Paul Smith v. NTSI, 2012 HRTO 1329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Smith

Applicant

-and-

NTSI

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 5, 2012

Citation: 2012 HRTO 1329

Indexed as: Smith v. NTSI

WRITTEN SUBMISSIONS

Paul Smith, Applicant

Self-represented

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of place of origin. Although the applicant has indicated that the protected ground he is relying on is place of origin, the only allegations made in the Application appear to relate to creed and a number of allegations related to work on Sundays to which the applicant objected on religious grounds.

2The application was received by the Tribunal on June 26, 2012. The applicant states that he filed an application earlier, but there is no record of its receipt by the Tribunal. The Application has not been served on the respondent and accordingly no Response to the Application (Form 2) has been filed.

3Immediately subsequent to filing his Application the applicant filed a Request to Expedite the Application (Form 15) and a Request for Interim Remedy (Form 16). Both Requests are denied for the reasons set out below.

REQUEST TO EXPEDITE

4The grounds for both Requests are essentially the same. The applicant alleges that he was terminated from his employment for discriminatory reasons on or about December 28, 2011. The applicant states that he has been unable to secure employment since and he and his family are experiencing financial hardship as his entitlement to Employment Insurance will likely end soon.

5Rule 21.2 provides as follows:

21.2 A Request to Expedite an Application made under Rule 21.1 must include:

a) a detailed description of the requested changes to the Tribunal’s normal process, including timelines;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the Applicant relies in support of the request to expedite; and

c) submissions that explain:

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;

ii. the harm that would result if the Request is denied; and,

iii. why the Application should be given priority for Tribunal resources over other matters.

21.2.1 Where the Tribunal denies a Request to Expedite, it need not give reasons.

6The applicant did not file the Declarations required under 21.2(b). In Weerawardane v. 2152458 Ontario Ltd, 2008 HRTO 53, dealing with a circumstance not unlike this one, the Tribunal discussed the considerations involved in considering these kinds of Requests, at paras. 7 to 10:

The Tribunal must determine whether the circumstances of this case require an urgent resolution of the dispute. The applicant has been dismissed from his employment of seven and a half months, and he asserts that this will have serious effects on his family’s financial situation. Termination of employment has serious implications for an employee in most circumstances. Dismissal is the most serious consequence that can occur in an employment relationship and the effects on the employee, his or her family and finances are usually significant, as alleged here.

Balanced against the effects upon the applicant, however, are the consequences of granting a request to expedite. Tightened timelines and exceptionally quick hearing dates may lead to inconvenience and possibly costs for other parties to the application. Moreover, an expedited application may be given priority for Tribunal resources over other matters. The Tribunal must consider these interests as well.

For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, 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. The financial consequences for a dismissed employee may constitute such a justification in some circumstances, particularly if there is reason to believe that these will lead to other significant consequences which may not be easily remedied.

7Based on the information provided by the applicant I am not satisfied that it is necessary to the fair just and expeditious resolution of this Application that it must be taken out of the normal Tribunal process with the potential impacts on this proceeding as well as all of the other applications which will necessarily be impacted. In particular, I am not satisfied that there is any greater urgency to this case than any of the many other cases involving a dismissed employee.

REQUEST FOR INTERIM REMEDY

8The granting of 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.

9The 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.

10In 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.

11The Tribunal in TA v. Montclair, above, 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.

12In his Request for Interim Remedy the applicant states that he is seeking reinstatement and an order requiring the respondents to allow him Sundays off from work.

13I 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. As indicated earlier, the applicant’s only submission is that he and his family are, or will, shortly experience significant financial stress if this Request is not granted. As discussed in TA v. Montclair, above, financial hardship as such is not a significant factor in determining whether it would be appropriate to grant an interim remedy. The question is whether there is any basis to conclude that the remedial authority of the Tribunal will be compromised if the interim remedy is not granted. The applicant articulates no reasons why the remedial purposes of the Code will be frustrated by the delay if I do not grant the Request and none are apparent from a review of the material.

14Both the Request for an Expedited Hearing and the Request for Interim Remedy are dismissed.

OTHER MATTERS

15A copy of the Application will be delivered with this Interim Decision. The respondent will be required to file a response within 35 days of receiving the Application.

16In his Application the applicant did not indicate that he was interested in mediation. If the applicant is willing to participate in voluntary mediation and both parties agree the Tribunal will schedule a mediation, otherwise the Application will proceed to a hearing. .

17I am not seized of this case.