HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shashi Kapoor
Applicant
-and-
Registered Insurance Brokers of Ontario and Jeff Bear
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Kapoor v. Registered Insurance Brokers of Ontario
WRITTEN SUBMISSIONS
Shashi Kapoor, Applicant ) Self-represented
Registered Insurance Brokers ) John Goldsmith, Counsel of Ontario and Jeff Bear, Respondents )
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 2, 2010. The applicant alleges discrimination on the grounds of race, colour, and place of origin with respect to membership in a vocational association.
2This Interim Decision deals with the Request for Interim Remedy filed by the applicant. The respondents filed a Response to the Request, opposing it. The applicant sent an email dated November 9, 2010 responding to the respondents’ Response to the Request, and requesting that the Tribunal schedule a hearing to cross-examine the parties; allow the applicant to file a rebuttal to the respondents’ Response to the Request; or schedule a telephone hearing from the applicant before the issue is decided.
BACKGROUND
3In the Application, the applicant alleges that he hired an employee who committed various infractions that the applicant brought to the attention of the corporate respondent. The corporate respondent revoked the license of the employee and issued discipline to the applicant. The applicant alleges that the discipline issued to him was discriminatory and inconsistent with discipline that was issued to other individuals in similar situations. He has raised his concerns about unequal treatment with the respondents, yet the respondents have failed to address his concerns. The applicant asserts that the respondents treat those from the South Asian community more harshly than those who are Caucasians.
4As an interim remedy, the applicant requests that he be allowed to operate an insurance brokerage without two contracted insurance markets for an interim period, preferably two years. During this period, the applicant will sell through wholesalers of insurance and the insurers without needing a written contract. The arrangement, the applicant submits, will not compromise the integrity of the brokerage as the brokerage will be representing various insurers. The applicant expresses concern that he will lose his license with the corporate respondent,(which is due to expire on April 9, 2011), that he currently is without any earning, and is being deprived of an opportunity of practicing his occupation.
5The respondents deny that there is merit to the Application and deny that the applicant and others from the South Asian community are treated more harshly than others are treated. The respondents have not ignored the applicant’s concerns, but have internally raised and considered them. The applicant is a registered but inactive broker and he may become an active broker at any time prior to April 9, 2011, by informing the corporate respondent that he is employed by a licensed brokerage. Further, the applicant can extend the period for which he wants to retain his status as a broker without the need to write applicable examinations or be subjected to other forms of re-qualification if he chooses to resign prior to April 9, 2011, and resignation will preserve his status for status for a further year from the date of resignation.
6The respondents submit that the applicant has been unable to meet the requirements that must be met by all individuals seeking to register a brokerage. Specifically, since 2004, the applicant has failed to meet the requirement to obtain two contracted markets, which is an established requirement by the Qualifications and Registration (“Q&R”) Committee, whose powers are derived from the Registered Insurance Brokers Act, R.S.O. 1990, c. R.19, and were upheld by Ontario’s Divisional Court in Jaguar Insurance Brokers Inc. v. Registered Insurance Brokers of Ontario, [2005] O.J. No. 5069. The respondents submit that the remedy the applicant is seeking would enable the applicant to operate a brokerage in contravention of the established requirements of the Q&R Committee and note that there are no other brokerages operating in Ontario in the manner proposed by the applicant. This remedy would give the applicant a class of license with conditions that are beyond the current licensing and policy requirements of the Q&R Committee.
DECISION
7The Request for Interim Remedy is dismissed.
RULE 23
8Rule 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.
LEGAL PRINCIPLES
9The 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 on 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).
10There is a further principle that bears particular mention. The Tribunal should 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 of has recently existed. Where the situation has existed for some time, this is a significant factor militating against the Interim Remedy. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350.
APPLICATION TO THE FACTS
11I do not find it necessary to order that a hearing, by conference call or in person, be scheduled to further address this issue. The parties filed thorough materials setting out their respective positions in relation to the Request for Interim Remedy.
12The Tribunal will assume, without deciding, that the Application meets the first criterion above. In the circumstances of this case, it has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.
13There may be some detriment to the applicant in not having the benefit of the interim remedy, but I am not convinced that without them, he will be deprived of the opportunity to receive the remedy he seeks. The applicant has not alleged that the two market requirement itself is discriminatory and there is no casual connection between the remedy that he is seeking and the Tribunal’s ability to award an appropriate remedy at the hearing.
14I do find that granting the requested interim remedy would harm the respondents as granting the remedy the applicant requests would allow the applicant to practice without the requirement to obtain two contracted markets, which is an established requirement set by the Q&R Committee and applicable for all other brokerages operating in Ontario. To allow the requested remedy for the applicant, in the absence of him previously having this exemption, would be to create an extraordinary remedy. This is particularly so where a two contracted market requirement has existed since 2004 when the applicant’s brokerage was deregistered, but was not raised by the applicant until almost four months after he filed his Application.
15For these reasons, the Request for Interim Remedy is dismissed.
Dated at Toronto, this 30th day of November, 2010.
“Signed by”
Alison Renton
Vice-chair