Cook v. Stratford (City), 2012 HRTO 428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Cook

Applicant

-and-

City of Stratford, Social Services Department, Housing Division

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 28, 2012

Citation: 2012 HRTO 428

Indexed as: Cook v. Stratford (City)

1This Interim Decision concerns a Request for Interim Remedy (“Request”) in an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). For the reasons that follow, the Request is denied.

OVERVIEW

2The applicant alleges discrimination in housing based on disability. The applicant currently resides by himself in a two-bedroom unit in social housing. The respondent has taken the position that he is overhoused and it has taken steps to place him in a one-bedroom unit.

3The applicant states that the respondent is discriminating against him by failing to consider his disability-related needs in determining his housing requirements. In particular, he argues that he should be permitted to remain in his two-bedroom unit because:

a. his visual disability requires him to reside in familiar surroundings; and

b. because of a combination of disabilities (visual impairment and obesity), he requires certain fitness equipment (which he also describes as medical equipment) within his home. The applicant states that this equipment is necessary because his doctor has recommended physical activity and because attending a fitness facility outside his home would “aggravate my visual impairment and put me at an undue level of risk of injury”. He states that the cost of a gym membership is prohibitive given his financial circumstances and that he cannot reasonably store fitness equipment in a one-bedroom unit.

4The respondent has filed a Response in which it denies the allegations of discrimination. It states that it is fully prepared to work with the applicant to ensure that his disability-related needs are accommodated in a one-bedroom housing unit.

5On December 13, 2011, the applicant filed a Request for Interim Remedy. As both of the parties had agreed to mediation, a mediation was scheduled on an expedited basis. The mediation did not result in a settlement agreement and it is therefore necessary to address the Request.

6In the Request, the applicant asks for an order allowing him to remain in his two-bedroom unit until the Application is determined by the Tribunal. In the alternative, he asks that, if he is required to move, the Tribunal order the respondent to provide him with 30 days notice.

7The respondent has filed a Response to the Request in which it objects to the interim remedy requested by the applicant. While it accepts that the applicant has a number of disabilities and that exercise may be beneficial to him, it disputes that the Code requires it to accommodate him by housing him in a two-bedroom unit. The respondent states that it is a public housing landlord with limited housing units and that it cannot grant a second bedroom to the applicant for the storage of gym equipment. The respondent disputes the applicant’s contention that gym equipment could not be stored within a one-bedroom apartment.

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 not clear to me that the Application appears to have merit. In particular, I question whether the Code requires the accommodation measures being sought by the applicant or whether his disabilities could be accommodated through other means. 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.

15I cannot conclude that the balance of harm or convenience favours awarding the interim remedy sought or that it would be just and appropriate in the circumstances. I have no doubt that the applicant would be inconvenienced if he is required to move pending the Tribunal’s determination of the Application. However, I accept also that the respondent has limited housing units available and that a room used to store fitness equipment cannot be used to house persons or families with low incomes who are in need of housing. In the circumstances of this case, while I find that both parties face inconvenience and potential harm, I am not satisfied that, on balance, these factors favour awarding the interim remedy requested.

16In reaching this conclusion, I am influenced by the nature of the applicant’s allegations and the fact that he is requesting accommodation measures that may not ultimately be necessary or appropriate under the Code. I am also influenced by the limited number of housing units available and the impact of the proposed interim remedy on the respondent’s ability to fullfill its mandate and provide housing to person’s in need. I note that, irrespective of this Request, the applicant will have continued access to housing. The issue here is not his eviction from housing altogether, but a move to a smaller housing unit.

17Further, the interim remedy is the very relief sought in the Application. As noted in Vella v. City of Toronto, 2011 HRTO 1831 at para.10, the fact that the interim remedy corresponds to the final remedy is a relevant factor. The applicant is essentially asking the Tribunal to grant the final remedy without first making a determination on the merits of the Application. In this case, I am not satisfied that it would be just or appropriate to do so.

18Finally, I do not believe that the interim remedy is necessary to ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing should a violation of the Code be found. If the applicant were successful on the merits of the Application, the respondent could be ordered to place him in a two-bedroom unit at that time. The denial of this Request does not mean that the requested remedy will no longer be available.

19As I have indicated, I appreciate that being required to move would inconveniene the applicant. However, the applicant has presented no basis to suggest that, if he is required to move, the respondent will not allocate a reasonable period of time for him to make arrangements to move. In fact, in the documents filed with the Tribunal, the respondent has shown a willingnes to consider the applicant’s disabilitites in making housing arrangements for him. I am not satisfied that, in the circumstances, it is necessary or appropriate to order an interim remedy granting a specific time for the applicant to make moving arrangements.

20For all of these reasons, the Request is denied.

21I am not seized of this matter.