Grant v. Bombardier Inc., Bombardier Commercial Aircraft, 2015 HRTO 253

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Malcolm Grant

Applicant

-and-

Bombardier Inc., Bombardier Commercial Aircraft

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 3, 2015

Citation: 2015 HRTO 253

Indexed as: Grant v. Bombardier Inc., Bombardier Commercial Aircraft

WRITTEN SUBMISSIONS

Malcolm Andrew Grant, Applicant

Self-represented

1This Interim Decision addresses the applicant’s Request for Order During Proceedings (“Request”) in which he requested an interim remedy.

2The applicant filed an Application alleging that the respondent discriminated against him because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that the respondent discriminated against him when it did not offer him the position of Senior Tool Designer.

Applicant’s Request for interim remedy

3The applicant sought as an interim remedy an order that the respondent immediately hire him to the position of Senior Tool Designer which has been reposted on the respondent’s job site. In support of his Request, the applicant asserted that he exceeds the requirements in the posting, that he is qualified for the position, and that he was previously employed by the respondent. He stated that the balance of harm or convenience favours granting his Request since he is the perfect candidate for the position and that position was open at the time he filed his Request.

4The respondent did not respond to the applicant’s Request.

DECISION

5The 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.

6Normally, 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 [“TA”].

7In 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.”

8As 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 that has never existed is a more extraordinary and serious remedy than maintaining what exists or has recently existed. See Williams v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8.

9Assuming 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.

10The applicant is asking that the Tribunal make an order that the respondent hire him into the position of Senior Tool Designer without having first made out his case that the respondent’s refusal to hire him was discriminatory. The applicant is seeking to have the Tribunal order a new state of affairs rather than preserve an existing state of affairs. Moreover, the applicant is asking the Tribunal to find him qualified for the position when the Tribunal lacks the expertise to make such a decision. For all these reasons, the balance of convenience does not favour such an intrusive measure as an interim remedy, nor do I find that such an intrusive interim remedy is just and appropriate.

ORDER

11For the reasons set out above, the applicant’s Request for an Interim Remedy is denied.