In requesting interim remedies, an applicant asks the Tribunal to take an extraordinary step.
It is uncommon for the Human Rights Tribunal of Ontario to issue an order that institutes compliance on the part of the respondent before the conclusion of the matter. The test for whether this kind of order should be issued is further examined in matter of Ainmelk v. Jeoffrey.
The applicant filed an Application alleging harassment and discrimination in employment based on numerous protected grounds including ethnic origin and race. According to the applicant, he had been disciplined “without evidence of misconduct”[i], as well as other related allegations.
Rule 23 of the Tribunal Rules of Procedure allows such orders as per Tomlinson v. Runnymede Healthcare Centre but certain criteria must first be satisfied.
“In requesting an interim remedy, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions before the merits of the Application have been decided. Even before any violation of the Code has been proven…An applicant seeking an interim remedy will therefore have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code.”[ii]
The applicant asserted that he was being disciplined needlessly by his employer, requesting that the practise cease, in addition citing that it is a “temporary guarantee of job security”, until the Tribunal process had been completed.[iii]
The respondent was against such an order as it felt it usurped the employer’s right to properly manage the employee. The indicated that any discipline had been warranted. Further, the respondent argued that at any rate, the Tribunal had powers to reinstate the applicant should he be terminated in the interim.
Although the HRTO has the authority to issue such an order, there is generally a three-part test:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting remedy requested; and,
c) it is just and appropriate in the circumstances to do so.[iv]
After reviewing submissions from both sides, the Tribunal issued their decision. Of relevance seemed to be the respondent’s argument that if the applicant was terminated, the tribunal could reinstate and compensate the applicant for financial losses. This appeared to be a determining factor in the Tribunal’s decision, as such, the applicant’s request was denied.
Although the Tribunal does have the power to issue orders in regard to compliance, it is rare that they are granted, based on a very specific criteria that must be met. One should review each guideline carefully before requesting such an order in the interest of time, money, and adding to the complexity of the matter.
[i] Ainmelk v. Jeoffrey HRTO 2011 1825
[ii] Ibid, para. 13
[iii] Ibid. par. 15
[iv] Ibid.,par. 12