Slater v. Waterloo Police Services Board, 2016 HRTO 585

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Slater

Applicant

-and-

The Regional Municipality of Waterloo Police Services Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: May 3, 2016

Citation: 2016 HRTO 585

Indexed as: Slater v. Waterloo Police Services Board

WRITTEN SUBMISSIONS

Jeffrey Slater, Applicant

Self-represented

The Regional Municipality of Waterloo Police Services Board, Respondent

Donald Jarvis, 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 employment because of family status.

2This Interim Decision addresses a Request for Interim Remedy (the “Request”) filed by the applicant, along with his Application. The applicant is a police constable in the respondent police service. The applicant is divorced and shares custody of his child with his former spouse. The applicant alleges that his work schedule conflicts with the custody arrangements he agreed to with his former spouse and, as a result, he is unable to spend as much time with his son as is provided for in the custody agreement. The applicant states that he asked the respondent to accommodate his parenting schedule so that he could care for his child on the days stipulated in the custody agreement, but the respondent refused. In the Request, the applicant seeks an order requiring the respondent to alter his shifts to allow him to care for his child and follow the parenting schedule set out in the separation agreement with his former spouse. The applicant seeks the same remedy, amongst others, in the Application. The applicant states that if the Interim Order is not granted he will “lose a large majority of time” with his child, which he submitted would cause detrimental effects to both him and his son. The applicant provided a letter from his psychologist that confirmed that the conflict between the applicant’s responsibilities as a parent and his responsibilities to his employer has caused the applicant to experience symptoms of anxiety and depression that affect his ability to perform his work properly.

3The respondent filed a Response to a Request for Interim Remedy opposing the Request. The respondent provided a history of the types of schedules the respondent has employed and submitted that it returned to the current schedule, known as the 10-35 DAN Schedule, in January 2016 for operational reasons. The respondent submitted that on July 10, 2015 it advised that the 10-35 DAN Schedule would be implemented in January 2016 for all uniformed personnel. The respondent submitted that notwithstanding this notice the applicant negotiated a custody arrangement that conflicted with the 10-36 DAN Schedule in November 2015, which was actually executed on December 23, 2015. The respondent submitted that the applicant seeks to accommodation for a personal preference, i.e., to have his child under his personal care, as opposed to his legal obligation to ensure his child is properly cared for when the applicant has custody. The respondent submitted that the applicant has made no efforts to find alternate child care, but in any event the applicant’s former spouse can care for their child when the applicant’s work schedule conflicts with his custody arrangements. The respondent submitted that, beyond bare assertions, the applicant has not provided any evidence that the 10-35 DAN Schedule has interfered with his childcare obligations in a significant manner. On the other hand, the respondent submitted that granting the Request would have significant operational repercussions if its uniform members do not work the same shift schedule. The respondent also submitted that for operational reasons the applicant is about to be transferred to a position that involves only day shifts and a Monday to Friday workweek.

DECISION

4The 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.

5Normally, 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, 2009 HRTO 269.

6In 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.”

7I will assume for the present purposes, without deciding, that the Application meets the first criterion in Rule 23.2 above. However, I am not satisfied that the interim remedy requested is necessary to further the remedial objects of the Code. While not spending as much time with his child as expected is undoubtedly difficult for the applicant, the material does not establish that the remedy the applicant requests would be unavailable at the end of the hearing, absent the interim remedy. In any event, it now appears that the applicant is about to be placed in a position that will address his scheduling concerns. Consequently, awarding the Request is in my view both unwarranted and unnecessary.

8The Request for Interim Order is denied.