Ross v. Dykstra Brothers Electric Limited, 2016 HRTO 536

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Howard Ross

Applicant

-and-

Dykstra Brothers Electric Limited, Ralph Dykstra and William Dykstra

Respondents

A N D B E T W E E N:

Howard Ross

Applicant

-and-

Landlord Legal Inc. and Paul Smith

Respondents

DECISION

Adjudicator: Mary Truemner

Date: April 22, 2016

Citation: 2016 HRTO 536

Indexed as: Ross v. Dykstra Brothers Electric Limited

APPEARANCES

Howard Ross, Applicant

Self-represented

Dykstra Brothers Electric Limited, Ralph Dykstra and William Dykstra, Respondents

David Strashin, Counsel

Landlord Legal Inc. and Paul Smith, Respondents

David Strashin, Counsel

1These Applications allege reprisal and discrimination with respect to accommodation because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Many of the allegations pertain to the respondents’ actions while pursuing an eviction order against the applicant at the Landlord and Tenant Board (“LTB”). The applicant believes that pursuing his eviction was for reasons connected to his legal use of medical marijuana in his residential unit that he rented from Dykstra Brothers Electric Limited, his landlord.

3Landlord Legal, a company owned and controlled by a paralegal, is alleged to have been acting as a property management company, at times outside of the scope of its duties as the landlord’s agent, and Paul Smith is alleged to have been a contractor retained by Landlord Legal to harass and infringe the rights of the applicant. While the application to the LTB for an eviction order lists Dykstra Brothers Electric as the landlord and the party seeking the order, the applicant claims that Landlord Legal was the party more responsible for the act of evicting him, and that Landlord Legal and Mr. Smith used harassment tactics prior to the eviction application being filed that were discriminatory.

4The applicant filed an application at the LTB as well which was resolved through a Consent Order by which the applicant agreed to vacate the premises. Prior to vacating, the applicant allegedly posted information about the respondents on a website which the respondents believe was defamatory and they commenced Small Claims Court actions against the applicant.

5A hearing of these Applications to the Tribunal began on January 20, 2016, at which the applicant made his opening statement, confirming that his allegations in both Applications were accurately summarized in Interim Decision 2015 HRTO 989. They are as follows:

1. The applicant alleges discrimination because the respondents attached unsealed documents to his door so that passers-by, including neighbouring tenants, could read them. One of the documents attached to his door was a letter dated May 23, 2013, which indicated that the corporate respondent had been retained by the applicant’s landlord to investigate and resolve “serious issues” which included a concern that the applicant had altered his rental unit [to grow his marijuana] without authorization and that he “may be involved with illegal activity involving drugs”. In addition, the top document stated, “We require a copy of a current Health Canada Personal Use Production License (Dried Marihuana for Medical Purposes)…” The applicant argued that this disclosure to the public of his medical circumstances constitutes a breach of his privacy and discrimination because of disability given that he medically required the marijuana which the federal government permitted him to grow to deal with his disability.

2. The applicant alleges discrimination because the respondents also attached to the applicant’s door a notice that the personal respondent was an authorized agent of the landlord, and that he was going to enter the next day. The purpose indicated was “Routine inspection of premises, with photos, to determine if premises are in compliance with S.20 of the [Residential Tenancies Act]”. The personal respondent went into the applicant’s home on May 24, 2013, and took photographs of his personal papers in his personal office space, and of the marijuana plants the applicant legally grew for medical reasons. The applicant explained that he was so worried about his security after the notices and the inspection that he went to the police, who knew he was growing medical marijuana, and asked them to increase security for him. The applicant argued that the inspection was an invasion into his privacy related to disability, and constitutes harassment and discrimination contrary to the Code.

3. The applicant alleges discrimination because the owner of the corporate respondent contacted the police and showed them the photographs from the inspection, making false allegations that the applicant was illegally growing marijuana in his rental unit. The applicant argued that because he medically required the marijuana for his disability, and because his production and use of it were legal, the corporate respondent’s report to the police constitutes harassment and discrimination because of disability.

4. The applicant alleges discrimination on the basis that the corporate respondent commenced eviction proceedings at the LTB. Because one of the reasons cited for the eviction was that the applicant did not provide proof that he is permitted to grow marijuana in his rental unit, the applicant alleges that the eviction attempt was because of his disability.

5. The applicant alleges discrimination against the corporate respondent because, through procedural errors and intentional tactics, the corporate respondent stalled and delayed proceedings at the LTB and in other civil proceedings, where the applicant, the landlord and/or the corporate respondent are participating in a range of matters, including defamation, breaches of professional conduct and privacy.

6. The applicant alleges reprisal because the applicant’s landlord hired the corporate respondent to represent the landlord and “to go after” the applicant immediately after the applicant filed a tenant application against the landlord at the LTB on May 7, 2013. It alleged substantial interference by the landlord with the applicant’s reasonable enjoyment of the rental unit because the landlord discussed the applicant’s medical circumstances with another tenant. The LTB granted his Application to the extent that it ordered the landlord not to breach the applicant’s right to keep his medical circumstances private. The applicant further clarified that he is alleging that all of the legal proceedings initiated by the corporate respondent amount to harassment because he uses medical marijuana.

6Mediation-adjudication was attempted at the hearing on January 20, 2016, but did not resolve the Applications. Continuation dates were scheduled for April 21 and 27, 2016.

7In a Case Assessment Direction (“CAD”) dated February 3, 2016, the Tribunal directed the parties to file submissions, first the respondents and then the applicant, on whether “absolute privilege” attaches to the actions and documents of the respondents in previous eviction proceedings and other civil proceedings that are at issue in at least some of the applicant’s allegations.

8The respondents filed their submissions, arguing not only that absolute privilege applied, but also that section 45.1 and subsection 34(11) of the Code combine with that privilege to justify the dismissal of all of the applicant’s allegations in the Applications.

9The applicant filed submissions addressing absolute privilege, arguing that absolute privilege did not affect his allegations. His submissions did not address the section 45.1 and 34(11) issues, but, in fairness, he was not asked to do so in either CAD issued in February and March, 2016.

10At the commencement of the hearing on April 21, 2016, I made an oral ruling dismissing certain allegations, finding that absolute privilege protects the respondents’ conduct and statements made in the course of the LTB and Small Claims Court proceedings. My reasons for this ruling are more fully discussed below.

11The parties then participated in mediation-adjudication with respect to the remaining allegations, but it did not succeed in resolving them, and I asked the parties to return to the hearing room to resume the hearing. The applicant then left the hearing room with his friend and all of their belongings without telling me if he was returning. I followed him to the hallway, asking him to return to the hearing room to tell us what his intentions were. He continued to the elevators, and I said that I would stand the matter down for 10 minutes so that he could return. The applicant did not return after 10 minutes and I took submissions from the respondents who submitted that the applicant had abandoned the Applications.

12I am satisfied that the applicant abandoned his Applications.

Absolute Privilege Allegations Related to Steps Taken in Legal Proceedings

13The following allegations were dismissed on the basis that absolute privilege acts to immunize the respondents from liability under the Code:

1. The allegation that the respondents commenced eviction proceedings at the LTB as reprisal under the Code, or for reasons that include the applicant’s need arising from his disabilities to use medical marijhana;

2. The allegation that the respondents commenced legal proceedings in Small Claims Court as reprisal under the Code, or for reasons that include the applicant’s need arising from his disabilities to use medical marijhana; and

3. The allegation that the respondents used litigation tactics to stall proceedings before the courts (insofar as they were steps taken through pleadings, motions and submissions) as reprisal under the Code, or for reasons that include the applicant’s need arising from his disabilities to use medical marijuana.

14Determining whether absolute privilege attaches to statements made or actions taken prior to the commencement of legal proceedings can be difficult, but the law is clear that if statements or actions which commence a proceeding, or which occur within and are clearly liked to the proceeding, then they are protected by absolute privilege:

The absolute privilege which covers proceedings in or before a court of justice (…) covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings.

Lincoln v. Daniels, [1961] 3 All E.R. 740 (C.A.), at pp. 257-58 (Q.B.)

15In 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727 (“Stewart”), Justice Ferrier explains at paragraph 32:

The rationale for the rule of absolute privilege has been expressed in many cases over the years. The following passage from Raymond E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999) at 12-64, correctly states the rationale:

Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences.

16In Carlos v. 1174364 Ontario, 2009 HRTO 311, the Tribunal found that absolute privilege attaches to complaints and filings to statutory tribunals and quasi-judicial regulatory bodies. See also Ornelas v. Casamici Restaurant, 2010 HRTO 1078, and the reconsideration of that decision, 2011 HRTO 1531 (“Ornelas Reconsideration Decision”), which applied absolute privilege to dismiss an allegation of reprisal against a respondent whose counsel’s correspondence to that applicant warned her that if she did not “discontinue” her application to the Tribunal, then he had instructions to pursue court action for defamation.

17More recently, the Tribunal held that the doctrine of absolute privilege extended to bar allegations regarding the initiation of a civil action, and the conduct of an examination for discovery. See Cordero v. Hydro One Networks Inc., 2015 HRTO 1312.

18In keeping with the above decisions, all three of the allegations made in the Applications, as listed above, are intimately connected to Small Claims Court proceedings or proceedings before the LTB, a statutory tribunal, and therefore were orally dismissed on the grounds of absolute privilege.

19In finding that absolute privilege prevented these allegations from proceeding, I made no judgement about the respondents’ actions, statements or comments if they had been outside of the context of legal proceedings. As stated in the Ornelas Reconsideration Decision, at paras. 27-28:

It is well-established that motive, bad faith, malice, deceitfulness and improper conduct are irrelevant to the determination whether communications have been made on an occasion of absolute privilege: Stewart, at paras. 33-35.

It is critical to understand that it is not the nature of the conduct or the words which is the focus of the immunity, but the occasion on which the words are said or the conduct is performed. Saying exactly the same words will be either actionable or not depending on the occasion on which they are said. (Elliott v. Crime Prevention Bureau, 2005 NSCA 115, [2005] N.S.J. No. 323, at para. 114, as cited in Stewart, supra, at para. 45)

That this approach will sometimes serve to immunize respondents from otherwise actionable conduct – including conduct which violates the Code – comes as no surprise. The courts have often recognized that the immunity from litigation afforded by absolute privilege “does not exist to protect the wrongdoer, but it will sometimes do so.” (Elliott, supra, at para. 117, as cited in Stewart, supra, at para. 46).

Allegation that Paralegal Used Stalling Tactics at Law Society

20The applicant alleged that the paralegal representing the respondents used stalling tactics during the processing of a complaint against her by the applicant at the Law Society of Upper Canada. He alleged that she did so as reprisal for his claims concerning his rights under the Code. I orally dismissed this allegation because the paralegal was not a respondent, and the applicant’s recent request to make her one was dismissed, in Interim Decision 2016 HRTO 514.

Allegation that Respondents Used Stalling Tactics at Office of the Privacy Commissioner

21The applicant appeared to allege that the respondents used stalling tactics during the processing of complaints by the applicant at the Office of the Privacy Commissioner. He confirmed at the hearing of April 21, 2016 that he was not making this allegation, and, to any extent that it was ever made, it is dismissed.

order

22I find that all allegations that were not dismissed at the commencement of the hearing on April 21, 2016, have been abandoned by the applicant.

23The Applications are dismissed.