Emerson v. 1231425 Ontario Inc., 2011 HRTO 927

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Emerson Applicant

-and-

1231425 Ontario Inc. (o/a Physical Relief Health), Sensory Technologies, Elaine Knight and Patrick Blanshard Respondents

INTERIM DECISION

Adjudicator: Sherry Liang Date: May 13, 2011 Citation: 2011 HRTO 927 Indexed as: Emerson v. 1231425 Ontario Inc.

1This is an Application filed on April 7, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application alleges discrimination in employment on the ground of disability, although it appears that the applicant was also a business partner and spouse of one of the personal respondents, and a shareholder in Sensory Technologies Inc.

3The applicant has also filed a Request for Interim Remedy. In the Request, she asks that the Tribunal "consider an order for Sensory Technologies Inc. to reverse the resolution that stripped me of my title as VP of the company and reinstate me as an active part of the operations and compensate me to do so." In the alternative, she seeks an order temporarily reinstating her salary from Physical Relief Health Care Services, a related company.

4The respondents have not yet received notice of this Application and, in the circumstances, it is unnecessary to hear from them in order to reach a decision regarding the Request for Interim Remedy.

5In the Request, the applicant alleges that her husband, Patrick Blanshard, instigated her dismissal from Physical Relief for personal reasons, after the breakdown of their marriage. The dismissal occurred in April 2010. The applicant states that she has tried to negotiate a resolution to the dispute with the companies and her spouse but has not been able to come to an arrangement that would have reinstated her to employment. Further, she indicates that she has been hampered in her efforts to find alternative employment by a non-competition agreement. As a result, she states that she has exhausted her financial resources.

6In the main Application, the applicant alleges that personal respondent Elaine Knight "knowingly dismissed me while under the care of a doctor." The applicant has initiated a wrongful dismissal action against Physical Relief. She states that she intends to file an oppression claim seeking to have an "interim shareholders agreement" voided.

7In support of the Request for Interim Remedy, the applicant submitted a declaration from her mother which states, among other things, that she has been supporting her daughter financially since her dismissal but that the situation is "untenable" and that her daughter is in "complete financial jeopardy."

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 (monetary compensation and reinstatement) would be unavailable at the end of the hearing, absent the interim remedy.

15The Application was filed a year after the applicant's dismissal, and the Request for an Interim Remedy following that. This delay is a strong factor weighing against the interim reinstatement requested by the applicant.

16The Tribunal recognizes that there are likely negative impacts on the applicant from the loss of her employment. Whether or not the actions of the respondents were discriminatory, the effects of a loss of 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 a discriminatory termination of employment.

17I 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.

18The Request for Interim Remedy is denied.

19The Tribunal will provide notice of the Application along with a copy of this decision to the respondents.

20I am not seized of this matter.