HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Devoe

Applicant

-and-

Prabha Haran

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 9, 2012

Citation: 2012 HRTO 938

Indexed as: Devoe v. Haran

appearances

Susan Devoe, Applicant ) Self-represented

Prabha Haran, Respondent ) Samantha Thornton, Representative

INTRODUCTION

1The purpose of this Interim Decision is to address whether the Tribunal should make an order for an interim remedy.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on April 17, 2012, which alleged that the respondent discriminated against her with respect to housing because of her disability, family status, marital status, age, and receipt of public assistance, and subjected her to reprisal. She also filed a Request to Expedite Proceedings and attached signed declarations from her and her physician.

3The applicant identifies as a disabled senior who is also single, childless, and in receipt of public assistance. She stated that she has serious mobility issues related to her disabilities. She stated that she is currently living on the second floor of an apartment building which is only accessible by stairway and is not safe because there is no fire escape. She stated that a first floor apartment is currently available for viewing. She alleged that she requested that the respondent, who is her landlord, allow her to transfer to the first floor apartment to accommodate her disability-related needs, but he refused and is currently showing the apartment to other prospective tenants. She stated that if she is not transferred to the apartment immediately, the respondent will rent it to someone else.

4The letter from the applicant’s physician stated:

This is to confirm that Susan Devoe is currently under my care. She has severe osteoarthritis causing joint pain, degenerative disc disease with sciatica causing marked back and leg pain, and fibromyalgia resulting in generalized muscle pain.

All of these medical problems result in challenges with her mobility, and are a significant disability for her. It is therefore imperative that her apartment be accessible without stairs.

The applicant stated that she provided a copy of this letter to her landlord to no avail.

5On April 20, 2012, the Tribunal delivered the Application and Request to Expedite Proceedings to the respondent by courier, and directed him to file a Response to the Request to Expedite by April 27, 2012. The respondent did not file a Response by the due date.

6On May 3, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 882, which directed the parties to attend a half-day hearing on May 8, 2012, to address whether the Tribunal should issue an interim remedy in this case. Although the applicant did not file a formal Request for an Interim Remedy, she is an unrepresented lay person, and I have therefore treated the submissions and declarations in her Request to Expedite as also a Request for an Interim Remedy.

7The hearing took place as scheduled. The respondent did not appear in person. He was represented by Samantha Thornton, who identified herself as silent owner of the apartment building. She submitted a signed letter from the respondent which I will treat as a Response to a Request for an Interim Remedy and a declaration.

8The respondent’s letter set out the reasons why the apartment unit at issue is not being offered to the applicant. First, the applicant needs supported living arrangements because of her physical and mental needs, and his building is not suitable for her. Second, the upkeep of the applicant’s current apartment is a huge concern in terms of general health, hygiene and fire safety. Third, the applicant attempted to illegally occupy the unit on May 1, 2012, with the assistance of a locksmith and was stopped by the police who took her to the hospital because they were concerned about the state of her mind. Fourth, on at least three occasions, the applicant failed to pay her current $850 monthly rent in full and on time, and the rent for the unit at issue is $900 per month.

9During the hearing, the parties made oral submissions and submitted documents in support of their submissions. At the end of the hearing, I issued an interim order that the respondent not rent the first floor to anyone until the Tribunal provides further orders or directions to the parties.

ANALYSIS

10Rule 23 of the Tribunal’s Rules of Procedure deals with interim remedies. 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 requested; and,

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

11In requesting an interim remedy, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions before the merits of the Application have been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies. An applicant seeking an interim remedy will therefore 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. Chopra v. Kratiuk, 2009 HRTO 109, at para. 11, and TA v. 60 Montclair, 2009 HRTO 369, at para. 29.

12The three criteria in Rule 23.2 are all ingredients to be considered in determining whether to grant an interim remedy. An applicant will be required to demonstrate that all three elements are met before being entitled to the remedy requested. However, they should not be seen as successive hurdles, where the applicant must meet the first, before moving onto the next. Rather, the decision to grant or refuse the Request should consider the collective impact of all factors, and the purpose of the provision as a whole. TA, supra, at para. 36.

13In her submissions, the applicant requested that the Tribunal order the respondent to allow her to move into the first floor apartment as an interim remedy. She stated that her request should be granted because the respondent is blatantly discriminating against her by refusing to accommodate her disability-related needs, and that if the respondent rents the apartment to someone else, which he is planning to do imminently, she will suffer ongoing harm because she will probably never get the first floor apartment.

14In her submissions, the respondent’s representative admitted that some of the applicant’s allegations have an appearance of merit. She also admitted that the respondent wants to rent the first floor apartment to someone other than the applicant in the next day or two. However, she stated that the applicant’s request for an interim remedy should not be granted because she has long-term care needs which cannot be met by the respondent, and she is a hoarder with underlying mental health issues who is presenting a health and safety risk to herself and other tenants by accumulating flammable materials such as newspapers in her second floor apartment. The respondent also stated that the request should be denied because the applicant broke into the first floor apartment on May 1, installed new locks, and started moving her personal belongings in before she was stopped by the police.

15In her reply submissions, the applicant admitted that she tried to enforce “squatter rights” in the first floor apartment, but denied that she is a hoarder, or has long-term care needs or any mental health issues. She stated that she has accumulated things in her apartment because of her physical disabilities which limit her mobility, and that she is receiving assistance from a community organization to reduce the clutter in her apartment. She denied that she has any outstanding rent arrears. She stated that the respondent is simply trying to force her out of the building to avoid accommodating her disability-related needs.

16The applicant has presented compelling reasons for an interim remedy granting her the first floor apartment, particularly the fact that if she proves her discrimination case at a merits hearing, but the respondent has already rented the apartment to someone else, the Tribunal will likely be unable to award her the main remedy that she is seeking. However, in my view, the applicant’s reasons are outweighed by the fact that she forcibly attempted to move into the apartment on May 1, 2012. If I granted the applicant’s request for this particular interim remedy, but she then failed to prove her discrimination case at a merits hearing, I do not have any confidence that she would move out of the apartment, even if she was ordered to do so by the Tribunal.

17In my view, it would be more fair and just to extend my interim order that the respondent not rent the apartment to anyone, and to direct the parties to attend an expedited hearing of the merits of the Application on Monday, May 28, 2012. I am satisfied that this interim remedy meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. I appreciate that the respondent will lose rental income during this period, but, in my view, this is outweighed by the fact that if the applicant proves her discrimination case at a merits hearing, but the respondent has already rented the apartment to someone else, the Tribunal will likely be unable to award her the main remedy that she is seeking.

18I am also satisfied that that the applicant has identified urgent circumstances that require the resolution of the dispute in a particularly rapid manner. See Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9. Pursuant to Rule 1.7(a) of the Tribunal’s Rules, the timelines for filing pleadings, documents, a witness list, and witness statements in advance of the hearing shall be adjusted accordingly.

19In addition to any other witnesses that they are planning to call, the applicant should consider calling her physician as a witness, and the respondent should consider calling any witnesses, such as a fire safety officer, to substantiate his claim that the applicant’s behaviour presents a health and safety risk. A witness may appear voluntarily at the request of a party or be summoned by a party. I draw the parties’ attention to Rule 3, which provides:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

ORDER

20The Tribunal makes the following orders and directions:

1. The applicant’s request to allow her to move into the first floor apartment immediately is denied.

2. The respondent shall not rent the first floor apartment at issue until he receives further orders or directions from the Tribunal.

3. The parties shall attend an expedited hearing of the merits of the Application on Monday, May 28, 2012, at 9:30 AM. This Interim Decision will serve as Notice of Confirmation of Hearing. The hearing will take place at the Tribunal’s hearing centre at 655 Bay Street, 14th Floor, Toronto, ON.

4. The respondent shall file a Response to the Application by no later than May 16, 2012.

5. The applicant may file a Reply to the Response by no later than May 22, 2012.

6. The parties shall deliver to each other and file with the Tribunal all the documents that they intend to rely on, a witness list and witness statements by no later than May 24, 2012. See Rules 16 and 17 of the Tribunal’s Rules.

21If the parties need assistance or information to prepare for the hearing, they should review the Tribunal’s Rules of Procedure and the Guide to Preparing for a Hearing before the HRTO, which may be accessed online at http://www.hrto.ca.