Whittaker v. Montrade Developments Ltd., 2012 HRTO 260

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Whittaker Applicant

-and-

Montrade Developments Ltd., Atlantis Real Estate Corporation, Eugene McCarthy, Chris Wong, Elora Kaeser, Merlin McGee and Betty McGee Respondents

AND BETWEEN:

David Whittaker Applicant

-and-

Montrade Developments Ltd., Atlantis Real Estate Corporation, Eugene McCarthy, Chris Wong, Elora Kaeser, Merlin McGee and Betty McGee Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: February 6, 2012 Citation: 2012 HRTO 260 Indexed as: Whittaker v. Montrade Developments

1This Interim Decision concerns a Request for Interim Remedy (“Request”) in two Applications filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Although I am issuing one Interim Decision dealing with both matters, at this stage of the proceeding, I make no determination of whether these Applications ought to be consolidated or heard together.

2For the reasons that follow, the Request is denied. All of the parties have agreed to mediation and, in the circumstances, the mediation will be scheduled on an expedited basis.

OVERVIEW

3The applicants are spouses. Each alleges discrimination in employment based on a number of Code-related grounds. Each also alleges reprisal or threat of reprisal.

4In essence, the applicants were employed as building superintendents and, in this capacity, they resided in a building owned or operated by the corporate respondents. Although the applicants’ employment came to an end in late 2011, they have continued to reside in the building. The applicants state that the corporate respondents are seeking to evict them.

5The applicants state that the termination of their employment was discriminatory and argue that any eviction would be improper. Each applicant has made a Request for Interim Remedy. They seek an order preventing the respondents from evicting them, an order staying any eviction ordered by the Landlord and Tenant Board (“LTB”), remedies regarding a storage locker, and the imposition of a fine.

6The respondents have filed Responses to the Requests for Interim Remedy. They deny the allegations of discrimination, dispute the facts as set out by the applicants, and state that they require use of the apartment occupied by the applicants in order to ensure the security of the building.

7In their submissions, the applicants have indicated that an application to evict has been filed with the LTB and that it was scheduled for hearing on January 5, 2012. In response to a Case Assessment Direction, the applicants provided further information regarding the status of the LTB hearing. The applicants indicated that the LTB heard their matters on January 5th and 6th, 2012 and that the LTB adjudicator reserved his decision.

8On January 30, 2012, the applicants provided the Tribunal with a copy of the LTB adjudicator’s decision. The LTB adjudicator rejected the respondent’s contention that Linda Whittaker had abandoned her employment. He wrote:

As a result, I am not satisfied that [Ms. Whittaker’s] employment has ended. Since this application by the Landlord [to terminate the tenancy] was predicated on the employment of both employee’s the Landlord’s application must be dismissed.

DECISION

9Granting an interim remedy is an extraordinary step. It involves requiring the respondent to take certain actions prior to a hearing on the merits of the Application.

10The 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.

11In 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.

12The Tribunal in TA v. Montclair, supra, 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.

13I find that it is not appropriate to grant the Request for Interim Remedy in the circumstances.

14At this early stage of the proceeding, it is difficult for me to assess whether or not the Applications appear to have merit. However, even assuming that the first branch of the Rule 23.2 were met, I am not satisfied that granting the interim remedy requested is appropriate in the circumstances.

15First, many of the allegations made by the applicants relate to issues before the LTB. An LTB hearing has already taken place and a decision has been rendered regarding the issue of eviction. Given that the result is favourable to the applicants, some of the interim remedies they seek are now moot. The balance of the remedy sought relates to damages and to the use of a storage locker.

16In the circumstances, I am not satisfied that the balance of harm or convenience favours granting the interim remedy. Nor am I satisfied that it is just or appropriate to do so in the circumstances.

17All of the parties have agreed to participate in mediation. Given the circumstances of this case, the mediation will be scheduled on an expedited basis.

18I am not seized of this matter.