Brown v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1712

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Coreena Brown Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Central North Correctional Centre) Respondent

A N D B E T W E E N:

Coreena Brown Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Central North Correctional Centre) and Robyn Kasha Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: September 19, 2011 Citation: 2011 HRTO 1712 Indexed as: Brown v. Ontario (Community Safety and Correctional Services)

1These matters are an Application filed on September 7, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), accompanied by a Request for Interim Remedy, and an Application Alleging Contravention of Settlement filed on August 25, 2011.

REQUEST FOR INTERIM REMEDY

2The applicant has also filed a Request for Interim Remedy. In the Request, she asks that the Tribunal remove her from the short-term sick plan, provide her with leave at 100% pay until the matters before the Tribunal are resolved, and reimburse for money she has used from her vacation pay to cover the 25% shortfall in her salary from April 1, 2011, to the present.

3The respondents have not yet received notice of the s. 34 Application or the Request and, in the circumstances it is unnecessary to hear from them in order to reach a decision regarding the Request for Interim Remedy.

4In the Request, the applicant alleges that she was on leave with pay from January 2009 until April 1, 2011, awaiting an employment accommodation from her employer. On April 1, 2011, she was placed on short-term sick leave, providing her with 130 days of pay at 100% of salary and 124 days paid at 75%. She states that she has needed to top up her pay with vacation time to ensure that she would receive 100% of her pay. As well, her short-term sick credits will run out on September 30, 2011.

5The applicant states that she has applied for long-term income protection benefits from a provider, which if approved will only provide her with 66 2/3% of her salary.

6In describing the harm that will result if the request for an interim remedy is denied, the applicant states that she is the sole income provider for her family. She states that she may lose her house and would not be able to financially provide the necessities of life for her three minor children.

7As the Declaration in support of the Request, the applicant has filed the particulars in support of her Applications accompanied by her signature.

Decision

8The 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.

9Normally, 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, 2009 HRTO 269.

10In TA v. 60 Montclair, 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.”

11The 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.

12The Tribunal has also stated that an applicant’s delay in making a request for an interim remedy is a factor militating against the granting of the remedy. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350.

13I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 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.

14I am not convinced that the interim remedy requested is necessary to further the remedial objects of the Code. The material does not establish that the remedies the applicant requests (including monetary compensation and reinstatement) would be unavailable at the end of the hearing, absent the interim remedy.

15The Tribunal recognizes that there are likely negative impacts on the applicant from the loss of part of her income. Whether or not the actions of the respondents were discriminatory, the effects of a loss of income or part of an income are not to be minimized. However, the applicant’s circumstances pending the hearing of her Application are similar to those faced by many applicants who allege discrimination in employment.

16I 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.

17The Request for Interim Remedy is denied.

18The Tribunal will provide notice of the s. 34 Application along with a copy of this decision to the respondents.

REQUEST FOR EXTENSTION TO FILE RESPONSE TO APPLICATION ALLEGING CONTRAVENTION OF SETTLEMENT

19As required by the Tribunal’s Rules of Procedure, the applicant delivered the Application Alleging Contravention of Settlement to the respondent. The time for filing a Response to this Application was September 7, 2011. The respondent has requested an extension of time to file the Response, until October 19. The applicant opposes the request for an extension. The reasons given by her counsel are essentially that she will be prejudiced by any delay as she is currently on short-term sick leave which will expire on September 30, 2011, and although she has made an application for long-term disability benefits, these have not yet been approved by the provider.

20The particulars in support of both Applications are virtually identical and are lengthy. In the circumstances, the Tribunal will consolidate the Applications and deal with them together. The time for filing a Response to the Application Alleging Contravention of Settlement will therefore be extended to the same date the Response is due on the other Application. Although I can appreciate the applicant’s desire to move forward quickly with the Application, I am not convinced that the potential prejudice she identifies warrants imposing a quicker time to respond to her Applications.

ORDER

• The Request for Interim Remedy is denied. A Notice of Application will be issued and the respondent will be sent a copy of this decision.

• The s.34 Application and Application Alleging Contravention of Settlement will be dealt with together.

• The time for filing a Response to the Application Alleging Contravention of Settlement is extended to the time for filing a Response to the s.34 Application.

21I am not seized of this matter.