Anderson v. Carleton Condominium Corporation #8, 2010 HRTO 1761

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Anderson

Applicant

-and-

Carleton Condominium Corporation #8

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: August 26, 2010

Citation: 2010 HRTO 1761

Indexed as: Anderson v. Carleton Condominium Corporation #8

APPEARANCES

Jason Anderson, Applicant ) Bruce Best, Counsel

Carleton Condominium )

Corporation #8 ) Joseph W.L. Griffiths, Counsel

Respondent )

1This Interim Decision deals with the applicant’s Request for an interim remedy pending the outcome of his Application.

2The Tribunal issued a previous Interim Decision in this matter denying the applicant’s Request to expedite the Application. See 2010 HRTO 569.

3The applicant lives in a condominium unit and is, therefore, subject to the rules of the respondent Condominium Corporation. He filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on February 12, 2010, alleging that the respondent has failed to accommodate his disability. The applicant alleges that the respondent refuses to accommodate his disability by requiring him to cart, rather than walk, his dog on the common grounds of the building, and fining him when he fails to do so.

4The applicant is seeking the following interim remedy:

The respondent, Carleton Condominium Corporation #8 shall not require the applicant, Mr. Jason Anderson, to comply with Rules 68 and 69 of the Rules of the Carleton Condominium Corporation #8 requiring transportation of pets in a wagon or cart, until this Tribunal orders otherwise, subject to the following conditions:

When the dog is not being transported in a wagon or cart:

a) the dog shall be on a leash;

b) the dog shall be brought in or out of the building only through the parking garage, and shall not use the lobby; and

c) the dog shall not be brought into the elevator between the hours of 7:00 a.m. and 9:00 a.m., or between the hours of 3:00p.m. and 6:00 p.m.

5The respondent opposes the Request on the basis that an Interim Decision in favour of the applicant would effectively dispose of the Application. The respondent argues that the Tribunal should hear all of the evidence before determining whether it is appropriate to relieve the applicant from the carting rule. The respondent takes issue with the applicant’s allegation that he suffers from a disability and that he is unable to comply with the carting rule without aggravating his conditions.

6Counsel for the applicant and respondent participated in a case management teleconference on June 10, 2010. The call was not convened specifically for the purpose of dealing with the applicant’s Request. However, the issue was discussed and counsel for the respondent advised that from his client’s perspective, an interim remedy was not necessary since the applicant was not complying with the Rule in any event and may no longer be living in the unit. Counsel for the applicant advised that his client had left temporarily while the unit was being renovated, but had returned and was currently living in the unit. There appeared to be a possibility that the respondent would consent to the interim remedy and as a result, the respondent was given 10 days to consider that issue and advise the Tribunal. Having heard nothing from the respondent, I have decided this Request on the basis of the written submissions filed by the parties which were more than sufficient to dispose of the matter.

7Rule 23 governs Requests for an interim remedy. 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 request; and,

c) it is just and appropriate in the circumstances to do so.

8The applicant has met the requirements of Rule 23.3. He filed a detailed description of the order sought; a declaration in support of his request attaching medical notes which support his need for relief from the carting rule; and 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.

9The Tribunal established in TA v. 60 Monclair, 2009 HRTO 369 (“TA”), that the threshold for determining whether an application appears to have merit at this early stage in the proceeding is very low. The applicant has filed some medical evidence which supports the existence of his physical disabilities and the fact that compliance with the rule will aggravate his conditions. I note that the respondent intends to call evidence to dispute the applicant’s claims, and it may very well be successful in having the Application dismissed. However, applying the test in TA, at this stage in the Application, I find that the applicant has an arguable case which is neither frivolous nor vexatious (TA at para. 30).

10I am also of the view that the applicant meets the second and third stages of the test. The applicant has taken a balanced approach to the request by seeking relief from the rule subject to some limitations which take into consideration the respondent’s concerns. As a result, the balance of harm and convenience favours the applicant.

11The outcome of this decision will be that the dog’s paws will touch the common elements at certain times of the day when the applicant is leaving or returning to the condominium unit. If the Request is not granted, the parties will remain in a state of conflict with one another until this Application is resolved. As a result, I find that it is just and appropriate in the circumstances to grant the applicant’s request, including the restrictions set out above.

12I am not seized.