HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Newman

Applicant

-and-

Elstrong Management Limited

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: April 18, 2013

Citation: 2013 HRTO 651

Indexed as: Newman v. Elstrong Management Limited

WRITTEN SUBMISSIONS

Christopher Newman, Applicant

Self-represented

Elstrong Management Limited, Respondent

David Elgie, Representative

INTRODUCTION

1This Application was filed on March 11, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“Code”), alleging discrimination with respect to housing on the basis of disability and receipt of public assistance.

2The applicant alleges that, after viewing prospective rental units, he applied to lease a unit from the respondent and requested that he be accommodated in two aspects of the screening process. The applicant requested that (i) the respondent allocate his deposit towards the first month’s rent and (ii) the respondent refrain from negatively considering any information other than the applicant’s current ability to pay his monthly rent as it comes due. The applicant alleges that the respondent discriminatorily denied him housing when it failed to accommodate his Code-related needs in these two respects.

3On March 25, 2013, the applicant filed a Request for Interim Remedy (“Request”). The applicant seeks an order restraining the respondent from continuing to offer to rent, or renting out, the apartment that the applicant sought to lease or any two- bedroom apartment that may become available until the Tribunal has disposed of this Application.

4The applicant notes that the remedy sought in the Application is for the parties to enter into a one-year lease of a unit that is satisfactory to the applicant. The applicant alleges that, given that the apartment rental costs have increased and that the unit he applied for is located in a small building, he will be denied the relief he is seeking if the respondent continues to rent two-bedroom apartments. The applicant alleges that he will suffer inconvenience in that it will take longer for him to secure suitable housing and he will be denied the housing of his choice because the appropriate units will have been rented.

5The respondent filed a Response to the Application on March 26, 2013 and a response to the Request on March 27, 2013. The respondent denies the applicant’s allegations and opposes the Request. The respondent alleges that it refused to rent to the applicant because of his very poor credit history. The respondent points out that the balance of convenience does not favour granting the interim relief because it manages over 700 apartment units in various building and locations. The respondent asserts that it will suffer significant harm to its income if the interim relief was granted.

6The applicant filed a Reply on April 5, 2013 alleging that that he was subjected to adverse effects discrimination in the respondent’s sole reliance on the negative credit history without consideration of any mitigating information, including credit accounts that are currently in good standing and two favourable reference checks.

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 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 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 it would neither be fair nor appropriate in this case to grant the requested interim remedy. I find that the applicant’s materials do not provide a sufficient basis to order the interim remedy sought. Assuming, without deciding, that the Application has merit, I am not satisfied that it has been established 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.

10With respect to the balance of harm and convenience, the applicant claims that he will experience inconvenience and delay in securing an alternate apartment if the interim relief is not granted because there is likelihood the suitable units will be rented. I am not convinced that the potential harm cited by the applicant, namely inconvenience and delay, is of such a magnitude that interim relief is necessary. The respondent has explained that it manages over 700 apartment units and prohibiting it from offering to rent or renting out all two-bedroom units until the conclusion of the Tribunal process presents significant harm to the business.

11The third criterion considers whether the interim remedy is just and fair in the context of the Code’s remedial purposes. In TA v. 60 Montclair, supra, the Tribunal stated the key question 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.”

12The material does not establish that the remedy that the applicant ultimately seeks if liability is established would be unavailable at the end of the hearing, absent the interim remedy. I am not convinced that the applicant has supported the contention that an appropriate unit will not be available if his Application is successful. I find that the applicant has not established that the interim remedy requested is necessary to further the remedial purposes of the Code.

ORDER

13I conclude that the applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy and, accordingly, the applicant’s Request is dismissed. Since the parties have indicated an interest in mediation, the Tribunal will schedule mediation in its regular course.

14I am not seized of this matter.