Eaton v. Ontario (Community Safety and Correctional Services), 2016 HRTO 316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Eaton

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Sean Stastny

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 10, 2016

Citation: 2016 HRTO 316

Indexed as: Eaton v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

David Eaton, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Sean Stastny, Respondents

Tina Earl, 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 goods, services and facilities because of disability.

2This Interim Decision addresses a Request for Interim Remedy filed by the applicant, along with his Application. The applicant requests that the respondents allow him access to his laptop and tablet in order to accommodate his disability, which makes it difficult for him to write. The applicant states that his disability is medically documented, but the respondents take the position that this medical documentation is too old. Neither in the Application nor in the Request for Interim Remedy does the applicant describe the context in which he states this accommodation is required.

3The respondents filed a Response to a Request for Interim Remedy opposing the request. The respondents submitted that the applicant was convicted of a criminal offence and was sentenced to a period of incarceration to be followed by a three-year period of probation. The applicant has been released from incarceration and his probation period began on July 3, 2015. The respondents state that the applicant must attend weekly meetings with his Probation and Parole Officer (“PPO”), who assesses the applicant’s level of compliance with the probation order and his progress regarding re-integration into the community. The Probation and Parole Office has a “locker policy” that requires all clients, such as the applicant, to lock up all of their belongings before attending such meetings. Clients are not allowed to bring anything into their appointments except the clothing they are wearing. The respondents submitted that this policy was developed for the protection of staff and others attending the office by eliminating potential weapons from the environment. The respondents submitted that the applicant has a history of unprovoked violent outbursts and poses a risk to others if allowed an exception to the locker policy.

4The respondents also submitted that the applicant does not require the accommodation requested. The respondents state that the applicant does not participate in his meetings with his PPO and submitted that this would not change if he has access to the electronic devises he requests. The respondents also submitted that the applicant has no need to write anything down during these meetings because the PPO provides him with written information that he can take away with him. The PPO also reads all of the information to the applicant and encourages him to ask for clarification. The respondents submitted that the applicant has not and will not experience any harm as a result of any alleged discrimination or failure to accommodate.

DECISION

5The 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.

6Normally, 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.

7In 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.”

8I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 above. In the circumstances of this case, the applicant has not been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

9I am not satisfied that the interim remedy requested is necessary to further the remedial objects of the Code. The material does not establish that the remedy the applicant requests would be unavailable at the end of the hearing, absent the interim remedy.

10The applicant has not met the burden of establishing that the balance of convenience favours the granting of the interim remedy sought or that it would be just and appropriate in the circumstances to do so.

11The Request for Interim Remedy is denied.

12I am not seized of this matter.