Sandra Roberts v. Region of Peel, 2011 HRTO 1138

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Roberts

Applicant

-and-

Region of Peel, Bruno Colavecchia, Mike Goldrup, Krista Ieraci, Muliwa Mwarigha and David Szwarc

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 13, 2011

Citation: 2011 HRTO 1138

Indexed as: Roberts v. Region of Peel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 1, 2011. The purpose of this Interim Decision is to determine the applicant's Request for an Interim Remedy and Request to Expedite Proceedings that the applicant filed along with her Application. The Application and the Requests have not yet been sent to the respondents; in the circumstances, the Tribunal does not require Responses to the Requests from the respondents. Based on the applicant's materials, the Requests are denied.

Request for Interim Remedy

2The applicant seeks reinstatement of the benefits package, specifically EAP, short-term disability ("STD"), long-term disability and prescription drug coverage, that she had when she was employed. She submits that the respondents' alleged harassing conduct has created adverse effects on her disabilities for which she requires costly prescription medications and counselling through EAP. She asserts that she needs to resume STD, which she had come off 16 days before her termination. She cannot afford these benefits without income and asserts that her health cannot improve without the medications and counselling on which she relies.

3She attached to both Requests various documents, including: medical reports and a counsellor's letter, all of which pre-date her termination; a list of individuals whom she identifies as "organizational respondents"; communications to and from her employer which pre-date her termination; a "statement" from her pharmacist; and a "statement" from her husband.

4Rule 23.2 of the Tribunal's Rules of Procedure, relating to requests for interim remedies, states:

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.

5Rule 23.3(b) of the Tribunal's Rules of Procedure requires that a Request for Interim Remedy be accompanied by, "one or more declarations signed by the persons with first-hand knowledge detailing all of the facts upon which the Applicant relies".

6Normally, 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. The fundamental consideration in determining whether to award an interim remedy is whether it 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. For these reasons, an applicant has a significant onus to meet in demonstrating that the Request meets the three elements in Rule 23.2. See TA v. 60 Montclair, 2009 HRTO 369; Sawhney v. Law Society of Upper Canada, 2011 HRTO 656.

7The Tribunal's Practice Direction on Requests to Expedite an Application and Requests for an Interim Remedy states in the last paragraph:

Only information that is contained in the declaration will be considered as evidence when the Tribunal considers a request for an expedited proceeding or an interim remedy. Information in the application itself, or submissions on the Form 14, Form 16 or Form 17 are not proper evidence that can be considered by the HRTO.

8The "statement" that the applicant provided from her pharmacist is a print-out entitled "Patient Medical History Report" and appears to show the medications that have been filled by the pharmacy from 2009 to May 31, 2011. It does not contain any first-hand information signed by a pharmacist and is not a declaration as required by Rule 23.3(b). Accordingly, I cannot consider it as evidence as a declaration.

9The declaration that is signed by the applicant's husband (more of which is set out below in addressing the Request to Expedite) makes no mention of the applicant's benefits, let alone the termination of those benefits and how the applicant's family cannot afford the costs of her prescription drugs or other medical services subsequent to her termination.

10The applicant's Request for Interim Remedy is denied.

Request to Expedite

11The Tribunal's Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances that require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.

12In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal's regular process.

13In her Request and in response to the question asking for a detailed description of the changes she is requesting to the Tribunal's normal process if the Request is granted, the applicant submits that she may "possibly" cause harm to herself or others if she is required to wait one year for the Tribunal's process. She asserts that her medical condition may not get better, may deteriorate, her life may end and may cause "possible" harm to others if her Request was denied. She did not file a declaration, medical or otherwise, supporting these assertions.

14As noted above, the applicant's husband signed a declaration in support of the applicant's Requests. The declaration contains information specifically about what was taking place in the workplace when the applicant was employed by the corporate respondent. The declaration does not assert that the applicant's husband works for the corporate respondent and personally observed what was taking place in the workplace. Accordingly I find that part of the declaration is based upon hearsay and does not contain first-hand information.

15Further, the declaration is based upon the husband's observations of the applicant while she was employed by the corporate respondent and not the impact of the termination upon the applicant or the harm that would result if the application were not expedited.

16Accordingly, the Request to Expedite is denied.