Human Rights Tribunal of Ontario
B E T W E E N:
Hussam Kuroukchi
Applicant
-and-
University of Waterloo
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Kuroukchi v. University of Waterloo
WRITTEN SUBMISSIONS
Hussam Kuroukchi, Respondent
Gene Chiarello, Counsel
1The applicant filed an Application with the Tribunal alleging that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This matter is currently scheduled for a hearing on the merits on November 9 and 10, 2015. This Interim Decision addresses, amongst other things, the applicant’s Request for an Interim Remedy.
2The applicant who has not been enrolled with the respondent since the spring of 2014 seeks to be readmitted into his program in the upcoming Fall 2015 semester. The applicant asserts that his mental health will deteriorate if he is not permitted to attend university in the fall. The applicant in support of this Application also relies on the fact that the respondent has not delivered to him all of its arguably relevant documents as required by the Rules.
Decision
3The 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.
4Normally, the Tribunal’s power to order a respondent to do, or refrain from doing something, is contingent upon a finding that it 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. 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.
5In 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 ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the application be decided in favour of the applicant, or is otherwise required to give effect to the remedial objects of the Code”.
6As well, the Tribunal has been more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. Creating a new state of affairs is a more extraordinary and serious remedy than maintaining what exists. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8.
7Assuming 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. Further, there are issues in dispute that the Tribunal will need to hear evidence on to determine prior to imposing any of the remedies sought by the applicant.
8Though, I am sympathetic to the applicant’s medical condition this is not sufficient enough for me to grant the extraordinary remedy that he seeks.
Other Issue
9The parties had to confirm to the Tribunal that they had delivered their arguably relevant documents to each other by no later than June 1, 2015. In reviewing the file and the applicant’s submissions, it appears that the respondent has not confirmed to the Tribunal that it has disclosed all of its arguably relevant documents as required. In these circumstances, it is appropriate to order the respondent to comply with its obligations under the Rules.
Order
10The Tribunal orders:
a. The applicant’s Request for an Interim Remedy is denied; and
b. The respondent must deliver to the applicant all arguably relevant documents and confirm in writing that this has been done within 14 days of the date of this Interim Decision.
11I am not seized.
Dated at Toronto, this 19th day of August, 2015.
“Signed By”
Geneviève Debané
Vice-chair