Dobson v. Boardwalk Rentals, 2016 HRTO 744

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grant Dobson

Applicant

-and-

Boardwalk Rentals

Respondent

DECISION

Adjudicator: David Muir

Date: May 31, 2016

Citation: 2016 HRTO 744

Indexed as: Dobson v. Boardwalk Rentals

APPEARANCES

Grant Dobson, Applicant

Self-represented

Boardwalk Rentals, Respondent

Patty Duwyn, Paralegal

1This Application alleges discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2In a Case Assessment Direction (CAD) issued on September 8, 2015 the Tribunal decided to hold a summary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3By way of background the applicant is the roommate of an individual (the tenant) who have been in conflict with the respondent for a number of years. There have been a number of proceedings at the Landlord & Tenant Board (LTB) in relation to this ongoing conflict. This Application relates to that ongoing conflict and although the tenant is not a party to the Application she is an actor in the dispute.

4The hearing was held on January 22, 2016 by telephone conference call. All parties participated.

5During the course of the summary hearing and the applicant’s submissions it became clear that some or all of the issues raised in the Application may also have been raised in proceedings at the LTB. This raised the issue contemplated by section 45.1 of the Code of whether dismissing an application, in whole or in part, if another proceeding has appropriately dealt with the substance of the application. At the conclusion of the applicant’s submissions, I indicated to the parties that it seemed to me that it may be most fair, just and expeditious to deal with the potential section 45.1 issue before dealing with issues outlined in the CAD dated September 8, 2015.

6Accordingly I directed that the parties provide me with the pleadings and decisions related to the proceedings before the LTB.

7The summary hearing reconvened on April 1, 2016. The respondent had complied with my Directions and had provided two decisions of the LTB as well as the underlying Applications submitted to the LTB.

8The applicant disputes that the allegations in this Application have been adjudicated by the LTB on the basis of his assertion that the adjudicator refused to deal with the “human rights” issues raised and did not hear about incidents more than a year prior to the applications being filed before the LTB. The applicant also asserted that in her decision the adjudicator made it clear that she was not dealing with his allegations of discrimination.

9However having reviewed the applications to the LTB and the decisions issued I find that the substance of this Application was before the LTB and that the substance of the Application was appropriately adjudicated in its decisions.

10The narratives of the applications before the LTB and the Tribunal are essentially the same containing a great number of complaints about differential treatment with respect to the maintenance and repair of the apartment in which the applicant lives with the tenant as well as allegations of harassment by various of the respondent’s employees.

11The first decision of the LTB relates in part to an incident on April 9, 2015 which forms part of this Application. This was an application by the respondent/landlord and the applicant participated in it as a witness. Although the respondent was ultimately unsuccessful the LTB found as a fact that the applicant (and the tenant) were responsible for the April 9, 2015 verbal altercation and that they substantially interfered with a lawful right of the respondent – “that its employees be permitted to conduct their work free of unreasonable personal abuse.”

12The second LTB decision deals with applications brought by the applicant (and the tenant). The issues before the LTB are described in the opening paragraphs of the January 14, 2016 LTB decision as follows:

Elizabeth Keep (the 'Tenant') applied for an order determining that Boardwalk General Partnership (the 'Landlord') and Thomas Galera, Oxana Herbut, Sarah Loveless, Bert Mcleod and Patty Duwyn (the 'Landlord Agents') harassed, obstructed, coerced, threatened or interfered with the Tenant and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household ('T2 application').

The Tenant also applied for an order determining that the Landlord failed to meet the Landlord's maintenance obligations under the Residential Tenancies Act, 2006 (the 'Act') or failed to comply with health, safety, housing or maintenance standards ('T6 application').

These applications were heard in London on August 11, 2015 and October 20, 2015. The Tenant attended the hearing. Patty Duwyn ('PO') attended the hearing on her own behalf and as the Landlord's legal representative. The other Landlord Agents, Bert Mcleod ('BM'), Oxana Herbut('OH'), Sarah Loveless ('SL') and Thomas Galera ('TG') also attended and testified at the hearing. James Benson ('JB'), Grant Dobson ('GO') and Sharon Godin ('SG') participated in the hearing as witnesses.

13All of the allegations of differential treatment of the applicant and the tenant with respect to maintenance and repair of the apartment unit are addressed in the Decision of the LTB.

14More specifically under the heading Harassment, at paragraph 69 the decision of the LTB sets out the following description of the allegations:

In the T2 application, the Tenant claimed that the Landlord ·and Landlord Agents have treated her and her household like "second-class citizens" since 2011, when the occupant, GD, had a reaction to a new medication and became unconscious in an elevator, and the Landlord's employees responded in a manner that the Tenant and GD found unsatisfactory. Since then, the Tenant has interpreted many responses by the Landlord and Landlord Agents to be an example of harassment, substantial interference with reasonable enjoyment or discrimination on the grounds of disability contrary to the Human Rights Code.

15GD is the applicant in this case and was an applicant in the LTB proceeding. He was removed from the title of proceeding because he was not the tenant but a room-mate of the tenant. However it is clear that the applicant participated in the proceedings and as with this Application the allegations are allegations of both the applicant and the tenant.

16In its Decision the LTB deals with the alleged harassment and discrimination of the respondent and its employees. The LTB found that it was the applicant’s (and tenant’s) rude and belligerent conduct that was the source of the conflict and dysfunction in the relationship and there was no basis for the claim of harassment. The LTB concluded not only that the application was unfounded but that it was frivolous.

17In my view it is clear that the substance of this Application was raised before the LTB and adjudicated there such that it would be inappropriate for the Tribunal to re-hear the case.

18Section 45.1 of the Code, which reads as follows: “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”.

19The principles applicable to this kind of case have been articulated in a number of cases: See British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, as well as previous cases in which the HRTO has considered the application of s. 45.1, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and the cases cited in that decision.

20The application of section 45.1 involves a three part test:

a. whether there was another proceeding;

b. Whether the substance of the Application was raised there;

c. Whether it would be fair and just having regard to all of the circumstances to allow the Application to continue in the Tribunal process. See, Ormesher v. Schwartz Law LLP, 2014 HRTO 1757

21In my view it is appropriate to dismiss this Application pursuant to section 45.1 of the Code. There is no question that a proceeding before the LTB is a proceeding within the meaning of section 45.1 of the Code. There also can be no dispute that the issues raised in this Application were also raised before the LTB. The applicant asserts that the LTB directed that it would not deal with the human rights allegations, but it is plain on the face of the decision of the LTB that it did so. The applicant also asserted that the LTB decision only dealt with issues going back one year from the filing of that application. However it is clear on the face of the decision that the LTB considered issues going back several years. Finally there is no basis to conclude that it would not be fair and just to allow the re-litigation of this dispute. The applicant had an opportunity to bring his human rights concerns before an adjudicative agency with the authority to provide a remedy to the applicant. It is important to note that the LTB proceeding was commenced by the applicant, he was not a bystander to it, or taken to the LTB by the respondent. In all of the circumstances, I find that that this Application must be dismissed pursuant to section 45.1 of the Code.

22The Application is dismissed.