R.J. Potomski v. Corporation of the City of Windsor et al., 2017 HRTO 1394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.J. Potomski

Applicant

-and-

Corporation of the City of Windsor, Central Housing Registry – Windsor Essex County, Josephine Heuton, Miller Canfield LLP, David McNevin, and Amy Armstrong

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 20, 2017

Citation: 2017 HRTO 1394

Indexed as: Potomski v. Windsor (City)

WRITTEN SUBMISSIONS

R.J. Potomski, Applicant

Representative

Corporation of the City of Windsor, Central Housing Registry – Windsor Essex County, Josephine Heuton, Miller Canfield LLP, David McNevin, and Amy Armstrong, Respondents

Kyla Fair, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of disability. The applicant did not select a social area in his application form, but it is apparent on the face of the Application that the social area in question is occupancy of accommodation.

2On September 21, 2017, the applicant filed a Request to Expedite Proceedings. The Request to Expedite Proceedings is refused and the Application will be processed in the normal course. Rule 21.2.1 provides that the HRTO need not give reasons for refusing a Request to Expedite.

3Also on September 21, 2017, the applicant filed a Request for Interim Remedy. The interim remedies the applicant requested were to have the Application served upon the respondents forthwith and for the Tribunal to pay him one dollar to compensate him for the unnecessary delay caused by the Tribunal’s administration.

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. The Tribunal has generally been more reluctant to order an interim remedy that will create a new state of affairs than one that would preserve an existing state of affairs: VandenBroek v. Villa Otthon, 2011 HRTO 279.

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.”

7When considering a request for an interim remedy, the threshold for determining whether an application has merit is that there be an arguable case and the claim is not frivolous or vexatious. See TA v. 60 Montclair at paragraphs 30-32. In this case, the Tribunal shall be issuing a Case Assessment Direction to accompany this Interim Decision to set this matter down for a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success. Accordingly, it is not clear that there is an arguable case in this matter. The Application has already been served and nothing the applicant has requested is necessary to ensure the Tribunal can remedy any Code breach. Rather, the applicant appears to have filed his Request for an Interim Remedy to further express his displeasure at what he perceives to be the Tribunal’s administrative shortcomings. As the applicant has already been informed in a previous Case Assessment Direction, the Tribunal has established complaints procedures. The applicant’s requests to expedite and for an interim remedy required an unnecessary expenditure of public and private resources. The applicant’s requests were in my view both trivial and vexatious and amount to an abuse of process.

8The request for an interim remedy is denied.

9I am not seized.