Jurisdiction - Re: HRTO - and - LTB

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.”

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[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.