HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andria Campbell
Applicant
-and-
Toronto Community Housing
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Campbell v. Toronto Community Housing
APPEARANCES
Andria Campbell, Applicant
Self-represented
Toronto Community Housing, Respondent
No one appearing
background
1This Application alleges discrimination with respect to housing because of race, colour, ancestry, place of origin, disability, receipt of public assistance, association with a person identified by a prohibited ground and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision addresses a request by the respondent that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with in another proceeding.
2At the time the Application was filed with the Tribunal, the applicant was a tenant in a residential building owned and operated by the respondent.
3The applicant’s Code related allegation is that he notified and constantly complained to the respondent regarding the resident of another unit in the premises and the resident’s guest who always harassed, discriminated and threatened him on an ongoing basis. The applicant further claims that the resident’s guest would make racial comments like nigger or monkey.
4The applicant responded to the noted conduct by filing an application with the Landlord and Tenant Board (“LTB”) claiming the respondent substantially interfered with his reasonable enjoyment of the rental unit or the residential complex. The hearing was held November 15, 2016. The adjudicator found that the respondent did substantially interfere with the reasonable enjoyment of the rental unit or complex by the applicant in that it failed to take any action against the tenant or his guest even though the applicant complained to the respondent on several occasions about the noted conduct. The LTB adjudicator ordered a substantial rent abatement and costs in favour of the applicant.
analysis and decision
5Section 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 that another proceeding has appropriately dealt with the substance of the application.
6Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”: Campbell v. Toronto District School Board, 2008 HRTO 62.
7There is no question that a hearing before the LTB is a “proceeding” within the meaning of s. 45.1. See for example Wachmenko v. Chartwell Master Care LP (o/a Chartwell Collegiate Heights Retirement Residence), 2014 HRTO 908.
8As a result, the only remaining issue is whether the substance of the human rights Application was appropriately dealt with in the LTB proceeding.
9In applying s. 45.1 of the Code, 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”).
10According to Figlioa and Penner, once it has been confirmed that concurrent jurisdiction exists to decide 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:
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 circumstance of the case.
11It is well-established that the LTB has jurisdiction to apply the Code in its adjudications of applications before it. See Peterson v. North44 Property Management – Parklane Townhomes, 2016 HRTO 1403 at para. 21.
12The applicant did not dispute that he had an opportunity to know the case to be met before the LTB and to meet it. Therefore, the first prong of the analysis is met. I turn now to considering whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal.
13While the LTB has concurrent jurisdiction with this Tribunal to apply the Code, it does not have the same overall jurisdiction. For example, and as the applicant has noted, the LTB and the Tribunal have the jurisdiction to award different remedies. The Tribunal does not have jurisdiction to evict a residential tenant for non-payment of rent, a remedy within the exclusive jurisdiction of the LTB. Meanwhile, the LTB does not have jurisdiction to award compensation for injury to dignity, feelings and self-respect as a result of discrimination, a remedy within the exclusive jurisdiction of the Tribunal.
14The applicant essentially agrees that the substance of the issues dealt with by the LTB decision is in large part the same as the substance of the issues in the Application before this Tribunal. The only difference in the substance of the issues that the applicant submits is that the LTB decision did not deal with the remedy requested under the Application, namely, monetary compensation in the amount of $5,000,000 to $10,000,000.
15I disagree with the applicant. The fact that the LTB did not have jurisdiction to award the same damages that this Tribunal has the power to award if discrimination was found does not alter the fact that the legal issues or substance of the issues were essentially the same in both proceedings. The Tribunal has previously held that if the LTB dealt with the same facts and issues which form the basis of the Application, despite whether or not the LTB articulated its findings, the Application has been appropriately and fully dealt with by the LTB. See Benstead v. Niagara Regional Housing, 2012 HRTO 1557 at para. 21.
16In addition to the above-mentioned considerations, Penner requires the Tribunal to consider whether it would be unfair for the proceeding before the LTB to preclude the applicant from bringing the Application to the Tribunal. I do not agree that the differences in remedial jurisdiction between different tribunals make it unfair to preclude an application to this Tribunal when another tribunal has squarely dealt with substantially the same facts and issues.
17When 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, the decision will not only be final, it will be treated as such by other adjudicative bodies.
18I find that section 45.1 of the Code applies as the LTB decision has appropriately dealt with the substance of the Application. I find this to be the case despite the fact that the LTB did not have the same remedial jurisdiction as this Tribunal. See Plummer v. Workplace Safety and Insurance Board, 2017 HRTO 1134.
order
19The Application is dismissed pursuant to Section 45.1 of the Code.
Dated at Toronto, this 17th day of October, 2017.
“Signed by”
Keith Brennenstuhl
Vice-chair