N.G.M. v. Newton-Trelawney Property Management Company, 2013 HRTO 1350

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.G.M. by his litigation guardian S.G.

Applicant

-and-

Newton-Trelawney Property Management Company and

Ontario Condominium Corporation 11

Respondents

A N D B E T W E E N:

C.G.M. by her litigation guardian S.G.

Applicant

-and-

Newton-Trelawney Property Management Company and

Ontario Condominium Corporation 11

Respondents

A N D B E T W E E N:

M.G.M. by her litigation guardian S.G.

Applicant

-and-

Newton-Trelawney Property Management Company and

Ontario Condominium Corporation 11

Respondents

Interim Decision

Adjudicator: Ena Chadha

Date: August 2, 2013

Citation: 2013 HRTO 1350

Indexed as: N.G.M. v. Newton-Trelawney Property Management Company

WRITTEN SUBMISSIONS

S.G., Applicant

Self-represented

Newton-Trelawney Property Management Company and Ontario Condominium Corporation 11, Respondents

Mathew R. Vella, Counsel

1On July 10, 2013, the Tribunal received these Applications filed by the applicant mother on behalf of her three children under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to housing on the basis of disability. The applicant also filed a Request for Interim Remedy and Request to Expedite.

2The applicant indicates that all three children have anxiety related disabilities and use a trampoline situated in their backyard as part of their therapy. The applicant alleges that the respondents have discriminated against the children and failed to accommodate their disability-related needs by passing a motion requiring the removal of the trampoline.

3In the Request to Expedite, the applicant alleges that the children’s health is at risk because the imminent removal of their trampoline has increased the children’s stress. The applicant asks that the Applications be processed on an urgent basis. Although the Request for Interim Remedy does not state what specific interim remedial order the applicant seeks, it appears that the applicant is requesting that the Tribunal inform the respondents that the children have a right to accommodation.

4In support of the Requests, the applicant provided a signed letter from the children’s psychiatrist. The psychiatrist’s letter states that the children use the trampoline for therapeutic purposes and if the children are not able to use the trampoline their frustration levels may lead to “more emotional dysregulation” and “tantrum behaviours”.

5The respondents allege that the erection of the trampoline in the applicant’s backyard is in violation of the condominium’s rules and poses a safety risk. The respondents indicate that the applicant mother was asked to remove the trampoline or to provide proof that it was properly insured. The respondents further assert that the applicant has failed satisfy her role in the accommodation process by refusing to provide proof that she carries insurance for personal injury with respect to the trampoline and proof that the backyard is kept locked.

6In their responses to the Requests, the respondents state that the Applications and Requests are premature because, although a motion was tabled, no final determination has been made with respect to the trampoline. The respondents indicate that they are conducting a survey of condominium wide compliance concerns. The survey has not yet been completed and, therefore, no decisions have been reached as to whether or not demand letters will be issued to non-compliant unit owners.

DECISION

7Pursuant to Rule 23.2, the Tribunal may grant an interim remedy where it is satisfied that 1.) the Application appears to have merit; 2.) the balance of harm or convenience favours granting the interim remedy requested; and, 3.) it is just and appropriate in the circumstances to do so.

8The Tribunal has stated that an applicant seeking an interim remedy has a “significant onus” 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 TA v. 60 Montclair, 2009 HRTO 369. Normally, the Tribunal’s power to order a respondent to do or refrain from doing something is contingent upon a finding that the respondent has violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated.

9I find that it is not appropriate to grant the Request in the circumstances.

10While I appreciate the applicant believes that the respondents are requiring the trampoline be removed, the materials do not establish that the respondents have formally demanded that the trampoline be removed. The respondents indicate that they are undertaking a survey to assess compliance issues throughout the condominium and that, upon the completion of the survey, decisions will be made with respect to non-compliance.

11Based on this information it appears that the applicant’s concerns of imminent removal are speculative. In the circumstances, the Request for Interim Remedy is denied.

12Rule 21.1 of the Rules of Procedure 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.

13In 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.

14Based on the reasons noted above, I cannot conclude that an expedited proceeding is appropriate in the circumstances. The respondents indicate that no action has been taken and no action will be taken without notice to property owners. As such, it is not clear that the removal of the trampoline is imminent.

15The decision to refuse the applicant’s Requests is without prejudice to her ability to renew either Request should the circumstances change.

ORDER

16The Requests are denied. The parties have agreed to participate in mediation. As such, the Tribunal will schedule a mediation as soon as possible after the respondents’ Form 2 Response(s) and the applicant’s Reply are filed.

17I am not seized of this matter.