Shaikh v. York Condominium Corporation #60, 2012 HRTO 2149

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samina Salim Shaikh

Applicant

-and-

York Condominium Corporation #60

and Joginder Grewal

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: November 14, 2012

Citation: 2012 HRTO 2149

Indexed as: Shaikh v. York Condominium Corporation #60

WRITTEN SUBMISSIONS

Samina Salim Shaikh, Applicant

Mohammed Shaikh, Representative

York Condominium Corporation #60, Respondents

Carol A. Dirks, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed on March 24, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in respect of housing accommodation and goods, services or facilities on the ground of sex, and alleges reprisal.

2A hearing in this matter has been scheduled to start on November 29, 2012. Two days have been scheduled for the hearing. The parties have exchanged documents and witness statements. This Interim Decision deals with a Request for an Interim Remedy filed by the applicant, and other issues relating to the hearing.

Request for an Interim Remedy

3The subject-matter of the Application is related to alleged events during the applicant’s workouts at a gym facility operated by the corporate respondent. The applicant claims that she and her husband are being bullied, (apparently by other residents of the condominium) during their time at the gym. She requests restoration of a security officer’s patrol with increased frequency during her workout times.

4The applicant enclosed with her Request a Declaration that claims generally that “the respondent and his gang of bullies are running a smear campaign against” the applicant. The Declaration specifies two incidents: the applicant claims that on September 17, 2012 at 7:40 PM a named individual employed by the corporate respondent as a gym supervisor shouted to an unnamed individual about the applicant's allegations concerning drug trafficking at the gym, and encouraged someone else (named) to “harass” and argue with the applicant. The second incident is an allegation that a named swimming pool lifeguard stood a few inches from her husband (who is the applicant’s representative in this Application) and stared at him; allegedly an attempt to intimidate him.

5The applicant states that, by two letters to the security manager of the corporate respondent of September 18, 2012, she and her husband requested and received more security officer presence in the gym. She states that this was later withdrawn.

6The respondents, in their Response to the Request, admitted receiving the September 18 letters. A Declaration from the corporate respondent’s property manager states that the respondent immediately investigated the matter and spoke to witnesses. The respondents enclosed a copy of a letter sent to the applicant on October 1, 2012, asking for more information about allegations made by the applicant and her husband, and indicating that the corporation had received complaints in respect of ongoing breaches of the gym rules, harassment and improper conduct on the part of the applicant and her husband. Copies of letters signed by persons identified as being involved in the September incidents, as well as copies of other correspondence between the parties concerning the above noted allegations and other allegations are also enclosed.

7Rule 23 of the Tribunal’s Rules of Procedure governs requests for an interim remedy. Rule 23.2 states that 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 request; and,

c) it is just and appropriate in the circumstances to do so.

8My main concern in dealing with this request is how just and appropriate in the circumstances it would be to grant an interim remedy. The documentary evidence submitted indicates a complicated fact situation which will undoubtedly be brought up during the hearing, and the related allegations are best decided after hearing all of the evidence. While involvement by the respondents in harassing behaviour towards individuals who have filed an Application is a serious matter, I note that there have been no allegations of interference with the applicant's enjoyment of their own residential premises, as opposed to the gym facility. I also note that the hearing on the merits of this matter will commence in two weeks.

9For the above noted reasons, the Requested is dismissed, without prejudice to the applicant's right to raise the issue of reprisal, as noted below.

Allegations of Attempts to Influence Witnesses and of Further Reprisal, Disclosure Issue

10During a case-management teleconference on September 27, 2012, both parties complained of misbehaviour involving planned witnesses. I stressed with both parties the importance of avoiding any appearance of attempting to place pressure on another party or on witnesses for the other party. On October 10, 2012 and again on November 5, 2012, the applicant sent the Tribunal copies of correspondence between the applicant and the respondent. The correspondence mentions various interactions between the applicant and at least one witness for the respondent. It appears that both parties are claiming improper actions allegedly intended to influence potential witnesses, on the part of the applicant, her representative, the personal respondent and other individuals involved in the hearing. If either party wishes to raise an issue of this nature in advance of the hearing, they may do so on the first day of the hearing.

11The applicant has repeatedly claimed that alleged actions on the part of the respondents, including the allegations upon which her claim for an interim remedy are based, amount to further reprisal for the purposes of the Code. Issues related to this claim can also be dealt with at the first day of the hearing.

12Finally, the applicant sent a letter to the Tribunal, copying the respondents, claiming that the respondents have not disclosed certain documents. During a case-management teleconference, the respondent undertook to ascertain that Board Minutes taken prior to receipt of the Application would be disclosed. This too will be dealt with at the hearing.