Joanne Blanchette v. The Corporation of the Town of Oakville, Richard Boyes and Brian Durdin, 2009 HRTO 703

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Blanchette

Applicant

-and-

The Corporation of the Town of Oakville, Richard Boyes and Brian Durdin

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 28, 2009

Citation: 2009 HRTO 703

Indexed as: Blanchette v. Oakville (Town)

WRITTEN SUBMISSIONS BY

Joanne Blanchette ) On Her Own Behalf

The Corporation of the Town of Oakville, ) Nadia Chandra, Counsel Richard Boyes and Brian Durdin )

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s Request for an Order during Proceedings and Request for an Interim Remedy.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 8, 2009, which alleges that the respondents discriminated against her with respect to employment because of her sex and family status. She filed a Request to Expedite Proceedings on the same date, which the Tribunal dismissed on April 30, 2009: see 2009 HRTO 546.

3The applicant filed a Request for an Order during Proceedings and a Request for an Interim Remedy on April 27, 2009. The two Requests are similar and both seek an interim remedy. The respondents filed a Response to a Request for an Interim Remedy on May 4, 2009, which opposes the Request. The applicant then sent the Tribunal an e-mail on May 7, 2009 with an attached three-page letter, which she identified as the “Reply to the Response to Request for Interim Remedy”. The Tribunal’s Rules of Procedure do not provide for such a Reply, but I am willing to consider it as part of my decision because it has useful information and there is no apparent prejudice to the respondent.

REQUEST FOR INTERIM REMEDY

4Rule 23 of the Tribunal’s Rules deals with interim remedies. Rule 23.2 states that 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.

5The applicant is a female firefighter with the Oakville Fire Department, who is pregnant and approaching her due date. She requests as an interim remedy that the respondents provide her with modified duties in a 24 hour shift schedule. She submits that her Request meets all three criteria set out in Rule 23.2.

6The applicant submits that the Request is neither trivial nor vexatious and there is an arguable case on the merits. She states that she is due to give birth on August 26, 2009. She is currently working as an active firefighter on a 24 hour shift schedule, which consists of being on duty for 24 hour shifts that average out to about 42 hours per week in a 28 day cycle. She has made a childcare arrangement for her two and half year-old daughter that is based on the 24 hour shift schedule.

7The applicant states that she requested that the respondents provide her with modified duties in the 24 hour shift schedule in order to reduce the risks to her and her fetus, but also to allow her to continue working in a manner that is as close as possible to her current position. The respondents refused her request. Instead, they provided her with two options: (1) she could continue active firefighting on the 24 hour shift schedule provided that she receives medical clearance from her physician, or (2) she could be accommodated on modified duties on straight days (Monday to Friday from 8:00 AM to 4:30 PM).

8The applicant states that the respondents automatically relied on a provision in the collective agreement, which applies to firefighters who are injured or ill, not pregnant. The respondents’ position constitutes discrimination on the basis of sex because it has a disparate impact on female firefighters who are pregnant, and discrimination on the basis of family status because it will totally exclude the applicant from the ordinary duties of a firefighter and significantly disrupt her childcare arrangements. The duty to accommodate requires that the most appropriate accommodation be determined and undertaken short of undue hardship, but the respondents failed to conduct any sort of individualized assessment of the most appropriate form of accommodation for the applicant, which is modified duties in the 24 hour shift schedule.

9The applicant also submits that the harm that she will suffer if her Request is not granted significantly outweighs any harm to the respondents if the Request is granted. Specifically, she states that if her Request is not granted, she may have to work on straight days, which will result in the following harm: a significant increase in child care costs, disruption in her daughter’s life, increased challenges in returning to her shift duties after one year of maternity leave, restrictions on her ability to schedule time off in the form of “lieu days”, and significant emotional distress. On the other hand, if the Request is granted, the harm to the respondents will be less. The accommodation will only last for a maximum of four months, which will not be costly. It will also not involve any significant disruption to the respondents, as they have a past practice of providing such accommodation, both to her when she was pregnant in 2005 and 2006, and to her male colleagues who requested such accommodation because of an injury or illness.

10The applicant further submits that it would be just and appropriate in the circumstances to grant her Request because the Tribunal is unlikely to hear her Application until after her due date, which means that even if her Application is ultimately successful, she will not be able to obtain the relief that she is seeking.

11The respondents, on the other hand, submit that the applicant’s Request for an Interim Remedy fails to meet any of the three criteria set out in Rule 23.2. The respondents submit that the threshold with respect to whether an application appears to have merit is normally low, but, in the circumstances at hand, a higher onus is required because granting the interim relief will effectively put an end to the dispute. The respondents state the Application is frivolous and there is no arguable case because the Application is based on a request for an accommodation preference rather than an actual need, and the employer’s inability to accommodate such a preference does not result in discrimination.

12The respondents state that the employer has a policy to accommodate pregnant firefighters, which respects the right of a firefighter to continue in her duties on a 24 hour shift schedule, provided that there is medical clearance from a physician. However, the employer cannot provide modified duties on such a schedule beyond 28 days because of undue hardship. Specifically, most 24 hour shift duties occur at a fire scene, where there are health and safety risks to both the firefighter and the public. Furthermore, there is an insufficient supply of duties that do not occur at the fire scene to sustain a 24 hour shift for a firefighter. These principles are set out in the collective agreement between employer and the Oakville Professional Firefighters Association, and also apply to injured or ill firefighters. The only exception is when a firefighter is in a temporary “work hardening” program, which assists the firefighter in returning to full fire suppression duties.

13The respondents further state that the employer’s practice is to accommodate all requests for modified duties in excess of 28 days by providing non-hazardous duties on a straight days basis. These duties are equally valuable, meaningful and comparable to firefighting duties. Furthermore, there is no loss of pay, seniority, benefits, or opportunities to be promoted. This is the most appropriate accommodation because it provides meaningful accommodation to the firefighter, which respects his or her dignity and meets his or her needs, and also maintains essential services to the public.

14The respondents also submit that the applicant’s alleged harm if the Request is not granted does not outweigh the actual harm to the employer if the Request is granted. The harm to the employer would include undermining the collective agreement, requiring the employer to accommodate all lengthy requests for modified duties with respect to 24 hour shifts, and, most importantly, compromising the employer’s ability to provide essential services to the public as the applicant may have to remain at the fire hall during a fire or excuse herself from a fire scene.

15The respondents further submit that it would not be just and appropriate in the circumstances to grant the applicant’s Request because the interim remedy is the ultimate relief that the applicant is seeking. As such, granting the interim remedy will predetermine the Application before the Tribunal has decided whether there has been a violation of the Code.

ANALYSIS

16The Tribunal’s power to order an interim remedy is relatively new, but recent decisions have identified a number of general principles relevant in determining a Request for an Interim Remedy: see TA v. 60 Montclair, 2009 HRTO 369 and Chopra v. Kratiuk, 2009 HRTO 109.

17Since the purpose and object of the Code is remedial, 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: see TA, supra at para. 21.

18However, in requesting an interim remedy, 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 have been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies. An applicant seeking an interim remedy will therefore 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: see Chopra, supra at para. 11 and TA, supra at para. 29.

19The three criteria in Rule 23.2 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 TA, supra at para. 36.

20Courts and tribunals have generally taken the view that the threshold for meeting the first criterion in Rule 23.2 is low. Whether it 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. That said, 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: see TA, supra at paras. 30 and 32.

21The second criterion in Rule 23.2 involves the balancing of the relative harm or convenience in granting or refusing the Request. The question is whether the harm the applicant will suffer if the Request is not granted outweighs the harm to the respondents if the Request is granted: see TA, supra at para. 34.

22The third criterion in Rule 23.2 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: see TA, supra at para. 35.

23In my view, having considered the collective impact of all factors and the purpose of Rule 23 as a whole, the applicant has not met the significant onus of establishing that her Request for an Interim Remedy meets all three criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. The applicant has established that her Application appears to have merit, but has not established that the balance of harm or convenience favours granting the interim remedy Request, or that it is just and appropriate in the circumstances to do so.

24The applicant alleges that she requested that the respondents accommodate her pregnancy and childcare related needs by assigning her modified duties on a 24 hour shift schedule, but they refused to do so without conducting any sort of individualized assessment of the most appropriate form of accommodation for her, and without considering whether the requested accommodation would impose undue hardship on the employer. In my view, the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case of discrimination. In other words, the applicant has shown that she has an arguable case and that the claim is neither frivolous nor vexatious. Even if onus is higher, as the respondents argue, I believe that the applicant has met the threshold of demonstrating that the Application appears to have merit.

25However, in my view, the applicant has failed to establish that the balance of harm or convenience favours granting the interim remedy Request. I accept that the applicant’s list of factors, if true, constitute a level of harm or inconvenience, but, as the respondents have pointed out, this is not a situation where the applicant is being denied accommodation altogether or is facing a loss of pay, seniority or benefits. Furthermore, the applicant may have to pay higher child care costs, but she will still be able to access child care for her daughter. The respondents allege that the main harm that the employer would suffer if the Request for an Interim Remedy is granted is the potential for a health and safety risk. I am not saying that the respondents has established that there is a health and safety risk, but rather, that the applicant has not met the onus of demonstrating that the harm that she will suffer if the Request is not granted outweighs the harm to the respondents if the Request is granted.

26In my view, the applicant has also failed to establish that it is just and appropriate in the circumstances to grant the interim remedy Request. The submissions from the parties indicate that there is much conflicting evidence with respect to a number of issues, including whether the accommodation offered by the employer was appropriate and whether the employer would suffer undue hardship, including health and safety risks, if it provided the applicant with the accommodation that she requested. In addition, if the Tribunal upholds the applicant’s claim of discrimination after a full hearing, she may not be able to obtain the relief with respect to accommodation, but she will be entitled to claim monetary compensation for (a) loss of income resulting from increased child care costs, and (b) injury to dignity, feelings and self-respect. As such, the applicant has not established that the Request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.

ORDER

27The applicant’s Request for an Order during Proceedings and a Request for an Interim Remedy are dismissed.

28I am not seized of this matter.