William Jeannotte v. 1682298 Ontario Inc. o/a Spearmint Rhino Gentlemen’s Club et al., 2010 HRTO 701

Human Rights Tribunal of Ontario

B E T W E E N:

William Jeannotte Applicant

-and-

1682298 Ontario Inc. o/a Spearmint Rhino Gentlemen’s Club and Spearmint Rhino Consulting Worldwide Inc. and Scott Fenton Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: March 30, 2010 Citation: 2010 HRTO 701 Indexed as: Jeannotte v. 1682298 Ontario

1This is an Application filed on December 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Application alleges discrimination in employment on the ground of disability. The applicant states that he started working as a disc jockey at the corporate respondents’ entertainment establishment, starting in May 2009. He states that beginning in September 2009 the number of shifts he worked was cut from 3-4 per week to 2, as a result of his disability, and that he experienced harassing comments based on his disability. The Application alleges that in October 2009, he was told his work was to be cut to one shift per week.

3The applicant filed a Request for Interim Remedy, received by the Tribunal on March 5, 2010. In the Request, he states that his employment was terminated on February 26, 2010, as a reprisal for seeking to enforce his rights under the Code. In his Request, the applicant seeks an interim financial remedy amounting to a continuation of his salary based on working three shifts per week, retroactive to November 2009.

4The applicant submitted documents with his Request, including a letter from a family physician, a letter from a nurse and other letters from current and past co-workers or employers. I will assume, without deciding, that at least some of this material can be considered a “declaration” for the purpose of Rule 23.3(b) of the Tribunal’s Rules of Procedure.

5The conditions for awarding an interim remedy are set out in Rule 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.

6In TA v. 60 Montclair, 2009 HRTO 269, 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:

This is particularly so given that the Tribunal has not developed a practice requiring an applicant for interim relief to give an undertaking to repay a respondent, should the main Application ultimately fail. If the Tribunal orders interim relief against a respondent whose position is ultimately vindicated at the conclusion of the case, the respondent may have no way of being repaid for any damages it incurred from the interim remedy. This is different from the courts, where an undertaking (or sometimes even the posting of a bond) is required as a condition of obtaining interim remedies (referred to in the courts as “interlocutory injunctions”). The absence of this kind of assurance suggests a need for caution in granting an interim remedy (Lewis v. Markham Stouffville Hospital, 2009 HRTO 188 (CAN Lll) at para. 27).

9In this Application, the letters from the medical professionals provided in support of the Request suggest that the loss of income the applicant has experienced will lead to negative impacts on the applicant’s health. The letter from the doctor states that a reduction in finances will “create increasing malnutrition, stress and depression while he waits for his claim to be resolved.” The letter from the nurse goes farther, stating that the applicant’s present financial status is resulting in deterioration of his physical status and that “in my professional opinion, if these factors are not resolved very soon they will exacerbate his condition to the point that by the time his claim is resolved, Mr. Jeannotte will be unable to return to any form of employment.”

10The Tribunal recognizes that there are likely negative impacts on the applicant from the loss of his employment. Whether or not the actions of the respondents were discriminatory, or taken in reprisal for the applicant’s exercise of rights under the Code, the effects of a loss of income are not to be minimized. However, the type of factors the applicant points to, such as the potential for malnutrition and increased stress, are experienced by many applicants before the Tribunal, many of whom as well are living with a disability.

11The more severe impacts the applicant points to, such as the possibility of a regression in his medical condition, resulting in the inability to find other employment, are speculative and I do not find the general information contained in the letters submitted by the applicant to provide a detailed and convincing basis to accept these assertions.

12Further, it is not clear that the applicant will be unable to make for some part of his lost income through alternative employment or other means.

13The Application requests as remedy that the respondents compensate the applicant for lost income, as well as pain, suffering and humiliation. At the time the Application was filed, the applicant also requested a return of shifts. In the circumstances, I am not convinced that granting an interim remedy of financial compensation is necessary in order to preserve the Tribunal’s ability to order a just and effective remedy at the conclusion of the hearing, if a violation of the Code is found.

14Given the Tribunal’s caution in ordering financial compensation as a form of interim remedy, and having regard to the above, I cannot conclude that the applicant has met the burden of establishing that the balance of convenience favours the granting of the interim remedy sought or that it would be just and appropriate in the circumstances to do so.

15The Request for Interim Remedy is denied. The Responses in this matter are due on April 5, 2010. Tribunal will schedule mediation on receipt of the Responses if the parties consent to mediation.

16I am not seized of this matter.