HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Homonay

Applicant

-and-

Workplace Safety and Insurance Board and Phil Wong

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 21, 2009

Citation: 2009 HRTO 1495

Indexed as: Homonay v. Workplace Safety and Insurance Board

WRITTEN SUBMISSIONS BY

Patricia Homonay, Applicant ) Raj Anand, Counsel

Workplace Safety and Insurance Board, Respondent ) William Gale, Counsel

INTRODUCTION

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990 c. H.19, as amended (“the Code”), filed on August 12, 2009, alleges that the respondents discriminated against the applicant in respect of employment on the basis of sex, and engaged in reprisals contrary to the Code.

2This Interim Decision addresses the applicant’s request for an Interim Remedy pursuant to Rule 23 of the Tribunal’s Rules of Procedure. Specifically, by way of interim remedy, the applicant requests the reinstatement of her use of a private office at the premises of the institutional respondent Workplace Safety and Insurance Board (the “WSIB”) so that the applicant may carry out her duties as chief steward of CUPE Local 1750 (“Local 1750” or “the Union”), which represents employees of the respondent employer. The WSIB made a private office available for the applicant’s use as Chief Steward from approximately April 2008 until July 10, 2009, at which time it required her to vacate the office.

BACKGROUND

3According to the materials before the Tribunal, on March 7, 2008, during collective bargaining, another Union representative made a single remark to the applicant, who was then and is now chief steward of Local 1750, which the applicant alleges constituted sexual harassment within the meaning of the Code. The applicant is an employee of the WSIB, as is the other Union representative, although their day-to-day functions involve work on behalf of the Union exclusively. Neither the applicant nor the other Union representative performs any duties on behalf of the WSIB.

4The applicant filed a complaint with the WSIB alleging that the March 7, 2008 comment violated its Code of Business Ethics and its Workplace, Violence Discrimination and Harassment Policy (“the harassment complaint”). The applicant also alleged that she had “safety concerns” arising out of her complaint.

5The WSIB retained an independent investigator to investigate the complaint, who ultimately found that the March 2008 remark was in breach of the policies in question. The investigator found the applicant’s alleged safety concerns to be unfounded. The WSIB imposed discipline for the March 2008 remark but found that no other remedial action was warranted.

6The applicant was not satisfied with the outcome of the investigation into her harassment complaint. She alleges that the respondents violated her rights under the Code by failing to prevent and remedy discrimination against her in the workplace. The applicant also makes a number of broad assertions that she was subject to a “pattern of reprisals” by the individual who made the March 7, 2008 remark; that other Union officers were “complicit”; that she endured a poisoned work environment which the respondents did not remedy; that the respondents failed to accommodate her; and that she had “safety concerns” which were not addressed by the respondents. However, other than the March 7, 2008 incident, the specific allegations against the respondents appear to be:

1. The respondents improperly refused to investigate a March 2009 complaint by the applicant that the Union representative who had made the March 7, 2008 remark breached the respondent’s Code of Business Ethics and the Workplace Violence, Discrimination and Harassment Policy when, at a February 2009 Union meeting, he allegedly discussed the investigation of the applicant’s harassment complaint and disclosure of the confidential investigator’s report by the applicant.

2. The respondents condoned discrimination against the applicant by disciplining her and by threatening further discipline for disclosing the confidential investigator’s report on her harassment complaint, and also by requiring copies of the report to be retrieved and returned.

3. The respondents engaged in a reprisal against the applicant when it directed the applicant’s request about reinstating her use of a private office to the Director of Labour Relations, whom the applicant had earlier suggested was biased because he is a friend of the Union representative who made the March 2008 remark.

THE PRIVATE OFFICE

7The WSIB makes an office available at its premises for the use of Local 1750 representatives and officials, including the chief steward (“the Local 1750 office”).

8At some point in or around April 2008, the WSIB temporarily provided the applicant with the use of a private office from which to carry out her Union duties as chief steward. This was to minimize contact between the applicant and the Union representative who made the March 2008 remark in the face of allegations of safety concerns by the applicant at that time.

9In addition to the private office, the applicant also carried out her union duties from home, other off-site locations, and from time to time, in various meeting rooms and managers’ offices at the WSIB’s premises, when available.

10When the investigator’s final report was released in December 2008, the WSIB advised the applicant that she would be required to vacate the private office. This was because the independent investigator found the applicant’s allegations of “safety concerns” to be unsubstantiated. According to the WSIB, there was no evidence that contact with the Union representative who had made the March 2008 remark threatened the applicant’s health or safety in any way. Further, the WSIB declares that the applicant was observed to have no difficulty when she and the other Union representative were in one another’s presence, which sometimes occurred because of their respective Union roles. The Union representative in question attempted to apologize to the applicant. This also led the WSIB to conclude that the applicant’s alleged safety concerns were unfounded. Based on all of these factors, the WSIB determined that there was no longer any justification for continuing to provide a private office to the applicant for her use as chief steward.

LEGAL TEST AND POSITIONS OF THE PARTIES

11The parties acknowledge that the conditions for awarding an interim remedy are set out in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

12In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal held that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.”

13Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy (TA v. 60 Montclair, supra).

14The applicant submits that the first requirement – that the Application appears to have merit – is a low threshold, which she has met by pleading an arguable case that the respondents violated her rights under the Code. The applicant further submits that the balance of harm or convenience favours granting her the interim remedy she seeks. The applicant submits that any potential harm or inconvenience to the WSIB from being required to set aside one office for her use is negligible when compared to the considerable inconvenience to her of maintaining a “nomadic” work existence if she does not have a private office. The applicant submits that it is fair and appropriate for the Tribunal to grant her Request and restore the status quo that existed prior to July 10, 2009.

15The WSIB opposes the Request for an Interim Remedy and submits that the applicant’s Request fails to meet any of the three criteria set out in Rule 23.2. The respondent submits that the Application is without merit because there are no facts before the Tribunal upon which a reasonable person could conclude that the applicant’s rights under the Code were violated. Moreover, the WSIB submits that the balance of harm or convenience clearly favours it. The WSIB submits that the applicant has not put forward any facts which would allow the Tribunal to conclude that there is any risk of harm to the applicant if her Interim Remedy is not granted. On the other hand, the respondent submits that it requires the private office in question for the purpose of carrying out its mandate as a public body. Finally, the WSIB submits that it would not be just and appropriate to require it to provide a private office to the applicant when there is no basis to conclude that the applicant cannot safely use the Local 1750 office or carry out her duties from other locations as she has done in the past.

DECISION

16Having considered all of the materials before me and the submissions of the parties, I find that the applicant has not established that she is entitled to the interim remedy she seeks. Assuming, without finding, that the Application appears to have merit, I am not satisfied that the balance of convenience favours the interim remedy requested, or that it is just and appropriate in the circumstances to grant it.

17The underlying reason for the applicant’s request is that the applicant’s health or safety is at risk if she is required to interact with the Union representative who made the March 2008 remark. This is the potential harm cited by the applicant if a private office is not provided for her use as chief steward. However, the material before me does not substantiate this assertion. The applicant alleges that the Union representative in question engaged in a pattern of reprisals against her at some point after the March 7, 2008 incident but she provides absolutely no details in support of this allegation. She also alleges that officers of Local 1750 were complicit but she does not say how or provide her reasons for that conclusion. The independent investigation into the applicant’s harassment complaint did not substantiate the applicant’s safety concerns. In sum, while I do not doubt that having the use of a private office might reduce the level of the applicant’s discomfort in the situation, I am not satisfied that it is required in order to prevent any ongoing risk of harm to the applicant such that interim relief is appropriate.

18Further, there are other physical locations from which the applicant may carry out her duties as chief steward, if she does not have access to a private office or if she chooses not to avail herself of the Local 1750 office. The material before me does not suggest that the applicant could not carry out her duties as chief steward if her use of a private office at the WSIB’s premises is not reinstated. On the other hand, the WSIB has declared that it requires the office for its own use. If it were required to provide a private office to the applicant, it would be unable to use an office that would otherwise be available for the conduct of its operations, pending the conclusion of this proceeding. In all these circumstances, I am not satisfied that the applicant has met the onus of demonstrating that the balance of harm or convenience weighs in favour of granting this Request.

19Also, I am not satisfied that it is just and appropriate to grant the interim remedy sought. It is not apparent to me that the interim remedy sought is necessary to the Tribunal’s ability to grant an effective remedy at the conclusion of the proceedings, if liability is established.

ORDER

20The applicant’s Request for an Interim Remedy is dismissed.

21I am not seized of this matter.