HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darynell Gindil

Applicant

-and-

York Region Standard Condominium Corporation #1253,

Duka Property Management Inc., Authentic Concierge 7 Security

Services Inc. o/a Pillar Security Inc., Gordon Bye, and Erica Gallo

Respondents

A N D B E T W E E N:

Batsheva Gindil

Applicant

-and-

York Region Standard Condominium Corporation #1253,

Duka Property Management Inc., Authentic Concierge 7 Security

Services Inc. o/a Pillar Security Inc., Gordon Bye, and Erica Gallo

Respondents

DECISION

Adjudicator: David Muir

Date: November 15, 2017

Citation: 2017 HRTO 1503

Indexed as: Gindil v. York Region Standard Condominium Corporation #1253

APPEARANCES

Batsheva Gindil and Darynell Gindil, Applicants

Nathan Korenberg, Paralegal

York Region Standard Condominium Corporation #1253, Respondent

Travis Walker, Counsel

Duka Property Management Inc., Respondent

Andrew Hyland, Counsel

Authentic Concierge & Security Services Inc. o/a Pillar Security Inc. and Gordon Bye, Respondents

Subrata Majumdar, Paralegal

Erica Gallo, Respondent

Kirsten Darel, Paralegal

1These are two related Applications filed on November 14, 2016, and January 9, 2017, respectively, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Each of the respondents filed a Response. In its Response, the respondent Duka Property Management Inc. (“Duka”) requested the early dismissal of the Application pursuant to section 45.1 of the Code because it was res judicata and/or an abuse of process.

3The Responses were sent to the applicants on April 11, 2017, and the applicants were directed to respond to the issues raised in the Responses. The applicants did not file a Response to the Request (Form 11) or a Reply (Form 3) addressing the issues raised in the Response of Duka until directed to do so in a Case Assessment Direction (“CAD”) issued on May 12, 2017.

4After reviewing these materials the Tribunal directed that a preliminary hearing be held to determine whether or not all or part of this Application should be dismissed pursuant to section 45.1 of the Code which provides: “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”.

5The preliminary hearing was held by telephone conference call on September 7, 2017. All parties participated. Duka took the lead in making argument with the other respondents adopting its position and arguments. The applicants opposed the request to dismiss.

6For the reasons that follow these Applications are dismissed.

BACKGROUND

7Much of the background to the resolution of the legal issues is not controversial.

8The applicants were tenants of an owner of a unit in a condominium. Duka was the property manager and the other respondents are employees of Duka and a security company and one of its employees.

9Difficulties in the relationship between the applicants and the various respondents arose in early 2015 with complaints by other owners/tenants and competing complaints by the applicants about, primarily, the conduct of the respondents Duka and Authentic Concierge & Security Services Inc. o/a Pillar Security Inc. (“Authentic”) and their employees. Generally the respondents asserted that the applicants were causing disruption for other owner/tenants and causing damage to common areas of the condominium. For their part the applicants allege that the respondents were fabricating these complaints, targeting them and racially profiling them.

10The respondent York Region Standard Condominium Corporation #1253 (“York”) brought a compliance application under the Condominium Act, 1998 S.O., 1998 c. 19 in the Superior Court in December 2015 (Court File no. CV-15-543363). The application under the Condominium Act identified the owners as well as the applicants here as party respondents.

11An ex parte Interim Injunction was issued by Firestone J. on December 23, 2015. The injunction was extended until February 4, 2016 by order of Dunphy J. on December 29, 2015. The applicants did not appear on this occasion but sent a paralegal who did not have standing. The matter was adjourned. In the endorsement the court directed that any responding materials would be filed January 25, 2016 and cross-examinations, if any, completed by January 29, 2016.

12At the next appearance on February 24, 2016 the Court ordered as follows:

[Counsel for the applicants] indicated that [Ms. Gindil] would be “filing evidence which challenged much of the [respondents’] evidence concerning the Tenants’ actions and behaviour. … Counsel for Gindil also raised the possibility that the evidence may warrant a trial of the issue of the damage alleged to have been caused by the tenants [applicants]. Accordingly counsel for the [applicants] requests and adjournment to give counsel the opportunity to review the evidence, prepare responding materials and take instructions.

13Although the respondents here opposed the request to adjourn it was granted subject to a number of orders including the following:

3. The [applicants] shall deliver any affidavit material they intend to rely on by no later than March 14, 2016.

4. The parties should be prepared to advise the court at their attendance on 15 March whether they take the position that the matter should proceed as an application in the ordinary course or whether a trial of issues is required.

14Costs for the adjournment were ordered to be paid by Ms. Gindil.

15Ms. Gindil filed an affidavit but neither applicant participated any further in the compliance proceeding. The proceeding continued as an application on the basis of affidavit materials and attached exhibits.

16The substance of the compliance application was framed by the Court in its Decision dated June 30, 2016 as follows:

This is an application brought under the Condominium Act 1998 ("the Act") by York Region Standard Condominium (YRC) with respect to misconduct committed by Sheva Gindil, and Darynell Gindil, tenants of the other named defendants Seyed Hashemi and Pauline Hashemi who own the property located at Unit 805, 75 North Park Road in Thornhill, Ontario.

The remaining application heard before me this morning concerns the determination of the damages sustained by the corporation in remedying the acts of vandalism committed by the Gindils. Liability under the Act is admitted, however the parties disagree on the monetary amount of the damages to be awarded. The Hashemis also dispute the costs sought by YRC.

17The court’s decision on damages and costs was appealed by the respondent York to the Ontario Court of Appeal which increased both the damages and cost awards.

ANALYSIS AND DECISION

18Section 45.1 of the Code provides 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.

19In Tingling v. College of Psychologists of Ontario, 2017 HRTO 384, I considered the development of the Tribunal’s case law on section 45.1 at paras. 32 to 40:

The Tribunal has had the opportunity to consider the intent and purpose of section 45.1 of the Code on numerous occasions. Section 45.1 is a statutory discretion intended to prevent the re-litigation of disputes that have already been determined. Because it is discretionary it will not always be applied even where the issue before the Tribunal has been raised in another forum.

The discretion granted in section 45.1 includes but is broader than the common law rules intended to prevent re-litigation. See Campbell v. Toronto District School Board, 2008 HRTO 62.

The Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola"), described the purpose of essentially the same statutory language contained in section 27(1)(f) of the British Columbia Human Rights Code at paras 24 and 25:

On judicial review of the Tribunal’s decision, Pitfield J. concluded that the Tribunal’s refusal to dismiss the complaint was patently unreasonable. In his view, s. 27(1)(f) is the statutory mechanism through which the Tribunal can prevent conflicting decisions arising from the same issues. This flows from the concurrent jurisdiction exercised over the Code by the Tribunal and other tribunals. While s. 27(1)(f) does not call for a strict application of the doctrines of issue estoppel, collateral attack, or abuse of process, the principles underlying all three of these doctrines are “factors of primary importance that must be taken into account when exercising discretion under s. 27(1)(f) of the Human Rights Code to proceed, or to refrain from proceeding, with the hearing of a complaint” (para. 31).

I agree with Pitfield J.’s conclusion that s. 27(1)(f) is the statutory reflection of the collective principles underlying those doctrines, doctrines used by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. They are vibrant principles in the civil law as well (Civil Code of Québec, S.Q. 1991, c. 64, art. 2848; Boucher v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Rocois Construction Inc. v. Québec Ready Mix Inc., 1990 CanLII 74 (SCC), [1990] 2 S.C.R. 440, at p. 448). (Emphasis added)

And at paragraph 34 to 36, the Court after reviewing some of the underlying legal rules captured in a provision like section 45.1 of the Code, held as follows:

At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).

• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).

• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72).

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51). These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.

The Court also concluded that the discretion granted in a section like section 45.1 while it included the principles underlying the common law rules against duplicative litigation should not be applied in a technical way:

Read as a whole, s.27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.

Finally the Court held that in exercising this discretion a Tribunal should ask itself the following questions:

a. whether there was concurrent jurisdiction to decide human rights issues;

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

c. and 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, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.

d. Ultimately whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

In a subsequent decision, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) the Court clarified that there will be circumstances where a prior determination will not prevent a party from pursuing what might appear to be the same issue in a second proceeding. The Tribunal described Penner and its impact on the discretion in section 45.1 in the following terms in Claybourn v. Toronto Police Services Board, 2016 HRTO 1298 (“Claybourn”) at para 2:

In Penner… the Supreme Court held in an analogous situation, applying the common law doctrine of issue estoppel, that it would be unfair to preclude a public complainant from pursuing a subsequent civil claim because of the findings in the Ontario police officer discipline process. In our view, the appropriate interpretation of s. 45.1 does not permit the dismissal of a human rights application when this would lead to unfairness, given the nature of the other process and the difference in the issues at stake in that process. In light of the guidance of the Court about the unfairness that would result from dismissing a human rights application based on previous police disciplinary proceedings, these Applications must proceed.

20In this case, it is not asserted by the respondent Duka that the issues raised by it in the compliance proceeding were framed as human rights or Code issues. The respondent argues, correctly in my view, that this case is in the category of section 45.1 cases where the facts found in the other proceeding remove the factual foundation or the substance of Application. That is, that the facts as found in the other proceeding make it impossible for the applicant to advance their dispute as a human rights case unless the Tribunal permits the re-litigation of those facts. See Qiu v. Regional Municipality of York Police Services Board, 2009 HRTO 2187; Grigoryev v Srar Lee Foodservice Ltd., 2014 HRTO 622 and more recently in Levkivska v. Peel Condominium Corporation No. 231, 2016 HRTO 270 at paras. 25 and 26:

… In my view, this factor is better expressed in the context of the Ontario Code by asking whether the “substance” of the Court proceedings was essentially the same as the “substance” of the Application before this Tribunal, rather than narrowing the analysis to solely considering whether the “legal issue” in these two proceedings was essentially the same.

I say this in light of this Tribunal’s case law holding that, where the factual underpinnings of the allegations in the human rights Application are the same as the allegations raised in the other proceeding and where these factual underpinnings form a necessary component of establishing the alleged violations of the Code, this Tribunal will regard the “substance” of the human rights Application to be essentially the same as the “substance” of the other proceeding: see Qiu v. Neilson, 2009 HRTO 2187 at paras. 35 to 39; Paterno v. Salvation Army, 2011 HRTO 2298; Reid v. Advantage Personnel Ltd., 2012 HRTO 1742; V.N. v. Bartlett, 2012 HRTO 1947; Carrier v. National Capital Region YMCA-YWCA, 2014 HRTO 1106; Law v. Noonan, 2013 HRTO 437; Griffith v. Hurst, 2013 HRTO 367; Clarke v. Kingdom Hotel Toronto Ltd., 2013 HRTO 2002; Hillier v. Benteler Automotive Canada Corporation, 2013 HRTO 655; Benstead v. Niagara Regional Housing, 2012 HRTO 1557; Acosta v. Far Horizons Inc., 2012 HRTO 1478; Caron v. Lakeside Plastics Limited, 2014 HRTO 958; Schildt v. POINTTS Advisory Limited, 2014 HRTO 893. (Emphasis added)

21In my view, the substance of these Applications has been addressed by the Decision of the Superior Court. I agree with the respondent that the applicants raised the allegations that form the substance of these Applications in response to the claims of the respondent York in the compliance application. In a sense the two proceedings are mirror images of each other. In the compliance application the respondent alleged that the applicants were causing disturbance to other occupants, vandalizing property, etc. to which the applicants responded in that proceeding with allegations of harassment, racial profiling, and discrimination. In the current Applications before me, on the other hand the applicants allege racial profiling, discrimination and harassment and that the allegations of vandalism, etc. were informed in whole or in part by the applicants’ personal characteristics, in this case race and colour. The respondents all respond to the effect that their allegations of vandalism and other misconduct are well founded and not informed by the applicants’ race or colour. In my view the substance of the two proceedings are essentially the same and in my view the substance of this Application was has been addressed in the compliance proceeding.

22I have also considered whether the factors in Penner figure in the analysis and in my view they do not. The applicants were respondents in that proceeding and had a substantial stake in it. They chose not to participate after initially indicating that they would. There is in my view no unfairness in their being bound by the result of that litigation.

23The applicant argued that the issues raised in the Applications were not addressed by the court because of the applicant’s limited participation in that proceeding. To the extent that this true is because the liability of the respondents in the compliance application, including the applicants here, was conceded. The applicants, although Ms. Gindil filed an affidavit, had an opportunity to participate but chose not to in challenging the allegations of the respondent Duka and accordingly the Court did not have to adjudicate the facts with respect to liability per se dealing only with the damages caused by the applicants.

24I agree with the respondents that these Applications are an abuse of process and accordingly the Applications must be dismissed. The factual and legal issues raises in this case were included in the substance of the compliance application. The applicants were given every opportunity to raise their human rights issues before the and indeed did so including their filing an affidavit laying out their claims, but chose to abandon their challenge to the respondents allegations resulting in a finding that the respondents allegations of misconduct by the applicants here were well founded. It would be wholly inappropriate and an abuse of process to allow the applicant to now challenge the findings of the Court.

25The applicant also argued that as only Duka had requested the early dismissal of the Applications they can proceed against the other respondents. The applicant also argued that the court proceeding was brought by York and therefore the other parties here not being parties to that proceeding cannot hide behind the court’s Decision. I do not agree on either point. If the substance of the Application has been determined, in my view, it has been determined. Figliola makes clear that the question is whether the substance of a claim has been addressed not who the parties were. It is enough that the applicants here knew what the issues were and that they had an opportunity to address them in the other proceeding. For the reasons discussed above both parts of the test have been met here. I would also agree with Duka that in the circumstances of this case the respondents are all privies of York in that in the context of these circumstances were its agents.

26For all of these reasons these Applications are dismissed because they are an abuse of process.