HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.L. by his next friend M.L. Applicant
-and-
Ottawa District Minor Hockey Association and Ottawa District Hockey Association Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: December 15, 2011 Citation: 2011 HRTO 2224 Indexed as: M.L. v. Ottawa District Minor Hockey Association
1This Interim Decision addresses the applicant’s Request for Interim Remedy (“Request”). For the reasons that follow, the Request is denied.
2This is an Application filed on October 17, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging discrimination based on disability in the provision of goods, services or facilities. The applicant states that, for disability-related reasons, his son has been allowed to play hockey for a team in an age group lower than his own. In essence, the applicant states that his son is being discriminated against because he is not permitted to play in games outside his own division and, in particular, in tournaments with other divisions.
3The respondents have filed a Response in which they deny the allegations of discrimination. They argue that the applicant’s son’s disqualification from tournament play is based on age, not disability, and that the Application is outside the Tribunal’s jurisdiction by virtue of section 10 of the Code. The respondents also argue, among other things, that they cannot amend the Hockey Canada Regulations to implement the remedy sought by the applicant.
4On November 30, 2011, the applicant filed a Request for Interim Remedy ordering the respondents to:
a. Eliminate restrictions on players who are accommodated for Code-related reasons and allow the applicant’s son to participate in specific tournaments scheduled for February 2012; and
b. Attempt to obtain approval from Hockey Canada to allow the applicant’s son to participate a specific tournament scheduled for February 2012.
5The applicant argues that, absent an interim remedy, his son will likely be excluded from playing in these tournaments. He states that this will further impact his son’s sense of dignity and self-esteem. The applicant argues that, because of his son’s health-related issues, he will likely play hockey for only two to three more years. In light of this, he argues, it is all the more important that the applicant be included in the tournaments in question.
6The respondents have not filed a Response to the Request and the time for doing so under the Tribunal’s Rules of Procedure has elapsed.
ANALYSIS
7Granting an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application and before any violation of the Code has been proven.
8The 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.
9In 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.
10The 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.
11Even based only on the applicant’s submissions, I am not satisfied that the applicant has met the significant onus of establishing that his Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.
12At this early stage of the proceeding, it is difficult for me to assess whether or not the Application appears to have merit. Even assuming (without deciding) that the Application does have merit, I cannot conclude that the balance of harm or convenience favours awarding the interim remedy sought or that it would be just and appropriate in the circumstances. First, it appears that the interim remedy sought engages policies and practices of Hockey Canada, which is not a party to this Application. As such, it is not entirely clear to me that the interim remedy requested by the applicant could effectively be awarded against the respondents. Second, the issues raised in the Application and the Request for Interim Remedy have potentially broad consequences for the parties and for other players. Third, the interim remedy is the very relief sought in the Application (albeit only limited to the February 2012 tournaments). As noted in Vella v. City of Toronto, 2011 HRTO 1831 at para.10, the fact that the interim remedy corresponds (at least in part) to the final remedy is a relevant factor. The applicant is essentially asking the Tribunal to grant (in part) the final remedy without first making a determination on the merits of the Application. In this case, the parties’ pleadings outline conflicting arguments on complex legal issues, which will require a full evidentiary record and submissions for adjudication. Finally, although the applicant may not be able to play in three tournaments unless the interim remedy is ordered, I am not satisfied that the balance of harm or convenience favours granting the interim remedy, or that it is necessary to ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing should a violation of the Code be found.
DECISION
13For the above reasons, the Request for an Interim Remedy is denied.
Dated at Toronto, this 15th day of December, 2011.
”signed by”___________
Michelle Flaherty Vice-chair