HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.B.
Applicant
-and-
Timbercreek Asset Management
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: A.B. v. Timbercreek Asset Management
WRITTEN SUBMISSIONS
A.B., Applicant
Self-represented
Timbercreek Asset Management, Respondent
Kristin Ley, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation because of disability and also alleging reprisal contrary to the Code.
2This Application was filed in March, 2012 and the Response was filed in August, 2012. The respondent denies having discriminated against the applicant contrary to the Code.
3The applicant has not filed a Reply in this matter and has been given numerous extensions in order to do so.
4In her Application, the applicant asserts that she suffers from Chronic Fatigue Syndrome, Fibromyalgia, Multiple Chemical Sensitivities and Irritable Bowel Syndrome. She alleges that from approximately June 2011, the respondent failed to accommodate her disabilities with respect to renovations it conducted in the apartment building where she lives, including painting, window installation, September 2011 work on the balconies and February 2012 work which included use of cement in the lobby. Subsequent to her Application, she wrote to the Tribunal with respect to further allegations of work performed on the balconies in July, 2012, though she has not filed a Request for Order During Proceedings (RFOP) seeking to amend her Application. She also indicates that she has not occupied her rental unit since that time.
5In its Response, the respondent denies that it has failed to accommodate the applicant’s disabilities and submits that it made numerous attempts, including researching and offering alternative products for cleaning and renovations, improving ventilation systems, offering the applicant the use of other rental units owned by it, and engaging the services of a third party medical team to assist in the development of an accommodation plan. In subsequent correspondence to the Tribunal it too references the balcony renovations commenced in the summer of 2012, and further submits that the applicant stopped paying her monthly rent in March 2012, but that despite this it continued to attempt to accommodate the applicant.
6The matter was scheduled to be heard on April 8 and 9, 2013, but the applicant made a request for adjournment. Initially, the medical documentation she provided in support of her request was dated December 18, 2012, and stated that she required more time to prepare her case and that she had “medical symptoms affecting her respiratory tract and fatigue with loss of suitable housing”. A Case Assessment Direction (CAD) was issued by the Tribunal on March 14, 2013, advising that the adjournment request was not granted at that point and stating that unless and until she provided “medical evidence indicating that she is unable, for medical reasons, to proceed with a hearing on April 8 and 9”, the hearing would proceed on the scheduled dates. In that CAD the Tribunal also directed her to file a Reply immediately, and advised that if she had not done so within 7 days of the CAD, her Application may be dismissed as abandoned.
7She subsequently provided some medical documentation to the Tribunal, and in a March 20, 2013 medical note, a doctor stated “We feel she requires an adjournment for the hearing of at least 4 months….” The Tribunal granted the adjournment request in an Interim Decision A.B. v. Timbercreek Asset Management, 2013 HRTO 538, though in that Interim Decision, the Tribunal indicated that if there were any further requests for an adjournment, the Tribunal may well require more detailed medical documentation which would address why she would be unable to participate in a hearing and which would provide information regarding what specific accommodation she would require in order to enable her to participate in the hearing, as well as a realistic opportunity for the Tribunal to plan such accommodation. In that Interim Decision, the Tribunal also directed the applicant to file her Reply with the Tribunal “no later than July 22, 2013”.
8On June 6, 2013, the applicant filed a Request for Interim Remedy, with voluminous attachments. She requested the Tribunal make the following orders:
That the respondent make arrangements with a particular named cleaning company to have her unit and all her personal items inside the unit cleaned in accordance with that company’s “Custom Cleaning Plan”;
That the respondent open an account with a particular named company at specified premises, in order to have all of her documents photocopied and “contaminated” papers and documents shredded and all spiral bound documents re-bound;
That the respondent pay to the Tribunal the cost of copying the entire Tribunal file in this matter, with the cost to be determined by the Tribunal.
9She submitted that due to her “severe MCS”, she could not clean her apartment unit or personal items herself. She submitted that everything in her unit, including her documents, had been contaminated by concrete dust. She submitted that if the unit was not cleaned, it would remain uninhabitable by her and that if her documents were not photocopied or reprinted, they would remain unusable for her.
10On June 20, 2013, the respondent requested an extension of one week for their Response to the RFOP. That same day, the applicant objected to the respondent’s request for an extension of one week.
11The Tribunal granted the one week extension to the respondent. On June 27, 2013, the respondent filed its Response to the RFOP, objecting to the Request for Interim Remedy.
12On July 16, 2013, the respondent wrote to the Tribunal, copying the applicant, advising that the applicant vacated her rental unit on July 9, 2013, and submitting that this rendered the Request for Interim Remedy moot.
13On July 22, 2013, the applicant wrote to the Tribunal, copying the respondent, requesting a further extension of the time allotted to file her Reply and indicating that she had not filed it earlier due to medical reasons. She indicated that she anticipated being able to email a “‘Form 10’ along with relevant documents by Monday, July 29, 2013”.
14On July 31, 2013, the applicant wrote to the Tribunal stating that she had been unable to email her documents by July 29, 2013 “for medical reasons”. She stated that she would “make every effort to email…documents in the next 2-3 weeks”.
15On July 31, 2013, the respondent wrote to the Tribunal, objecting to the applicant’s request for additional “unspecified time within which to file her Reply”. The respondent also requested that the Tribunal dismiss the Application for abuse of process and the applicant’s “disregard for the Tribunal’s rules, procedures and directives”. The respondent also notes that the applicant has been able to file several requests of the Tribunal, and has filed considerable documentation, all of which has required a response from the respondent.
16The applicant has not filed any reply to the respondent’s request to dismiss her Application.
17On October 3, 2013, the applicant sent an email to the Tribunal and forwarded a copy of a July 12, 2013 medical note to the Tribunal, with a copy to the respondent. It states that at July 12, 2013, she was “still unable to meet any deadlines for her hearing. She has severe fatigue – waiting for respiratory consult still. She is disabled”. In her October 3, 2013 email, she indicated that she has scheduled an appointment with her doctor and that “a more detailed letter outlining my accommodation needs will follow”.
REQUEST TO DISMISS/REPLY ISSUE
18The respondent’s request to dismiss this Application for abuse of process is denied at this time. While the applicant has failed to file her Reply within the time permitted by the Tribunal, including several extensions, I am not persuaded that the applicant’s conduct at this time constitutes abuse of process.
19Nonetheless, the Tribunal has provided numerous extensions to the applicant in order to file her Reply. Though she has not filed her Reply, throughout the period when her Reply was due, she has filed an RFOP, a Request for an Expedited Hearing, and more than one Request for Interim Remedy in addition to numerous emails to the Tribunal, and has frequently filed voluminous documentation with her requests and correspondence. Though she has latterly provided a July 12, 2013 note from her doctor, the note pre-dates her July 22 and July 31, 2013 assurances of imminent compliance with the Tribunal’s direction. In the circumstances where the respondent filed its Response over one year ago, and the applicant has not complied with the Tribunal’s directions regarding filing her Reply, but has filed other lengthy submissions and documentation instead, I find that it is appropriate to deny the applicant any further extension of time for filing her Reply.
REQUEST FOR INTERIM REMEDY
20The applicant seeks an order that the respondent clean her apartment unit as an interim remedy. The respondent advises, and the applicant has not disputed, that she has vacated her apartment unit. It submits, and I agree, that the applicant’s request that it clean the apartment unit for her, is now moot.
21The applicant also seeks an order that the respondent be required to photocopy, shred and “re-bind” her documents, as she submits that they are “contaminated”. Additionally, she seeks to have the respondent pay for reproduction of her file at the HRTO. I do not agree that the fact that the applicant has vacated her apartment unit renders these requests moot, but they are denied for the following reasons.
22The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:
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.
23Interim Remedies are extraordinary, as normally, the Tribunal’s power to order respondents to do or to refrain from doing something, is contingent upon a finding that they have violated the Code. An Interim Remedy would require a respondent to do something or to refrain from doing something without a finding that it has violated the Code. Accordingly, the applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy. See T.A. v. 60 Montclair, 2009 HRTO 369 (“Montclair”).
24The applicant submits that for health reasons she was “forced to flee” her unit following repairs to the balcony. In her Request for Interim Remedy, she alleges that concrete dust entered her apartment unit as a result of the repairs, and that the respondent failed to heed her concerns and to accommodate her before and after the repairs. She asserts that this has contaminated her documents and that if they are not reproduced, they will remain unusable to her. She submits that the balance of convenience favours granting her the request, as unless her documents are cleaned, she cannot “move forward” with her life, nor can she use her documents. She submits that it would be just and appropriate to grant her request because the contamination was caused by the respondent’s failure to accommodate her in respect of the balcony repairs.
25The respondent submits that the requirements for ordering an interim remedy are not met. It submits that the Application itself is without merit. Further, it submits that it paid the cost of alternative accommodation for the applicant during the balcony repairs, and that it made attempts to have the apartment unit cleaned, but was unable to do so due to the applicant’s failure to cooperate. It submits that it is not fair and just in the circumstances of this case to grant interim relief to the applicant, as there is no urgent need for it and the relief requested by the applicant is available to her by means of self-help. It also disputes that her papers were exposed to concrete dust, as at a September 10, 2012 inspection of her unit, it was noted that her personal items were in Tupperware containers. It also submits that it made numerous offers of alternative accommodation and moving costs to the applicant, but she refused. It also submits that almost all of its correspondence with her has been conducted by email, so that the applicant has electronic access to all of that documentation. Further, it submits that she does not seek anything which would be unavailable at the end of the hearing, absent the interim remedy, and that the Tribunal could order a complete and effective remedy if a violation of the Code is found. It submits that it has continued to try to accommodate her and that she has not paid rent in over 13 months. It submits that there would be substantial harm to the respondent if an interim remedy were to be ordered, as it would be required to expend funds with “no certainty of repayment if the Respondent’s position on the Application is vindicated”.
26In determining requests for interim remedy, the Tribunal takes the approach set out in Montclair:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (paras 15-27)
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (paras 28-29)
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (paras 30-32)
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (paras 33-34)
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (para 35)
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (para 36).
27The Tribunal will assume, without deciding, that the Application appears to have merit to the extent that there is at least an arguable case. In the circumstances of this case, however, I am not persuaded that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.
28As noted above, the remaining issue for interim remedy is now simply the question of whether or not the respondent should be ordered to reproduce documents for the applicant’s use and shred the originals. Further, the applicant specified a particular company and premises for the respondent to use. The harm the applicant relies upon arises from her allegation that her hearing documents were contaminated as a result of repairs by the respondent and an ensuing necessity for her to have clean documents in order to prepare for the hearing.
29I am not satisfied that the applicant has established (a) that the documents are contaminated such that she is unable to use them, (b) that the respondents are responsible for any contamination that may exist or (c) that the specific remedy she has requested has been established as necessary such that the balance of convenience would support granting the request.
30First, aside from a fairly bald assertion that her documents are contaminated and unusable, the applicant has provided no real evidence – medical or otherwise – that she is unable to use her own documents. I have also considered the respondent’s assertion, which the applicant has not disputed, that her belongings were sealed in Tupperware at the time of the balcony repairs.
31Secondly, it is not clear that even if the applicant cannot use her documents without some form of remediation that is the fault of the respondents. From the material before me, it appears that there was lengthy advance warning and discussions between the parties about the repairs that eventually took place. It appears that the applicant was of the view that she could not remain in her unit when the repairs eventually proceeded and was able to take steps to vacate it. Throughout this time she was also participating in the Tribunal process through the filing of requests. In all of these circumstances, in my view, the applicant herself had the ability, if not also a responsibility, to preserve her hearing documents in whatever manner she believed necessary such that she could continue to use them. I note in this respect that in the rare circumstances where an interim remedy has been granted it has typically involved preserving some aspect of the status quo that existed between the parties at the time of filing of both the application and the interim remedy request, and which was largely or entirely within the control of the respondent. The situation here was and is quite different because there is no status quo to preserve and the applicant herself had the ability to preserve her documents in a manner she believed necessary.
32Thirdly, as the applicant has vacated her apartment, it would follow that the documents are in her possession and not in the possession of the respondent. There is nothing to indicate that the applicant herself cannot arrange to have the documents reproduced and the originals shredded. There is nothing to indicate why the documents would have to be reproduced or shredded by a particular company, at particular premises. Perhaps it may be assumed that this is the company and the premises most convenient to the applicant. For the respondent to arrange to have the applicant’s documents reproduced and shredded at the specified premises or by the specified company, it would have to first obtain the documents from her, then make arrangements with a business which may well have been chosen to accommodate the applicant’s convenience. The applicant’s request with respect to payment to be made by the respondent to the Tribunal appears to be a request based on payment only. There is no indication that the applicant herself cannot arrange for reproduction of her file. It would appear that given the fact that it is the applicant who has possession of the documents, and that she is able to arrange for reproduction of the documents she requires and the shredding of the originals, the balance of harm or convenience does not favour granting the interim remedy.
33Given the fact that the remedy the applicant seeks is one which is within her own power to effect, namely arranging to have her documents reproduced and originals shredded, the material filed does not establish that an interim remedy is necessary to facilitate and ensure that 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. I do not find that it is just and appropriate in the circumstances to grant the applicant’s request for interim remedy.
34The applicant’s request for an interim remedy is dismissed.
ORDERS
35The Tribunal orders as follows:
- The respondent’s request to dismiss the Application as an abuse of process is denied;
- The applicant is granted no further extension to file her Reply;
- The applicant’s request for interim remedy is dismissed.
36The Registrar will schedule hearing dates in this matter.
37I am not seized.
Dated at Toronto this 17th day of October, 2013.
“Signed by”
Maureen Doyle
Vice-chair