HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stephen Bird
Applicant
-and-
Transcontinental Printing Inc.
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Bird v. Transcontinental Printing Inc.
WRITTEN SUBMISSIONS
Stephen Bird, Applicant ) Self-represented
Transcontinental Printing Inc., Respondent ) Mark Stone, Counsel
1This Interim Decision addresses the applicant’s Request for Interim Remedy (Form 16), which he filed on October 8, 2010. The respondent filed its Response To a Request for Interim Remedy (Form 17) on October 14, 2010. Since then, the Tribunal has issued two Case Assessment Directions and scheduled three conference calls (the last of which was attended by all parties), resulting in the applicant filing supplementary documents. The respondent has not filed any material in response to this supplementary material.
2The applicant self-identifies as having a disability, which has in the past prevented him from working. He alleges that he discovered that if he listened to talking files (as opposed to music) on his MP3 player, he was able to reduce the more troubling symptoms of his disability, thus enabling him to work.
3He commenced work as a janitor at the respondent facility in August 2008. Until April 2010, he used his MP3 player, but on April 20, 2010, the respondent brought in a new policy which banned the use of such devices (as well as other devices like cell phones). The respondent argues this policy is necessary for safety reasons because its employees are required to work around high-speed equipment.
4The applicant states that he does not work around high-speed equipment; that his job entails working in the locker room, lunchroom and washroom areas of the plant. In any event, he seeks relief from the policy with respect to working in those areas, and agrees that if he is required to be in the areas of the plant where there is high-speed equipment, he will not wear his MP3 player.
5The respondent takes the position that the applicant did not respond to a fire alarm during a fire drill because he was listening to his MP3 player. The applicant states that this is factually incorrect, that he heard the fire alarm, but he was a relatively new employee and did not know how he was supposed to respond to it. He provided a letter from a hearing instrument specialist stating that the MP3 player belonging to the applicant was incapable of drowning out the sound of a “typical fire alarm.”
6The parties agree that the applicant provided a note from his treating psychologist on April 20, 2010, indicating the applicant needs to use his MP3 player. The respondent was not satisfied with this note and asked the applicant to attend an independent medical examination. The applicant attended, but wished to substitute a consent form for the one supplied by the medical examiner. This was unacceptable to the medical examiner and the examination did not take place that day. The respondent takes the view that the applicant was not cooperative in the accommodation process.
7With respect to the harm, the applicant’s treating psychologist has provided a letter in which he indicates that if the applicant is not “accommodated” at work by being allowed to use his MP3 player, that he is at risk of being unable to work, and that being out of work will “further exacerbate his mental health difficulties.” This sentiment is echoed in the applicant’s declaration.
8Rule 23.2 sets out the circumstances in which interim remedies will be granted:
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.
9The approach taken by the Tribunal can be summarized as follows:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing.
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary.
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious.
The second factor involves a balancing of the harm to the applicant against the harm to the respondent.
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and is fair in all of the circumstances.
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole.
A remedy which would create a new state of affairs, rather than maintaining what exists or has recently existed, is less likely to be granted.
10In this case, it is clear that the applicant has an arguable case, and it would appear that the respondent is not disputing that he has satisfied the first element of the test. With respect to the balancing of harm, the respondent has articulated two possible problems with allowing the applicant to use his MP3 player: (1) he would be in danger around high-speed equipment; and (2) he could miss a fire alarm.
11The first danger is mitigated by the applicant’s assertion that he does not work on the shop floor, but rather in the service areas such as the washrooms, lunchroom and locker room. He is also willing to agree to an order that if he is required to work on the shop floor or around high-speed equipment that he will not use his MP3 player.
12With respect to the fire alarm, assuming that the MP3 player indeed drowns out the sound of the alarm, it is not clear why the respondent cannot designate a person or persons to ensure that the applicant has notice, such as they might have to do for a hearing-impaired employee.
13The applicant is seeking to reinstate a state of affairs that he said existed until recently, rather than create a new state of affairs. This would militate in the applicant’s favour.
14The harm outlined by the applicant and the applicant’s treating psychologist suggests that his condition could be significantly worsened by not being allowed to use the MP3 player while working. It would appear that on balance, the harm to the applicant in not being granted the interim remedy is significantly greater than the harm to the respondent in granting the interim remedy.
15I am likewise concerned that if the interim remedy is not granted, the Tribunal may not be able to fully remedy the situation at the conclusion of the hearing in the event that discrimination is found. It would not further the purposes of the Code, which is a remedial statute, if the applicant is precluded from taking advantage of the remedy he sought at the outset because of the passage of time. In the circumstances of this case, providing the applicant with the interim remedy sought would be fair and just.
16All parties have agreed to mediation. Given the delays in this case to date, the mediation should not be further delayed, at which point the parties may be able to reach more long-term solutions.
ORDER
17The respondent shall allow the applicant to use his MP3 player while working in the following areas: the lunchroom, locker room and washrooms. The applicant shall refrain from wearing or using the device on the shop floor. This Order shall stay in place until discontinued or revised by the Tribunal following the hearing of the merits of this Application, or if agreed to by the parties.
18I am not seized of this matter.
Dated at Toronto, this 13th day of May, 2011.
“Signed by”
Naomi Overend
Vice-chair