Scott v. Otter Creek Co-operative Homes Inc., 2013 HRTO 837

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danya Scott

Applicant

-and-

Otter Creek Co-operative Homes Inc. and Sandy Carter

Respondents

Interim Decision

Adjudicator: Ena Chadha Date: May 16, 2013 Citation: 2013 HRTO 837 Indexed as: Scott v. Otter Creek Co-operative Homes Inc.

WRITTEN SUBMISSIONS

Danya Scott, Applicant

Self-represented

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

2The Application has not yet been delivered to the respondents.

3The applicant alleges that her subsidized rent was withdrawn and her rent was increased due to the negligence of the respondents with respect to processing her income verification. The applicant alleges that the respondents have filed an application to evict her family from their co-op unit and that an eviction hearing is scheduled before the courts on July 3, 2013. The applicant also alleges that the individual respondent made a derogatory remark with respect to the applicant’s race and colour.

4Along with the Application, the applicant filed a Request for Interim Remedy (“Request”). Although the applicant did not specify what specific interim remedial order she seeks from the Tribunal, it appears that the applicant may be requesting that her Application be processed prior to the July 3, 2013 eviction proceedings. The applicant notes that she wishes for the Tribunal to hear and resolve the issues because she believes the respondents will be successful in the eviction proceeding by not informing the court of the full circumstances surrounding her income verification. In support of her request, the applicant provided a signed letter from an individual who attended with her at the eviction meeting of the respondent co-operative’s Board. In this letter, the individual attests that the respondent co-operative’s Board ignored the applicant’s concerns with respect to the condition of her unit and the yearly income assessment.

DECISION

5Pursuant 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.

6The 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.

7I find that it is not appropriate to grant the Request in the circumstances.

8The 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.

9Although it is unclear what is the exact relief being sought in the Request, it appears that the applicant seeks that the Tribunal resolve the issues prior to the July 3, 2013 eviction proceedings. The applicant is essentially asking the Tribunal to expedite the determination of the merits of the Application in the upcoming months. I am not satisfied that it would be just or appropriate to do so.

10With respect to the balance of harm and convenience, the applicant asserts that her family will be in “dire straights” if the eviction process continues without the Tribunal’s intervention. The applicant fears that the respondents will mislead the court at the July 3, 2013 eviction proceedings.

11While I appreciate the applicant believes that the respondents will be persuasive at the July 3, 2013 eviction proceeding, the risk of injustice occuring because of the respondents misleading the court at the eviction hearing, and even the possibility of the actual eviction, is not clear to me. The applicant did not explain why the mitigating circumstances with respect to the income verification as described in the Application and her Request cannot be raised before the court. The applicant did not provide copies of any material related to the eviction process. Further, the applicant did not address whether or not there are alternate residential options for her family and provided no information about whether other subsidized units are available.

12The 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.”

13The 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 do not believe that the interim remedy is 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. If the applicant were successful on the merits of the Application, the respondents could be ordered return the applicant’s family to a subsidized unit. The denial of this Request does not mean that the requested remedy will no longer be available. Further, I am not convinced that the applicant has supported the contention that her family will be evicted on July 3, 2013 if this Request is unsuccessful. I find that the applicant has not established that the interim remedy is necessary to promote the remedial purposes of the Code.

14I am not satisfied that the balance of harm or convenience favours granting the interim remedy, nor am I satisfied that it is just or appropriate to do so. In the circumstances, the Request for interim remedy is denied.

15Although the applicant filed a Request for interim remedy, it appears that, in effect, the applicant is asking that the Tribunal expedite this matter so that the issues are resolved before July 3, 2013 eviction proceeding. As such, I have also considered the applicant’s concerns in the context of the analytical factors involved in a request to expedite.

16The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

17In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

18Based on the reasons noted above, I cannot conclude that an expedited proceeding is appropriate in the circumstances. It is not clear that the eviction will take effect on July 3, 2013, nor that alternate options are unavailable.

ORDER

19I 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. The Tribunal will process this Application in its regular course.

20I am not seized of this matter.

Dated at Toronto, this 16th day of May, 2013.

“Signed by”

Ena Chadha

Vice-chair

CORRECTION

The Interim Decision dated May 16, 2013 contained a typographical error on the Title and Written Submissions page of the Decision. He Applicant’s name was inadvertently spelled as “Dayna Scott”; the correct spelling is “Danya Scott”.

The Interim Decision is amended accordingly.