate the applicant’s disability by refusing to eliminate second hand cigarette smoke at the residential complex. In addition, the applicant admitted that her Application to this Tribunal was made largely because she found inaccuracies in the LTB Decision, she was out of time to file an appeal of the LTB Decision and she could not afford the fee from the LTB appeal process. This Tribunal is not an appeal body from other tribunals, including the LTB.
22In addition to the above-mentioned considerations, Penner, above, requires the Tribunal to consider whether it would be unfair for the proceeding before LTB Member to preclude the applicant from bringing the Application to this Tribunal, at para. 39:
Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim.
23I find that none of the indicators of unfairness identified in Penner applies here.
24The applicant argued that she found inaccuracies in the LTB Decision. However, disagreeing with the LTB Decision is not tantamount to an unfairness of the proceeding. I find no unfairness in the LTB process; the parties were provided with an opportunity to be heard before an independent board and the parties had a right to appeal the decision of the LTB.
25I also find that the parties expected the LTB Member to decide whether there was an obligation on the respondent to accommodate the applicant and the parties made submissions to that effect.
26When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. Figliola, above, at para. 38.
27I conclude that the December 18, 2015 LTB Decision file No. NOT-21613-15 appropriately dealt with the substance of the Application.
Order
28The Application is dismissed pursuant to section 45.1 of the Code.
Dated at Toronto, this 28th day of October, 2016.
“Signed By”
Josée Bouchard
Vice-chair