HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paula Mahoney
Applicant
-and-
Dawn Clelland
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Mahoney v. Clelland
APPEARANCES
Paula Mahoney, Applicant
Self-represented
Dawn Clelland, Respondent
Self-represented
Introduction
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 dated February 9, 2017, the Tribunal decided to hold a preliminary hearing by conference call to determine whether this Application should be dismissed, in whole or in part, under section 45.1 of the Code on the basis that a proceeding at the Landlord and Tenant Board (the “LTB”) appropriately dealt with the substance of the Application.
3The teleconference call was held on July 14, 2017.
decision
4The Application is dismissed pursuant to section 45.1 of the Code.
background
5The only Code-related allegations raised by the applicant in her Application are as follows:
The applicant was harassed or discriminated against when the respondent landlord evicted her;
“Both the previous and current Landlords applied to the LTB asking for eviction because I smoke marijuana for medical reasons…”.
“Under the Code, housing providers have a duty to accommodate the Code-related needs of tenants, to make sure that the housing they supply is designed to include people identified by Code grounds, and to take steps to remove any barriers that may exist, unless to do so would cause undue hardship.”
6The applicant disputes that the Code-related allegations in this Application have been adjudicated by the LTB.
7In its Review Order, issued after a review hearing of an earlier order of the LTB evicting the applicant, the LTB noted that the tenant “was supported by a human rights advocate at the hearing.”
8The Review Order reads in part:
The Tenant claimed that on the first day she ever met the current landlord, when the Landlord first came to the rental unit, the Landlord said she would evict the Tenant for smoking marijuana. However, the Landlord has not filed an application on those grounds since she assumed ownership of the rental unit in January 2015, and I do not find the Tenant’s bare allegation to be reliable, credible evidence.
I accept that on July 12, 2016, the first scheduled date of the review hearing, the Tenant became aware that the current Landlord may have an issue with her smoking marijuana when an agent of the Landlord provided a copy of the Landlord’s written submissions to be filed at the review hearing.
In the written submission she prepared for the review hearing on July 12, 2016, the Landlord wrote that in the past month, which was well after the Notice of Termination was served, she received a complaint about the Tenant smoking marijuana on the front porch. At the review hearing on August 16, 2016, the Landlord acknowledged that she has an issue with marijuana being smoked inside because it is not good for buildings, and she testified that she has no problem with the Tenant consuming marijuana needed for medical purposes by using a vaporizor (vaping) or in some other form that does not interfere with the other tenants.
Since the potential marijuana issue was first raised by the Landlord after the Notice of Termination was given, and after the termination date in the Notice of Termination had already passed, I do not accept that the Landlord is seeking to evict the Tenant because the Tenant smokes marijuana for medical reasons…
The Tenant testified that she is a person with a disability who receives income support from Ontario Disability Support Program (ODSP) and Canada Pension (CPP). The Tenant testified that as a person with a disability, she cannot afford to move, she has no extra money for moving, moving is stressful and she is on medication for anxiety, depression and stress. The Tenant wanted accommodation under the Human Rights Code and said she has filed a separate application with the Human Rights Tribunal. The Tenant does not want to move out of the rental unit.
The Tenant did not prove that the Landlord has discriminated against her contrary to the Human Rights Code. The Landlord is seeking to terminate the tenancy on a no-fault basis, because she requires possession of the rental unit so her son can use the unit as a residence. The reason for the application [for vacant possession of the unit] has nothing to do with the Tenant’s disability or any other category in subsection 2(1) of the Code.
Interpretation Guideline 17 – Human Rights sets out the following with respect to the tenant’s role in a landlord’s duty to accommodate the tenant as a person with a disability:
If a tenant wants accommodation under the Code, the tenant has a duty to provide the landlord with sufficient information about their needs so that the landlord can determine possible accommodation. The tenant also has a duty to cooperate with the landlord in the development and implementation of the accommodation. If the tenant refuses to cooperate, the landlord can argue it has fulfilled its duty to accommodate.
- I see no reason to depart from the Guideline in this case. The Tenant did not provide evidence that she requested accommodation from the Landlord, or gave the Landlord information about her needs so the Landlord could accommodate her. In fact, the Tenant rejected the Landlord’s attempts to communicate and assist her…I find that the Landlord has fulfilled her duty to accommodate the Tenant.
9In its Review Order the LTB deals with the eviction and the use of medical marijuana and clearly finds that the smoking of medical marijuana was not tied to the eviction of the tenant, that the eviction had nothing to do with the tenant’s disability or any other ground under the Code and that the landlord fulfilled its duty to accommodate.
10In my view, it is clear that the substance of the Application was raised before the LTB and adjudicated there, such that it would be inappropriate for the Tribunal to re-adjudicate the matter here.
analysis
11Section 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.
12The 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 this Tribunal has considered the application of section 45.1 including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, and the cases cited therein.
13The 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 LLP, 2014 HRTO 1757.
14In my view it is appropriate to dismiss this Application pursuant to section 45.1 of the Code.
15There is no question that a proceeding before the LTB is a proceeding within the meaning of the Code. There also can be no dispute that the Code-related issues raised in this Application were also raised before the LTB. The applicant asserts that the LTB did not deal with the human rights allegations, but it is plain on the face of the decision of the LTB that it did.
16Finally, 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 human rights concerns before an adjudicative agency with the authority to provide a remedy and it appears that she did.
17In all of the circumstances, I find that this Application must be dismissed pursuant to section 45.1 of the Code.
18The Application is dismissed.
Dated at Toronto, this 24th day of July, 2017.
“Signed by”
Keith Brennenstuhl
Vice-chair