Carabineiro v. Bracey, 2017 HRTO 1099

Human Rights Tribunal of Ontario

B E T W E E N:

Jose Carabineiro

Applicant

-and-

Martin Bracey

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: August 24, 2017

Citation: 2017 HRTO 1099

Indexed as: Carabineiro v. Bracey

WRITTEN SUBMISSIONS

Jose Carabineiro, Applicant

Tony Dutra, Paralegal

Martin Bracey, Respondent

Self-represented

1The applicant filed this Application alleging discrimination contrary to the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”). Specifically, the applicant alleged that the respondent discriminated against him when he left a message with his landlord saying he did not want the applicant as a superintendent because of the involvement of the Portuguese with the modern slave trade. He also allegedly called the applicant a racist on one or more occasions, allegedly because the applicant is Portuguese.

2The hearing of this Application is scheduled to be heard on October 2, 2017.

3The respondent, not the applicant, filed a Request for Interim Remedy (“Request”) on August 10, 2017.

4The respondent is seeking an order that would prevent the applicant from painting the apartment building where the respondent lives because he has asthma and cannot tolerate the fumes and odours created by the paint.

5The applicant opposes the requested interim relief because he states that he has no authority to make decisions about whether the building is painted.

analysis

6Rule 23 of the Tribunal’s Rules of Procedure relates to requests for interim remedies by applicants only. There is no Rule related to requests for interim remedies by respondents. The Tribunal routinely deals with requests for interim remedies made by applicants, but only grants them in extraordinary cases, when an applicant is able to demonstrate that such a remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing. See TA v. 60 Montclair, 2009 HRTO 369.

7I know of no decision that has dealt with a request for interim remedy made by a respondent, and the applicant provided no submissions with respect to case law or sections of the Code which would support ordering an interim remedy to a respondent.

8Section 45.2 of the Code states:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. 2006, c. 30, s. 5.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

9While it is arguable that the Code, through paragraph 3 of section 45.2(1), provides jurisdiction to the Tribunal to award a remedy to a respondent, if the Tribunal determines that a party has infringed a right under Part 1 of the Code, the Code does not provide jurisdiction to the Tribunal to award an interim remedy to a respondent where the Tribunal has made no determination of an infringement of the Code. In this case, the Tribunal has made no determination of the applicant infringing any right of the respondent under the Code, and I therefore refuse to order any interim remedy to the respondent.

10I also alert the parties to the fact that the upcoming hearing has been scheduled to address the allegations of discrimination described by the Application, and processed over the last year to ensure both parties have had the opportunity to know the case they must meet and to ensure procedural fairness. The upcoming hearing has not been scheduled to address any allegations of discrimination described or implied in the respondent’s recent Request for Interim Remedy.

11I also alert the parties to the fact that the upcoming hearing has been scheduled to address the allegations of discrimination described by the Application, and processed over the last year to ensure both parties have had the opportunity to know the case they must meet and to ensure procedural fairness. The upcoming hearing has not been scheduled to address any allegations of discrimination described or implied in the respondent’s recent Request for Interim Remedy.

order

12The respondent’s Request for Interim Remedy is denied.