Latendresse v. Carleton Condominium Corporation #8, 2016 HRTO 1431

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Latendresse

Applicant

-and-

Carleton Condominium Corporation #8

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 3, 2016

Citation: 2016 HRTO 1431

Indexed as: Latendresse v. Carleton Condominium Corporation #8

APPEARANCES

David Latendresse, Applicant

Self-represented

Carleton Condominium Corporation #8, Respondent

Christy Allen, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to occupancy of accommodation because of disability.

2The applicant identifies himself as having mental health disabilities and uses a service dog. The applicant alleges that the respondent requires him to place his service dog in a carrier while in the common areas of the condominium. The applicant states that this rule interferes with his need to have immediate access to his service dog. The applicant has filed a Request to Expedite Proceedings and a Request for Interim Remedy and the respondent has responded to both requests. This Interim Decision addresses these requests.

Request to Expedite

3The Request to Expedite Proceedings in denied. Pursuant to Rule 21.2.1 of the Tribunal’s Rules of Procedure, where the Tribunal denies a Request to Expedite, it need not give reasons.

Request for Interim Remedy

Applicant’s Submissions

4In the Request for Interim Remedy, the applicant submitted that the respondent began fining him $50 every time he takes his service dog into common areas without a carrier. The applicant stated that to avoid the fines he has been putting his service dog in a carrier. The interim remedy the applicant seeks is to require the respondent to allow him to have his service animal with him in common areas without being fined.

5The applicant filed a letter from his psychiatrist, Dr. Gawlik, in support of the request. Dr. Gawlik stated that having the service dog walking with the applicant and not being pushed or pulled in a carrier gives the applicant a sense of security and alleviates some of his fear and anxiety of strangers approaching him or following him. Dr. Gawlik stated that requiring the applicant to put his service dog in a carrier could be detrimental to the applicant’s health and well-being.

Respondent’s Submissions

6The respondent does not dispute that its residents are required to either carry or use a carrier to transport their animals in the common areas of the condominium. The respondent submitted that the applicant did not meet the criteria established in the Tribunal’s jurisprudence for granting an interim remedy. The respondent submitted that there is no evidence that an interim remedy is required to ensure that the remedial purposes of the Tribunal shall not be frustrated or that an interim remedy is required to ensure that an effective remedy can be awarded at the conclusion of this matter. The respondent submitted that the applicant is, in effect, attempting to secure a final remedy without a determination of his Application on its merits.

7The respondent noted that the applicant’s own submissions indicate that he is able to place is service dog in a carrier. The respondent submitted that the applicant complied with this requirement for many months, until September 2016, when he asked to be exempted for the rule because of difficulty with the elevator and with lifting the dog. The respondent submitted that the applicant raised the issue of accommodating his mental health disability only when his initial request was denied. The respondent notes that, in any event, it offered the applicant an open top wagon with a ramp that would allow the applicant’s service dog to walk into and out of the wagon without lifting.

8The respondent submitted that the applicant has not explained how using the open top wagon prevents the applicant from accessing his service dog when needed. The respondent submitted that Dr. Gawlik’s opinion amounts to speculation and conjecture because his letter merely states that the applicant’s health “could be” detrimentally affected by the requirement to use a carrier. The respondent noted that Dr. Gawlik did not comment on the period prior to September 2016 in which the applicant complied with the respondent’s pet transportation rule for several months. The respondent also noted that the applicant obtained Dr. Gawlik’s opinion only after he decided that he no longer wished to comply with the rule.

DECISION

9The conditions for awarding an interim remedy are set out in Rule 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.

10Normally, the Tribunal’s power to order respondents 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, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: TA v 60 Montclair, 2009 HRTO 269. The Tribunal has generally been more reluctant to order an interim remedy that will create a new state of affairs than one that would preserve an existing state of affairs: VandenBroek v. Villa Otthon, 2011 HRTO 279.

11In TA v. 60 Montclair, 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 a hearing, should a violation of the Code be found.”

12When considering a request for an interim remedy, the threshold for determining whether an application has merit is that there be an arguable case and the claim is not frivolous or vexatious. See TA v. 60 Montclair at paragraphs 30-32. In my view, the applicant meets this requirement.

13I am not satisfied, however, that the applicant has met his significant onus in establishing that the Tribunal should award an Interim Remedy. An exemption from the respondent’s rules for transporting animals is one of the primary remedies the applicant seeks in his Application and would create a new state of affairs. The applicant’s submissions indicate that he is able to use a carrier. The medical evidence provided by the applicant is speculative and is not in my view sufficient to establish that the interim remedy requested is required to avoid harm to the applicant. Consequently, I find that the balance of harm or convenience does not favour granting the interim remedy requested. Should the Tribunal ultimately rule that the respondent’s animal transportation rule violated the applicant’s Code rights, then it can, if appropriate order compensation for any fine levied against the applicant pursuant to that rule. Accordingly, I also find that an interim remedy is not required 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.

14The Request for Interim Remedy is denied.

15I note that the parties have indicated that they are willing to participate in mediation. The Tribunal will endeavour to schedule an early mediation.

16I am not seized.