Moore v. Canadian Memorial Chiropractic College, 2015 HRTO 598

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Moore

Applicant

-and-

Canadian Memorial Chiropractic College

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 8, 2015

Citation: 2015 HRTO 598

Indexed as: Moore v. Canadian Memorial Chiropractic College

WRITTEN SUBMISSIONS

Melissa Moore, Applicant

Rebeka Lauks, Counsel

1This Interim Decision addresses the applicant’s Request for an Interim Remedy and her Request to Expedite the Proceeding. It also addresses the respondent’s request to bifurcate the hearing.

2The applicant filed an Application with the Tribunal alleging that the respondent discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent contravened the Code when it failed to readmit her into the chiropractic program with disability-related accommodation.

Applicant’s Requests

3The applicant is seeking as an interim remedy that she be readmitted into the chiropractic program in August/September 2015, into the third year of the program. The applicant was withdrawn from the program in June 2009.

4The applicant states her Application has merit. The applicant states further that she will continue to suffer profound harm from the refusal to readmit her into the program with appropriate accommodation. She submits the respondent would suffer little to no harm by readmitting her because: (a) the applicant has passed all of her first and second year courses and the combined course content of the first and second year remains the same; (b) any concern about lack of proficiency can be addressed by the applicant’s relevant work experience as a chiropractic assistant; and (c) any reassessment with respect to courses could happen in year three. If the applicant is required to re-take any year-two courses (presumably because of any changes in the curriculum or course content during the past six years), she can do this following her readmission into year three.

5The applicant also sought an order expediting the proceedings. In support of this request, the applicant states that without swift resolution at this time, her ability to pursue advanced education in her chosen field will be further compromised and she will continue to suffer irreparable harm. Conversely, the respondent would suffer little to no harm having the matter expedited. As such, the balance of convenience favours expediting the proceeding.

6The Tribunal did not require the respondent to respond to the applicant’s Requests.

DECISION

Interim Remedy

7The 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.

8Normally, 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.

9In 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”.

10As 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.

11Assuming 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.

12The applicant is asking the Tribunal to make an order that the respondent readmit her into the chiropractic program, in year three, for the 2015/2016 school year. The applicant has been out of school since 2009. There is an issue between the parties as to whether the applicant can be readmitted because of changes in the program during the past six years. If the applicant can be readmitted, a question remains as to the year of the program that she should be readmitted into and whether there are any terms or conditions attached to the readmission. An order requiring the respondent to readmit the applicant into year three of the program disregards these important questions. In my view, these questions (assuming the applicant is successful in proving a violation of the Code) must be answered after a full hearing. For these reasons, the balance of convenience does not favour an interim remedy and such a remedy is not just and appropriate. The Request for Interim Remedy is denied.

Expedite the Proceedings

13Rule 21.1 of the Tribunal’s Rules of Procedure provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute.

14In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent. Applicants must show that the circumstances require the resolution of the dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

15In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that applications may be expedited where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

16However, the Tribunal has found that, except in the rarest of circumstances, a party who has delayed in filing his or her Application without explanation will not be given the priority over Tribunal resources that are associated with an expedited proceeding. See, for example, Kearney v. Ontario Hockey Federation, 2010 HRTO 522. This reasoning applies equally to an applicant delaying a request for expedition.

17The applicant filed this Application on September 11, 2013. The Request to Expedite was filed on April 24, 2015. The applicant seeks to have the proceedings expedited so that a decision can be reached in August 2015, prior to the commencement of the next school year.

18I decline to expedite this proceeding because the applicant has failed to establish that an urgent resolution is required and that the remedy sought will not be available if the matter proceeds in the normal course. The applicant has been out of the chiropractic program for six years. She waited 19 months to bring this request after filing her Application. These facts alone do not establish that an urgent resolution is required in relation the applicant’s readmission into the chiropractic program. It is now slightly more than three months before the commencement of the next school year and the applicant is seeking a decision from the Tribunal before school begins. The applicant is asking the Tribunal expend extraordinary resources to have this matter heard and decided in three months despite her delay in bringing this request. As the Tribunal has held in other cases, where a party has delayed bringing a request for expedition, they will not be given the priority over Tribunal resources that are associated with an expedited hearing. Finally, the remedy sought by the applicant – readmission into her third year – will be available at the conclusion of a non-expedited proceeding. For these reasons, the Request to Expedite is denied.

Bifurcation

19The respondent has requested that the Tribunal bifurcate the hearing and determine liability first.

20The issue of bifurcation will be determined by the adjudicator assigned to hear this matter.

ORDER

21For the reasons set out above, the applicant’s Request for an Interim Remedy and Request to Expedite the proceeding are denied.