Amanda Henry v. City of Toronto, 2014 HRTO 991

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Henry

Applicant

-and-

City of Toronto

Respondents

-and-

Canadian Union of Public Employees, Local 79

Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: July 7, 2014 Citation: 2014 HRTO 991 Indexed as: Henry v. City of Toronto

WRITTEN SUBMISSIONS

Amanda Henry, Applicant Self-represented

City of Toronto, Respondent(s) Omo Akintan, Self-represented

1This is an Application filed on June 20, 2014 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 creed. The applicant filed a Request for Interim Remedy (Form 16) with her Application. The Application and Request were delivered to the respondent and it has responded to the Request.

2For the reasons that follow the Request is denied.

Request for Interim Remedy

3Rule 23 of the Tribunal’s Rules of Procedure provides in part as follows:

23.3 A Request for an Interim Remedy must include:

a) a detailed description of the order sought;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and,

c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

4In 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.

5The 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.

6In her Applicant the applicant self-identifies as a Seventh Day Adventist who celebrates the Sabbath from sunset Friday to sunset Saturday. She also claims that daytime hours of Friday are considered a preparation day where Seventh Day Adventists are expected to prepare for the Sabbath by amongst other things cleaning their homes and preparing food to be eaten on the Sabbath. The applicant provided a statutory declaration made by herself which confirms these facts.

7The applicant claims to have asked for accommodation of her creed by being allowed to leave work early on Fridays.

8The interim Remedy the applicant seeks is an Order requiring her employer to allow her to leave work two hours early on Fridays.

9I am not satisfied that the applicant has met the significant onus of establishing that her Request meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.

10I am not satisfied that this Application has merit. It may, but based on the limited material filed it is not clear that it will succeed. It might have been helpful had the applicant provided a statutory declaration by someone other than herself. It is also not clear based on her material why the applicant needs the extra time off work on Fridays in order to prepare for the Sabbath. Given the nature of the Request an issue in this case will be whether or not the need for time for preparation is sufficiently connected to the practice of the applicant’s religious beliefs to require accommodation.

11I am also not satisfied that the balance of harm or convenience favours granting the Request. At this preliminary stage any comment on the material is by definition tentative but the respondent has articulated a basis to consider its position that the order would impose a significant burden on its operations. This is in contrast to the applicant’s position which at this stage does not adequately explain the need for the accommodation.

12Most importantly I am not satisfied that it would be fair and just to grant the Request as the applicant has articulated no reasons why the interim remedy he seeks is necessary to further the remedial purposes of the Code. That is it is not at all clear how, if in the end, the applicant is successful in establishing a violation of the Code, the Tribunal will be unable to fashion the appropriate remedies.

Next Steps

13This is a case which may be appropriate for an early mediation. The respondent is directed to advise within 7 days of the date of this Interim Decision whether or not it is agreeable to mediation in this case. If the parties are both agreeable the Tribunal will attempt to schedule an early mediation of this case.

14I am not seized.