Nahirny v. Liquor Control Board of Ontario, 2013 HRTO 1845

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Nahirny

Applicant

-and-

Liquor Control Board of Ontario, Ontario Public Service Employees’ Union,

Bob Peter, Bob Clevely, Rafik Louli and Ray Bourque

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: November 1, 2013

Citation: 2013 HRTO 1845

Indexed as: Nahirny v. Liquor Control Board of Ontario

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 employment because of disability, family status and reprisal. The Application has not been delivered to any of the respondents and accordingly no Responses (Form 2) have been filed.

2The applicant has filed a Request for Interim Remedy (Form 16). The Tribunal has not delivered this Request to the Respondents and no response to them is required. The Request is incomplete in that the applicant has not provided all of the materials required to support such a Request. However, a letter from his family physician was filed and reviewed in preparing these reasons.

3For the reasons that follow the Request is denied.

Request for Interim Remedy

4Rule 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.

5In 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.

6The 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.

7The applicant makes several allegations of failure to accommodate his disability-related and family status needs. However the basis for his Request arises from the following circumstances. Further to a number of grievances filed by the applicant, a settlement was negotiated between the applicant and his employer, the respondent LCBO. As part of the settlement it was agreed that the applicant could work in three LCBO locations, Store #2, 8, or 15, all of which were close to the applicant’s home where he lives and cares for his mother who is quite ill. This appears to have been an accommodation for the applicant’s need to sometimes return home during his shift to attend to his mother. The settlement had been in place for several years with the applicant working in Store #2 which perhaps not coincidentally is closest to his home.

8A conflict arose between the applicant and a member of management in store #2 about an accommodation for the applicant’s disability-related needs following an accident. Essentially the applicant alleges that he was being asked to perform tasks beyond his restrictions. The applicant makes a number of allegations with respect to this dispute which are not material to the Request.

9Not long thereafter the applicant was advised that he was being transferred to store #8, which is somewhat farther from his home than store #2, but I note was one of the three stores where it was agreed that the applicant could work as an accommodation for his need to attend to his mother from time to time during work hours.

10The interim Remedy the applicant seeks is to be returned to store #2 pending the hearing of the merits of this case. He also seeks an order the he not be assigned to the same shift as the Assistant Manager and that he not take direction from this individual.

11I am not satisfied that the applicant has met the significant onus of establishing that his Request meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. I have come to this conclusion because it is not clear that this Application as it relates to the transfer has merit. I observe that the applicant has been transferred to a store which he agreed would be acceptable and would be an appropriate accommodation. The applicant complains that the decision appears to have been arbitrary and done without consultation, however he does not assert that despite his agreeing that he could work in this location in the past it is no longer an acceptable accommodation. As regards the request that he not be assigned to the same shift as the assistant manager and not be required to take direction from him, it is not clear how this issue relates to Code claims.

12I am also not satisfied that the balance of harm or convenience favours granting the Request. It is not clear why the respondent employer chose to transfer the applicant, but based on the applicant’s submissions it is not clear why it did not have the right to do so. Most importantly I am not satisfied that it would be fair and just to grant the Request as the applicant has articulated no reasons why the interim remedy he seeks is necessary to further the remedial purposes of the Code. In that regard I have reviewed the note from the family physician who is treating the applicant’s mother and it is insufficient to support this Request. It is not clear from the note how conversant the physician is with the circumstances and it does not appear that the physician understands that the applicant had previously agreed that working in store #8 would be an acceptable accommodation. More importantly the note does not suggest that the physician knows where the applicant is to be assigned and does not state that this location is no longer an appropriate accommodation.

13The applicant has also filed a Request for Order seeking the production of a number of documents. Such a Request is premature at this stage, before the Application has been delivered to the respondents. The applicant may renew his Request at the appropriate time.

14The Application will be served with this Interim Decision. The respondents must deliver and file their Responses (Form 2) within 35 days of receiving the Application. The Registrar will schedule a half-day summary hearing by conference call to address the issues outlined above. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

15I am not seized.