Tarek Ibrahim v. Hilton Toronto, 2012 HRTO 2160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: November 16, 2012

Citation: 2012 HRTO 2160

Indexed as: Ibrahim v. Toronto Hilton

WRITTEN SUBMISSIONS

Tarek Ibrahim, Applicant

Self-represented

Hilton Toronto, Respondent

Michelle A. Alton, Counsel

1This Application was filed on May 22, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination and reprisal with respect to employment on the basis of family status and marital status.

2On October 17, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1972, wherein it determined that this Application should be held in abeyance and the Tribunal shall take no further steps in this matter pending the release of the decision on reserve in the applicant’s first Application (2010-05466-I) which raises facts and issues related to this matter.

3On October 14 and 15, 2012, the applicant filed two Requests for Orders during Proceedings (“RFOPs”), these being his third and fourth such RFOPs in relation to this Application. The third and fourth RFOPs generally concern the same events and allegations. In both, the applicant requests that the alleged harassment and reprisal cease immediately and that a hearing be scheduled without further delay.

4On October 25, 2012, the applicant filed a Request for Interim Remedy. The applicant alleges that he continues to be subjected to discrimination, harassment and reprisal because he was suspended from work and ultimately his employment was terminated. The applicant requests that he be reinstated.

5The respondent filed a response to the applicant’s third and fourth RFOPs on October 29, 2012. The respondent opposes the applicant’s requests on the basis that the applicant is attempting to relitigate issues and that the Tribunal decided to hold the Application in abeyance.

6The respondent filed a response to the interim remedy request on November 1, 2012, denying the applicant’s allegations and opposing the request for reinstatement. The respondent points out that the applicant failed to file a signed declaration as required by Rule 23.3 of the Tribunal’s Rules of Procedure. The respondent also submits that the applicant’s allegations with respect to his dismissal do not form part of the current Application. Lastly, the respondent argues that the applicant’s request does not have merit; the respondent would suffer significant harm if the interim relief was granted, and it would not be just and appropriate for the Tribunal to order reinstatement.

7The applicant filed a reply on November 4, 2012, alleging that that his dismissal was a form of retaliation and that he needs to be reinstated with the respondent because his prospects of securing work elsewhere are limited because of the respondent’s reprisal.

8On November 5, 2012, the applicant filed another RFOP asking to amend the current Application to include additional allegations of reprisal with respect to the dismissal of his employment and again seeks reinstatement.

9The respondent filed a response on November 6, 2012, reiterating its earlier submissions that the applicant’s request for interim relief should be dismissed and noting that the applicant’s concerns regarding the alleged unfair termination is the subject of a grievance filed by the applicant’s union.

DECISION

10Pursuant to Rule 23.2, the Tribunal may grant an interim remedy where it is satisfied that 1.) the Application appears to have merit; 2.) the balance of harm or convenience favours granting the interim remedy requested; and, 3.) it is just and appropriate in the circumstances to do so.

11The Tribunal has stated that an applicant seeking an interim remedy has 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 TA v. 60 Montclair, 2009 HRTO 369. Normally, the Tribunal’s power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated.

12Having regard to all of the circumstances at this time, I find it would neither be fair nor appropriate to grant the requested interim remedy. 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 has 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.

13With respect to the balance of harm and convenience, the applicant claims that he needs to be reinstated because he is experiencing significant financial difficulty and is unable to secure alternate work because of the respondent’s discrimination. I am not convinced that applicant has supported the contention that he is unable to mitigate his losses because of discrimination.

14The 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.” The material does not establish that the remedy of reinstatement that the applicant ultimately seeks if liability is established would be unavailable at the end of the hearing, absent the interim remedy.

15I conclude that the applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy. I further note that, in considering what is the fair and appropriate approach for this Application, the Tribunal stated in Interim Decision 2012 HRTO 1972:

I find that this Application should be held in abeyance and the Tribunal shall take no further steps in this matter pending the release of the decision in the applicant’s first Application.

I do not agree with the applicant that the suspending the processing of the current Application in order to await the release of the decision in the first Application is prejudicial. While the incidents alleged in the second Application may be different from the first Application, the parties, many witnesses, the chronological history, work conditions and circumstances are likely to be the same or similar. Given the overlapping facts and legal issues, there is no doubt that the factual background and some witness evidence from the first Application will likely be relevant to the second Application. Placing the second Application in abeyance ensures that there is minimal duplication of legal processes and evidence. Abeyance may also avoid the relitigation of certain matters and, ultimately, may assist the Tribunal and parties to narrow the facts and issues in dispute.

16The Tribunal concluded that it was appropriate to hold this Application abeyance until the release of the decision in the applicant’s first Application.

17The Tribunal confirms that this Application will continue to be held in abeyance pending the release of the Tribunal’s decision in the first Application, which is currently under reserve. The Tribunal will not make any other decisions or issue any orders in relation to this Application until such time.

18The applicant is directed to refrain from filing any further RFOPs seeking the continuation/reactivation of this Application.

ORDER

19The Tribunal confirms that this Application will continue to be held in abeyance until the release of the Tribunal’s decision in the applicant’s first Application (2010-05466-I) and that the applicant is ordered to refrain from filing any further RFOPs seeking the continuation/reactivation of this Application.

20The Tribunal will consider the applicant’s request to amend the Application to include the new allegations of reprisal in relation to the employment termination upon the continuation/reactivation of this Application.

21I am not seized of this matter.