In a recent decision by the Human Rights Tribunal of Ontario, the relevant conditions in regards to interim remedies were outlined.
The previous article citing Tomlinson v. Runnymede Healthcare Centre discussed interim orders at the Human Rights Tribunal of Ontario. Of note is the rarity of a decision that institutes compliance on the part of the respondent prior to the conclusion of the matter. In such a request, the burden of proof is placed squarely upon the applicant, as in Codrin v. Commissionaires Great Lakes.
After not being offered a permanent position with his employer, and then subsequently terminated, the applicant, who suffered from a disability, filed an Application at the Human Rights Tribunal of Ontario alleging discrimination based on disability, and reprisal.
The applicant requested that the Tribunal issue an order stipulating that he be rehired and considered for the position in question.[i] The applicant argued that the matter would lead to emotional and physical harm should the application be denied. [ii]
The respondent’s reply to the Application stated the applicant was a probationary employee, and had no preferential right to the job sought and that other non-probationary employees were chosen based on a number of reasonable job-related factors. The respondent also questioned the timing of the allegations. [iii]
In its decision, the Tribunal outlined the relevant conditions in regard to an interim remedy, as per Rule 23.2 of the Tribunal Rules of Procedure:
The Tribunal may grant an interim remedy where it is satisfied that:
- the Application appears to have merit;
- the balance of harm or convenience favours granting the interim remedy requested; and,
- it is just and appropriate in the circumstances to do so.
The Tribunal further stated:
“…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, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy…”[iv]
In the interim decision, the Tribunal commented that the applicant had not provided sufficient documentation to support his allegations. Further, the Tribunal indicated the request called into question whether or not there would be harm to the respondents should the request be granted.
After due consideration, the Tribunal concluded there would be harm to the respondent, as it had already filled the position in question. Further, the Tribunal considered if the applicant’s request could not still be applied should the applicant be successful.
The applicant’s request was denied.
The applicant bears the onus of presenting a reasonable and factual argument for a request for an interim order. Any applicant would do well to familiarize themselves with the rights and obligations of both the applicant and the respondent that the Tribunal must consider before granting such a rare order.
[i] Codrin v. Commissionaires Great Lakes, para. 2
[ii] Ibid., para 7
[iii] Ibid., para 4
[iv] Ibid., para 11
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