Lewis v. Markham Stouffville Hospital, 2009 HRTO 188

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Lewis

Applicant

-and-

Markham Stouffville Hospital, Barb Bitter, Helen Couperthwaite, Sharon Moore and Jennifer Wellman

Respondents

A N D B E T W E E N:

Elizabeth Lewis

Applicant

-and-

Markham Stouffville Hospital, Lakeridge Health Corporation,

CSH Wynfield LTC Inc., Barb Bitter, Anne Kennie, Sharon Moore,

Jennifer Wellman, Caterina Colangeli and Sandra Kuchmak

Respondents

INTERIM decision

Adjudicator: Sherry Liang

Date: February 23, 2009

Citation: 2009 HRTO 188

Indexed as: Lewis v. Markham Stouffville Hospital

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). Tribunal File 2009-01146-I (“the section 34 Application”) is an Application filed on January 15, 2009 under section 34 of Part IV of the Code. It is accompanied by a Request to Expedite. The applicant also filed a Request for Interim Remedy in connection with this Application on January 26. All have been served on the respondents, who have had an opportunity to respond to the Request to Expedite and Request for Interim Remedy.

2Tribunal File T-0465-08 (“the transition Application”) is a complaint originally filed with the Ontario Human Rights Commission (OHRC). This was brought before the Tribunal on November 10, 2008 through an Application made under section 53(3) of the Code (the transition provisions).

3The purpose of this Interim Decision is to deal with the applicant’s Request to Expedite the section 34 Application, her Request for an Interim Remedy in that Application, and her request to consolidate the two Applications.

4Since both Applications contain a request to consolidate, I will deal with those requests together in this Interim Decision. For reasons given below, I have decided not to consolidate them or join them for hearing.

BACKGROUND

5The applicant is currently on maternity leave from part-time positions with two of the respondents, the Markham Stouffville Hospital (MSH) and CSH Wynfield LTC Inc. (Wynfield). Her leave began in November 2007, and she gave birth in February 2008. While on maternity leave, the applicant applied for a position with the third corporate respondent, the Lakeridge Health Corporation (LHC), but was not offered employment.

6In December 2007, the applicant filed a complaint with the OHRC against the MSH and four individual respondents, relating to events occurring before the applicant’s maternity leave. As indicated above, this matter is now before the Tribunal as the transition Application.

7In the section 34 Application, the applicant claims essentially that as a reprisal for filing her prior complaint, the three corporate respondents and six individual respondents (some of whom are also respondents in the other matter) have acted to deny her opportunities for employment. This Application relates to events occurring during the applicant’s maternity leave.

8Against the MSH, the applicant alleges that while she was on maternity leave, the MSH failed to keep her informed of opportunities for full-time employment. She also alleges that by failing to provide a timely reference when she was pursuing a job opportunity with the LHC, the MSH is responsible for her loss of a job opportunity with the LHC. The applicant also makes allegations about the treatment of another pregnant employee at the MSH, about the failure of the MSH to give the applicant timely notice of a union certification vote (she was given a day’s notice and was ultimately able to attend for the vote), and about comments made about her in the workplace during her leave.

9The applicant alleges that Wynfield is also responsible for her loss of a job opportunity with the LHC through failing to provide a reference.

10The applicant asserts that the LHC wrongfully refused to offer her a position.

11The applicant claims that the actions of the respondents as described above are a reprisal against her for filing her prior human rights complaint against the MSH and/or, in the case of some allegations, constitute discrimination on the basis of sex and pregnancy.

12In the transition Application, the Tribunal has issued two Interim Decisions. In the first (2008 HRTO 323), the Tribunal noted the applicant’s refusal to participate in mediation, and directed that a Case Resolution Conference be scheduled. That Case Resolution Conference is now scheduled for March 30 and 31, 2009. In the second Interim Decision, the Tribunal denied the applicant’s request for an interim remedy that the MSH pay her wages on a full-time basis beginning January 12, 2009, pending the resolution of her Application.

13The applicant has renewed her request for the same interim remedy, within the context of her second Application.

THE REQUEST FOR AN INTERIM REMEDY IN THE SECTION 34 APPLICATION

14The Tribunal’s Rules of Procedure govern applications made under Part IV of the Code. Rules 23.2 and 23.3, relating to requests for interim remedies, state:

23.2 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.

23.3 A Request for an Interim Remedy must include:

a) a detailed description of the order sought;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and

c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

15A few notable features of the above provisions are:

• They make it clear that an interim remedy is a discretionary measure
• They require that a Request for an Interim Remedy be accompanied by specific supporting material.

16In this matter, the applicant has filed a Request for an Interim Remedy in Form 16, as required. She has made submissions as to why she believes the Tribunal ought to grant the interim remedy requested. She has not, however, filed the type of declaration required by Rule 23.3. Rather, she relies on a Statement of Facts accompanying her main Application, and provides the following unsigned statement:

Sworn Declaration:

I, Elizabeth May Lewis, declare and certify under penalty of perjury that all statements provided/submitted to date to the Tribunal are true and correct. Executed on January 7, 2009.

Elizabeth Lewis

17The Statement of Facts contains some facts that appear to be drawn from first-hand knowledge, but as well, argument about factual and legal conclusions, hearsay, and the applicant’s opinions and assessments.

18In Chopra v. Kratiuk (2009 HRTO 109), the Tribunal explained the rationale for requiring strict compliance with the requirements to file the material described in Rule 23.3:

….In a request for interim remedies, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions, before the merits of the Application has been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies.

[12] There will be cases where such an extraordinary step is justified. However, it should not be taken without the proper evidentiary and legal foundation, part of which is reflected in the materials an applicant must file under Rule 23.

19In Chopra, the Tribunal denied the Request for Interim Remedies on the basis that the material filed did not provide a proper foundation for the Tribunal to consider the request. The Request at hand suffers from similar deficiencies. An applicant asking the Tribunal for an extraordinary discretionary remedy must provide proper supporting material. The requirement to submit signed declarations based on first-hand knowledge is critical.

20In this case, after considering the criteria in Rule 23.2, I find additional reasons why this is not an appropriate case to exercise my discretion to grant an interim remedy.

21I do not have to come to a firm conclusion as to whether the Application “appears to have merit”. I leave it to another case to discuss the appropriate meaning of that phrase in deciding a request for an interim remedy. My determination is that, regardless, the balance of harm or convenience does not favour granting the interim remedy requested, and it would not be just and appropriate to do so.

22The interim remedy the applicant seeks is that one of the respondents be required to immediately begin paying her wages based on full-time employment. Further, the applicant has suggested that she does not wish to continue to work for this respondent. In her Request, the applicant asserts that she will be unemployed and have no income if her Request is not granted. She also asserts that she will suffer mental and emotional harm.

23It should also be noted that both of the applicant’s employers have indicated that she has the right to return to work at the end of her maternity leave. The applicant describes herself as still employed, although some of her statements express an intention not to return to work. Elsewhere, though, the applicant states that she intends to return to work at Wynfield after her maternity leave. The applicant, however, also states that she refuses to work with employers who will not abide by the Code and that she is left without a place to work that “will be safe and free from discrimination and harassment”.

24I have reviewed the allegations in the Application, as described above. Given the nature of the allegations, and even assuming they can be proven, I see no reason why the applicant cannot continue to work while her Application is being determined. The material before me does not establish a basis for concluding that she cannot return to work pending the determination of her Application. There is no dispute that the applicant has the right to return to work following her maternity leave. The applicant’s expressed intention not to return to work does not provide a basis for the extraordinary relief requested. Her assertions about mental and emotional harm are not supported by objective evidence, and are no different from the potential impact any applicant might assert in the face of allegations of discrimination or reprisal. This is not the type of case where I could conclude that the workplace is so poisoned that it would be unreasonable or unhealthy for the applicant to return to work.

25In the circumstances, it is also not the type of case where an interim remedy is required to ensure that effective relief is still available to the applicant at the conclusion of the proceeding.

26The interim remedy requested would require the respondent to incur a new and different type of financial obligation to the applicant, going significantly beyond any existing relationship between the parties. The applicant wishes one of the respondents, with whom she is employed part-time, to pay her wages based on full-time employment, while her claim against all three respondents is determined. Where such an intrusive measure is requested, the Tribunal must carefully consider whether there is a basis for intervention.

27This is particularly so given that the Tribunal has not developed a practice requiring an applicant for interim relief to give an undertaking to repay a respondent, should the main Application ultimately fail. If the Tribunal orders interim relief against a respondent whose position is ultimately vindicated at the conclusion of the case, the respondent may have no way of being repaid for any damages it incurred from the interim remedy. This is different from the courts, where an undertaking (or sometimes even the posting of a bond) is required as a condition of obtaining interim remedies (referred to in the courts as “interlocutory injunctions”). The absence of this kind of assurance suggests a need for caution in granting an interim remedy.

28Having regard to all of the above, I find that the balance of convenience does not favour granting the interim remedy. I am also not convinced that it would be just and appropriate in the circumstances to do so.

29Finally, I note that in her Request for an Interim Remedy, the applicant refers to her “pre-existing application”. She appears to rely on the allegations made in the transition Application in support of the Request made in her section 34 Application. Given that I deny her request to consolidate the Applications, below, I do not find it appropriate to consider those allegations in arriving at my decision on an interim remedy.

30The Request for an Interim Remedy is therefore dismissed.

Request to Expedite and Consolidate Applications

31The applicant has requested that the two Applications be consolidated so that they may be dealt with together at the Case Resolution Conference on March 30 and 31.

32She submits that the facts and evidence in the Applications are inter-related, and that the parties and witnesses are relatively similar, except for the addition of other respondents. She states that the conduct of the respondents has placed herself and her children in a disadvantaged position, that her mental health and coping mechanism is further compromised, as well as her ability to continue obtaining mental health services as a result of financial strain.

33All of the respondents oppose consolidation of the two matters. However, LSH proposes that the allegations in the section 34 Application as against MSH only be joined to the transition Application. MSH opposes this suggestion.

34Some aspects of the Applications favour dealing with them together. The fact that the applicant alleges reprisals arising out of having filed her prior complaint supports having all of her claims heard together. Allegations of reprisal often form part of a continuum of events with allegations of discrimination under the Code. The evidence on the reprisal allegations may overlap with the other evidence such that the most fair, just and expeditious manner of proceeding is to have the issues dealt with together.

35In this case, however, other factors weigh against consolidation. Four of the respondents to one Application are strangers to the other Application, and would be required to devote time and resources to participate in a proceeding much of which does not concern them.

36Although there may be some overlap in the evidence required in the two Applications, the overlap is not significant. There is no dispute that the applicant filed a human rights complaint. The issues in the section 34 Application relate to events said to be a reprisal for filing that complaint. The events covered by this later Application occurred in a different time period from the earlier Application, during the applicant’s maternity leave, and involve additional respondents and witnesses.

37Consolidation of the two Applications in the manner proposed by the applicant would require expediting the processing of the section 34 Application, including abridging applicable timelines, in order to proceed with the Case Resolution Conference on March 30 and 31. In the section 34 Application, the respondents have until March 5 to file Responses, followed by the applicant’s Reply. Following that, the Rules provide the parties with time to prepare and deliver the material required for the hearing in the Application. All of these steps would require adjustment.

38Expedition of an application is available where the circumstances “require an urgent resolution of the issues in dispute.” [see Rule 21.1] When requesting an expedited proceeding, “the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.” [see Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, 2008 HRTO 53]. Although I recognize that the applicant expresses a pressing need to have the issues in her Application determined, the circumstances are not so particularly urgent as to distinguish this Application from other cases before the Tribunal.

38In another case, it might be appropriate to vary the Tribunal’s process, such as by abridging time lines, so that an application may be joined to a process already underway for dealing with a related application. In this case, however, there is no compelling reason to expedite the section 34 Application and, on balance, no compelling reason why the two should be dealt with together. Finally, I see no reason to separate part of the section 34 Application, as suggested by LSH, so that it can be dealt with together with the transition Application.