Bourdeau v. McLad Coffee Inc., 2016 HRTO 571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Taylor Lynn Bourdeau; Corey Bourdeau and Marc Bourdeau

Applicants

-and-

McLad Coffee Inc.; Melisa Gracez and Chris Gracez

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: April 29, 2016

Citation: 2016 HRTO 571

Indexed as: Bourdeau v. McLad Coffee Inc.

WRITTEN SUBMISSIONS

Marc Boudreau, Applicant

Self-represented

McLad Coffee Inc; Melisa Gracez and Chris Gracez Respondents

Jennifer Emmans, Counsel

1These are three Applications alleging discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2The Applications were filed on July 20, 2015.

3The Applications were consolidated on December 30, 2015.

4In their Responses to the Application the respondents argued that the Applications should be dismissed because they were filed beyond the one year time limit prescribed in section 34(2) of the Code. This issue has not been addressed as of yet.

5The applicant in 2015-21518-I (“applicant”) filed a Request for Interim Remedy on March 18, 2016 seeking the removal of counsel for the respondents on the basis of an alleged conflict or interest. The applicant did not file a declaration as required by the Tribunal’s Rules and the Tribunal advised the applicant that it could not process the Request without this information.

6The applicant refiled the Request with a declaration signed by the applicant. The renewed request was received on April 4, 2016.

7The respondent filed a Response to the Request on April 26, 2016.

8The Request is denied.

9As indicated the Request is for an Order removing counsel for the respondent on the basis that counsel had been previously retained by a corporate entity with which one of the applicants was involved. The applicant alleges that as a consequence the respondent’s counsel has knowledge of the applicant’s negotiation strategies.

10The 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.

11The 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.

12In 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.

13The 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.

14Although framed as in request for Interim Remedy this request does not neatly fit within the Tribunal’s Rule or the factors set out in the Rule for the consideration of the Request because the request does not relate to the merits of these cases.

15In any event there is no basis to the Request whether as an interim remedy or as a simple request for order. It is based on the premise that because of the retainer of the same firm in a different matter which concluded 10 years ago that it would be unfair to the applicant to have this firm represent the respondent in this case. The applicant does not assert that current counsel had any involvement with the matter 10 years ago or that there has been any communication between lawyers about these files separated by a decade. The request is based on pure supposition. It is denied.

16Mediation was scheduled in this case but was cancelled because of this issue. The Tribunal will review these files and determine the appropriate next steps.

17I am not seized of this case.