Jeannotte v. 1094388 Ontario Limited, 2012 HRTO 1875

Human Rights Tribunal of Ontario

B E T W E E N:

William Jeannotte Applicant

-and-

1094388 Ontario Limited o/a Pure Gold, Doug Boyce and Elaine Saunders Respondents

A N D B E T W E E N:

William Jeannotte Applicant

-and-

1094388 Ontario Limited o/a Pure Gold Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 2, 2012 Citation: 2012 HRTO 1875 Indexed as: Jeannotte v. 1094388 Ontario Limited

WRITTEN SUBMISSIONS

William Jeannotte, Applicant Self-represented

1The applicant filed his first Application (2012-11831-I) under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 22, 2012, alleging discrimination and reprisal with respect to employment on the basis of disability.

2The applicant was a disc jockey at an adult entertainment establishment. The applicant alleges that the respondents treated him unfairly by requiring him to answer the telephone while he performed his disc jockey duties. The applicant alleges that he was unable to simultaneously answer the telephone and operate the disc jockey equipment because of his disability. The applicant alleges that he was not provided with appropriate breaks which he required for his disability. The applicant alleges that his employment was threatened by the respondents and that the respondents failed to accommodate his disability.

3The applicant filed a second Application (2012-12164-I) on August 7, 2012 asserting further allegations of reprisal arising out of his first Application.

4Subsequent to filing these Applications, on August 21, 2012, the applicant filed a Request for an Order During Proceedings asking to amend his Application in order to add two additional individual respondents, namely the owners of the corporate respondent, as well as seeking to amend his remedial claim to add further damages.

5On August 30, 2012, the respondents filed a Response denying the allegations of discrimination. The respondent alleges that the applicant was treated fairly and provided with suitable accommodation, including a hands-free head set. The respondents request that the Tribunal remove the individual respondents from the Application on the basis that these individuals were acting in their capacity as management personnel on behalf of the corporate respondents. The respondents provided a copy of a Statement of Claim filed by the applicant on July 24, 2012 with the Superior Court of Justice (Small Claims Court) alleging that the respondents failed to provide the applicant with legal entitlement for lunch breaks.

6On September 1, 2012, the applicant filed a Request for an Order During Proceedings seeking to consolidate his two Applications.

7On September 5, 2012, the applicant filed a Request for Interim Remedy. The applicant alleges that he was constructively dismissed by the respondents because of his Applications. In the request for interim remedy, the applicant states that he is seeking a financial interim remedy until the matter is settled of $1500.00/month as replacement income for a portion of the wages and gratuities he has lost as a result of being constructively dismissed.

8The applicant alleges he is unable to secure employment as a disc jockey elsewhere because the corporate respondent slandered his reputation and there are limited numbers of adult entertainment establishments, some of which are owned by the corporate respondent. The applicant alleges that he has no options for income for “the next year or so”. The applicant provided a letter from his sister confirming that the applicant is experiencing financial hardship. The applicant provided a letter from his nurse supporting that the applicant be placed on a leave of absence while undergoing surgery and noting that the applicant’s job did not involve office duties or answering the telephone.

9The respondents did not file a response to the applicant’s request to amend, request to consolidate and the request for an interim remedy.

CONSOLIDATION

10Rule 1.7(d) of the Tribunal’s Rules of Procedure (“Rules”) states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In my view, the Applications should be consolidated and heard together in order to avoid multiplicity of proceedings, as well as considerations of expense, convenience and the risk of inconsistent results. Furthermore, there was no evidence that consolidating the Applications would result in any significant prejudice to any party.

REQUEST FOR INTERIM REMEDY

11The Tribunal has held that an order for an interim remedy is an extraordinary power that should be exercised only in appropriate circumstances for furtherance of the Code’s remedial objective and that the applicant bears a significant onus to demonstrate that the interim remedy is necessary: TA v. 60 Montclair, 2009 HRTO 369.

12Rule 23.2 of the Tribunal’s Rules of Procedure sets out specific conditions for awarding an interim remedy:

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.

13In accordance with Rule 23.3, a request for interim remedy must include:

(a) a detailed description of the order sought;

(b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and,

(c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

14While the applicant attached two letters with his interim remedy request, neither document was in the form of a formal declaration, nor contained a signature of the author of the letter. As such, the applicant’s request was not supported by a “signed declaration”, as required by Rule 23.3(b) of the Tribunal’s Rules. On this basis alone the request could be dismissed as incomplete. In addition, at least one of the documents includes details of facts which the document does not identify how the author has direct first-hand knowledge of the information. Specifically, the letter from the applicant’s nurse states that “[The applicant] was hired as a Disc Jockey, period. His job did not involve any office duties or answering the telephone.” It is unclear how the applicant’s nurse has direct first-hand knowledge of this particular point in dispute between the parties.

15Even if the two letters were to be accepted in lieu of signed declarations, I find that the applicant’s materials do not provide a sufficient basis to order the interim remedy sought. Assuming, without deciding, that the Application appears to have merit, I am not satisfied that it has 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.

16With respect to the balance of harm and convenience, the applicant claims that he requires an on-going monthly income of $1500.00 because he is experiencing significant financial difficulty and is unable to secure alternate work because of the respondents’ discrimination. Given the information provided by the applicant about surgery, I am not convinced that applicant has supported the contention that he is unable to mitigate his losses because of discrimination.

17The third criterion considers whether the interim remedy is just and fair in the context of the Code’s remedial purposes. In TA v. 60 Montclair, supra, the Tribunal stated the key question 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.”

18The material does not establish that the remedy the applicant ultimately seeks if liability is established would be unavailable at the end of the hearing, absent the interim remedy.

19I conclude that the applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy. In my view, having regard to all of the circumstances at this time, it would neither be fair nor appropriate to grant the requested interim remedy.

SMALL CLAIMS COURT SETTLEMENT CONFERENCE

20In the Applications and Responses, the parties have indicated that they are amenable to participating in mediation. The respondents provided a copy of the applicant’s Statement of Claim in the small claims court action. That document indicates that the parties are required to participate in a mandatory settlement conference scheduled for October 25, 2012.

21In these circumstances, the Tribunal will not schedule a mediation for these Applications until the mandatory settlement conference in the small claims court matter is completed and concluded.

ORDER

22The Tribunal orders as follows:

(i) The Applications are consolidated;

(ii) The applicant’s request for interim remedy is dismissed;

(iii) Within 7 days of the date of the conclusion of the mandatory small claims court settlement conference, the parties are required to write to Tribunal, copied to each other, confirming whether or not they are willing to participate in a Tribunal mediation; and

(iv) If the parties agree to mediation, the Tribunal will schedule a mediation for these Applications and the outstanding preliminary requests will be dealt with following the Tribunal’s mediation.

23I am not seized of this matter.