HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
TA
Applicant
-and-
60 Montclair Ltd., The Montclair Co-ownership Inc., 2131404 Ontario Inc., Hanya Kizemchuk, Harold Fensterer and Maximilien Ghalioungui
Respondents
INTERIM DECISION
Adjudicator: Michael Gottheil
Date: March 30, 2009
Citation: 2009 HRTO 369
Indexed as: TA v. 60 Montclair
APPEARANCES
TA, Applicant ) Bruce Best, Counsel
60 Montclair Ltd., The Montclair ) Lisa Corrente and
Co-ownership Inc., Hanya Kizemchuk, ) David Golden, Counsel
Respondents )
Maximilien Ghalioungui, Respondent ) Serena Rosenberg,
Counsel
Herold Fensterer and 2131404 Ontario Inc., ) No one appearing
Respondents
INTRODUCTION
[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in accommodation on the grounds of disability and receipt of public assistance. The Application was filed on January 13, 2009. The applicant also filed a Request for Interim Remedy pursuant to Rule 23 of the Tribunal’s Rules of Procedure (the “Rules”), and a request to have her name anonymized in any decision.
[2] The Application arises out of a failed attempt by the applicant to purchase a co-ownership apartment unit in a building located at 60 Montclair Avenue in Toronto (the “building”). The unit in question, unit 505, was owned by the respondent 60 Montclair Ltd. and had been listed for sale in the spring of 2008. The applicant alleges that the respondent refused to sell unit 505 to her because of her disability and/or because she was in receipt of public assistance. The applicant also alleges that the building and unit were unique in a number of ways, and were particularly well suited to her disability-related needs. The unit was ultimately taken off the market, renovated and sold to another purchaser.
[3] The applicant requests an interim remedy against the respondents 60 Montclair Ltd. and its principal Hanya Kizemchuk, and 2131404 Ontario Inc. and its principal Herold Fensterer. She asks the Tribunal order she be granted the right of first refusal to purchase any apartment unit owned by those respondents, on the fourth floor or higher, at a price of $235,000.00, if and when such units are offered for sale or where there is a change in tenancy.
[4] The Tribunal held a hearing on February 24, 2009 to hear the parties’ submissions on the Request for Interim Remedy and the request to anonymize. This Interim Decision disposes of both matters.
[5] For the reasons that follow, I have decided to grant the applicant’s request to anonymize. However, I find that it is not appropriate to award the interim remedy sought by the applicant and the Request is dismissed. The applicant has not demonstrated that the balance of convenience or harm favours the granting of the interim remedy, or that it is just and appropriate in the circumstances to do so.
[6] The evidence before the Tribunal was submitted by way of signed declarations and information received at the hearing through discussions with the parties and counsel. There was no cross-examination of the declarants. There is some dispute between the parties as to certain facts related to the Application. However, the facts necessary to dispose of this Request are not substantially in dispute. I have set out in this Interim Decision only the facts and allegations material to the requests.
REQUEST TO ANONYMIZE
[7] The applicant asks that the Tribunal make an order to anonymize all decisions in this matter. She argues that such an order is necessary to protect her privacy interests in the circumstances. There are three bases put forward for the request: the sensitive and private nature of her medical conditions, potential risk to her ability to secure housing if it becomes known that she is in receipt of public assistance, risks to her safety due to concerns about a stalker.
[8] The respondents oppose the request to anonymize. They argue Tribunal jurisprudence is clear that a publication ban or anonymization is a rare and extraordinary step, because of the importance of transparency in legal proceedings. (See: Hogan v Ontario (Health and Long Term Care, 2003 HRTO 6; Marakkaparambil v. Ontario (Health and Long Term Care), 2007 HRTO 24; S. and C. v. Toronto Police Services Board, 2008 HRTO 437).
[9] I need not decide whether the fact the applicant is in receipt of public assistance and has a number of medical conditions is sufficient to order anonymization. Tribunal jurisprudence does not support granting a request to anonymize, or for a publication ban, in the absence of clear evidence establishing why an order is necessary. However, I am satisfied that an order to anonymize is appropriate in this case on the basis of privacy interests related to the applicant being stalked. She has provided information in a declaration about the alleged stalking, and has fear and anxiety that the location of new housing may become known. She has also provided a statement from her social worker about this issue. If the applicant is successful in this case, she may, in the future, reside in the building. It is possible that the apartment unit could be named in a future order. In these circumstances, I am satisfied, on balance, that it is fair and just to order that all decisions be anonymized.
REQUESTS FOR INTERIM REMEDY – GENERAL PRINCIPLES
[10] Rule 23 provides:
23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16 and must be delivered to the other parties along with the completed Application before it is filed with the Tribunal.
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.
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.
23.4 The other parties must file their response, if any, in Form 17, Response to Request for Interim Remedy, not later than seven (7) days after the Form 16 was delivered. The Form 17 must be delivered to the other parties before it is filed with the Tribunal.
23.5 A Response to Request for Interim Remedy must be delivered to all other parties and filed with the Tribunal and must include:
a) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Respondent relies; and
b) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would not be just and appropriate in the circumstances, in accordance with the Rule 23.2.
[11] The Tribunal’s power to order an interim remedy is relatively new. Rule 23, which sets out the procedure and criteria for deciding such requests, came into force on June 30, 2008. Since that time, there have been only a few Tribunal decisions on the issue. (See: Chopra v. Kratiuk, 2009 HRTO 109; Lewis v. Markham Stouffville Hospital, 2009 HRTO 188). As with any new legislative or procedural provision, jurisprudence will develop over time in response to particular claims and fact situations. However, it is useful to identify a number of general principles relevant in determining Requests for Interim Remedy.
Evidentiary and Procedural Requirements
[12] Rule 23 envisages an expedited process where parties are required to serve the Request for Interim Remedy and Response to the Request directly, and evidence is received by way of signed declaration. Cross-examination on the declarations is not generally permitted. The Tribunal may schedule a hearing, but may decide the Request based only on the written materials filed by the parties. As a result, the Tribunal relies on the parties to provide full and complete materials in support of their respective positions.
[13] Because the Tribunal will rarely receive evidence through the oral testimony of witnesses, it is critical for the parties to provide sufficient evidence through signed declarations from persons with first hand knowledge of the facts being alleged. Failure to comply with this requirement may result in the Request being dismissed outright, or in the Tribunal deciding there are insufficient facts to support the Request. (See: Chopra, supra; Lewis, supra.)
[14] Where the Tribunal decides to hold an oral hearing, the Tribunal member may question the parties or counsel in order to obtain further information necessary to determine the Request. In all cases the parties must be prepared to make full submissions on the Request.
A Purposive Approach
[15] The parties referred me to a number of court decisions, and in particular RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which set out the criteria to be applied when determining applications for interlocutory injunctions. In RJR-MacDonald, the Supreme Court established a three-part test: whether there is a serious issue to be tried, whether the applicant has established that it will suffer irreparable harm if the injunction is not granted, and whether the balance of convenience favours the granting of the injunction.
[16] Common law principles relating to the granting of interlocutory injunctions can be of assistance in considering Requests for Interim Remedy under Rule 23. However, neither the RJR-MacDonald test, nor the common law approach to injunctions ought to be adopted in a wholesale way, or seen as determinative. There are a number of reasons.
[17] The authority of the Tribunal to grant interim remedies is not inherent, but derives from statute. Section 16.1 of the Statutory Powers Procedures Act, R.S.O. 1990, c. s 22, as amended, (“SPPA”), provides that “a tribunal may make interim decisions and orders” and “a tribunal may impose conditions on an interim decision or order.” Sections 40 and 41 of the Code provide:
Disposition of applications
- The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
Interpretation of Part and rules
- This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
[18] These statutory provisions, taken together, demonstrate a legislative intent to provide the Tribunal with a broad discretion in awarding interim relief. In addition, when exercising that discretion, the Tribunal must be guided by its mandate to ensure applications are resolved in a fair, just and expeditious manner, based on their merits. The Tribunal’s procedural, adjudicative and remedial approach should, in all respects, facilitate this statutory imperative.
[19] Second, the Code recognizes the Tribunal as having expertise in dealing with claims of discrimination brought under the statute. Sections 39, 40, 41, 42, 43 and 45.8 all clearly demonstrate a legislative intent to affirm the Tribunal as an expert quasi-judicial adjudicative body and provide it with the powers and authority to determine the practices and procedures which will best meet the objects of the Code.
[20] Finally, it is well established that the object of the Code is remedial. Where the Tribunal finds that a right of an applicant has been infringed, it has a broad authority to fashion a remedy that not only provides monetary compensation, but may also include non-monetary restitution that will put the aggrieved party back in the position they would have been, but for the infringement, and to make specific orders to ensure future compliance with the Code. Both sections 45.2 and 45.3, as well as court and Tribunal jurisprudence, confirm the remedial intent of the legislation and the ability of the Tribunal to award creative and effective remedies.
[21] If the purpose and object of the Code is remedial, then it follows that the power to award interim remedies should focus on furthering that remedial objective. Generally this will mean asking 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.
[22] The authority to grant interim remedies is not a power to be exercised only where, as in the common law context, the applicant will suffer irreparable harm in the sense that damages could not provide adequate compensation. To require irreparable harm in that sense would distort the true remedial objects of the Code by signalling that monetary damages are the preferred, or can be a complete remedy for a Code violation. The common law test on injunctions developed in the context of civil disputes, where Courts are reluctant to award specific performance remedies, and claims for alleged wrongs are quantified in terms of damages. The traditional common law approach would not properly reflect the broad remedial intent of the Code. It is noteworthy that the requirement to demonstrate “irreparable harm” is not one of the elements in Rule 23.
[23] At the same time, it will not be sufficient for an applicant seeking an interim remedy to simply assert a particular urgency in obtaining the ultimate relief, or that they may suffer financial hardship if an interim remedy is not provided. They may be factors to consider but, again, the focus of the inquiry is whether an interim remedy is necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the application be decided in favour of the applicant, or is otherwise required to give effect to the remedial objects of the Code.
[24] In Tate Andale Canada Inc., [1993] OLRB Rep. October 1019, the Ontario Labour Relations Board was considering a similar question in relation to interim remedy powers that existed under a previous version of the Labour Relations Act, R.S.O. 1990, c. L.2, (“LRA”). The Board stated (at paras. 39 and 41):
In the first place, we might observe that the Board is not a court; and there is no reason to expect that either its adjudicative or remedial approach should mirror that of a court. Civil practice may sometimes provide a useful analogy, but when the Act so clearly involves policy considerations, so systematically modifies common-law premises, and so clearly excludes judicial involvement (see section 110), it would be curious for the Board to make common-law criteria a governing principle of interpretation. …
In our opinion, … "remedial" considerations traditionally reviewed at the end of the case should inform the way in which the Board approaches interim orders or "relief". In both instances, the Board is required to blend and balance statutory imperatives, policy considerations, and the realities of contemporary labour relations.
[25] In Loeb Highland, [1993] OLRB Rep. March 197, another decision dealing with a request for interim relief under the LRA, the Board stated (at para. 14):
Such extensive discretion is consistent with the Board's function as an expert tribunal on labour relations matters. It seems apparent that the Legislature was prepared to rely heavily on the Board's accumulated labour relations wisdom in determining what circumstances should attract an interim order.
[26] The Board concluded that it was appropriate to develop an “indigenous” approach to dealing with applications for interim remedies.
[27] In my view, the Board’s comments in Loeb Highland and Tate Andale also apply to the issue before the Tribunal. The Tribunal should also develop an “indigenous” approach which reflects the remedial objects of the Code, and the requirement to resolve applications fairly and expeditiously.
Interim Remedy is an Extraordinary Remedy
[28] In Chopra, supra, the Tribunal explained the nature of requests for interim remedy as follows:
(…) 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.
[29] An applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code.
The Rule 23.2 Elements
[30] Courts and tribunals have generally taken the view that the threshold for meeting the first element is low. Whether the criteria is described as a “serious issue to be tried”, a “prima facie” or “strong prima facie case”, or as here “appears to have merit”, the traditional view is that it would be inappropriate to set the bar any higher than requiring the applicant show it has an arguable case and that the claim is neither frivolous nor vexatious. (See: Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (Aurora: Canada Law Book, 2008); RJR-MacDonald, supra; Loeb, supra).
[31] This approach avoids the Tribunal being required to determine the likely outcome of the case based only on declarations and submissions by the parties. Authorities have pointed out that if the threshold is set too high, there will be pressure to permit cross-examination on declarations, or entertain oral testimony. This would undermine the expeditious nature of interim relief proceedings. A lower threshold also recognizes that there will be novel claims, and an applicant should not be prevented from obtaining interim relief which is otherwise appropriate in the circumstances, simply because the Tribunal has not yet dealt with a similar case.
[32] There may be circumstances where a higher onus is required, such as where the granting of the interim relief will effectively put an end to the dispute. However, generally, the Tribunal need only be satisfied, after considering the materials filed by the parties, that there is an arguable case and the claim is not frivolous or vexatious.
[33] The second element in Rule 23.2 involves the balancing of the relative harm or convenience in granting or refusing the request. In Injunctions and Specific Performance, supra, Mr. Justice Sharpe explains (at paras. 2.90 to 2.100):
The problem… may… best be understood in terms of balancing the relative risks of granting or withholding the remedy. These risks may be simply stated as follows. The plaintiff must show a threat to his or her rights produced by the combination of the defendant's conduct and the delay until trial. The risk to the plaintiff in such cases is that, if an immediate remedy is withheld, his or her rights will be so impaired by the time of trial and final judgment that it will be too late to afford complete relief.
Against this risk to the plaintiff must be balanced the risk of harm to the defendant, should the injunction be granted. This risk is inherent in that the court, on an interlocutory application, can only guess what the result at trial will be. It may well transpire that, although the plaintiff now appears to have a reasonable prospect of success, the plaintiff will fail in the end. … Accordingly, inherent in the exercise lies a risk of harming the defendant by enjoining a course of conduct which may ultimately be shown to be rightful. ... [emphasis added]
[34] The question, therefore, is whether the harm the applicant will suffer if the Request is not granted outweighs the harm to the respondent if the Request is granted.
[35] Finally, the last element recognizes the discretionary nature of interim relief. There will be a number of factors the Tribunal will consider, but ultimately it calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.
[36] The three criteria in Rule 23 are all ingredients to be considered in determining whether to grant an interim remedy. An applicant will be required to demonstrate that all three elements are met before being entitled to the remedy requested. However, they should not be seen as successive hurdles, where the applicant must meet the first, before moving onto the next. Rather, the decision to grant or refuse the Request should consider the collective impact of all factors, and the purpose of the provision as a whole. (see: Hall (Litigation Guardian of) v. Powers, (2002) 2002 CanLII 49475 (ON SC), 59 O.R. (3d) 423 at para. 12; Loeb Highland, supra at para 27.)
DECISION
[37] For the reasons that follow, I find that it is not appropriate to grant the Request. While the applicant has established that the Application appears to have merit, in a number of ways the balance of convenience or harm does not favour the applicant, and overall it would not be just and appropriate to grant the remedy requested.
[38] To properly understand why I have decided not to exercise the discretion to grant the Request, it is useful to set out some of the history and the interactions of the parties leading up to the Application.
[39] In February 2008 the applicant became aware that several co-ownership apartment units were available for sale at 60 Montclair Ave. The applicant states that she had been searching for some time for an apartment to purchase, but because of her specific disability related needs, had been unsuccessful in finding one that was suitable. In the Application, she alleges that unit 505 at 60 Montclair was ideal because, amongst other things, it was located on a quiet street and close to shopping, it was south facing and bright, the units were separately ventilated, the building had enhanced security features, and the unit was not renovated, which would allow her make modifications to accommodate her present and future needs.
[40] On March 5, 2008 the applicant presented an offer to purchase unit 505. The offer was for the full asking price, but provided that an alternative parking space and locker form part of the sale. During the several visits to view the unit, the applicant was concerned that the assigned parking space and locker would not be accessible given her current disability related condition, or likely future needs. Although there were discussions between the applicant and the respondent Ghalioungui (who was the listing agent for several units being sold at the building) about the possibility of switching the assigned locker and parking space, there is no evidence that the applicant ever indicated that the reason she wanted an alternative locker or parking space was because of a disability, or a Code-related need.
[41] The offer was not accepted by the vendor. Mr. Ghalioungui indicated to the applicant that the parking spot and locker were registered to the unit on title, and could not be switched without significant cost and a meeting of all co-owners of the building. On or about March 9, 2008, the applicant presented another offer, again for the full asking price. The second offer did not require the alternative locker and parking space as a condition of sale, but included a provision that the vendor “acknowledged” the applicant was “requesting” a switch of the parking space and locker.
[42] There is some dispute between the parties as to the status of the offer at that point. The applicant alleges that her deposit cheque was cashed, Mr. Ghalioungui said that it was a “done deal”, and the MLS listing was changed to ”conditionally sold.” The respondents claim the listing change was an error, and Ms. Kizemchuk never executed the offer of purchase and sale.
[43] In any event, the respondent, 60 Montclair Ltd., cancelled the listing agreement and took the unit off the market. The unit was renovated and later sold through a private sale.
[44] The applicant subsequently made a number of calls to Ms. Kizemchuk and Mr. Ghalioungui to ask why the sale had fallen through and attempting to convince Ms. Kizemchuk to reconsider. The applicant alleges that neither respondent was prepared to discuss the matter.
[45] On or about April 28, 2009, Ms. Georgina Watt, then counsel for the applicant, sent a demand letter to the respondents 60 Montclair Ltd., Ms. Kizemchuk and The Montclair Co-Ownership Inc. The letter asserted that those respondents had improperly refused to sell unit 505 to the applicant, and had violated the applicant’s rights under the Code. The applicant requested the respondents immediately conclude a sale of unit 505 to the applicant. On May 13, 2008, counsel for 60 Montclair, the Montclair Co-Ownership and Ms. Kizemchuk responded, denying the applicant’s assertions, and specifically denying that any of the respondents had any prior knowledge of the applicant’s disability or that she was in receipt of public assistance. On June 13, 2008, the applicant called Ms. Kizemchuk. Ms. Kizemchuk declined to talk directly with the applicant.
[46] The respondents allege that between June 2008 and the date the Application was filed, the applicant made no efforts to view or purchase other available units in the building. They state that during this period, there were a number of units in the building that came up for sale. For example, unit 304, which is a mirror image of unit 505 on the 3rd floor, was listed for sale in November 2008 at a price of $235,000.00. Unit 305, a renovated unit identical to unit 505 on the 3rd floor was listed in October 2008 for $275,000.00. The respondents allege that Mr. Ghalioungui invited the applicant to view these units, as well as any others that might be for sale.
[47] The applicant claims that she called Mr. Ghalioungui in October 2008 in order to view units 304 and 305, but he did not return her call.
[48] There is no dispute however, that until February 1, 2009, the applicant did not make an active effort to view any units in the building, nor has the applicant made offers to purchase a unit.
[49] Shortly before the hearing on February 24, 2009, the applicant viewed units 304 and 305. She now indicates that neither unit is appropriate since they are too low to the ground and therefore do not meet her need for adequate security.
[50] On the basis of the materials filed, I am prepared to find that the Application appears to have merit. This is not to say that the claim is likely to succeed, or that I have determined the Application will succeed. I find only that the applicant has established an arguable case, which is neither frivolous nor vexatious.
[51] The applicant alleges that at the point she made the offers to purchase, the respondents knew she was disabled or was in receipt of public assistance, and that was the reason for the refusal to sell the unit. The respondents deny both allegations. Whether or not Ms. Kizemchuk knew of the applicant’s disability or that she received public assistance, and whether that formed part of the decision not to accept the offers to purchase, are all issues to be determined at a hearing after the parties have presented their witnesses and evidence.
[52] The applicant also takes the position that even if the respondents were not aware of her disability until April 28, 2008, once they became aware, they had an obligation to sell the apartment to her, and accommodate her request to change the parking space and locker. The applicant relies on Ottawa Civic Hospital and ONA (Hodgins) (1995), 1995 CanLII 18382 (ON LA), 48 L.A.C. (4th)388. In that case, an employee who had been terminated disclosed to her former employer that she had a disability which related to the misconduct forming the basis for the termination. The arbitrator held that the employer, in view of the new information, had an obligation to consider re-employment and provide appropriate accommodation.
[53] The respondents argue that the present case is altogether different, since there was never a legal relationship between the parties. To be sure, the applicant’s argument may be novel. However, this too will have to be determined after hearing the parties’ evidence and submissions. I am not prepared, at this point, to find that there is no apparent merit to the Application.
[54] While the applicant has met the first element in Rule 23, I find that on the facts before me, she has not met the second and third elements, for three principal reasons. First, given the breadth of her request, I am not convinced that the balance of convenience favours granting the request, or that it is necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the Application be decided in favour of the applicant. Second, a number of the central facts alleged in support of the Request do not appear to have foundation, again bringing into doubt whether the interim remedy requested is necessary or appropriate to further the remedial interests of the applicant.
[55] Finally, I am not convinced that it would be just and appropriate to grant the Request when the applicant herself failed to take any reasonable or timely steps to mitigate the potential harm she alleges flows from the respondents’ refusal to sell the apartment unit.
[56] The original Request, filed with the Application on January 13, 2009, asked that the Tribunal order the right of first refusal to purchase any unit in the building, at a price of $219,000.00. After viewing units 304 and 305, the applicant now asks for the right of first refusal on any unit on the fourth floor or higher. Yet there is no assurance the applicant will actually want any unit that becomes available. The respondents argue that floor plans and other documentation for the units in the building have always been available to the applicant, but the applicant has taken no steps to identify, with any specificity which units may in fact be appropriate.
[57] Balanced against the applicant’s interest in having the right to purchase a unit, are the respondents’ interests in dealing with their properties as they wish. The respondents claim that imposing a right of first refusal on property is a significant encumbrance which lowers its value. They point out that the Request not only covers units the respondents decide to sell, but any units in which there may be a change in tenancy. The applicant is seeking an order requiring the respondents to sell a unit, at a price set by the applicant, even where the respondents would not otherwise wish to put the unit on the market.
[58] In these circumstances, I cannot find that the balance of convenience favours granting the interim remedy requested. The order sought is overly broad, and as a result, unnecessarily impairs the interests of the respondents. There may be circumstances in which an applicant can demonstrate why a very broad and non-specific interim remedy is justified. However, I am not satisfied that the applicant has done so here. I also find that the failure of the applicant to take any reasonable and timely steps available to her to identify the specific unit or units that would be appropriate to her needs, and therefore necessary to preserve her rights, is a factor that weighs against finding that it is just and appropriate to grant the Request.
[59] In addition, a number of the assumptions upon which the applicant asserted the building is uniquely suited to her disability related needs, and therefore the remedy is necessary, do not appear to be valid. For example, the applicant claimed that she requires adequate building security and 60 Montclair offered particular security features. As well, the applicant claimed that the units were separately ventilated, a feature she indicated was particularly important considering her environmental sensitivities.
[60] In the declarations filed in response to the Request, and at the hearing, the respondents pointed out that there is nothing unique about the building as compared to other apartment buildings in the area. The building has a front door key entrance and voice intercom. The applicant has asked as part of the remedy in the main Application that the respondents install security cameras in the lobby entrance and on each floor. But at present, there is nothing special about the building security.
[61] Neither is the ventilation system unique. The units are not in fact separately ventilated. Rather there is a common heating and ventilation system. Unit residents can adjust airflow.
[62] The applicant claims that without an interim remedy, the relief sought in the main Application, the sale of a unit which is appropriate considering her disability related needs, may not be available at the end of the proceeding. In view of the facts which came to light after the Request was filed, it appears that there may not be any “appropriate” units in the building, or at least not without substantial renovations to either a unit or the entire building, or both. I asked applicant’s counsel to consider that if I granted the interim remedy, but did not find in favour of the applicant in the main Application, she may own a unit which is not appropriate for her particular disability-related needs. Indeed, even if I were to find a violation of the Code, it may turn out to be impossible or an undue hardship to require the respondents to effect the requested renovations and accommodation. Counsel indicated that the applicant was “willing to take that chance.”
[63] I have serious difficulty with the applicant’s position. It is one thing to ask the Tribunal to take the extraordinary step to award specific interim relief which is demonstrably necessary to ensure a full and effective remedy at the end of a proceeding. It is quite another thing to require a respondent to sell an apartment unit, which they may or may not wish to sell, at a price below market value, where there is no certainty that the applicant will even be willing or able to occupy the unit.
[64] In these circumstances, the applicant has failed to established that the interim relief requested is necessary to ensure an appropriate remedy is available at the conclusion of the proceedings. As a result, it cannot be said that the balance of harm or convenience favours the granting of the remedy requested, or that it would be just and appropriate to do so.
[65] Finally, I find the failure of the applicant to pursue opportunities to achieve the very thing she is now seeking from the Tribunal also weighs against granting the Request.
[66] As noted above, several units in the building have been offered for sale since October 2008, including two that are identical or near identical to the unit the applicant wanted to purchase. The applicant concedes that those units (304 and 305) had been identified by her, in the fall of 2008, as units over which she claimed a right to purchase. Yet, apart from a vague assertion that she called Mr. Ghalioungui on one occasion in October 2008, the applicant made no efforts to arrange viewings of those two units, or any others that were listed for sale, until February 2009.
[67] The Tribunal does not suggest that every applicant requesting an interim remedy will be required to demonstrate that they took all steps reasonably available to them before making the request to the Tribunal. In this case, however, a number of months passed during which the applicant had available to her the means to pursue the outcome she now asks the Tribunal to impose.
[68] The applicant has not shown any level of diligence in purchasing a unit in the building. I cannot find in the circumstances that it would be just or appropriate to grant the Request.
[69] For all of the above reasons, the Request is dismissed.
[70] Before concluding, I would like to thank all counsel for their able and helpful submissions in this matter.
ORDER
[71] The Tribunal orders:
a) The request to anonymize is granted. Any decision released by the Tribunal shall identify the applicant as “TA”.
b) The Request for Interim Remedy is dismissed.
Dated at Toronto this 30th day of March, 2009.
“Signed by”
Michael Gottheil
Chair