Vella v. City of Toronto, 2011 HRTO 1831

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Vella

Applicant

-and-

City of Toronto, Stewart Morris and John Jansen

Respondents

-and-

Toronto Civic Employees Union, Local 416

Intervenor

interim DECISION

Adjudicator: Sherry Liang

Date: October 11, 2011

Citation: 2011 HRTO 1831

Indexed as: Vella v. City of Toronto

1The applicant filed an Application on February 16, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability and reprisal.

2The applicant is a paramedic employed by the City of Toronto (the City) Emergency Medical Services (EMS). Among the issues raised in the Application is the City’s procedure for issuing non-standard uniforms to its paramedics. In the past, the applicant was issued a non-standard 100% cotton uniform, consisting of shirts and pants. He states that he provided the City with a doctor’s note in November 2008 to support his need for a non-standard uniform.

3In August 2010, the City requested that the applicant have his doctor complete a new form to support his continuing requirement for a non-standard uniform. Among other things, the form requires a doctor to indicate the general nature of the medical condition (e.g., whether it is “irritant contact dermatitis”, “allergic contact dermatitis”, “contact urticaria” [hives] or “other”). In his Application, the applicant alleges that the result of the requirement is that effectively, his prior accommodation has been withdrawn. He alleges that that the form violates his fundamental rights because it asks for his specific medical condition. The applicant has refused to have the new form completed by his doctor. As a result, he states, he has been denied a replacement uniform, in 2010 and again in 2011.

4This Application was filed, as indicated above, in February of this year. On October 6, 2011 the applicant made a Request for an Interim Remedy. In the Request, the applicant states that his current non-standard uniform is in a degraded and threadbare state, exposing him to a risk of serious injury or death. He requests that the Tribunal direct the City to issue him five new pairs of 100% cotton pants, and four 100% cotton shirts.

5The applicant delivered the Request to the respondents on the day it was filed with the Tribunal. Because of my determination on the Request, it is unnecessary for them to file a Response to the Request.

DECISION

6Rule 23.2 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, states:

723.2 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.

8The Tribunal has stated that an applicant seeking an interim remedy has 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: see TA v. 60 Montclair, 2009 HRTO 369. Normally, 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.

9Even based on the applicant’s material, I am not satisfied that the applicant has established the criteria necessary to support the interim remedy he seeks. First, without making a definite determination about the merits of the applicant’s case, I observe in general that it is not surprising or extraordinary for an employer to seek medical information to support a request for accommodation in the workplace. Given the age of the previous doctor’s note, it is also not surprising that this employer has sought to update that information. The nature of the information an employer can validly require depends on the circumstances. From my review of the medical information form, it is not apparent to me that the information sought is so intrusive that it supports an interim remedy pending the disposition of this Application, particularly where its disclosure is limited to the EMS medical advisor.

10Second, the result of the interim remedy would be to grant the applicant part of the final remedy he seeks, without a determination that it is warranted. Although this is not a factor that would deprive an applicant of an interim remedy, depending on the circumstances, in this case I find it a relevant factor in deciding on the applicant’s request.

11Third, the 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. The Request for an Interim Remedy has been filed more than a year following the events giving rise to it. This delay is a strong factor weighing against granting the interim remedy.

12In all these circumstances, I am not convinced that the harm to the applicant in requiring the completion of the form in order to obtain a new uniform, pending the disposition of his Application, outweighs the harm to the City in being ordered to provide the new uniforms on an interim basis.

13I find that the criteria for granting an interim remedy have not been satisfied in this case, and it is denied.

14I am not seized of this matter.