Kwan v. Hospital for Sick Children, 2009 HRTO 621

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susanna Kwan

Applicant

-and-

The Hospital for Sick Children and Tracey Tink

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 12, 2009

Citation: 2009 HRTO 621

Indexed as: Kwan v. Hospital for Sick Children

1The applicant’s employment with the respondent Hospital for Sick Children was ended by the respondent on January 19, 2009. The applicant alleges that this decision was discriminatory on the basis of disability and age, as well as a reprisal for a previous complaint she filed with the Ontario Human Rights Commission. The applicant also filed a Request to Expedite and a Request for Interim Remedy pursuant to Rule 23.2. This Interim Decision addresses these two Requests.

Request to EXPEDITE

2The applicant’s arguments support of her Request to Expedite focus on the merits of her Application and her expected difficulty in finding new employment. However, the Tribunal has held that these types of factors do not generally constitute indications of urgency as compared with other employment dismissal cases: see Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, Russell v. Georgina (Town), 2009 HRTO 466. Moreover, the applicant waited three months after the conclusion of her employment before filing her Application. Except in the rarest of circumstances, a party who has delayed in filing his or her Application without explanation will not be given the priority for Tribunal resources of an expedited proceeding. The Request to Expedite is dismissed.

REQUEST FOR INTERIM REMEDY

3The applicant has asked for an order reinstating her to her previous position on an interim basis. Granting an interim remedy is an extraordinary step, in which a respondent is required to take certain actions prior to a hearing on the merits of the Application. The 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.

4In support of her Request, the applicant has cited the strength of her position on the merits of the Application, the difficulty she expects in finding another position, the present availability of a vacancy with the respondent, and her belief that she is qualified for that position.

5In TA v. 60 Montclair, 2009 HRTO 269 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is

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.

At para. 29, the Tribunal noted that an applicant has a “significant onus” in establishing that an interim remedy request meets the conditions of Rule 23.2.

6If a hearing is held, discrimination is found, and the Tribunal finds it appropriate, the applicant can be reinstated to employment with compensation for her lost wages. An interim remedy is not necessary to award a complete, appropriate remedy for the loss of the applicant’s job: see Russell v. Georgina (Town), supra. It has not been shown that it would be just and appropriate to award the interim remedy requested. The Request for Interim Remedy is dismissed.

7I am not seized.