HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ivan Williams
Applicant
-and-
Town of Iroquois Falls
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Williams v. Iroquois Falls (Town)
WRITTEN SUBMISSIONS
Ivan Williams, Applicant ) Amy Britten-Cox, ) Counsel
Town of Iroquois Falls, Respondent ) Gordon G. Conley, ) Counsel
INTRODUCTION
1The line of snow left on the side of the road after a snowplow clears the street is called a windrow. Each winter, snowplows clearing the applicant’s street in the northern Ontario community of Iroquois Falls leave a windrow that the applicant says blocks his access to the sidewalk and road from his house. The applicant has various disabilities and his physician says he is unable to shovel snow. He alleges that the respondent Town’s failure to clear the windrow left by its snowplows discriminates against him on the basis of disability, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and that the Town has failed to accommodate to the point of undue hardship by removing the windrow.
2This Interim Decision is about the applicant’s request for an interim remedy. The Application was filed on September 29, 2010. On November 12, 2010, the applicant filed a Request for Interim Remedy seeking an Order, on an interim basis, that the respondent ensure that the applicant’s access to the roadway at his house is not blocked by a windrow of snow created by the Town’s plows.
DECISION
3The Request for Interim Remedy is dismissed.
RULE 23
4Rule 23.2 sets out the circumstances in which interim remedies will be granted:
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.
POSITIONS OF THE PARTIES
5The applicant states that there is an arguable case under the Code, because the Application clearly relates to disability and the definition of undue hardship. Indeed, the applicant argues that the evidence provided proves that the respondent has failed to meet its procedural and substantive duty to accommodate under the Code. He argues that the balance of harm or convenience favours him, because the respondent will require only slightly more human power in order to remove the windrow of snow. On the other hand, he is incapable of removing the snow himself, and notes the medical evidence from his doctor that attempting to do so would worsen his conditions. He also notes that he has no friends or family who can remove the snow for him. With regard to whether the interim remedy would be just and appropriate, he notes that he requested accommodation in May 2010 to ensure that a resolution would be reached well in advance of the 2010/2011 winter season. Without the interim remedy, he would have to clear the snow himself.
6The respondent notes that a request for an interim remedy is an extraordinary remedy. It accepts that the Application appears to have merit, in light of the low standard for this stage of the test. It argues that the balance of harm or convenience favours it. It states that it would be subject to increased costs and staffing pressures associated with removing the snow from the end of the applicant’s driveway. It states that it is concerned about the safety and liability implications of clearing part of the applicant’s driveway. It states that it would not be just and appropriate to award the remedy, as the remedies requested are not necessary to provide a full, effective and appropriate remedy should the Application succeed. Finally, it argues that the applicant has not explained why he has been unable to secure a service provider capable of removing the windrow, nor why whatever snow removal practices that are currently used for the removal of snow from his driveway could not be extended to remove the windrow as well.
LEGAL PRINCIPLES
7The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA v. 60 Montclair, 2009 HRTO 369 (“TA”). TA articulated various principles that apply to requests for interim remedies. They include the following:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras. 15-27).
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras. 28-29).
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras. 33-34).
The third factor 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 (para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para. 36).
8There is a further principle that bears particular mention. The Tribunal should, in my view, be more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. Creating a new state of affairs that has never existed is a more extraordinary and serious remedy than maintaining what exists or has recently existed. Where the situation has existed for some time, this is a significant factor militating against the Interim Remedy.
9This is reflected in the Tribunal’s jurisprudence. The cases in which the Tribunal has granted an interim remedy have involved preservation of existing circumstances. See Lavallee v. Zulich Enterprises, 2009 HRTO 402; C.D. v. Wal-Mart Canada, 2009 HRTO 801; Mitchell v. Halton Condominium Corporation #499, 2010 HRTO 1507; and Andersen v. Carleton Condominium Corporation #8, 2010 HRTO 1761. In Toussaint v. Ontario (Health and Long-Term Care), 2010 HRTO 2102 where the Request for Interim Remedy was denied, the Tribunal specifically noted at para. 42 that it was “not a case where the asserted need for the interim remedy is to preserve a state of affairs that would be destroyed if the remedy were not granted”. See also Blutstein v. Ontario Realty Corporation, 2010 HRTO 307 at para. 26.
APPLICATION TO THE FACTS
10I find that it would not be just and appropriate to award the interim remedy requested. As the applicant states in his declaration, he has lived in Iroquois falls since 2004 and this has been an ongoing issue for him every winter. The applicant formally raised the alleged discrimination with the Town in May of 2010, filed the Application in September of 2010, and filed a Request for Interim Remedy in November of 2010, just before winter came. The applicant’s delay in making his Request for this extraordinary remedy is a factor militating against the granting of the remedy. A similar principle has been applied by the Tribunal with regard to Requests to Expedite, where delay by the applicant in filing the Application will lead to denial of the request to expedite except in “the rarest of circumstances”: Kwan v. Hospital for Sick Children, 2009 HRTO 621 at para. 2.
11The remedy the applicant requests would lead to a change in the existing state of affairs in that it would require the respondent to change its existing snow removal practices. Moreover, the effect on the respondent of this change would not merely relate to windrow removal at the applicant’s property. Doubtless, the applicant is not the only person in Iroquois Falls or in Ontario with a physical disability that affects his ability to shovel snow. This is obviously a test case which, if successful, may well have the effect of requiring the respondent and other Ontario municipalities to remove the windrow from the houses of many people with physical disabilities. The factors cited by the applicant would likely apply in many circumstances. The practical effect and precedent of granting an interim remedy in this case would be that until this case is heard, the respondent and perhaps other municipalities would have to make significant changes to their snow removal practices around the homes of persons with mobility issues.
12I agree with the respondent that the applicant’s declaration does not provide enough facts to establish the need for the remedy requested. It does not explain what efforts the applicant has made to have the windrow of snow removed by someone else, nor how he clears the snow from the rest of the property. The declaration does not include sufficient facts that explain why he requires this extraordinary remedy. As noted in TA, whether an interim remedy is necessary to secure a complete remedy at the end of a hearing is the most important factor in the analysis and “it will not be sufficient for an applicant seeking an interim remedy to simply assert a particular urgency in obtaining the ultimate relief” (para. .23).
13For all these reasons the Request for Interim Remedy is dismissed.
Dated at Toronto, this 26th day of November, 2010.
”signed by”____________
David A. Wright
Interim Chair