Widdrington v. The Corporation of the County of Simcoe, 2016 HRTO 303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Widdrington

Applicant

-and-

The Corporation of the County of Simcoe

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: March 7, 2016

Citation: 2016 HRTO 303

Indexed as: Widdrington v. The Corporation of the County of Simcoe

WRITTEN SUBMISSIONS

Cheryl Widdrington, Applicant

Self-represented

The Corporation of the County of Simcoe, Respondent

Philip Wolfendon, 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 employment because of disability.

2On February 1, 2016 the Tribunal issued a Notice of Intent to Defer the Application pending the conclusion of a grievance filed by the applicant related to some or all of the issues in dispute in this case.

3On February 12, 2016, the applicant filed a Request for interim Remedy. The respondent has responded to the Request.

4The 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.

5In her Request the applicants seeks an interim remedy as follows:

a. financial assistance to cover her monthly living expenses

b. financial assistances to health expenses

c. relief from the requirement to make an election with respect to a pension plan

d. an interim order for expenses of this Application.

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 she is experiencing financial hardship as a result of what she alleges was a wrongful dismissal. In particular the applicant argues that the loss of her extended health benefits has imposed significant hardship on her and her family. The applicant argues that she is looking for alternative employment but because the grievance arbitration is upcoming it Is difficult to find a job pending what she anticipates will be a return to her former position. The applicant also argues that she is in no position to make a decision about the pension plan while the arbitration is ongoing.

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.

13Assuming without deciding that the Application may have merit, I am not satisfied the remaining two factors for an Interim Order set out above have been met. The applicant’s argument is that the loss of employment has imposed a significant financial burden on her. She argues that because of some medical issues she is uniquely disadvantaged in that regard but the medical information she has provided 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 situation she is in is so dire that this is the case. At the end of the day the applicant argues financial hardship as a consequence of what she believes was a wrongful dismissal. Financial hardship alone is not sufficient justification for an Interim Remedy.

Deferral

14The Application is deferred pending the conclusion of the grievance arbitration related to the applicant’s dismissal from employment. The applicant does not consent to deferral but offers no argument about why it should not be. No party responded to the Notice of Intend to Defer.

15The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.

16However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

17In any case where the parties are already engaged in a concurrent legal proceeding in which they are raising all or some of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

18In this case the issue of the applicant’s dismissal from employment is central. The grievance alleges that the applicant was dismissed without just cause. In my view the only appropriate course is to defer this Application – one of the important reasons to defer being to avoid different conclusions about the facts related to a central issue in two concurrent proceedings.

19The Application will therefore be deferred pending the completion of the grievance process.

20The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. The other matters raised by the respondent and the affected party will be dealt with by the Tribunal if the Application is brought back on.

21I am not seized of this case.