Deschenes v. White Spruce Apartments, 2016 HRTO 391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Deschenes Applicant

-and-

White Spruce Apartments and Girts Sipolins Respondents

INTERIM DECISION

Adjudicator: Genevieve Debane Date: March 29, 2016 Citation: 2016 HRTO 391 Indexed as: Deschenes v. White Spruce Apartments

WRITTEN SUBMISSIONS

Anne Deschenes, Applicant Self-represented

White Spruce Apartments and Girts Sipolins, Respondents Andrew Lister, Counsel

1The applicant seeks to commence a breach of settlement application under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Her current allegations arise from the settlement of a previous application (2014-19063-I) that alleged discrimination with respect to housing contrary to the Code. The previous Application named White Spruce Apartments, Girts Sipolins and another individual as respondents. On July 16, 2015, the applicant entered into Minutes of Settlement with White Spruce Apartments and Girts Sipolins.

2On September 14, 2015, the applicant filed a number of hand written documents with the Tribunal. The Tribunal advised the applicant that it could not accept the documents filed by the applicant, which appeared to be alleging a contravention of settlement in a prior tribunal application, because they had not been filed using an “Application for Contravention of Settlement” (Form 18) or delivered to the named respondents, both of which are requirements under the Tribunal’s Rules of Procedure. Thereafter, Tribunal staff explored various options with the applicant in an attempt to make the application process accessible, including proposing to send the applicant copies of the Form 18 via mail or email, and ultimately proposing an oral application process that would allow the applicant to complete the Form over the telephone and have her responses to the questions in the Form transcribed. The applicant indicated she was unable to receive regular mail or email and refused to participate in the proposed oral application process.

3On February 3, 2016, the applicant filed with the Tribunal documents in which she again sought to commence a breach of settlement application (but without filing the required Form 18 “Application for Contravention of Settlement”). She also asked the Tribunal to order an interim remedy and expedite the proceeding. These types of orders can be sought under Tribunal Rules 21 and 23, but again she did not do so using the required forms or otherwise in compliance with the Rules. The applicant failed to deliver any of these documents to the respondents as required by the Rules. The applicant named as respondents a number of individuals who are not signatories to the Minutes of Settlement.

4On February 9, 2016, the Tribunal issued a Case Assessment Direction to the applicant and named respondents. The CAD provided copies of the documents filed on February 23, 2016 and sought submissions on a number of issues including:

a. Whether the Tribunal should exercise its discretion to accept the documents filed by the applicant;

b. Whether the Application should be deferred pending the conclusion of a proceeding initiated at the Landlord Tenant Board (“LTB”);

c. Whether the non-signatory respondents were proper respondents to the Application; and

d. Whether the Request to Expedite and Request for Interim Remedy should be granted.

Should the Tribunal accept the materials filed by the applicant?

5I have considered this matter, including the respondent’s submissions opposing that the Tribunal accept the applicant’s documents as filed.

6I note that section 45.9(5) of the Code requires that, “An application under subsection (3) shall be in a form approved by the Tribunal.” Further, Rule 24.1 of the Tribunal’s Rules of Procedure requires that a contravention of settlement application under 45.9(3) “must” be filed in Form 18, and Rule 24.2 expands on the requirement by requiring the Application “must include an answer to each question in Form 18.” These requirements are not merely technical, they are important tools that allow the Tribunal to control its own process. The requirements to use the Tribunal’s forms (particularly the Form 18 and Form 1 which initiate legal proceedings under the Code), are intended to assist the parties in identifying specific particulars with respect to the identity and location of the parties, and the facts and allegations relied upon by the parties. I note also that section 4.5(1)(a) of the Statutory Powers Procedure Act empowers a Tribunal not to process the commencement of a proceeding where documents submitted are incomplete.

7However, in reviewing the materials filed by the applicant I am satisfied that the hand-written documents filed by the applicant contain the material allegations and information required by the forms. I also note that in this case the information required Form 18, to initiate a breach of settlement application is much less detailed and requires less information than a Form 1 Application. The information was filed in an orderly numbered manner which can be read and understood by the Tribunal. Further, in this case, the applicant alleges that she has limited ability to leave her apartment because of her disabilities. I will not reproduce the particulars of the barriers she alleges, but I do note they are somewhat complex and unique to this case. In these circumstances, I exercise my discretion under the Rules to accept the documents filed by the applicant despite the fact that the actual forms have not been filled out by her.

The proper respondents

8The applicant has filed an Application pursuant to subsection 45.9(3) which states:

If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

9Subsection 45(9).6 states:

Subject to the Tribunal rules, the parties to an application under subsection (3) are the following:

1. The parties to the settlement.

2. Any other person or the Commission, if they are added as a party by the Tribunal.

10Unlike an application pursuant to section 34 of the Code, in a breach of settlement application an applicant cannot name any person or entity that is not signatory to the Minutes of Settlement. Subsection 34(6).9.1. states that the parties are the “parties to the settlement”. Any other party has to be added by the Tribunal pursuant to s. 34(6).9.1.

11Having considered this matter I am of the view that the applicant cannot name as respondents individuals who did not sign the Minutes of Settlement. Therefore, the only two proper respondents to this Application are White Spruce Apartments and Girts Sipolins.

12The Tribunal directed submissions on the issue of the naming of the proper respondents. Though the Tribunal received submissions from counsel for White Spruce Apartments and Girts Sipolins, it is not clear to me whether the other named individuals received notice of the Application. However, in light of my findings that they are not proper respondents it is not necessary for me to address this issue.

Request for Interim Remedy

13The applicant seeks a number of interim remedial orders from the Tribunal. This includes that the Tribunal somehow exercise its powers to stop or interfere with a decision from the LTB which permits the respondent to evict her in June 2016. Indeed, it appears that the proceeding commenced at LTB which was held on January 26, 2016 was one of the reasons that the applicant commenced this Application.

14The conditions for awarding an Interim Remedy are set out as follows in Rule 23.2 which states:

The Tribunal may grant an Interim Remedy where it is satisfied that

a. the Application appears to have merit;

b. the balance of harm or convenience favors granting the Interim Remedy requested; and,

c. it is just and appropriate in the circumstances to do so.

15In TA v. 60 Montclair (“Montclair”), 2009 HRTO 369 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an Interim Remedy is “whether an Interim Remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

16The Tribunal in Montclair, above, also noted that an applicant seeking an Interim Remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

17Normally, the Tribunal’s power to order a respondent to do or refrain from doing something is contingent upon a finding that the respondent has violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated.

18I have considered the circumstances of this case, and I am of the view that it is not appropriate to grant the applicant’s Request for Interim Remedy. The Tribunal does not have the authority to compel the LTB from refraining to carry out its statutory mandate. The Tribunal does not determine appeals of LTB decisions. Any issues that the applicant has with respect to the LTB proceeding must be addressed by the appropriate appeal mechanism available to her pursuant to the Residential Tenancies Act. This Tribunal does not have supervisory authority over other statutory boards and tribunals.

19With respect to the other remedies sought by the applicant there are a number of factual disputes between the parties and it is not appropriate for the Tribunal to grant these remedies without first finding that the respondents have failed to comply with their obligations under the Minutes of Settlement. Further, it appears that the applicant’s tenancy may end in June of this year which may affect the appropriateness of awarding some of the remedies sought by the applicant.

20In these circumstances, I decline to award any of the interim remedies sought by the applicant.

Request to expedite

21In light of the other proceeding at the LTB, I am of the view that there is no basis to expedite the manner. However, it may be appropriate for the Tribunal to defer this Application pending the conclusion of the proceeding at the LTB. The parties will be provided the opportunity of making submissions on that issue.

22The Request to expedite is denied.

Next steps

23The Tribunal orders as follows:

a. The Tribunal accepts the documents filed by the applicant as a Breach of Settlement Application. For the sake of clarity the written paragraphs under the heading “Renegment” from paras. 2 to 31 will be considered particulars of the applicant’s allegations, the sole respondents to the Breach of Settlement Application are White Spruce Apartments and Girts Sipolins;

b. The Tribunal accepts the documents filed by the applicant as Requests for Interim Remedy and a Request to expedite. Both of these Requests are denied by the Tribunal;

c. The respondents must file with the Tribunal and deliver to the other parties a Form 19, Response to the Breach of Settlement Application within 21 days of the date of this Interim Decision;

d. The applicant must file with the Tribunal and deliver to the other parties a Form 3, Reply to the Response within 21 days of the receipt of the respondents’ Response; and

e. Both parties must file with the Tribunal and deliver to the other parties submissions advising as to the status of the LTB proceeding including whether any appeals have been sought of the LTB decision and whether the Tribunal should defer this Application pending the conclusion of that proceeding, within 21 days of the date of this Interim Decision.

24Though the respondents have raised the issue of the applicability of section 45.1 of the Code, I am of the view that this issue will be dealt with by the adjudicator assigned to hear the Application on the merits. However, the respondents should make fulsome submissions with respect to this issue in their Response.

25Though the Tribunal has accepted the documents filed by the applicant I am of the view that the applicant must comply with her obligations under the Rules to ensure the delivery of her materials to the respondents. Surely, if the applicant can send documents to the Tribunal she can also send these to documents to the respondents’ counsel. Failure to comply with this obligation can result in the dismissal of the Application.

26I am not seized.