Ainmelk v. Jeoffrey, 2011 HRTO 1825

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Georges Ainmelk

Applicant

-and-

Imrana Jeoffrey, Lise Lauzon, Paul Beaudry, Patrick Blais, and James Hanson

Respondents

-and-

Canadian Union of Public Employees and its Local 4000

Intervenor

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 7, 2011

Citation: 2011 HRTO 1825

Indexed as: Ainmelk v. Jeoffrey

WRITTEN SUBMISSIONS BY

Georges Ainmelk, Applicant ) Self-represented

Imrana Jeoffrey and ) Vicky Satta, Counsel James Hanson, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to address four issues: (a) the applicant’s Request for Interim Remedy, (b) the Canadian Union of Public Employees and its Local 4000 (the “union”)’s Request to Intervene, (c) the addition of The Ottawa Hospital as a respondent, and (d) the delivery of the Application to Patrick Blais.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 28, 2011, which alleged that the respondents harassed and discriminated against him with respect to employment because of his race, ancestry, place of origin, citizenship, ethnic origin, and age.

3Specifically, the applicant alleged that the respondents disciplined him without evidence of misconduct, subjected him to discriminatory comments, jokes and gestures, sent him an e-mail with discriminatory contents, and subjected him to violence, all in his workplace.

4The applicant also listed the same address for all the respondents, which appears to be the address of their employer, The Ottawa Hospital, but, with respect to Patrick Blais, also stated that he was “fired” in 2010.

5The applicant then filed a Request for Interim Remedy and a Request for an Order During Proceedings on August 19, 2011, which requested that the Tribunal order the respondents to stop disciplining him.

6The respondents Imrana Jeoffrey and James Hanson filed a Response to a Request for Interim Remedy and a Response to a Request for an Order on August 26, 2011, which opposed the applicant’s Requests. The other respondents did not file a Response to the applicant’s Requests.

7The respondents Ms. Jeoffrey and Mr. Hanson also filed a Response to the Application on September 7, 2011, which denied the allegations of harassment and discrimination. Specifically, they admitted that they had disciplined the applicant, but stated that it was for non-discriminatory reasons. They also stated that a third party investigator is currently investigating several of the applicant’s other allegations.

8Their Response also listed The Ottawa Hospital and Ms. Jeoffrey as respondents, but did not list Mr. Hanson as a respondent. There was no explanation in the Response for this discrepancy. The Response also stated that Mr. Blais is no longer employed by The Ottawa Hospital.

9The respondents Paul Beaudry and Lise Lauzon filed separate Responses on September 5, 2011 and September 7, 2011, respectively, which denied the allegations of harassment and discrimination. The respondent, Mr. Blais, did not file a Response.

10On August 10, 2011, the union filed a Request to Intervene. The respondents Ms. Jeoffrey and Mr. Hanson filed an e-mail on August 11, 2011, which stated that they were not taking a position with respect to the Request. None of the other parties filed a Response to the Request.

REQUESTS FOR INTERIM REMEDY AND ORDER DURING PROCEEDINGS

11The applicant’s Request for Interim Remedy and Request for an Order During Proceedings are essentially asking for the same thing. As such, I will consider and treat them both as a Request for Interim Remedy.

12Rule 23 of the Tribunal’s Rules of Procedure deals with interim remedies. Rule 23.2 states that 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.

13In requesting an interim remedy, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions before the merits of the Application have been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies. An applicant seeking an interim remedy will therefore have 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. Chopra v. Kratiuk, 2009 HRTO 109, at para. 11, and TA v. 60 Montclair, 2009 HRTO 369, at para. 29.

14The three criteria in Rule 23.2 are all ingredients to be considered in determining whether to grant an interim remedy. An applicant will be required to demonstrate that all three elements are met before being entitled to the remedy requested. However, they should not be seen as successive hurdles, where the applicant must meet the first, before moving onto the next. Rather, the decision to grant or refuse the Request should consider the collective impact of all factors, and the purpose of the provision as a whole. TA, supra, at para. 36.

15The applicant requested that the Tribunal order the respondents to stop disciplining him. In his submissions, he stated that on August 17, 2011, Ms. Jeoffrey, who is a manager, subjected him to a reprisal by falsely accusing him of documenting the actions of others in his office during work hours, and then issuing him a one-day suspension without pay. He stated that if the Tribunal denies his Request, he will be harmed because the respondents will continue subjecting him to reprisals and may terminate his employment. He also stated that it would be just and appropriate for the Tribunal to grant his Request because it is a temporary guarantee of job security until the Tribunal decides the merits of the case.

16The respondents Ms. Jeoffrey and Mr. Hanson submitted that the Tribunal should deny the applicant’s Request. They stated that the applicant has a history of performance issues and discipline that preceded the filing of his human rights Application, and that Ms. Jeoffrey suspended him on August 17, 2011, because he was surveilling and documenting his co-workers’ interactions during work time, and when she asked him about it, he told her that it was none of her business. They stated that if the Tribunal grants the applicant’s Request, a significant harm would be created for Ms. Jeoffrey because she would be impeded from managing the applicant’s disruptive, disrespectful and insubordinate behaviour, which, in turn, would affect patient care. They also stated that it would not be just and appropriate to grant the applicant’s Request because, even if his employment is terminated prior to the hearing, the Tribunal has the power to reinstate him and compensate him for his financial losses if it finds that the respondents violated the Code.

17In my view, having considered the collective impact of all the factors and the purpose of Rule 23 as a whole, the applicant has not met his significant onus of establishing that his Request for Interim Remedy meets all three criteria in Rule 23.2. Even if I accept that the applicant has established that his Application appears to have merit, I am not satisfied that the balance of harm or convenience favours granting his Request, and that it is just and appropriate in the circumstances to do so.

18The second element in Rule 23.2 involves the balancing of the relative harm or convenience in granting or refusing the Request. The risk to an applicant in such cases is that, if an immediate remedy is withheld, his or her rights will be so impaired by the time of the hearing and the final Decision that it will be too late to afford complete relief. On the other hand, inherent in the exercise also lies a risk of harming a respondent by enjoining a course of conduct which may ultimately be shown to be rightful. The question, therefore, is whether the harm the applicant will suffer if the Request is not granted outweighs the harm to the respondent if the Request is granted. TA, supra, at paras. 33-34.

19Both parties provided equally compelling submissions about the possible harm that they would suffer if the Tribunal decided against them on this matter. However, there is no dispute that if the respondents terminate the applicant’s employment, and the Tribunal subsequently finds that the respondents violated the Code, the Tribunal has the power to reinstate the applicant and compensate him for his financial losses. In these circumstances, the applicant has failed to establish that the balance of harm or convenience favours granting his Request.

20The third element in Rule 23.2 recognizes the discretionary nature of interim relief. There will be a number of factors the Tribunal will consider, but ultimately it calls upon the Tribunal member to decide whether the Request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances. TA, supra, at para. 35.

21For the same reasons as above, I cannot conclude that the interim remedy requested is necessary to further the remedial purposes of the Code, and would be fair in all the circumstances. Accordingly, the applicant has failed to establish that it is just and appropriate to grant his Request.

22The applicant’s Request for Interim Remedy and Request for an Order During Proceedings are therefore denied.

REQUEST TO INTERVENE

23Rule 11.1 of the Tribunal’s Rules provides that the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine, and the Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding. None of the parties have opposed the union’s Request to Intervene.

24The union’s Request to Intervene is granted. The Application raises issues that may affect the union, and none of the other parties oppose the Request. The extent of the union’s participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

ADDITIONAL RESPONDENT

25In their Response, the respondents Ms. Jeoffrey and Mr. Hanson listed The Ottawa Hospital as an organization respondent in section 1 of the Response (“Respondent Contact Information”). The applicant did not name The Ottawa Hospital as a respondent, and the respondents Jeoffrey and Hanson did not add The Ottawa Hospital as a respondent in section 4 of the Response (“Contact Information – Additional Respondent”). As such, the Tribunal directs the respondents Ms. Jeoffrey and Mr. Hanson to clarify whether they are seeking to add The Ottawa Hospital as a respondent in these proceedings.

DELIVERY OF APPLICATION TO PATRICK BLAIS

26Mr. Blais has not filed a Response to the Application. Based on the information in the parties’ pleadings, it appears that he has not responded because the Application was sent to him at an address at The Ottawa Hospital, even though he is no longer employed there.

27In the circumstances, the Tribunal orders The Ottawa Hospital, through the respondents Ms. Jeoffrey and Mr. Hanson, to deliver to the applicant and file with the Tribunal the current or last known address of Mr. Blais. The Tribunal will then re-send the Application to Mr. Blais.

ORDERS

28The Tribunal makes the following orders:

a) The applicant’s Request for Interim Remedy and Request for an Order During Proceedings are denied.

b) The union’s Request to Intervene is granted and the title of proceedings is amended accordingly.

c) Within one week of this Interim Decision, the respondents Ms. Jeoffrey and Mr. Hanson shall inform the applicant and the Tribunal whether they are seeking to add The Ottawa Hospital as a respondent in these proceedings.

d) Within one week of this Interim Decision, The Ottawa Hospital, through the respondents Ms. Jeoffrey and Mr. Hanson, shall deliver to the applicant and file with the Tribunal the current or last known address of Mr. Blais.

29I am not seized of this matter.