HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julian DeMattos
Applicant
-and-
Duncan Mills Labourer’ Local 183 Co-Operative Homes Inc.
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: DeMattos v. Duncan Mills Labourer’ Local 183 Co-operative Homes Inc.
1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On March 31, 2016 the applicant filed a Request for Order During Proceeding (“Request”). In his Request the applicant sought the following:
An order Prohibiting the Respondent from proceeding with an eviction against me, as stated in their Response to my Application paragraph 31 and 32.
3On March 31, 2016 the respondent was directed to not respond to the Request unless directed to do so.
4The Request was denied because it was in the nature of a Request for an Interim Remedy and the applicant had not provided the appropriate materials to process such a Request. In a Case Assessment Direction issued on April 4, 2016 the applicant the Tribunal explained in a general way the requirements of Rule 23 and directed that the applicant may re-file a Request for interim Remedy with the in accordance with Rule 23 which 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.
5The applicant has filed a Request for Interim Remedy seeking the same remedy as above. The respondent did not responded to the Request and was not directed to do so.
6The Request is denied.
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.
11Considering the requirements of Rule 23.2 the Request cannot be granted for a number of reasons. First it is not clear how much merit there is to this Application. In the Application the applicant makes a great number of allegations – many of which do not appear to have any connection to the Code – but there are few facts which connect the alleged actions of the respondent to the Code grounds claimed. In particular if the respondent is undertaking the steps necessary to evict the applicant it is not clear from the Application how this is connected to any of the Code grounds claimed as opposed to what is acknowledged to be a difficult relationship between the parties.
12Secondly it is not clear that it would be appropriate for the Tribunal to intervene in a process that is lawful on its face and is necessary to undertake if the respondent is seeking the eviction of the Application. It is critical to acknowledge that if the respondent has begun the process of eviction in order for the respondent to obtain a legally enforceable order evicting the applicant it will be required to obtain such order from the Landlord and Tenant Board. The issues the applicant raises about the lack of grounds to evict are matters for the Landlord and Tenant Board and not the Tribunal. In the event that the respondent seeks an order from the Landlord and Tenant Board the applicant will be able to raise all of those issues there. In the circumstances it is not clear to me that the Tribunal has jurisdiction to grant the interim remedy that is being sought.
13Finally I am not persuaded that the balance of convenience or harm favours granting the request. The respondent may have engaged a process it is entitled to utilize but at this stage the consequences for the applicant are minimal and the result of the process if it continues are, at this stage, entirely speculative. Even if the Tribunal had the authority to grant the interim remedy that is sought it would not be appropriate to do so for this reason as well.
14In all of the circumstances I find that it would not be appropriate for the Tribunal to grant the interim remedy the applicant is seeking.
15I am not seized of this case
Dated at Toronto, this 14th day of April, 2016.
“Signed By”
David Muir
Vice-chair