Jocelyne Lavallee v. Zulich Enterprises Limited, 2009 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jocelyne Lavallee

Applicant

-and-

Zulich Enterprises Limited

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: April 7, 2009

Citation: 2009 HRTO 402

Indexed as: Lavallee v. Zulich Enterprises

Introduction

1This Interim Decision concerns 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. The applicant alleges failure to meet the duty to accommodate. Specific remedies requested in the Application include an automated accessible door system, for specified doors in the apartment building in which the applicant resides, that meets the applicant’s disability-related needs.

2The Application was filed on September 11, 2008. An attempt at mediation was unsuccessful, and hearing dates of June 9-11, 2009 have been set. The applicant also filed a Request for Interim Remedy pursuant to Rule 23 of the Tribunal’s Rules of Procedure (the “Rules”), on March 19, 2009.

3Rule 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.

4In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal identified a number of general principles relevant in determining Requests for Interim Remedy. In regard to evidentiary and procedural requirements, the Tribunal stressed the importance of the parties providing full and complete materials in support of their respective positions, including signed declarations from persons with first hand knowledge of the facts being alleged.

5The decision in TA v. 60 Montclair, above, acknowledged that, while the jurisprudence and common law principles and criteria governing the issuance of interlocutory injunctions can be of assistance, neither the test laid out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, nor the common law approach to injunctions ought to be adopted in a wholesale way, or seen as determinative. The Chair took a purposive approach, referring to the statutory context in which the Tribunal operates. He concluded that “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”.

The Parties’ Submissions

6The Application is concerned with accommodation needs that arise out of the physical structure of the building where the applicant rents an apartment, and the applicant’s neuromuscular disability, which, her doctor confirms, significantly reduces her muscular strength and causes her constant pain. The applicant requests that the apartment building’s superintendent assist her “by opening both the Northwest basement exit door and the interior basement hallway door for her when requested”.

7The applicant’s Request for Interim Remedy meets the requirements of Rule 23.3. She appended a letter from her doctor to her Request for Interim Remedy. The letter describes in some detail the physical pain that the applicant has experienced when entering and leaving the building, which, because of her condition, gives rise to nausea, muscle spasms, and indicates that the access difficulties experienced by the applicant have had a significant effect on the applicant’s mental and physical health.

8The applicant states that, without the interim remedy requested, she may not continue to receive the necessary assistance from the superintendent, who has helped her in the past. She cites an incident on March 9, 2009, in which the superintendent asked her if she could open one of the relevant doors by herself, and, on hearing that she could not, said that the respondent must not know that she needed assistance with that door. The applicant is concerned that the respondent did not inform the superintendent about her ongoing need for assistance, and that assistance could be withdrawn in the future.

9The respondent opposes the granting of an interim remedy, stating that no harm would result from denial of the remedy requested. In its Response to the Request for Interim Remedy, the respondent’s representative details the progress that has been made to date on automating the northwest exterior door and changing the closer mechanism in the northwest interior door, both of which changes were done on March 19, 2009. The respondent cites an incident on March 23 in which the applicant opened the interior door with no apparent difficulty, and was able to use the newly-automated exit door, and the understanding of the superintendent that the applicant left the building on March 24 without assistance. There is, however, no declaration from the superintendent; the respondent’s submissions do not comply with Rule 23.5 in this respect.

10The respondent states that it is well aware of the applicant’s needs, and that the superintendent “has made himself available to assist the applicant with what she contends are her needs”. The respondent adds that “there is no suggestion or evidentiary basis for concluding that any of this assistance will be withdrawn”. There is no suggestion from the respondent that granting this order would result in hardship or inconvenience to the respondent.

The Submissions in this Case and the Elements of Rule 23.2

11In TA v. 60 Montclair the Tribunal cautioned that the three criteria in Rule 23 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. However, the submissions in this case reflect all three criteria.

Does the Application Appear to Have Merit?

12As noted in TA v. 60 Montclair, 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.

13A review of the Application, the Response and accompanying materials shows that the applicant has stated facts which, if proven, could amount to a breach of the Code. In this case, the low threshold requirements of Rule 23.2 (a) are clearly met.

Does the Balance of Harm or Convenience Favour Granting the Interim Remedy Requested?

14The second element in Rule 23.2 involves the balancing of the relative harm or convenience in granting or refusing the request. In TA v. 60 Montclair the Tribunal stated the question as whether the harm the applicant will suffer if the Request is not granted outweighs the harm to the respondent if the Request is granted.

15In this case, the applicant has maintained that she still has difficulties with the doors which she uses to enter and leave her apartment building. She has also detailed, in her Application, the effect on her of frequently having to ask others to assist her with so fundamental a task as entering and exiting her apartment building:

Having to ask someone to help you enter and exit your apartment building puts you in a situation where you feel you have to justify your very existence. You feel like you better have a really good and valid reason to want to go out if you are going to bother people to help you...This makes you feel constantly indebted to them. The end result is that you think twice about going out at all.

16As noted above, the applicant’s doctor indicates that the access difficulties experienced by the applicant have had a significant effect on the applicant’s mental and physical health.

17By contrast, while the respondent opposes the granting of an interim remedy, the respondent cites no harm or inconvenience that would result from the granting of the remedy requested. In fact, the respondent states that the assistance requested is being given. The balance of harm and convenience favours the granting of the remedy.

Is it “Just and Appropriate in the Circumstances” to Award the Remedy Sought?

18As noted in TA v. 60 Montclair:

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.

19The respondent’s position is that the remedy requested is unnecessary, as “there is no suggestion or evidentiary basis for concluding that any of this assistance will be withdrawn”. It may be true that the assistance would continue to be available, but in this case, an order would apparently give the respondent no inconvenience, and might alleviate the difficulty being experienced by the applicant that stems from the uncertainty of her situation. Providing the remedy furthers the remedial purposes of the Code and is fair in these circumstances.

ORDER

20The respondent shall ensure that the superintendent of the apartment building in which the applicant resides shall assist her by opening both the northwest basement exit door and the interior basement hallway door for her when requested. This Order shall stay in place until discontinued or revised by the Tribunal in the hearing of the merits of this Application.

21I am not seized of this matter.