Russell v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Russell

Applicant

-and-

Her Majesty in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services-Metro West Detention Centre, OPSEU Local 517 and OPSEU Head Office

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: December 10, 2010

Citation: 2010 HRTO 2456

Indexed as: Russell v. Ontario (Community Safety and Correctional Services)

1This is an Application filed on December 1, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). At the time of filing, the applicant also filed a Request for Interim Remedy (the “Request”). The purpose of this Interim Decision is to determine the Request. This determination is based only on the applicant’s materials as neither the Application nor Request has yet to be served on the respondents.

2The Application alleges that the respondents discriminated against her on the basis of her disability. She states that the respondent Ministry failed to accommodate her by providing her with modified work consistent with her restrictions. She states that the respondent union failed to assist her in getting a reassignment to a different position, failed to return her telephone calls and refused to file a grievance regarding the Ministry’s conduct. The applicant states that when no alternative assignment was forthcoming, she submitted her resignation so she would “at least get a severance from the employer”. As a remedy, the applicant requests reinstatement, reassignment to a suitable position, a number of monetary remedies and training for management and union for employees with disabilities.

3The applicant requests an Interim Remedy of monetary compensation for expenses while awaiting hearing, which I presume to be a remedy sought from the respondents although it is unspecified. The applicant states that her Application has merit because the Ministry has offered no options and she is now unemployed due to a disability. She states that if the Request is not granted, she will soon be without any pay with a young child. She states it would be just and appropriate to grant her Request since the Application clearly shows the respondent Ministry’s failure to accommodate for a disability resulting in her being unemployed.

4The applicant has not filed any declarations in support of her Request as required by rule 23.3 of the Tribunal’s Rules, but has attached a copy of an unsigned letter which is addressed to the superintendent of the Metro West Detention Centre, dated November 24, 2010. The letter summarizes the allegations and outlines a remedy similar to that being sought in the Application.

5Rule 23.2 of the Tribunal’s Rules provides as follows:

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.

6In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that since the Code is remedial legislation, 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.”

7Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v 60 Montclair.

8The Tribunal has also stated that it should exercise particular caution when it is asked to provide a financial interim remedy, before any determination on the merits of an application given that the Tribunal has not developed a practice of requiring an applicant for interim relief to give an undertaking to repay a respondent should the application ultimately fail. See Lewis v. Markham Stouffville Hospital, 2009 HRTO 188 at para. 27.

9The applicant has not complied with the requirements for filing a Request for Interim Remedy by attaching the necessary declarations. That in itself would be sufficient basis to refuse the relief requested. Even if I were to waive compliance with the Rules and assume, without deciding, that the Application has merit, the facts outlined and submissions made do not support the granting of an interim remedy.

10The only remedy sought by the applicant is monetary in nature. While I recognize that there have been financial consequences following the applicant’s resignation from work, these consequences are experienced by many applicants before the Tribunal, many of whom also are living with a disability. I am not satisfied that the remedy of compensation is necessary in order to preserve the Tribunal’s ability to order a just and effective remedy at the conclusion of the hearing. Further, given the Tribunal’s caution in ordering financial compensation as a form of interim remedy, I cannot conclude that the applicant has met the burden of establishing that the balance of convenience favours the granting of the request or that it would be just and appropriate in the circumstances to do so.

11The Request for Interim Remedy is denied.

12The Application will be delivered to the respondents in the normal course and the application will be processed accordingly.