Litigants May Only Have One Kick at the Can!

By: Francesco Deo
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The case of Sajadi v. MTCC 648, 2019 HRTO 641, is a good reminder that parties may only have one kick at the can when litigating human rights issues.
A dispute arose when a condominium corporation discovered that a unit owner was running a daycare business out of her unit, which was prohibited under the condominium corporation’s declaration. As a result, the condominium corporation brought the dispute to mediation and arbitration under the Condominium Act, 1998 (the “Condominium Act”).
Mediation with the unit owner failed, and so the dispute proceeded to arbitration. In the arbitration, the arbitrator dismissed the unit owner’s claims of discrimination, and ordered the unit owner to stop using her unit (and the common elements) to operate a daycare business.
Subsequently, the unit owner initiated a Human Rights application (the “HR application”) against the condominium corporation, alleging that she had experienced adverse treatment on the basis of her place of origin and family status.
The condominium corporation’s response was that the HR application should be dismissed, because another proceeding, an arbitration under the Condominium Act, had already dealt with the substance of the unit owner’s HR application.

The Human Rights Tribunal dismissed the unit owner’s HR application on that basis.
Here are three quick takeaways from that case:

1. The Human Rights Tribunal is not the only place where human rights issues (i.e. disputes involving the Human Rights Code) can be heard.
   
   Arbitrators hearing disputes under the Condominium Act, also have jurisdiction to decide on human rights issues.
   
   
2. Under section 45.1 of the Human Rights Code (the “Code”), the Human Rights Tribunal has the power to dismiss an application, if another “proceeding” has appropriately dealt with the substance of that application. An arbitration held under the Condominium Act is a “proceeding” covered within the meaning of section 45.1 of the Code.
   
   Therefore, a human rights issue that has already been decided by an arbitrator under the Condominium Act, cannot be re-heard or re-litigated in the Human Rights Tribunal.
   
   
3. The law recognizes that litigation must bring finality to an issue. The law requires parties to put their best foot forward when called upon to do so.
   
   If you are unsuccessful with respect to a human rights complaint in an arbitration or court proceeding - the Human Rights Tribunal cannot then be used as a second kick at the can.