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HRTO issues rare interim order based on family status

As common as an interim order or decision may be, it is uncommon that the Human Rights Tribunal of Ontario may issue an order that institutes compliance on the part of the respondent prior to the conclusion of the matter. Such was the case Tomlinson v. Runnymede Healthcare Centre.As common as an interim order or decision may be, it is uncommon that the Human Rights Tribunal of Ontario may issue an order that institutes compliance on the part of the respondent prior to the conclusion of the matter. Such was the case Tomlinson v. Runnymede Healthcare Centre.

The background

The applicant was a sole support parent with two young children— two years of age, and nine months. Upon returning from a maternity leave, the applicant requested that her work hours be changed to accommodate the ongoing lack of daycare during the evening shifts that she had been scheduled to work.

Her employer, the respondent, initially granted a short-term accommodation allowing her to work days, but when the applicant requested an extension, she was subsequently denied.

The applicant filed a human rights Application alleging discrimination in employment on the basis of Family Status. The respondent did not reply.

The application, at the time of filing, also included a Request for Interim Remedy in regard to her request to extend her short-term accommodation. In this case, the applicant requested a six-month extension that would allow her to continue working straight days for which she was able to secure daycare for her children.

The applicant alleged that other employees worked preferred shifts and that their requests were not based on “Code” grounds but rather a preference. Further, that the granting of her accommodation would not constitute an undue hardship on behalf of the respondent should she be allowed to continue working straight day shifts until the matter was resolved.[i]

The analysis

The Tribunal’s Rules of Procedure allows the Tribunal to grant an interim remedy where it is satisfied that:

  1. the Application appears to have merit;
  2. the balance of harm or convenience favours granting the interim remedy requested; and,
  3. it is just and appropriate in the circumstances to do so.

The Tribunal reiterated 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.[ii]

In making a determination, the Tribunal took into consideration the seminal case of Canada (Attorney General) v. Johnstone, 2014 FCA that addressed the protected ground of Family Status under the “Code”.

The Tribunal also took into account whether or not there was a prima facie case of discrimination, whether or not the applicant’s situation mirrored that of the Johnstone decision, and whether there would be prejudice to the respondent should the interim order be granted.

The decision

The Tribunal agreed with the applicant, stating that she had met the heavy onus to justify an interim order. The respondent was ordered to allow the applicant to continue working straight days until the Application was concluded or until advised by the Applicant upon obtaining daycare.

The takeaway

How the Human Rights Tribunal of Ontario may differ from other jurisdictions is that the Tribunal may order remedial remedies in regard to their matter. Further, such remedies may be implemented prior to the conclusion of the matter.


[i] Tomlinson v. Runnymede Healthcare Centre 2015 HRTO 4 (CanLII) para. 9

[ii] Ibid. para. 11

 

Further First Reference Talks Readings:

Family status: The employee’s obligation under “the Code”

Federal adjudicator dismisses family status grievance

Accommodation of childcare

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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