Jacob v. Toronto Community Housing Corporation, 2017 HRTO 1449

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lore Jacob

Applicant

-and-

Toronto Community Housing Corporation

Respondent

INTERIM DECISION

Adjudicator: Yasmeena Mohamed

Date: November 2, 2017

Citation: 2017 HRTO 1449

Indexed as: Jacob v. Toronto Community Housing Corporation

APPEARANCES

Lore Jacob, Applicant

Self-represented

Toronto Community Housing Corporation, Respondent

Debbessha Morris, Paralegal

Introduction

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), and alleging discrimination with respect to housing because of disability.

2On August 14, 2017, the Tribunal held a preliminary hearing to determine the following issues:

a. 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, and

b. whether the Application should be amended to include additional allegations.

Factual Background

3The applicant is a tenant at the respondent’s residential complex. The applicant alleges that she is a person with a disability that is sensitive to scents and fragrances and in particular to scented cleaning products.

4On June 3, 2015, the applicant filed an application with the Landlord and Tenant Board (“LTB”), under file number TST-63538-15 (“LTB application”), alleging that the respondent interfered with the reasonable use and enjoyment of her residential unit by using strong and toxic chemical cleaning products in the residential complex. The applicant alleged that the scent from the chemical cleaning products made her ill.

5On September 23, 2015, the LTB application was mediated by an assigned LTB Mediator and the parties reached a mediated agreement. The mediated agreement essentially obligated the respondent to refrain from using any scented cleaning products in the residential complex.

6On June 17, 2016, approximately one year later, the applicant alleged that she smelled a strong chemical scent emanating from the garbage chute area which lingered for several days on her residential unit floor and other floors (the “garbage chute incident”). The applicant alleged that the scent from the garbage chute area exacerbated her disability and made her ill.

7On June 22, 2016, the applicant filed a request to the LTB to re-open her LTB application (“LTB Request”). In her LTB Request, the applicant alleged that the garbage chute incident breached the mediated agreement. In addition, the applicant alleged that the respondent used scented chemical cleaning products in the foyer and stairwell areas of the residential complex on the following days: December 14, 18, 22 and 28 2015, and January 16 and June 20, 2016.

8On July 18, 2016, approximately a month after filling the LTB Request, the applicant filed this Application alleging that the garbage chute incident breached the Code. The applicant noted in her Application that it was specifically filed in response to the garbage chute incident only.

9On October 3, 2016, the applicant’s LTB Request was heard and adjudicated by a Member of the LTB. On October 4, 2016, the Member of the LTB issued a decision (the “LTB Decision”) dismissing the applicant’s LTB Request on the grounds that the applicant lacked the evidence to substantiate her claim that the respondent had breached the mediated agreement..

10On November 4, 2016, the applicant filed a Request for an Order During Proceedings (Form 10), requesting that the Tribunal amend the Application to include the following allegations:

a. the respondent used toxic paint on the landing of stairwell A, on December 15, 2015 and she became ill as a result thereof;

b. the paralegal who represented the respondent at the LTB hearing on August 18, 2016, intimidated and harassed the applicant at the LTB hearing venue on August 18, 2016,

c. the respondent lied about not using scented products on June 16 and 17, 2016 at the October 3, 2016 hearing. The paralegal also notified the applicant that the respondent will continue using scented products;

d. the respondent refused to give her a key to stairwell B, without compelling her to sign a waiver of liability;

e. The respondent used a strong soapy concentrated lemon scent on October 30, 2016 that lingered in the stairwell A area and the applicant became ill as a result thereof; and

f. The superintendent of the residential complex gives her scornful looks because of her demand for a scent free environment.

11The respondent did not respond to the applicant’s Form 10 within the timeframe set out in the Tribunal’s Rules of Procedure.

12Since the parties had agreed to mediation, the Tribunal advised the parties that it would only consider the applicant’s Form 10 if the parties did not agree to a settlement in mediation.

13The mediation was unsuccessful. The Tribunal advised the applicant that it would address her Form 10 in the preliminary hearing dealing with the s. 45. 1 issue.

parties’ submissions – Section 45.1

14The issue to be addressed is whether the LTB proceeding has appropriately dealt with the substance of the Application.

15The respondent argues that the LTB proceeding appropriately dealt with the substance of the Application, including the new allegations the applicant now seeks to include in the Application by way of an amendment to the Application. The respondent alleges that the garbage chute incident is the substance of the Application and it was specifically dealt with in the LTB Decision. The respondent alleges that the garbage chute incident was considered, adjudicated and a determination was made by the Member of the LTB, and therefore appropriately dealt with by the LTB proceeding. The respondent argues that the applicant had the opportunity to present her case fully before the LTB and the Application appears to be an attempt to appeal the LTB decision. The applicant had a right to appeal the LTB decision but failed to avail herself of that process.

16The applicant submitted that the LTB Request refers to a breach of the mediated agreement between the parties. The Application refers to a breach of the Code and therefore differs from the LTB Request.

analysis and decision

Re: Section 45.1

17The first question is 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.

18Section 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.

19In 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”).

20According 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:

1. 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;

2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and

3. whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

21It 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.

22I turn now to the three criteria outlined above.

23The first question is whether the applicant had the opportunity to know the case to be met at the LTB and had the chance to meet it.

24A review of the LTB Decision indicates that applicant had the opportunity to present detailed evidence and make submissions concerning her various issues and allegations of a breach of the mediated agreement. I therefore find that the applicant knew the case she had to meet before the LTB and had a full opportunity to meet it.

25The second question is whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal.

26The LTB addressed the issues of whether the respondent failed to provide a scent free environment for the applicant, in particular in the garbage chute area. The LTB Member heard the evidence and submissions of the parties on this issue and dismissed the applicant’s allegations against the respondent. The Member held at pg. 1

Determination:

1. In her request to re-open this application and at the hearing the Tenant alleges that the Landlords breached the mediated settlement dated September 23, 2015, by causing a garbage chute to be cleaned with scented cleaner. At the hearing the Landlords’ representative denied that the Landlords breached the mediated agreement.

2. At the hearing the tenant submitted no evidence that it was the Landlords or an agent of the Landlords who caused the garbage chute to have a strong smell.

3. Given the Tenant’s lack of evidence, I am not satisfied, on a balance of probabilities, that the Landlords breached the mediated settlement by causing the garbage chute to be cleaned with scented cleaner.

4. Accordingly, I find that the Landlords did not breach the mediated agreement.

27The applicant has made the same allegations against the respondent in the Application, with the exception that she alleges the respondent breached the Code in the Application and not the mediated agreement. The applicant has, in her Application, relied upon the same facts relating to the garbage chute incident as she relied upon at the LTB hearing. In addition, the applicant has stated in her Application that it was specifically filed in response to the garbage chute incident that occurred on June 17, 2016. The applicant states:

To whom it may concern;

Kindly accept this chronological outline of the incidents that occurred leading up to June 17th, 2016. I’m submitting this application for this specific date.

28Considering the above, if the Application with respect to this incident were to go forward, this Tribunal would be called upon to consider and adjudicate the garbage chute issue that the LTB considered and adjudicated. This would result in the re-litigation of an issue already considered and resolved.

29Accordingly, I find that the garbage chute issue decided by the LTB is essentially the same legal issue contained in the Application.

30The third question requires the Tribunal to consider whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case.

31In Penner, the court explained the indicators of unfairness. The court held 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.

32I find no unfairness in the LTB process; the parties were provided with proper notice and an opportunity to be heard before an independent board and the parties had a right to appeal the decision of the LTB. I also find that the parties expected the LTB Member to decide whether there was a breach of the settlement term obligating the respondent to keep the residential property scent free and essentially accommodate the applicant’s disability and the parties made submissions to that effect. Accordingly, I find that none of the indicators of unfairness identified in Penner applies here.

33When 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.

34For all of the above reasons, I conclude that the LTB Decision appropriately dealt with the substance of the allegations of improper usage of scented chemical cleaning and paint products prior to and including the garbage chute incident.

35Accordingly, the Application is dismissed in part. All allegations relating to incidents up to and including the garbage chute incident are dismissed on the basis that the LTB proceeding has appropriately dealt with the substance of those allegations.

Amendment

36The second question is whether the applicant should be permitted to amend the Application to add further incidents of alleged discrimination.

37On November 16, 2016, the applicant sought to amend the Application to add the allegations set out in para. 10 above.

38In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

39Having considered the factors set out above, I grant the applicant’s request to amend the Application. The proposed amendments relate to the substance of the applicant’s allegations, namely: the respondent’s use of chemical scented products on the residential premises, the respondent’s failure to accommodate the applicant and the exacerbation of the applicant’s disability as a result. The proposed amendments are timely do not change the nature of the Application. The proposed amendments were not dealt with in the LTB Decision. At least one of the allegations relates to the respondent’s alleged use of scented cleaning products after the LTB hearing.

40In addition, the applicant’s request for the amendment was made early on in the proceeding, shortly after she received the LTB decision and approximately 9 months before the preliminary hearing. The Tribunal did not address her Form 10 before the preliminary hearing was scheduled. In the above circumstances, I find it appropriate to permit the applicant to amend the Application to add the allegations contained in her Form 10.

Order

41For the reasons set out above, the Tribunal orders as follows:

a. the respondent’s request to dismiss is granted in part. The allegations relating to events up to and including the garbage chute incident are dismissed under s. 45.1 of the Code;

b. the applicant’s request to amend the Application is granted;

c. the Application is amended to include the allegations set out in the applicant’s November 4, 2016 Form 10.;

d. the respondent may file an amended Response to the amendments made to the Application within 35 days of the date of this Interim Decision; and,

e. the applicant may file an amended Reply to the amended Response within 14 days of receiving any amended Response.