HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rose Marie Thomas
Applicant
-and-
IATSE Local 822, Domenic Marcone, Cheryl Batulis, Heather Clarkson,
Mathew Loeb, David Mirvish, Blair Egglestone, IATSE 58, IATSE 129, IATSE 461, Maple Leaf Sports and Entertainment Ltd., Ontario Teachers’ Pension Fund
Respondents
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Thomas v. IATSE Local 822
WRITTEN SUBMISSIONS
Rose Marie Thomas, Applicant ) Self-represented
IATSE Local 822, )
Cheryl Batulis, Heather Clarkson, )
Mathew Loeb, IATSE 58, ) Andrea Bowker, Counsel
IATSE 129, IATSE 461 )
, Union Respondents )
Maple Leaf Sports and Entertainment Ltd )
,Respondent ) Gita Ananad, Counsel
Ontario Teachers’ Pension Plan Board, )
Respondent ) Donna M. D’Andrea, Counsel
David Mirvish, Respondent ) Stephen A. Bernofsky, Counsel
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against her in employment, contracts, and in membership in a vocational association based on disability and sex. She also alleges reprisal or threat of reprisal.
2In an earlier Interim Decision, consideration of this Application was deferred pending the Tribunal’s determination of another overlapping matter: see 2013 HRTO 353. The purpose of this Interim Decision is to address a Request for an Order During Proceedings (“RFOP”) filed by the Applicant on October 1, 2013.
THE RFOP
3In the RFOP, the Applicant makes the following allegations and requests:
(a)she asks that the Tribunal extend the one year limitation period because she says IATSE is delaying communications and the fact that the Applicant is awaiting IATSE’s response on three appeals;
(b) she raises what appear to be new allegations of reprisal. She alleges that, although she has provided payment, the Union Respondents have threatened to suspend her membership for non-payment.
(c) she alleges that there is continued smoking at a worksite and that a Union representative continues to lose her temper with the applicant. The Applicant asks that the Tribunal put some form of “ground rules” in place to avoid on-going intimidation and to ensure that the respondents do not interfere with the Applicant’s ability to represent herself in proceedings before the Tribunal.
4Counsel for the Union Respondents (IATSE Local 822, Cheryl Batulis, Heather Clarkson, Mathew Loeb, IATSE 58, IATSE 129, IATSE 461) filed a Response to the RFOP. The Union Respondents state that, in their view, the Applicant has no outstanding appeals within the meaning of the Union constitution. In any event, they argue that the Tribunal cannot prospectively relieve against a limitation period. The Union Respondents also argue that the requests and allegations contained in the RFOP fall outside the Tribunal’s jurisdiction to decide because their subject matter does not appear to relate to the Code. Finally, to the extent that the RFOP is, in fact, a request to amend the Application to add further allegations or further parties, the Union Respondents stated that they do not consent to any such amendments.
5Ontario Teachers’ Plan Board, Maple Leaf Sports and Entertainment, and David Mirvish have provided a brief Response to the RFOP in which it takes no position and states that it has no knowledge of the matters raised by the Applicant.
6None of the other respondents have filed submissions in response to the RFOP and the time for doing so under the Rules has elapsed.
ANALYSIS
Limitation Period
7Section 34 of the Code states:
34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incidents to which the application relates; or
(b) if there was series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
8The Tribunal may only relieve against the limitation period if it is satisfied that the delay is in good faith. In order to determine whether a delay in in good faith, the Tribunal must be in a position to consider all the relevant information including the length of the actual delay and the reasons for it. These issues cannot be analysed prospectively but must be considered in light of the actual facts. Moreover, in this case, there may be a dispute as to the existence of appeals and whether any such appeals would bar or be a good faith reason for delaying the filing of an Application.
9For these reasons, the Tribunal cannot prospectively extend the limitation period under section 34 of the Code.
Request to Amend
10As the Application has been deferred, it is not appropriate to determine a request to amend the Application at this time. Any requests to amend the Application may be considered if the Application is reactivated.
Request for Interim Remedy
11In terms of the allegations of on-going reprisal measures, the Applicant appears to be requesting an interim remedy. She asks that the Tribunal, before determining the merits of the case, direct the parties to behave in a certain manner. The applicant suggests that the Tribunal conduct a hearing in order to determine the appropriate measures.
12In my view, the most fair, just, and expeditious manner of proceeding is to address the Applicant’s request for interim remedy based on the parties’ written submissions. An oral hearing on this preliminary issue is not necessary or appropriate.
13Granting an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application and before any violation of the Code has been proven.
14The conditions for awarding an interim remedy are set out as follows in Rule 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.
15In 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.
16The Tribunal in TA v. Montclair, supra, 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.
17I am not satisfied that the applicant has met the significant onus of establishing that her Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.
18At this early stage of the proceeding, it is difficult for me to assess whether or not the Application appears to have merit. Even if I were to assume (without finding) that the Application appears to have merit, I cannot conclude that the balance of harm or convenience favours awarding the interim remedy sought or that it would be just and appropriate in the circumstances to grant it.
19First, it is not entirely clear to me that it would be appropriate for the Tribunal to set broad rules governing various aspects of the relationship between the Applicant, the Respondents and what appear to be some third parties to the Application. Second, the issues raised in the Application and the RFOP have potentially broad consequences for the parties and for other players. Third, as noted in Vella v. City of Toronto, 2011 HRTO 1831 at para.10, the fact that the interim remedy corresponds (at least in part) to the final remedy is a relevant factor. The applicant is essentially asking the Tribunal to grant (in part) the final remedy without first making a determination on the merits of the Application. Finally, the parties’ pleadings outline conflicting arguments on complex legal issues, which will require a full evidentiary record and submissions for adjudication.
20In all of the circumstances, the Applicant’s request for interim remedy is denied.