HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cecila Keefer
Applicant
-and-
Fifty-Four Rideau Terrace Investments Ltd. o/a 54 Rideau Terrace Investments
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Keefer v. 54 Rideau Terrace Investments
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.
Summary of the Parties’ Allegations
2The applicant indicates that she has a degenerative nerve condition and utilizes a mobility aid for walking. The applicant alleges that she requires an accessible entrance to the co-operative 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 relied on until the ramp was removed by the respondent co-operative in September 2010. The applicant believes that the respondent removed the ramp because of aesthetic concerns. The applicant alleges that she is now required to pay someone to assist her to climb the stairs. The applicant alleges that she and her counsel have requested that the respondent co-operative install a new ramp to no avail. The applicant alleges that the respondent co-operative has refused to install a new ramp and, therefore, is violating her right to an accessible entrance.
3On November 8, 2011, the respondent filed its Response, wherein it denies the allegations of discrimination. The respondent alleges that the previous ramp had to be dismantled because it was 20 years old and deteriorating. 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. The respondent alleges that the previous ramp was removed for a number of reasons, including issues of safety, encroachment/easement on City property and non-compliance with the building codes and by-laws. The respondent alleges that installing a new ramp would cause it undue hardship because, unlike condominiums, as a “co-operative housing corporation,” it does not have the legal status to levy special assessments and, as such, does not have the monetary funds for construction. The respondent also alleges that the installation of a ramp that is compliant with the building code is not possible due to site limitations and would result in encroachment.
4The applicant filed a Reply on November 28, 2011 refuting many of the respondent’s assertions. The applicant alleges that, contrary to the respondent’s claims of impecuniosity, the respondent recently expended great sums of money to renovate the garage.
Request For Interim Remedy
5On January 10, 2012, the applicant filed a Request for Interim Remedy (“Request”). In the Request, the applicant asks the Tribunal to order the respondent to construct a temporary ramp to provide her access to the building. The applicant submits that, given her age, disability and the onset of winter months, she risks serious injury whenever she navigates the stairs to enter or exit the building. The applicant alleges that, because she is forced to rely on an assistant, her activities must be coordinated with the assistant’s schedule and are contingent upon the assistant’s availability. The applicant alleges that she has been unable to ride paratransit because of these scheduling limitations. The applicant indicates that she recently fell, notwithstanding the fact that she was accompanied by the paid assistant. The applicant alleges that this fall would not have occurred if the ramp was installed.
6The respondent opposes the Request for interim remedy. The respondent submits that if the Tribunal granted the Request this would effectively constitute a final determination of the dispute as opposed to an interim solution. The respondents allege that, due to the physical constraints of the property, the construction of a temporary ramp would pose safety risks because the steepness of the ramp would necessarily exceed legal grade contrary to the building code. The respondent alleges that it would be unable to secure insurance liability coverage for a temporary ramp given these safety and building code compliance issues. The respondent alleges that both the temporary ramp and a permanent ramp present the same encroachment and easement problems that existed with the previous ramp. The respondent submits that it would be unfair to impose interim relief in these circumstances. The respondent argues that a reasonable and viable alternative, previously proposed to the applicant, is for the respondent to install a stair-lift or vertical lift system. The respondent submits that the applicant refuses to consider the installation of a stair-lift system.
7Between January 18 and 20, 2012, the parties filed various correspondence with the Tribunal refuting each other’s claims. Although the Tribunal’s Rules of Procedure do not provide for a Reply, on January 18, 2012, the applicant filed what she purported to be a “Reply”, wherein she indicates that her Request for interim remedy is not restricted to a temporary ramp and should be amended to include any accessible entrance. On January 19 and 20, 2012, the respondent wrote to the applicant and the Tribunal raising concerns with respect to applicant’s reliance on “without prejudice” information included in the “Reply”.
ANALYSIS
8The 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.
9Rule 23.2 of the Tribunal’s Rules of Procedure sets out the specific conditions that an applicant must satisfy in order for the Tribunal to award 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.
10In TA v. 60 Montclair, 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.”
11The applicant’s Request for interim remedy as it was framed in her initial documentation sought a temporary ramp. The applicant’s “Reply” purports to amend the scope of the Request and now asks that the Tribunal consider any and all options that would provide the applicant with safe access to her building. As noted above, the second and third criterion of the test for an interim remedy require the Tribunal to assess the “balance of harm or convenience” and whether it is “just and appropriate in the circumstances” to grant the interim remedy requested. To undertake such an analysis, an applicant must clearly articulate the specific interim remedy being sought or else the Tribunal would be unable to determine how the sought after relief is necessary in the circumstances. Further, without a specific remedy being sought it would be difficult to determine whether there had been compliance with an interim remedy ordered by the Tribunal (see VandenBroek v. Villa Otthon, 2011 HRTO 279 at para.18). In this case, given the respondent’s concerns with respect to disclosure of alleged “without prejudice” communications and given the broad nature of the proposed amended interim remedy request, I will consider the applicant’s Request for interim remedy as it was framed in her initial documentation, that being a request for a temporary ramp.
12I will assume, without deciding, that that the Application meets the first criterion in Rule 23.2. The Application does not appear to be frivolous or vexatious and a number of Tribunal decisions have found that the right to be free of discrimination because of disability in the area of housing may be infringed where the responding party’s premises lacked a ramp. See for example, Di Marco v. Fabcic, 2003 HRTO 4; DiSalvo v. Halton Condominium Corporation No. 186, 2009 HRTO 2120 and Dixon v. 930187 Ontario, 2010 HRTO 256.
13The second criterion of the interim remedy analysis involves a balancing of the harm to the applicant against the harm to the respondent. Both parties have articulated significant safety concerns seemingly militating for and against the interim remedy. Having carefully considered all the information provided by the parties, I am persuaded that there are several adverse implications to the respondent if the proposed interim remedy was ordered, including the risk of non-compliance with building code and by-laws, ineligibility for insurance coverage and encroachment on City property. In requesting that the respondent be ordered to install a temporary ramp, the applicant did not address the issues of encroachment and potential non-compliance with building code and by-laws, two matters which were highlighted in the respondent’s Response as outstanding concerns preventing ramp construction.
14While I do not doubt the sincerity of the applicant’s safety concerns regarding navigating the stairs, I note that this is the second winter since the ramp was removed in September 2010. The applicant does not dispute that she relied on paid assistance in the past even when the previous ramp existed and continues to have some assistance available to her, albeit with scheduling difficulties. Further, I accept the respondent’s submissions that the practical effect of granting the applicant’s request for a temporary ramp would either be the installation of a code-compliant ramp, which would effectively give the applicant outcome she seeks at the end of the hearing on the merits, or the installation of a non-compliant ramp, which could be unlawful and not covered by insurance. To be clear, I am not saying that the applicant does not have legitimate safety concerns, nor am I saying that the respondent has established issues of negligence exposure, encroachment and/or non-compliance. Rather, I find that the applicant’s materials have not met the onus of demonstrating that the harm that she will experience if the Request is not granted outweighs the harm to the respondent if the Request is granted.
15The third criterion considers whether the interim remedy is just and fair in the context of the Code’s remedial purposes. Again, the applicant’s materials do not establish that the remedies sought by the applicant if liability is established (installation of a permanent ramp, monetary compensation and human rights training) would be unavailable at the end of the hearing, absent the interim remedy. The applicant did not argue or demonstrate that the ultimate relief she seeks through a hearing on the merits would be extinguished or unattainable if the proposed interim relief is not granted.
16I conclude that the applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy of a temporary ramp and that it would be just and appropriate in the circumstances to do so.
17As noted above, the parties’ materials discuss the merits of alternate accommodation options, such as a stair lift. While this may or may not be an appropriate resolution to dispute, it is clear that the parties could benefit, on the earliest basis, from a fulsome discussion of accommodation and alternative options. As such, the respondent is required to promptly write to the Tribunal, copied to the applicant, advising whether it is amenable to mediation.
Order
18The Tribunal orders as follows:
(i) The request for interim remedy is dismissed;
(ii) Within 7 days of the date of this Interim Decision, the respondent is required to write to Tribunal, copied to the applicant, confirming whether it will participate in mediation; and
(iii) If the respondent agrees to mediation, the Tribunal will schedule a expedited mediation.
19I am not seized of this matter.
Dated at Toronto, this 31st day of January, 2012.
‘Signed by”
Ena Chadha
Vice-chair