HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shannon McAllister Applicant
-and-
By-de-Molen Co-operative Homes Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty Decision Date: May 23, 2012 Citation: 2012 HRTO 1029 Indexed as: McAllister v. By-de-Molen Co-operative Homes
WRITTEN SUBMISSIONS
Shannon McAllister, Applicant
D. Beth Walden, Counsel
1This is an Application filed on May 18, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing on the basis of disability, family status, receipt of public assistance, and association with a person identified by a Code ground. Along with the Application, the applicant filed a Request for Interim Remedy.
2The respondent has not yet filed a Response, nor has it had an opportunity to file a response to the Request.
3The purpose of this Interim Decision is to address the Request in part and to seek further submissions from the parties.
OVERVIEW
4The applicant resides in a co-operative housing unit. She states that the respondent is seeking to evict her because she has failed to maintain her unit in good repair. The applicant argues that the respondent is discriminating against her because she was prevented from repairing her unit because of her disabilities and because her only source of income is disability social assistance benefits.
5The respondent’s board of directors (“Board”) first sought to evict the applicant in October 2011. It revoked this decision because the applicant signed a “performance agreement” in which she agreed to complete certain repairs within a particular timeframe. As the repair work began, however, it became apparent that additional, unforeseen work would also be necessary. The parties agreed that the applicant would have an additional two months to complete the repairs.
6The applicant then sought a further extension of time to complete repairs. She met with the respondent’s Board on April 24, 2012. I understand that, as of that time, all of the agreed to repairs had not been completed and that the purpose of the meeting was for the applicant to explain why her membership and occupancy rights should not be terminated.
7On April 25, 2012, the Board decided to terminate the applicant’s occupancy rights effective May 31, 2012.
8The applicant sought a reconsideration of this decision. The Board scheduled a hearing to address the request for reconsideration. The hearing was scheduled for May 22, 2011.
9The applicant states that she will be severely prejudiced by an eviction. She states that she and her two children would find themselves in a homeless shelter and that they would lose their pets. The applicant states that the effect of an eviction on her and her family would be particularly difficult in light of their disabilities and the particular challenges they face.
10The applicant has provided medical evidence to support her position that eviction would have severe consequences for her and for her children. The applicant also states that she has received the funding necessary to complete the repairs and that she has sought out the assistance and support she requires in order to maintain her unit in a good state of repair.
11In her Request, filed on May 18, 2012, the applicant asks that her membership and occupancy in the co-operative be maintained pending the determination of the Application. She asks that consideration of her request for reconsideration (scheduled for May 22, 2012) be adjourned pending the Tribunal’s determination of the Application. Given when this Request was filed, the Tribunal was not able to make a ruling in advance of the May 22nd meeting. Nevertheless, I find that it is appropriate to determine the Request in part.
ANALYSIS
12Granting 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.
13The 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.
14In 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.
15The 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.
16I find that the applicant has not met the significant onus of establishing that the adjournment of the respondent’s consideration of her request for reconsideration meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.
17Even 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.
18The applicant’s arguments regarding the balance of harm and convenience all relate to the consequences of a possible eviction, which is scheduled for May 31, 2012. While the applicant states an eviction would have catastrophic consequences, she has not argued (and it is not clear to me) that she would be harmed simply by the respondent’s consideration of her request for reconsideration. While I understand that she disagrees with the Board’s decision and is concerned that it will be reaffirmed by the general membership, there is no basis to conclude that any harm flowed to the applicant by the conduct of the hearing on May 22.
19The applicant has not demonstrated that the balance of harm and convenience favours this aspect of the interim remedy requested. She has presented no basis to show that she is harmed by the respondent’s consideration of her request for reconsideration.
DIRECTION
20The Request that the respondent’s consideration of the applicant’s reconsideration request be stayed pending the Tribunal’s determination of the Application is denied.
21By 5 p.m. on May 25, 2012, the respondent must deliver to the applicant and file with the Tribunal any written submissions it wishes to make concerning the remainder of the Request for interim remedy. In its written submissions, the respondent must indicated whether it is prepared to participate in a mediation.
22I am not seized.
Dated at Toronto, this 23rd day of May, 2012.
“Signed by”
__________________________________
Michelle Flaherty
Vice-chair