HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Denhollander Applicant
-and-
Signature Retirement Living and The Royal Henley Retirement Community Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Denhollander v. Signature Retirement Living
WRITTEN SUBMISSIONS
Elizabeth Denhollander, Applicant Lauren Bernardi, Counsel
Signature Retirement Living and The Royal Henley Retirement Community, Respondent Lisa Cabel, Counsel
1This Application alleges discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision addresses the applicant’s Request for Interim Remedy and Request to Expedite.
3The applicant is seeking an interim order to be admitted into the housing facilities administered by the respondents which she has sought admission to since the fall of 2015. On November 4, 2015, the respondents advised that the applicant would not be admitted into their facility.
4The applicant alleges that she is being denied admission because she suffers from depression and made one comment with respect to her wellbeing.
5The respondents filed detailed submissions opposing the Request for Interim Remedy. The respondents rely on the Retirement Homes Act, 2010, S.O. 2010, c. 11, and its regulation which impose obligations on them to consider whether they can provide suitable services to their residents. They are of the view that because of the applicant’s medical circumstances and certain comments made by her that they may not be able to provide her with appropriate care. The respondents have offered the applicant the opportunity to undergo an independent psychiatric evaluation at their cost. The applicant does not agree to attend this evaluation because it may cause her anxiety and it would be a significant hardship for her to be evaluated by a stranger.
Decision
6The conditions for awarding an Interim Remedy are set out as follows in Rule 23.2 which states:
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 favors granting the Interim Remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
7In TA v. 60 Montclair (“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.”
8The Tribunal in 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.
9Normally, the Tribunal’s power to order a respondent to do or refrain from doing something is contingent upon a finding that the respondent 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.
10I have considered the circumstances of this case, and I am of the view that it is not appropriate to grant the applicant’s Request for Interim Remedy. In this case the respondents have raised an important issue with respect to whether they can provide services to the applicant. On the other hand, the applicant indicates that she will have to locate another facility and, if she is ultimately successful in this Application, will have to move twice and that this will cause her added stress. Based on the materials filed by the parties, there are numerous facts in dispute between the parties which would require evidence prior to the Tribunal issuing any remedy, including the respondents’ concern that they may not provide the applicant with suitable accommodation and services.
11For these reasons I am of the view that the balance of harm and convenience favours maintaining the present status quo between the parties and that the Tribunal should not interfere by imposing on the respondent the obligation to enter into an admission agreement with the applicant.
12The applicant has also filed a Request to expedite the current proceeding. I have considered the Request and the submissions in support. The Request to Expedite is refused and the Application will be processed in the normal course. Rule 21.2.1 provides that the HRTO need not give reasons for refusing a Request to Expedite. I exercise my discretion under the Rule and decline to give reasons.
13I am not seized.
Dated at Toronto, this 8th day of January, 2016.
“Signed by”
Geneviève Debané Vice-chair