HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Baljit Kaura
Applicant
-and-
Pacific Investment Management Company (LLC) – PIMCO LLC and Pacific Investment Management Company Canada – PIMCO Canada Corp.
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Kaura v. Pacific Investment Management Company (LLC) – PIMCO LLC
APPEARANCES
Baljit Kaura, Applicant
Self-represented
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 discrimination with respect to employment because of sex, gender expression and reprisal.
2The applicant has also filed a Request for Interim Remedy. In the Request, she asks that the Tribunal to immediately re-instate her to the role of Head of Legal and Compliance and Chief Compliance Officer (“CCO”) of PIMCO Canada Corp.
3The respondents have not yet received notice of this Application and, in the circumstances, it is unnecessary to hear from them in order to reach a decision regarding the Request for Interim Remedy.
4In the Request, the applicant states that she had a prominent profile in the legal and compliance community and submits that she will suffer loss of reputation and credibility in the industry if she is not reinstated. The applicant submits that unless she is reinstated on an interim basis she will be out of touch with regulatory reforms in the industry and with the respondent’s legal and compliance needs, which would make it more difficult to resume her duties at a later time. Finally, the applicant submits that there would be greater difficulty for her and the respondent to have a smooth reinstatement if the respondent replaces her.
5In the main Application, the applicant alleges that she suffered discrimination and reprisals, which included failing to promote her to CCO and eventually the termination of her employment, because she raised concerns to her supervisor that some employees were making negative comments and expressing negative stereotypes about women.
6In support of the Request for Interim Remedy, the applicant did not file declarations signed by persons with direct first-hand knowledge detailing the facts upon she relies, as is required by Rule 23.3(b), despite being directed to do so by the Tribunal. Rather, the applicant simply filed an additional signature page for her Application as confirmation of the facts set out therein. In my view, this does not meet the requirements of Rule 23.3(b), but given my conclusion, below, that the Request has no merit in substance it is unnecessary to require the applicant to repair this deficiency.
DECISION
7The conditions for awarding an interim remedy are set out 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.
8Normally, the Tribunal’s power to order respondents 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, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v. 60 Montclair, 2009 HRTO 269.
9In TA v. 60 Montclair, 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 a hearing, should a violation of the Code be found.”
10The 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, 2009 HRTO 188.
11I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 above. In the circumstances of this case, the applicant has not 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.
12I am not satisfied that the interim remedy requested is necessary to further the remedial objects of the Code. The material does not establish that the remedy the applicant requests (reinstatement) would be unavailable at the end of the hearing, absent the interim remedy.
13The Tribunal appreciates that there are likely negative impacts on the applicant from the loss of her employment. Whether or not the actions of the respondent were discriminatory, the effects of losses in income, status and self-esteem following a dismissal are not to be minimized. However, the applicant’s circumstances pending the hearing of her Application are similar to those faced by many applicants who allege a discriminatory termination of employment.
14The applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy sought or that it would be just and appropriate in the circumstances to do so.
15The Request for Interim Remedy is denied.
16The Tribunal will provide notice of the Application along with a copy of this decision to the respondents.
17I am not seized of this matter.
Dated at Toronto, this 22nd day of January, 2014.
“Signed by”
Douglas Sanderson
Vice-chair