Cecila Keefer v. Fifty-Four Rideau Terrace Investments Ltd. et al., 2012 HRTO 1324

Human Rights Tribunal of Ontario

Between:

Cecila Keefer Applicant

-and-

Fifty-Four Rideau Terrace Investments Ltd. o/a 54 Rideau Terrace Investments and Ottawa-Carleton Condominium Corporation, No. 894 Respondents

Interim Decision

Adjudicator: Ena Chadha Date: July 4, 2012 Citation: 2012 HRTO 1324 Indexed as: Keefer v. 54 Rideau Terrace Investments

INTRODUCTION

1The applicant filed this Application under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on September 2, 2011, alleging discrimination with respect to the occupancy of accommodation (housing) on the basis of disability.

2The applicant is 80 years of age, has a degenerative nerve condition and utilizes a mobility aid for walking. The applicant alleges that she requires an accessible entrance to the building where she resides because she is unable to climb the stairs leading into the building. The applicant alleges that the building had a long-standing ramp at the entrance, which she used until the ramp was removed by the respondent co-operative in September 2010. The applicant has been relying on a personal assistant to help her navigate the stairs. The applicant alleges that the respondent is violating her right to an accessible entrance by refusing to install a ramp in the front of the building.

3The respondent filed a Response on November 8, 2011 denying the allegations of discrimination. The respondent alleges that the previous ramp was removed because of issues of age and deterioration, safety, encroachment/easement on City property and non-compliance with the building codes and by-laws. The respondent alleges that the installation of a building code compliant ramp is not possible due to site limitations. The respondent alleges that for a number of years the applicant has relied on paid assistance to enter/exit the building and, therefore, even with the existence of the ramp, the applicant was unable to independently access the building.

4The hearing in this matter is currently scheduled for January 10-11, 2013.

5On June 12, 2012, the applicant filed a request to expedite proceedings. The applicant submits that her mobility is diminishing and that the individual who she relies upon for assistance to navigate the stairs is leaving the country. The applicant indicates that she has been unable to locate a replacement support person and that none of the agencies she has contacted provides the services she needs. The applicant claims that she is unable to independently manage the stairs and because of the deterioration of her condition it will not be safe for her in the coming winter months and that she requires an immediate solution to the situation. The applicant asserts that without expedited proceedings she will trapped in the building and unable to attend her medical appointments or visit her husband who lives in a veterans' facility.

6The respondent opposes the request for expedited proceedings. The respondent submits that the applicant's remedial relief of a ramp will not be rendered moot or unavailable if the request for expedited proceedings is not granted. The respondent alleges that the applicant's claims that she will be "trapped" are vague and that she has failed to sufficiently particularize the harm she would experience if her request was denied. The respondent argues that an expedited proceeding is not necessary because the applicant only filed her Application almost one year after the old ramp was removed.

ANALYSIS

7The Tribunal's Rules of Procedure ("Rules") provide for expedited processing of applications in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking that the Tribunal deal with her application on an expedited basis address the following factors:

i) why there are urgent circumstances that may affect the fair and just resolution of the merits of the Application if the Application proceeds in accordance with the Tribunal's regular process;

b) the harm that would result if the Request is denied; and,

c) why the Application should be given priority for the Tribunal's resources over other matters.

8In determining a request for expedited proceedings, the Tribunal needs to consider whether the circumstances are truly urgent and requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal's regular process: Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53.

9In an earlier Interim Decision, 2012 HRTO 224, I declined to grant the applicant's request for interim remedy seeking that the Tribunal order the respondent to provide a temporary ramp or some form of access to the building for the applicant. While I found that the applicant did not satisfy the burden of establishing that the balance of convenience favoured the granting of the interim remedy, I did not question the sincerity of the applicant's concerns for her safety.

10The applicant provided a signed declaration in support of her request to expedite stating that she has regular doctor's appointments and requires monthly blood transfusions. The applicant further states that she believes she will be unable to manage once winter arrives because of her health concerns and the absence of the support person who has until now helped her up and down the stairs. Along with her request for expedited proceedings, the applicant filed a medical letter from her neurologist confirming that over the past year the applicant's muscular weakness has progressed to the point where she cannot safely negotiate stairs and the loss of the ability to ambulate is expected.

11I find that the supporting declaration and the medical documentation highlight significant safety and health concerns that militate in favour of an expedited process. The hearing into this matter is presently scheduled for January 2013. There applicant fears that she may be injured attempting to navigate the stairs in the winter months because of her health. The applicant has provided medical evidence that her condition will likely deteriorate even more before January 2013. I conclude that the applicant has met the burden of establishing that the circumstances warrant an expedited hearing and the consequent priority for this case over others in the Tribunal process.

12The respondent did not appear to refute the safety concerns arising from the applicant's health and acknowledges that the applicant requires support to navigating the stairs. In light of the evidence regarding the applicant's weakening health condition and the loss of the support worker, I do not agree with the respondent's submissions that the applicant's concerns are vague or speculative. Further, I do not consider the time it took for the applicant to file the Application to be an issue given the developments with her health and the circumstances surrounding the loss of personal support.

13I am satisfied that, when considered together, the applicant's deteriorating health, the lack of support services and the potential risks associated with navigating the stairs during winter months give rise to urgent circumstances that necessitate expedited proceedings. As such, having regard to all of the circumstances and the evidence submitted in support of the request to expedite, I find that the applicant's request to expedite should be granted.

14The Application was originally filed against the respondent co-operative, Fifty-Four Rideau Terrace Investments Ltd. o/a 54 Rideau Terrace Investments. On June 12, 2012, the applicant filed a Request for an Order During Proceedings asking that the Tribunal add Ottawa-Carleton Condominium Corporation, No. 894 as a respondent because, as of February 29, 2012, Fifty-Four Rideau Terrace Investments Ltd. o/a 54 Rideau Terrace Investments has been converted to a condominium registered as Ottawa-Carleton Condominium Corporation, No. 894. On June 25, 2012, the respondent co-operative filed a response consenting to the applicant's request. Since the respondent co-operative agrees that the new condominium should be added as a respondent, the Tribunal will add Ottawa-Carleton Condominium Corporation, No. 894 as a respondent to this Application.

ORDER

15The Tribunal orders as follows:

(i) The request to expedite proceedings is granted. The Tribunal will schedule an expedited hearing in September or October 2012;

(ii) Upon the consent of the parties, the request to add Ottawa-Carleton Condominium Corporation, No. 894 is granted. The style of cause is amended to reflect this; and

(iii) Within 7 days of the date of this Interim Decision, the respondent Ottawa-Carleton Condominium Corporation, No. 894 is required to write to Tribunal, copied to the applicant, confirming whether it adopts the Response as previously filed, or alternatively filing its own Response.

16I am not seized of this matter.