HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:

Judy Atkinson

Applicant

-and-

Essex Condominium Corp. #5

Respondent

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INTERIM DECISION

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Adjudicator:            Ken Bhattacharjee

Date:                          January 19, 2010

File Number:            2009-02035-I

Citation:                    2010 HRTO 123

Indexed as:              Atkinson v. Essex Condominium Corp. #5

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INTRODUCTION

[1]               The purpose of this Interim Decision is to decide whether it is appropriate for the Tribunal to defer consideration of this Application pending the conclusion of a civil proceeding commenced by the respondent.

BACKGROUND

[2]               The applicant is the owner of a condominium unit in Essex Condominium Corp. #5.  The respondent filed a Notice of Application on August 27, 2008 with the Ontario Superior Court of Justice, which seeks an order against the applicant, pursuant to the Condominium Act, 1998, S.O. 1998, c. 19, to enforce compliance with the respondent’s “no pets” by-law.  Specifically, the respondent is seeking an order directing the applicant to permanently remove her dog from her condominium.

[3]               In her Response to the Notice, the applicant states that she requires her dog to treat her disabilities and enable her to function independently.  She further states that the respondent’s attempt to enforce its “no pets” by-law against her amounts to discrimination based on disability, which is contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

[4]               The applicant also filed an Application with this Tribunal under s. 34 of the Code on March 24, 2009, which alleges that the respondent harassed and discriminated against her because of her disability and subjected her to reprisal with respect to accommodation.  Her main allegation is that the respondent is acting contrary to the Code by attempting to remove her support dog, which she requires to decrease and treat the symptoms of her disabilities, from her condominium.

[5]               The respondent filed a Response on August 21, 2009, which denies the allegations of harassment and discrimination.

[6]               The applicant is not seeking a remedy for violation of her human rights in the civil proceeding.

[7]               The Superior Court Application is scheduled to be heard on February 22, 2010.

[8]               In an Interim Decision, 2009 HRTO 1802 (CanLII), the Tribunal requested written submissions from the parties as to whether the Tribunal should defer consideration of the Application pending the outcome of the civil proceeding.  Both parties filed submissions.

SUBMISSIONS ON DEFERRAL

[9]               The applicant submits that the Application should not be deferred because the civil proceeding only touches on the discrimination issue, and will be looking primarily at whether or not she can keep her support dog.

[10]           The respondent submits that the Application should be deferred because the facts and issues that have been pleaded by the parties in the civil proceeding and the human rights proceeding are identical, which raises the possibility of inconsistent findings of fact or law if the two proceedings occur concurrently.  The respondent further submits that the human rights proceeding is at a less advanced stage than the civil proceeding, and it will therefore be more expeditious and efficient to defer it until the Superior Court Application is decided.

ANALYSIS

[11]           Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party.  The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

[12]           In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404 (CanLII), the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.  However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

[13]           The Supreme Court of Canada has confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims:  Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII).  Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding.  In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding:  Tekes v. Markham (Town), 2009 HRTO 1665 (CanLII) at para. 7.

[14]           In my view, deferral is the most fair, just and expeditious way of proceeding with the Application.  Although the applicant is not seeking a remedy for violation of her human rights in the civil proceeding, both proceedings arise from the same set of facts and her main allegation of discrimination is the same.  The duplication of evidence in two concurrent proceedings, the possibility of inconsistent findings of fact and law, and the fact that the civil proceeding started first and is at a more advanced stage, with a hearing scheduled for February 22, 2010, weighs in favour of deferral.

ORDER

[15]           Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the civil proceeding.

[16]           Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

[17]           I am not seized of this matter.

Dated at Toronto, this 19^th day of January, 2010.

“Signed by”

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Ken Bhattacharjee

Vice-chair