HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wesley Danbrook
Applicant
-and-
Hilton Toronto Hotel
Respondent
UNITE HERE Local 75
Affected Party
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Danbrook v. Hilton Toronto Hotel
APPEARANCES
Wesly Danbrook, Applicant
Self-represented
Hilton Toronto Hotel, Respondents
Michelle Alton, Counsel
UNITE HERE Local 75
Jorge Hurtado, 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 reprisal on the part of the respondents. The applicant alleges that he was suspended and then dismissed from his employment for failing to participate in what he alleges was a cover up of alleged violations of the Code which were or are the subject of another application before the Tribunal.
2The applicant has filed a Request for Interim Remedy to which the respondent has responded.
3In the Request the applicant seeks reinstatement to his employment. The applicant argues that he has made financial commitments which he is having difficulty meeting with a reduced income. The applicant also argues that he has had difficulty in paying for medications for his family as he is no longer able to access extended health benefits through work. The applicant argues that he has a clear case of reprisal. The applicant argues that although a number of individuals participated in the alleged theft of food he was the only one who was suspended and then terminated. The applicant argues that he and his family will suffer harm if he is unable to replace the income and benefits that he lost when he was dismissed from his employment.
4The respondent argues that the applicant has not presented an arguable case. The respondent argues that the balance of harm in having the applicant returned to his employment without a full hearing outweighs the harm to the applicant. In having his income reduced for a period of time. The respondent also argues that the applicant has filed a grievance and the grievance has been referred to artbitration. The respondent argues that the remedy of reinstatement is available in the arbitration process and should not be granted here on a preliminary basis.
5Granting 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.
6The 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.
7In 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.
8The 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.
9I am not satisfied that the applicant has met the significant onus of establishing that his Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code. The applicant may have an arguable case although this is not clear at this stage. However the applicant’s only argument supporting the need for such an order is that he and his family will experience financial stress if this Request is not granted. As discussed in TA v. Montclair, above, financial hardship as such is not a significant factor in determining whether it would be appropriate to grant an interim remedy. The question is whether there is any basis to conclude that the remedial authority of the Tribunal will be compromised if the interim remedy is not granted. The applicant articulates no reasons why the remedial purposes of the Code will be frustrated by the delay if I do not grant the Request and none are apparent from a review of the material.
10Accordingly the applicant’s Request is denied at this stage.
Request to Intervene
11The applicant’s bargaining agent, Unite Here Local 75 (Unite) has applied to intervene in this case. The applicant opposes this Request and in his response to it has requested that Unite be added as a party respondent. Unite has not responded to the applicant’s request that they be added as a party respondent.
12The Tribunal will not determine the issues raised by the affected party’s request until it has been afforded an opportunity to respond to the applicant’s request.
Other Matters
13As indicated above, the respondent advises that a grievance related to the applicant’s suspension and termination has been filed and referred to arbitration. The applicant takes a different view and as indicated above has sought to add Unite party as a party respondent
14The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
15The parties submissions on this issue are required.
Orders and Directions
16The Request for Interim Remedy is denied.
17The Tribunal makes the following directions:
a. Unite and the respondent will deliver and file their submissions, if any, in response to the applicant’s Request that Unite be added to the Application as a party respondent within 14 days of the date of this Application.
b. The applicant will deliver and file his submissions with respect to the deferral issue within 14 days of the date of this Direction.
c. The respondent and Unite will deliver their submissions, if any, on the deferral issue within 7 days of receiving he applicant’s materials.
18I am not seized of this case.
Dated at Toronto, this 15^th^ day of May, 2013.
”signed by”
David Muir
Vice-chair