Heidi Blutstein v. Ontario Realty Corporation, 2010 HRTO 307

Human Rights Tribunal of Ontario

Between:

Heidi Blutstein Applicant

-and-

Ontario Realty Corporation Respondent

Interim Decision

Adjudicator: Sherry Liang Date: February 9, 2010 Citation: 2010 HRTO 307 Indexed as: Blutstein v. Ontario Realty Corporation

1This is an Application filed on January 13, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the grounds of sex, family status, association with a person with a disability and reprisal or threat of reprisal. The applicant has also filed a Request for Interim Remedy. This Interim Decision deals with the Request.

2The respondent Ontario Realty Corporation ("ORC") has filed a Response to the Request for Interim Remedy; the time for filing a Response to the Application has not yet elapsed.

Background

3The Application alleges a refusal to accommodate, poisoned work environment, failure to promote and failure to pay a bonus, but the primary issue arises out of the applicant's efforts to obtain a new work arrangement upon her scheduled return from maternity leave on January 13, 2010.

4The applicant has one three-year-old daughter, J.D., and twins born on January 15, 2009. The Application states that while on maternity leave from the birth of her twins, the applicant's older child was diagnosed with autism. The Application describes a combination of services received by J.D. during the applicant's maternity leave, including specialized care at a nursery school for some parts of the week, attendance at a local child care program for other parts, and speech and language therapy. The Application asserts that J.D. needs to continue receiving those programs and services beyond the end of her maternity leave, and that she requires workplace accommodation in order to ensure the continuity of those services. In particular, the applicant requires workplace accommodation to enable her to drive her daughter to the nursery school, which is not in her local neighbourhood and in which her daughter receives care in blocks of time three times a week.

5The Application alleges that before the end of her maternity leave, the applicant made a request to the ORC for workplace accommodation, in the form of regular part-time work, flex time or an unpaid leave, but that the respondent refused to consider any accommodation. It is alleged that the applicant was advised the ORC had a policy of not permitting extensions to maternity leaves. It is alleged that the only accommodation the ORC was willing to consider was a particular form of a flexible schedule which did not meet her needs. The applicant then made a specific proposal of part-time work, which was denied by the ORC.

6Subsequently, the applicant told the ORC that she was not able to return to work at the end of her leave on a full-time basis, and would be filing this Application as well as a request for interim relief. The ORC responded by advising the applicant that if she did not return from her leave to full-time employment, it would treat her as having resigned.

7The applicant did not return to work. The ORC deemed her to have abandoned her employment, effective January 13, 2010.

8In the Application, which was filed coincidental with the end of her employment, the applicant requests as remedy that she be allowed to return to work on a part-time arrangement. In the event that ORC terminates her employment before the hearing of the Application, she also requests damages based on 24 months' salary, if reinstatement is not appropriate. Additional remedial relief is claimed, including general damages, "stigma damages" for damage to her career prospects, and systemic remedies.

9In support of her Request for Interim Remedy, the applicant has filed three declarations, from herself and two individuals responsible for aspects of her daughter's care.

Submissions on the Request for Interim Relief

10The applicant states that the request meets the criteria for interim relief. The Application appears to have merit, the harm she will suffer if the request is not granted outweighs the harm to the respondent if the request is granted, and it is just and appropriate to do so as granting interim relief is consistent with the remedial objective of the Code.

11In her declaration, the applicant states that to continue her development, her daughter needs to continue receiving the programs and services that she started receiving while the applicant was on maternity leave. She cannot be placed in a regular daycare or left all day with a nanny, as her development requires more active one-on-one assistance. The applicant states that the only way that her daughter can attend the nursery school, in particular, is if the applicant or her spouse drops her off and picks her up. As stated above, the nursery school is not in her local neighbourhood and consists of half-days. Her spouse is employed full-time as legal counsel with the provincial government. He has been granted accommodation that permits him to assist in some of the transportation. She states that her nanny does not drive and in any event would not be in a position to adequately care for her twins as well as J.D. at the same time. Other family members are not available to help.

12In her declaration, the applicant asserts that without the ability to work at least part-time or to return to work in September 2010 on an unpaid extension of her leave, she would lose her benefits and the money needed to pay for present and future programming and services for J.D. and possibly, her other children if such need arises in the future.

13The ORC submits that to grant the remedy the applicant seeks at the interim stage would effectively determine the outcome of the Application before a hearing on the merits. Further, it submits that the Application does not have merit, the balance of harm or convenience favours the ORC, and as the interim remedy is not necessary to facilitate and ensure the Tribunal's ability to award a complete, appropriate and effective remedy at the end of the hearing, it is not just or appropriate in the circumstances.

14The ORC states that the accommodation the applicant seeks is for the purpose of driving her daughter to and from a nursery school on certain days of the week. It submits that she has not provided any evidence demonstrating that she is the only person capable of driving her daughter to and from that nursery school and has not shown that the requested accommodation is therefore necessary to prevent a serious interference with a substantial parental obligation.

15It also submits that as the applicant is no longer employed by the ORC, there is currently no work-related impact on the applicant's ability to do this pending the outcome of a hearing on the merits. The request for an interim remedy, it is said, is thus moot.

16With respect to the balance of harm or convenience, the ORC submits that the interim remedy sought would require it to (a) reinstate the applicant in employment; (b) create a new part-time solicitor position in its legal department for the applicant and (c) continue to allow her to work part-time on an indefinite basis. It would also require it to hire another solicitor to assume the applicant's full-time workload while sourcing work projects that would be suitable to part-time coverage. The ORC provides details of the reasons why it rejected the applicant's request to return to part-time employment, and why granting this as an interim remedy would give rise to undue hardship for operational reasons.

17With respect to the applicant's assertion about loss of benefits coverage, the ORC states that she has provided no evidence to indicate that she and her children cannot obtain comparable benefits coverage through her husband's employer's group benefits program. It asserts that as her husband is currently employed full-time with an employer that offers benefits coverage, its understanding is that such benefits are in fact available.

18The ORC also submits that the applicant has indicated that monetary compensation will serve to remedy any alleged violation of the Code. Given this, there is no urgent or extraordinary need for an interim remedy. It states that the applicant has failed to provide any factual or legal basis showing that the interim remedy is necessary to facilitate and further the remedial objectives of the Code.

19The applicant filed a reply to the ORC's response to her Request. Although the ORC submits that the Tribunal should not have regard to the reply, I find it appropriate to consider it. The applicant disagrees with the respondent's submissions in many respects. On the question of harm, and whether her loss of employment has resulted in a loss of benefits required for her daughter's therapy, the applicant submits that she "needs salary and benefits to continue to pay for programming and services."

Decision

20Rule 23.2 of the Tribunal's Rules of Procedure, relating to requests for interim remedies, states:

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.

21The 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.

22The Tribunal has stated that an applicant seeking an interim remedy has 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 TA v. 60 Montclair, 2009 HRTO 369.

23The interim remedy the applicant seeks amounts to a request for reinstatement, albeit to a part-time, rather than full-time work arrangement. She has provided lengthy declarations whose primary focus is the programming and services her daughter requires, and how full-time work will be incompatible with those. There is no reason to doubt the challenges to be met by the applicant in caring for a child with special needs, and the logistical, financial and emotional burdens placed on the applicant and her spouse. No one can question the genuineness of the applicant's desire to do everything possible to ensure that her daughter has the programming and services necessary for her development.

24In my view, however, much of this evidence relates to the merits of the Application, rather than to the request for an interim remedy. It supports the applicant's position that she required a new work arrangement at the end of her maternity leave that allows her the time to drive her daughter to the nursery school in which she receives specialized care at certain times of the week. It speaks less to the harm that she would suffer if she is not reinstated to a part-time work arrangement pending the hearing of the Application.

25The material does not establish, for instance, that absent reinstatement, the applicant's daughter will not be able to continue to receive programming and services pending the hearing of the Application. Although there is a suggestion in the applicant's declaration that the benefits from her employment are required for her daughter's services, this was specifically disputed by the respondents and the material before me, including the applicant's reply, provides no concrete support for this assertion.

26Given the inconvenience that the interim remedy would impose on the respondent (including converting a position that had previously been full-time into a part-time arrangement, and either recruiting another part-time solicitor or finding ways to distribute the applicant's work amongst existing staff), I am not convinced that the applicant has met the onus of establishing that the balance of harm favours granting the interim remedy requested. This case is distinguishable from Day v. Wal-Mart Canada, 2009 HRTO 801, in which the interim remedy served to preserve the applicant's pre-existing work schedule which accommodated the applicant's responsibilities for the care of a grandchild with disabilities, pending a hearing on the merits.

27Finally, I am not convinced that the interim remedy requested is necessary to further the remedial objects of the Code. The primary remedial relief requested by the applicant is either reinstatement to part-time employment or a monetary award in lieu of reinstatement. The applicant's circumstances pending the hearing of her Application are similar to those faced by many applicants who allege a discriminatory termination of employment. The material does not establish that the remedies the applicant seeks would be unavailable at the end of the hearing, absent the interim remedy, or that the Tribunal's ability to award a complete, effective and appropriate remedy requires the interim remedy requested.

28In conclusion, the Request for Interim Remedy is denied.

29I am not seized of the matter.