Birchall v. Andres, 2013 HRTO 1289

Human Rights Tribunal of Ontario

B E T W E E N:

Amanda Birchall Applicant

-and-

Juan Andres Respondent

interim DECISION

Adjudicator: David Muir Date: July 24, 2013 Citation: 2013 HRTO 1289 Indexed as: Birchall v. Andres

Written Submissions

Amanda Birchall, Applicant ) Self-represented Juan Andres, Respondent ) Jehuda Kaminer, Counsel

INTRODUCTION

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of sex. In Interim Decision 2012 HRTO 48, dated January 10, 2012, this Application was deferred pending the resolution of related criminal proceedings and was reactivated by Interim Decision 2012 HRTO 884. In this latter Decision the Tribunal also directed that the respondent file his response within 35 days.

2The respondent failed to file a Response as directed by the Interim Decision. Instead on October 24, 2012, counsel for the respondent wrote to the Tribunal and advised that the parties had been actively negotiating a settlement. On December 17, 2012, the Tribunal wrote the parties and directed that the parties provide an update as to the status of settlement discussions by January 2, 2013. Both parties advised the Tribunal by emails dated January 22, 2013 that no settlement had been reached.

3On February 7, 2013, the Tribunal sent a letter to the parties directing that pursuant to the Interim Decision dated May 4, 2012, the respondent must file a Response by February 28, 2013. The respondent did not comply with this Direction.

4In 2013 HRTO 527 issued on March 27, 2013, the Tribunal directed that the respondent file a Response within 14 days of the Interim Decision and was reminded of the Tribunal’s Rule 5.5 which provides for the consequences where a respondent fails to respond to an Application.

5Ultimately on June 27, 2013, a Response was filed. The respondent does not deny any of the allegations of the applicant and accepts responsibility for his actions.

6The applicant has filed a Request for Interim Remedy and a Request to Expedite received by the Tribunal on July 16, 2013. Counsel for the respondent communicated with the Tribunal on July 15, 2013 to advise that the real estate in question (i.e. that referred to as recently sold and relied on in support of the applicant’s Requests) was not owned by the respondent. Counsel also advised that the respondent is unwell and may not be able to attend to any proceeding. Although directed to respond to these Requests by the Tribunal on July 17, 2013, the respondent did not do so.

Request for Interim Remedy

7Rule 23 of the Tribunal’s Rules of Procedure provides in part as follows:

23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.

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

8In 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.

9The Tribunal in TA v. Montclair, above, 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.

10In her Request the applicant seeks an Order requiring that the respondent cease liquidating assets as well as an Order that the respondent hold funds sufficient to satisfy her remedial requests she might make at the hearing.

11The applicant provided no case law to support these requests and it is not clear that the Tribunal has jurisdiction to make the kind of orders that the applicant seeks. However, it is not necessary to resolve the question of whether the Tribunal does have the authority or jurisdiction to grant the interim remedies requested because, in my view and as set out below, it is most appropriate in the circumstances to order the proceedings be expedited. In my view this is the most appropriate order in all of the circumstances arising from the issues raised by the applicant.

Request to Expedite

12In her Request to Expedite the applicant asks that the case be moved from the mediation queue to a hearing. The applicant has withdrawn her consent to participate in mediation. Without consent there is no basis for mediation and accordingly the Application will proceed to a hearing.

13The applicant believes that the respondent may be seeking to organize his affairs to facilitate his leaving the country. In this regard the applicant advises that the “matrimonial home” has been recently sold. The applicant has provided documentation to support this assertion and advised that this transaction closes in mid-October 2013. In response to the respondent’s assertion that he does not own the property in question, the applicant asserts that he has transferred it to his spouse. The applicant also asserts that the respondent’s business has been transferred to his son.

14The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

15In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

16In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

17In considering this Request I have taken into account the applicant’s allegations that the respondent may be seeking to insulate himself from the consequences of any remedial award the Tribunal might make. The respondent did not deny the applicant’s assertions although given an opportunity to do so. I have also considered that the respondent does not deny the allegations the applicant has made in her Application with the result that the only issue in dispute in the hearing appears to be the appropriate remedy. Accordingly it appears that the normal requirements of the Tribunal’s process which requires the disclosure of documents in an orderly fashion in advance of the hearing can likely be modified in this case. In all of these circumstances I consider it appropriate that the hearing in this case be scheduled on an expedited basis in August 2013 and with the further directions set out below.

ORDERS AND DIRECTIONS

18The Tribunal directs as follows:

a. The Request for Interim Remedy is denied.

b. The Request for an Expedited hearing is granted. The Registrar will schedule a one-day hearing in Kingston, at the earliest opportunity between the date of this Interim Decision and August 30, 2013.

c. The parties will exchange any documents, witness lists and will-says upon which they intend to rely at the hearing no later than seven days before the date of the hearing.

19I am not seized.