Bauer v. Toronto Emergency Medical Services, 2009 HRTO 1955

Editor’s Note: Corrigendum released November 24, 2009. Original judgment has been corrected accordingly.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haro Bauer

Applicant

-and-

Toronto Emergency Medical Services

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: November 17, 2009

Citation: 2009 HRTO 1955

Indexed as: Bauer v. Toronto Emergency Medical Services

1The applicant filed an Application with the Tribunal on September 3, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging that he was discriminated against with respect to employment on the basis of creed. The applicant has requested that this Application be expedited, and has requested an interim remedy.

The Request to Expedite

2The basis for the Applicant’s Request to Expedite is that he is undergoing harassment at work and that his health and personal relationships are being affected.

3The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

4In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, 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.

5In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

6In accordance with Rules 5.2 and 21.3 of the Tribunal’s Rules of Procedure, the Tribunal does not require a Response to Request to Expedite from the respondent. Having reviewed the applicant’s materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. The Tribunal has held that stress cited by an applicant does not generally constitute an indication of urgency as compared with other discrimination cases. The Request to Expedite is denied.

The Request for an Interim Remedy

7The applicant has requested that he be posted to a position on Toronto Island, for which he has training, to escape ongoing harassment pending the resolution of this Application.

8The 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.

9The procedure set out in the Rules has been complied with by the Applicant.

10The respondent should have filed its Response to the Request for Interim Remedy, if any, in accordance with Rule 23 by October 16, 2009 in this case. No Response has been received.

11An interim remedy is not often granted by the Tribunal. Normally, 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, 2009 HRTO 369).

12Having said the above, it is possible that the respondent has not filed a Response because it does not object to an order of the type requested by the applicant.

13In the circumstances, the respondent is ordered to either inform the Tribunal that it has no objection to an order that the respondent post the applicant to the position he has requested, or deliver to the applicant and file with the Tribunal a Response to the Request for Interim Remedy in accordance with Rule 23.5, by November 30, 2009.

10I am not seized.