Hess v. Ontario (Government Services), 2009 HRTO 2173

Human Rights Tribunal of Ontario

B E T W E E N:

Susan Hess

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Ron Huxter and Eion Gomes

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: December 15, 2009

Citation: 2009 HRTO 2173

Indexed as: Hess v. Ontario (Government Services)

1The applicant filed an Application with the Tribunal alleging discrimination in employment on the basis of ancestry and sex and sexual solicitation and advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant has filed a Request to Expedite the Application, citing financial pressures as she will cease to have a source of income as of December 31, and loss of health benefits which will have an adverse effect on herself and her husband, who has costly health-related needs. The applicant is also concerned about potential loss of evidence as one of the personal respondents is about to retire and loss of access to remedies should her employment with the respondent end on December 31, 2009.

2The 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.

3In 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.

4In 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.

5The Tribunal has held that the types of factors cited by the applicant do not generally constitute indications of urgency as compared with other employment discrimination cases. The concerns that the applicant cites with regard to loss of income and benefits amounts to an assertion of financial harm if the Application is not expedited. The Tribunal has held that these types of financial consequences are not an urgent circumstance which warrants giving this Application priority for Tribunal resources over other matters.

6With regard to the applicant’s concerns with respect to the upcoming retirement of one of the respondents, an application to the Tribunal starts a legal proceeding in which respondents are required to participate regardless of their employment status. The Tribunal’s Rules of Procedure set out consequences for failing to participate. Similarly, the applicant’s concerns about e-mail and documentary evidence are addressed by the disclosure and production obligations set out in the Rules. In any event, the respondents now have notice of the applicant’s concern, and destruction of relevant records at this point could give rise to a negative inference on the part of the Tribunal if this matter proceeds to a hearing; Russell v. Georgina (Town), 2009 HRTO 466. The concerns the applicant has with regards to her requested remedies are addressed by the broad remedial powers given to the Tribunal under s. 45.2 of the Code.

7Finally, the applicant requests remedies pending the outcome of the proceeding. The applicant may wish to review the Tribunal’s requirements with respect to Requests for Interim Remedy as set out in its Rules of Procedure and its decisions which are available on the website, www.canlii.org.

8The Request to Expedite is denied.

9I am not seized.