Halton Condominium Corporation No. 59 v. Howard. (Ontario Superior Court of Justice)

This is another dispute between a condominium corporation and an owner related to the use of the owner’s units.  [The owner’s four units contain 17 tenants.  The condominium corporation asserts that the owner is renting by the room, in effect operating boarding houses in contravention of the corporation’s declaration.  The declaration states that the units can be used only as private single-family residences.] 

The owner has made application to the Human Rights Tribunal, seeking an Order that the declaration (or the corporation’s enforcement of the declaration) contravenes the Ontario Human Rights Code.  The corporation, in turn, has applied for the appointment of an arbitrator to deal with the dispute under Section 132 of the Condominium Act, 1998.  The owner then moved for a stay or dismissal of the corporation’s application on the ground that the Human Rights proceeding takes priority. 

The Court refused to stay the corporation’s application for appointment of an arbitrator.  The Court said: 

•  This is not the first time that a litigant has sought to stay an action pending a proceeding before a human rights tribunal.
• Where, as here, the parties do not agree on which forum should decide the case, the courts have examined the timing of commencement of the respective proceedings, the subject-matter, the jurisdiction of the respective bodies and the procedural consequences to the parties of proceeding in one forum or the other.
• Section 132 of the Condominium Act requires any disagreement between the corporation and the owner of a unit to be resolved first by mediation and then by arbitration.
• The respondent cites the primacy of the Human Rights Code over other legislation as provided by s. 47(2) of the Code.
• If the respondent succeeds before the Tribunal, under s. 45.3 of the Code the Tribunal may order the corporation to desist from enforcing the restrictive term, and may make directions with respect to future practices.  If the corporation succeeds before the Tribunal, the Tribunal will have no jurisdiction to order the respondent to comply with the restrictive term.  (The Tribunal can make an order against any party in the proceedings, but only if that party has infringed a right in Part I of the Code.)  On the other hand, if the arbitration proceeds, the arbitrator will have jurisdiction to enforce compliance by the respondent, or to order the corporation to desist from compliance if he or she finds that the term contravenes the Human Rights Code.  I find that it would be prejudicial to the corporation to require it, before continuing arbitration, to submit to a forum in which the respondent pays no costs and risks no adverse finding, and then, if they succeed there, to start all over again.

 [Editorial Note:  The Court also noted that the Human Rights Commission has “pronounced the impugned declaration to be in contravention of the Human Rights Code”.  That issue will be decided, of course, by a Court or by the Human Rights Tribunal.  The Court added, however, that “if the commission, in its discretion, judges that the public interest favours an expeditious resolution of the general question, Part III of the Code gives it various means to pursue this end without involving this particular corporation”.]