Francis Aboagye v. Region of Peel – Human Services Housing Operations and Management Services, 2016 HRTO 489

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Francis Aboagye

Applicant

-and-

Region of Peel – Human Services Housing Operations and Management Services

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: April 15, 2016

Citation: 2016 HRTO 489

Indexed as: Aboagye v. Region of Peel – Human Services Housing Operations and Management Services

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 an Interim Remedy.

3In her Request, the applicant seeks an Order preventing her eviction. The applicant filed a Notice to Vacate issued by the Ontario Superior Court of Justice pursuant to an order for vacant possession issued out of the Landlord and Tenant Board. The Order is dated April 5, 2016 and requires that the applicant vacate the identified rental unit before April 20, 2016.

4The Tribunal is empowered to issue an Interim remedy by Rule 23 of the Tribunal’s Rules of Procedure 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.

5It is not clear that the respondent was delivered a copy of the Request and no response to it was received.

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 can not 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. I also note that the Application makes no reference to the eviction proceedings that have apparently been ongoing and which have resulted in the Order above.

12More fundamentally, the Tribunal has no jurisdiction to grant the remedy sought by the applicant. What she seeks is in effect a stay of a court Order following an order of the Landlord and Tenant Board (LTB). Pursuant to section 168 of the Residential Tenancies Act (RTA), the LTB has exclusive jurisdiction over these matters. The RTA contains appeal mechanisms which are available to the applicant should she wish to avoid the consequences of the Order. In any case, the request is a collateral attack on a decision of the LTB and the Tribunal has no authority to grant the remedy sought.

13In all of the circumstances, I find that it would not be appropriate for the Tribunal to grant the interim remedy the applicant is seeking.

Summary Hearing

14Having reviewed the Application, the Tribunal directs that a summary hearing be held by telephone conference call to hear the parties submissions about whether this Application or part of it should be dismissed because it has no reasonable prospect of success. The Applicant has not been delivered to the respondent. The respondent need not file a Response (Form 2) unless directed to do so.

15Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

16Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

17The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to establish a link between any of the alleged actions of the respondent and the grounds of discrimination cited.

18The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a link to the grounds alleged. No witnesses will give evidence during the summary hearing.

19If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

20A copy of the Application is delivered to the respondent with this Case Assessment Direction. The respondent need not file a Response to the Application unless directed to do so by the Tribunal. The respondents must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Case Assessment Direction, providing contact information for the persons to whom documents should be delivered.

21A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days prior to the teleconference.

22The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

DIRECTION

23The respondents must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Case Assessment Direction, providing contact information for the persons to whom documents should be delivered. The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days prior to the teleconference.

24I am not seized of this case