HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Melissa Younano
Applicant
-and-
College of Naturopathy of Ontario
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Younano v. College of Naturopathy of Ontario
WRITTEN SUBMISSIONS
Melissa Younano, Applicant
Michael Anasakta, Representative
The College of Naturopaths of Ontario, Respondent
Erica Richler, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to vocational associations because of disability.
2On September 14, 2016 the applicant filed a Request for interim Remedy (Request). The respondent opposed the Request.
3The Request is denied. The Tribunal Rule 23 provides as follows:
23.1 An Applicant may request that the Tribunal order an interim remedy in an Application. A Request for an Interim Remedy must be made in Form 16. If the Request is made at the same time the Application is filed, it need not be delivered to the other parties. If it is made at a later stage, it must be delivered to the other parties and filed with the Tribunal.
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.
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.
23.4 The other parties must file their response, if any, in Form 17, Response to Request for Interim Remedy, not later than seven days after the Form 16 was delivered. The Form 17 must be delivered to the other parties and any affected persons identified in the Application and filed with the Tribunal not later than seven days after the request was sent or as the Tribunal directs.
23.5 A Response to Request for Interim Remedy must be delivered to all other parties and filed with the Tribunal and must include:
a) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Respondent relies; and,
b) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would not be just and appropriate in the circumstances, in accordance with the Rule 23.2.
4In her Application the applicant has alleged that the respondent has failed to accommodate her disability related needs in relation to her meeting the requirements of of the respondent’s quality assurance program. The applicant believes that she may be in danger in losing her ability to practice naturopathy.
5In her Request the applicants seeks as an interim remedy an Order directing that the respondent not terminate her right practice because of her failure to meet the reporting requirements of the quality assurance program.
6The respondent opposes the Request.
7The granting of an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application and before any violation of the Code has been proven.
8The conditions for awarding an interim remedy are set out as follows in Rule 23.2 reproduced again for convenience:
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.
9In 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.
10The 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.
11The applicant argues that in the event that her license is suspended the individuals that she provides services to will be impacted. The applicant also argues that her Application has merit because, although the respondent has granted her an extension to March 31, 2017, it has made no inquiries of her health or disability related needs.
12I am not satisfied that the applicant has met the significant onus of establishing that his Request for Interim Remedy meets the criteria in Rule 23.2 and is necessary to further the remedial objects of the Code.
13The respondent makes a number of arguments. However for purposes of this Interim Decision the most compelling is that the applicant’s claim that she will be suspended from practice is at this stage entirely speculative. It is not at all clear that the thing the applicant fears and relies on to support this Request will ever happen and in any event cannot happen for many months.
14I am also not certain that the applicant’s reliance on an asserted impact on her clients is a factor that the Tribunal is entitled to consider in this context. If that is correct then the applicant also does not meet the standard articulated in TA v. 60 Montclair, above, that an interim remedy is required to ensure that in the event that a violation of the Code is found to have occurred that Tribunal will be in a position to order an effective remedy at that time. Nothing in the applicant’s submissions suggest that the speculative consequences of the respondents actions for the applicant cannot be remedied by the Tribunal.
15For these reasons the Request is denied..
16I am not seized of this case.
Dated at Toronto, this 27th day of September, 2016.
“Signed By”
David Muir
Vice-chair