Mihai Codrin v. Commissionaires Great Lakes, 2014 HRTO 265

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mihai Codrin

Applicant

-and-

Commissionaires Great Lakes

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: February 26, 2014

Citation: 2014 HRTO 265

Indexed as: Codrin v. Commissionaires Great Lakes

WRITTEN SUBMISSIONS

Mihai Codrin, Applicant

Self-represented

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") on November 18, 2013. This Interim Decision addresses a Request for Interim Remedy filed February 12, 2014, and provides directions to the applicant regarding a Request for Order During Proceeding to add respondents.

2The Application alleges discrimination with respect to employment because of disability and reprisal. The applicant alleges that he was not considered for a permanent posting because of an illness that affects his mobility and then was reprised against for making a complaint about discrimination. The applicant also alleges that his termination was a violation of the Code. The applicant seeks a number of remedies including that he be re-hired and considered for a position at Canada Centre.

3On December 13, 2013, the applicant filed a Request for Order During Proceeding seeking to add four individuals as respondents ("Request to Add Individuals"). The applicant has filed Statements of Delivery indicating that the four individuals were served but has not confirmed the contact information at which the individuals were served, either on the Statements of Delivery or elsewhere in his filings, as required. The cover email to the Tribunal filing the Form 10 appears to reflect that it was copied to four individuals, but the email addresses for each of the four individuals is either not provided or discernible.

4On January 23, 2014, the respondent filed a Response to the Application. Among other things, the respondent submits that as a probationary employee the applicant had no preferential right to the job sought and that other non-probationary employees were chosen for the openings based on perceived competence and tenure. The respondent submits that the applicant's allegation of discrimination came only after the applicant came to know that he had no standing as a probationer. The respondent denies any responsibility for compensation and states that it is not in a position to displace any of the employees at Canada Centre in order to hire the applicant into a position for which he has not demonstrated suitability.

5Neither the respondent nor the individuals sought to be added have filed a response to the Request to Add Individuals.

6On February 12, 2014, the applicant filed a Request for Interim Remedy. The respondent was not required to file a Response to this Request.

Request for Interim Remedy

7The applicant seeks an interim remedy consisting of an order that the respondent immediately reverse the applicant's firing and place him in one of the positions at the Canada Centre work site. In support of his Request, the applicant asserts the respondents have not refuted certain allegations in their Response and submits that the Application has merit. With respect to what harm would result if the Request is denied, the Applicant points to financial, emotional and physical harm that he will experience. The applicant submits the further harm includes financial consequences (including cancellation of credit cards, disconnection of telephone service, inability to pay for dental treatment and inability to operate his vehicle due to loss of income) and ongoing physical suffering as a result of his illness being worsened by his situation including abdominal pain, diarrhea and difficulty sleeping.

8The applicant states that the balance of harm favours granting the request because there is no harm to the respondents if the request is granted. The applicant further states that "the more time passes, the more difficult it will be for the Tribunal to provide a remedy that would as close as possible approximate 'rolling back the clock' to before the applicant was denied a shift at Canada Centre and terminated."

9The applicant attaches a Declaration to the Request. In the Declaration the applicant declares certain of the allegations in the Application as true and accurate. The Declaration does not address the reasons for the Request for Interim Remedy.

DECISION

10The conditions for ordering an interim remedy are set out in Rule 23.2 of the Tribunal's Rules of Procedure:

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.

11Normally, the Tribunal's power to order a respondent to do, or refrain from doing something, is contingent upon a finding that they have 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. For this reason, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy: See TA v. 60 Montclair, 2009 HRTO 369 at paras. 28-29.

12In TA, at para. 23, the Tribunal stated that since the Code is remedial legislation, 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 the hearing, should a violation of the Code be found."

13The Tribunal has also stated that it should exercise particular caution when it is asked to provide a financial interim remedy, before any determination on the merits of an Application:

This is particularly so given that the Tribunal has not developed a practice requiring an applicant for interim relief to give an undertaking to repay a respondent, should the main Application ultimately fail. If the Tribunal orders interim relief against a respondent whose position is ultimately vindicated at the conclusion of the case, the respondent may have no way of being repaid for any damages it incurred from the interim remedy. This is different from the courts, where an undertaking (or sometimes even the posting of a bond) is required as a condition of obtaining interim remedies (referred to in the courts as "interlocutory injunctions"). The absence of this kind of assurance suggests a need for caution in granting an interim remedy. Lewis v. Markham Stouffville Hospital, 2009 HRTO 188.

14Assuming without deciding that the Application has merit, I am not persuaded that the applicant has established that the balance of harm or convenience favours granting the interim remedy or that it is just and appropriate to grant the remedy requested.

15The applicant is asking that the Tribunal order reinstatement, which is one of the remedies sought in the Application. The reasons for the Request include the resulting "financial harm" (which the applicant asserts he will experience in several ways) and impact on his health. The applicant has not provided a Declaration or documentary material which specifically addresses these reasons.

16In my view, it is not apparent, from the material filed, that the balance of harm favours the granting of an interim remedy. Even assuming that there has been a negative impact on the applicant's finances and that he has had difficulty sleeping and experiences the symptoms described, I have difficulty accepting there would be no harm to the respondent as asserted by the applicant. It would appear from the Response to the Application that the respondent hired other individuals into the positions the applicant now seeks to be placed into, alleges that it cannot displace them, and disputes the applicant's contention as to why he was not selected.

17Further and in any event, I am not convinced that the interim remedy requested is necessary to facilitate and ensure that the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing. The applicant has not explained why reinstatement could not be awarded at the end of the hearing or why he why he could not be made whole financially by a remedial award. While the applicant refers to certain consequences as being "impossible" to fully reverse (such as impact on his credit score and imposition of financial penalties), beyond his assertion he has not provided any Declaration or other documentation that set out a convincing factual basis for such an assertion. Finally, while the applicant references that he is "likely to experience" ongoing physical suffering as a result of his "illness" being worsened by his situation (particularized as abdominal pain, diarrhea and difficulty sleeping), the applicant has not supported this assertion by an additional Declaration or supporting documentation. While not to diminish the symptoms he describes, I do not find that this assertion is sufficient to conclude that the applicant's health is in fact being impacted by the time it is taking to process the Application and to such a degree that interim reinstatement is warranted.

18For the foregoing reasons, the applicant's Request for Interim Remedy is dismissed.

Request to Add Individuals

19The Tribunal directs that by March 5, 2014, the applicant shall file the contact information for each individual sought to be added as a respondent, including mailing address and email address.

20The Request to Add Individuals remains outstanding and will be addressed as this matter proceeds.

Next Steps

21The respondent will be contacted regarding its interest in participating in mediation.

Summary of Orders and Directions

22The Tribunal orders:

1. The applicant's Request for Interim Remedy is dismissed.

2. By March 5, 2014, the applicant shall file the contact information for each individual sought to be added as a respondent including mailing address and email address.