Jurisdiction - Re: HRTO - and - LTB

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Date Retrieved:	2024-04-23
CLNP Page ID:	1186
Page Categories:	[Jurisdiction], [Human Rights]
Citation:	Jurisdiction - Re: HRTO - and - LTB, CLNP 1186, <https://rvt.link/8k>, retrieved on 2024-04-23
Editor:	Sharvey
Last Updated:	2024/01/24

Campbell v. Toronto Community Housing, 2017 HRTO 1369 (CanLII)

[13] While 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.

[14] The 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.

[15] I 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.

Residential Tenancies Act, 2006, S.O. 2006, c. 17

31 (1) If the Board determines that a landlord, a superintendent or an agent of a landlord has done one or more of the activities set out in paragraphs 2 to 6 of subsection 29 (1), the Board may,

(a)  order that the landlord, superintendent or agent may not engage in any further activities listed in those paragraphs against any of the tenants in the residential complex;

(b)  order that the landlord, superintendent or agent pay a specified sum to the tenant for,

(i)  the reasonable costs that the tenant has incurred or will incur in repairing or, where repairing is not reasonable, replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs, and

(ii)  other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord, superintendent or agent having engaged in one or more of the activities listed in those paragraphs;

(c)  order an abatement of rent;

(d)  order that the landlord pay to the Board an administrative fine not exceeding the greater of $10,000 and the monetary jurisdiction of the Small Claims Court;

(e)  order that the tenancy be terminated;

(f)  make any other order that it considers appropriate.  2006, c. 17, s. 31 (1).

Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 SCR 513

22 I should emphasize at this point that, for an applicant whose application for income support is still denied after the internal review, the SBT is a forum that cannot easily be avoided. It is the SBT that is empowered by the legislature to decide income support appeals binding on the Director: s. 26(3). Given the existence of an appeal to the SBT, it is not at all clear that an applicant could seek judicial review of the Director’s decision without first arguing before the SBT: see Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at paras. 32-38, 112 and 140-53. And while an applicant who is denied benefits for discriminatory reasons may indeed seek recourse through the OHRC, applicants will not always realize that they are victims of discrimination. For instance, in the present appeal, the letters from the Director to the appellants concerning the initial application and the internal review never mention that the appellants’ alcoholism was being ignored as a potential basis for disability. The appellants were simply told that they were not found to be persons with a disability. The adjudication summaries of the cases raise the issue of alcoholism, but there is no evidence that these documents were appended to the Director’s letters; it would seem they were obtained by the appellants on discovery.

...

40 I therefore conclude that the SBT has jurisdiction to consider the Code. The ODSPA and OWA confirm that the SBT can decide questions of law. It follows that the SBT is presumed to have the jurisdiction to consider the whole law. More specifically, when it decides whether an applicant is eligible for income support, the SBT is presumed able to consider any legal source that might influence its decision on eligibility. In the present appeal, the Code is one such source.

41 There is no indication that the legislature has sought to rebut this presumption. To the contrary, the legislature has announced the primacy of the Code and has given itself clear directions for how this primacy can be eliminated in particular circumstances. The legislature has indeed prohibited the SBT from considering the constitutional validity of enactments, or the vires of regulations, but it did nothing to suggest that the SBT could not consider the Code. I cannot impute to the legislature the intention that the SBT ignore the Code when the legislature did not even follow its own instructions for yielding this result.

42 The ODSPA and OWA do evince a legislative intent to prevent the SBT from looking behind the statutory and regulatory scheme enacted by the legislature and its delegated actors. However, consideration of the Code is not analogous. Far from being used to look behind the legislative scheme, the Code forms part of the legislative scheme. It would be contrary to legislative intention to demand that the SBT ignore it.

...

46 Since the SBT has not been granted the authority to decline jurisdiction, it cannot avoid considering the Code issues in the appellants’ appeals. This is sufficient to decide the appeal.

Dhir v. Maclean, 2015 HRTO 1039 (CanLII)

[1] This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to housing because of disability. A hearing in respect of this Application was held on June 17, 2015 in Toronto. I heard from the applicant and the respondent. I also heard from three other witnesses whose evidence was considered but is of little significance.

[2] At the outset of the hearing the respondent made a preliminary objection to my jurisdiction arguing that this case was in essence a landlord tenant dispute and accordingly the Landlord and Tenant Board (“LTB”) had exclusive jurisdiction to deal with the matter. I heard the submissions of the parties and ruled orally at the hearing that the hearing would proceed. While this case could have been taken to the LTB, I was not persuaded that fact deprived the Tribunal of jurisdiction over the human rights issues raised by the applicant.

[3] The respondent relied on section 168 of the Residential Tenancies Act 2006, S.O. 2006, c. 17 (“RTA”) which provides:

168. (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French.

(2) The Board has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.

[4] If the applicant had tried to bring an Application under the RTA before the Human Rights Tribunal of Ontario (HRTO) I would agree with the respondent. Similarly if the applicant had filed an application under the RTA concurrently with this Application the HRTO would almost certainly have deferred it pursuant to section 45 of the Code and once a decision was made by the LTB considered the human rights application’s dismissal pursuant to section 45.1 of the Code. However the fact is that the applicant did not bring an application under the RTA but chose instead to file this Application.

[5] The fact that the LTB has exclusive over applications made under the RTA is not the same thing as saying that the LTB has exclusive jurisdiction over all disputes that arise between landlords and tenants. To oust the HRTO’s jurisdiction over the disputes arising in the context of a landlord/tenant relationship the RTA would, at minimum, have to contain much more specific language which made it clear that the LTB had exclusive jurisdiction over all disputes between landlords and tenants and not only applications under the RTA. Additionally, section 2 of the Code gives jurisdiction to the HRTO to determine allegations of discrimination with respect to occupancy of accommodation (generally landlord and tenant disputes). In light of the general rule of statutory interpretation that legislation should be read harmoniously, unless there is a direct conflict, that is a further reason for rejecting the interpretation of s. 168 of the RTA as urged by the respondent.

[6] Having made my determination in this case I note that the Tribunal recently wrote on a not-dissimilar issue in Ontario Public Service Employees Union v. Liquor Control Board of Ontario, 2015 HRTO 766 and held that the mere fact that an application could be made under another statute as well as the Code did not deprive the Tribunal of jurisdiction.

Moody v. Sahadeo, 2020 HRTO 389 (CanLII)

[9] This Tribunal adjudicates claims alleging discrimination under the Code. It does not supervise the LTB or its processes, but it has found that hearings before the LTB are proceedings for the purposes of section 45.1. See Verner v. Reginald Langlois, 2011 HRTO 2019. In light of the proceeding before LTB, I must consider whether the LTB “appropriately dealt with the substance of the Application.”

...

[11] The Tribunal has applied the analysis set out in Figliola. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 25. Based on my review of the pleadings in these Applications, the parties’ submissions and the LTB Order, I find that the LTB proceeding did not appropriately deal with the substance of the Applications and I am not exercising my discretion to dismiss the Applications on that basis.

[12] In this case the respondent brought the application to the LTB. The LTB Order dealt with whether the N12 termination Notice was served in good faith and found it was not. This finding was made based on the respondent’s evidence of why he wanted the unit back and the Member’s determination was that it was not served for the purposes of residential or personal use, but to evict his tenant. In making this finding the LTB considered the applicant’s evidence on the change in his relationship with the landlord after his girlfriend moved in. The LTB also considered the respondent’s testimony that he wanted to retire from being a landlord but he owned two other properties and would not be evicting tenants in those properties. The LTB’s main determination is that because of the mandatory provisions contained in section 83(3)(a) of the RTA, and as the landlord was in serious breach of his obligations to maintain a sufficient temperature in the unit, the dismissal of the application is mandatory.

[13] The LTB Order is limited to dismissing the landlord’s application and makes no determinations on the tenant’s Code rights or violations under the Code and no remedy is given to the applicant. Ms. Greenwood was not a party in the LTB proceeding.

[14] Therefore, I find the LTB proceeding did not appropriately deal with the substance of these Applications and I decline to dismiss the Applications pursuant to section 45.1.