HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ahmed Akash
Applicant
-and-
Toronto Transit Commission and Amalgamated Transit Union Local 113
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Date: July 14, 2011
Citation: 2011 HRTO 1337
Indexed as: Akash v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Ahmed Akash, Applicant ) Self-represented
Toronto Transit Commission, ) Marni Tolensky, Counsel
Respondent )
Amalgamated Transit Union Local 113, ) Carlo Di Giovanni, Counsel
Respondent )
1The applicant filed this Application on January 20, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of disability.
2By way of Interim Decision, 2011 HRTO 583, the Tribunal required the parties to provide information and clarify various matters. The parties complied and, on this basis, the Tribunal confirms that there are no outstanding grievances involving the applicant and that the applicant has provided consent to the respondent employer to allow access to the applicant’s medical records.
REQUEST FOR INTERIM REMEDY
3On April 26, 2011, the applicant filed a Request for Interim Remedy (“Request”) asking that the Tribunal order the respondent employer to 1) require supervisory personnel to undertake certain steps when the supervisory personnel apprehend an employee who is unconscious/asleep and 2) transfer a particular supervisor to another location.
4It appears that the applicant perceives that he is being unfairly targeted by the individual supervisor identified in the Request and that this supervisor is excessively monitoring the applicant for sleeping on duty or sleepiness. The applicant requests that the Tribunal order the respondent employer, as an interim remedy, to require all supervisory personnel to follow certain steps prior to alleging an employee is asleep and that the individual supervisor be transferred away from the applicant. The applicant submits the interim remedy is necessary because he fears he will be subjected to a false allegation of sleeping while on the job and as a result will be disciplined, including potential dismissal in accordance with the respondent employer’s new performance policy.
5The respondent employer filed its response to the Request on May 18, 2011 and the respondent union filed its response on May 20, 2011. Both respondents oppose the Request and submit that the applicant has not satisfied the onus of demonstrating that his Request is necessary to ensure a complete and effective remedy at the end of the hearing. The respondents also argue that the remedies sought by the applicant in his Application are not related to the new allegations raised in the Request. The respondents also highlight various technical deficiencies with respect to the Request, including the lack of appropriate declaration.
DECISION
6Rule 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.
7In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal states that such remedies are extraordinary and are only granted when the applicant is able to demonstrate that an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing.
8I 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. The applicant has failed to articulate why the interim remedy he seeks is necessary to ensure a complete, appropriate and effective remedy should he be successful in proving the alleged discrimination described in his Application.
9As noted in the previous Interim Decision, the Application relates to alleged differential treatment as to workplace accommodation following an occupational injury. The Application alleges that the applicant, being in an accommodated position, is denied the “spread allowance” paid to regular employees who work eight hours spread over a 12-hour day. The Application further alleges that the applicant was denied appropriate modified work on shifts of his preference and experienced reprisal.
10The Request relates to an event following the filing of the Application and involving the respondent employer’s implementation of a new performance policy. The applicant argues in his Request that he fears that he could be dismissed if he is unfairly scrutinized under the new policy.
11As such, it appears the Application and the Request Interim Remedy focus on different issues and events. 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 as alleged in the Application. The Request in the present case does not relate to the Application.
12In conclusion, the applicant 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.
13Accordingly, the applicant’s Request for Interim Remedy is dismissed. Given that all parties have agreed to mediation, this matter will be scheduled for a mediation.
14I am not seized of this matter.
Dated at Toronto, this 14^th^ day of July, 2011.
”signed by”_______________
Ena Chadha
Vice-chair