HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Wales
Applicant
-and-
Toyota Motor Manufacturing Canada
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed As: Wales v. Toyota Motor Manufacturing Canada
WRITTEN SUBMISSIONS
Nicole Wales, Applicant ) Self-Represented
Toyota Motor Manufacturing Canada, Respondent ) Ted J. Kovacs, Counsel
1The purpose of this Interim Decision is to address the applicant’s Request for Interim Remedy (“Request”). For the reasons that follow, the Request is denied.
OVERVIEW
2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability. The applicant also alleges reprisal or threat of reprisal.
3The applicant has filed detailed allegations in support of the Application. In essence, she argues that she raised a number of health and safety issues. She states that she was harassed by other employees because of these health and safety complaints and that she was reprised against when, shortly afterwards, her performance was reviewed and she received negative feedback. The applicant also alleges that the respondent failed to investigate her complaints of harassment and that it failed to accommodate her disability. The applicant alleges that a human resources officer (Barrie Furney) acknowledged that she was being harassed in the workplace, but stated that the harassment was related to the applicant’s gender, not to the health and safety issues she raised. The applicant has not been actively employed by the respondent since September 3, 2010.
4The respondent has filed a Response in which it denies the allegations of discrimination. It also denies that Mr. Furney acknowledged the applicant was being sexually harassed. The respondent also argues that the applicant’s allegations of harassment and reprisal relate to the fact that she raised safety issues and are not based on any Code-related ground.
5The applicant filed a Reply in which she states, among other things, that the alleged harassment and reprisals were based on her gender. In an earlier Interim Decision, 2011 HRTO 2022, the Tribunal granted in part the applicant’s request to amend the Application to, among other things, add gender as an alleged ground of discrimination. Following the Interim Decision, the respondent has filed an amended Response.
6The parties participated in a mediation on June 23, 2011. The mediation did not result in a settlement agreement.
REQUEST FOR INTERIM REMEDY
7On November 22, 2011, the applicant filed the Request in which she asks the Tribunal to order that she be temporarily placed back to work on the A shift (with modified duties) until a permanent position becomes available. Along with the Request, she has filed a declaration by her partner, Steven Waiwork. Mr. Waiwork’s declaration relates to information he obtained from the applicant, conversations he overheard or was involved with between the applicant and the respondent, and incidents he states he witnessed.
8The applicant states that the Interim Remedy she seeks is appropriate because it would correspond with the shift she held before she left the workplace. She argues that the interim remedy sought is appropriate in that it would allow her to mitigate her damages and alleviate stress and financial difficulties. The applicant states that the evidence in her favour is overwhelming, that the Application has merit, and that the Interim Remedy should be award to send a message to the respondent that its behaviour is unacceptable.
9The respondent opposes the Request. It states that it offered the applicant available work within the applicant’s Code-related restrictions, which she refused. The respondent states that the applicant has provided no medical evidence in support of her Request to be placed on a particular shift and that there is no basis to conclude that the specific shift she is seeking is a requirement of accommodation. The respondent notes argues that that much of the information contained in the Waiwork declaration is indirect evidence and that, in any event, it does not support her request for Interim Remedy.
ANALYSIS
10Granting an interim remedy is an extraordinary step. It involves requiring the respondent to take certain actions prior to a hearing on the merits of the Application and before the Tribunal has made any determination of the applicant’s allegations.
11The conditions for awarding an interim remedy are set out as follows 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.
12In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that 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.
13The Tribunal in TA v. Montclair, supra, also noted that an applicant seeking an interim remedy will 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. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.
14I find that it is not appropriate to grant the Request for Interim Remedy in the circumstances. At this early stage of the proceeding, there is no clear basis for me to conclude that there is a Code-related reason to place the applicant on the A shift as she requests. In the circumstances, I am not satisfied that the balance of harm or convenience favours granting the interim remedy. Nor am I satisfied that it is just or appropriate to do so.
15I am not seized of this matter.
Dated at Toronto this 7th day of December, 2011.
“Signed by”
Michelle Flaherty
Vice-chair