Remtulla v. The Athletic Club (Trainyards) Inc., 2013 HRTO 2001

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ruhaina Remtulla Applicant

-and-

The Athletic Club (Trainyards) Inc. and Controlex Corporation Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: December 3, 2013 Citation: 2013 HRTO 2001 Indexed as: Remtulla v. The Athletic Club (Trainyards) Inc.

WRITTEN SUBMISSIONS

Ruhaina Remtulla, Applicant Alayna Miller, Counsel

The Athletic Club (Trainyards) Inc., Respondent Brian MacDonald, Counsel

Introduction

1This Interim Decision addresses the applicant’s request for an interim remedy.

2In her Application, the applicant alleges that The Athletic Club (Trainyards) Inc. (“TAC”) discriminated against her because of disability contrary to the Human Rights Code, R.S.O. c. H. 19, as amended. Among other allegations, the applicant alleges that TAC discriminated against her by failing to accommodate her disability because it allegedly provided inadequate lighting in Zumba classes. The respondent denies discriminating against the applicant. In particular, the respondent noted that it agreed to provide certain Zumba classes with standard lighting. However, the applicant maintains that these accommodated classes do not meet her work-out schedule. The applicant claims that she is being discriminated against by not being able to choose from the same full set of classes available to club members without disabilities.

Request for interim remedy

3The applicant requests the following as an interim remedy:

a. That TAC use standard lighting during fitness classes;

b. That TAC refrain from using non-standard lighting such as flashing lights, disco lights, strobe lights, and all lights of that nature during fitness classes; and

c. That TAC ensure that walkways, hallways, entranceways, and exits are accessible and barrier-free.

4TAC opposes the applicant’s request. In particular, it submits that the use of standard lighting in all fitness classes would cause harm and/or inconvenience to the club and its members. In particular, TAC submits that the use of standard lighting will adversely affect the enjoyment of the club members who take Zumba classes in part due to their simulated dance club-like atmosphere. In regards to the interim remedy relating to ensuring all TAC areas are barrier-free, TAC submits that it does its best to ensure this as a matter of course.

Analysis

5Rule 23.2 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, states:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

d. the Application appears to have merit;

e. the balance of harm or convenience favours granting the interim remedy requested; and,

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

23.3 A Request for an Interim Remedy must include:

a. a detailed description of the order sought;

b. one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and,

c. submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

6In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal stated that interim remedies are extraordinary remedies. They are only granted when the applicant is able to demonstrate that such a remedy is necessary to ensure a complete, appropriate, and effective remedy at the end of a hearing. The Tribunal 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.

7Even assuming (without deciding) that the Application has merit, I cannot conclude that the balance of harm or convenience favours awarding the interim remedies requested or that they would be just and appropriate in the circumstances. First, the result of granting the interim remedies sought by the applicant would be to grant her the kind of final remedy that the Tribunal would have the power to award if she makes out a finding of discrimination. As noted in Vella v. City of Toronto, 2011 HRTO 1831, the fact that the interim remedy corresponds to the final remedy sought is a relevant factor weighing in favour of denying the interim remedy. The applicant is essentially asking the Tribunal to grant (in part) the kind of final remedy it might award without first making a determination on the merits of the Application. In this case, the parties’ pleadings outline conflicting arguments which will require a full evidentiary record and submissions for adjudication.

8Second, I am not satisfied that the balance of harm or convenience favours granting the interim remedies requested by the applicant. I am also not persuaded that these interim remedies are necessary to ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing should a violation of the Code be found. Although the applicant claims that she will face challenges in maintaining her health and fitness in the period prior to a decision being if the interim remedies are not granted, I am not persuaded that this is the case. I am not persuaded that the general information contained in the declarations submitted by the applicant provide a detailed and convincing basis for accepting that she will suffer the harm she has alleged if interim remedies are not granted.

9The hearing for this Application is scheduled for March 3-5, 2014. In the interim, the applicant continues to have access to the standard lighting Zumba classes offered by TAC, other fitness classes that have standard lighting, as well as the rest of TAC’s facilities to carry out whatever personal exercise program she wishes until a decision is issued after a full hearing of the merits of this Application. Moreover, if the impact on the applicant’s mental and physical health were as serious as alleged in the request for an interim remedy, one would have expected that the applicant would have filed the request without delay after filing her Application. Instead, she did not file a her request until 10 months after she filed her Application. The Tribunal has held that an applicant’s delay in making a request for an interim remedy is a factor militating against the granting of the remedy. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350.

10In light of the above, I am not persuaded that the balance the balance of harm or convenience favours taking the extraordinary step of granting an interim remedy in this case.

Order

11In the circumstances, the request for interim remedy is denied