This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
- How is an interim remedy requested?
- What is a declaration?
- What happens next after a request for an interim remedy?
- What is the legal test for an interim remedy?
- What if a request for an interim remedy is granted?
- Can a reconsideration be requested if an interim remedy is granted or denied?
The Human Rights Tribunal of Ontario (HRTO) may grant an interim remedy before a full hearing of the application (Form 1) has taken place. An interim remedy is a type of immediate, short-term help until the HRTO can make a final decision about whether there is a violation of the Human Rights Code (Code).
An interim remedy requires the existence of circumstances where some significant harm may impact an applicant because of the passage of time between when an application is filed and when the application is finally heard and decided.
It is important to understand that an interim remedy is an extraordinary remedy, not often granted at the HRTO. An interim remedy requires a respondent to take (or to not take) certain actions prior to a hearing on the merits of the application and before any violation of the Code has been proven.
An applicant therefore has a significant onus to meet in demonstrating that an interim remedy is necessary. The focus of the HRTO’s inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing.
As a rule, the HRTO is more reluctant to order an interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. A good overview of the law of interim remedies at the HRTO can be found in TA v. 60 Montclair, 2009 HRTO 369 (CanLII).
In addition, see the HRTO’s Practice Direction on Requests to Expedite an Application and Requests for an Interim Remedy and Rule 23 of the HRTO’s Rules of Procedure (HRTO Rules).
Requests for an interim remedy are governed by Rule 23 of the HRTO Rules. An applicant must complete a request for an interim remedy (Form 16) and file it with the HRTO.
If the request is made at the same time as the application is filed, it does not need to be delivered to the other parties but can simply filed with the HRTO along with the application.
If the request is made at a later stage of the proceeding (i.e. after an applicant has received confirmation that the application has been delivered to a respondent), it must be delivered to the other parties and filed with the HRTO along with a Statement of Delivery (Form 23).
Given the extraordinary nature of an interim remedy, an applicant must provide a proper evidentiary record and full legal submissions to the HRTO in order to satisfy the HRTO that an interim remedy is genuinely required in the circumstances of the application.
Rule 23.3 of the HRTO Rules requires that a request for an interim remedy must include:
- a detailed description of the order sought;
- one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the applicant relies; and,
- submissions with respect to
- the merits of the application,
- the balance of convenience or harm and
- why an interim remedy would be just and appropriate in the circumstances.
Both an applicant’s request and a respondent’s response to a request for an interim remedy (Form 17) require one (1), or more depending on the circumstances, declarations from persons with first-hand knowledge detailing all the facts upon which the party relies in support of the request or the response to the request.
These declarations are the evidence that will be considered by the HRTO when deciding whether to grant an interim remedy.
A declaration must be signed by the person who is making the declaration and should only contain facts that are based on direct, first-hand knowledge.
Any relevant documents should be attached to the declaration, and the declaration should explain how the person making the declaration has first-hand knowledge of each document and its contents. This includes any medical or any other third-party evidence.
Only the information that is contained in the declaration will be considered as evidence by the HRTO. Information in the application itself, or submissions on the Form 16 or Form 17 are not proper evidence that may be considered by the HRTO.
Unless otherwise directed by the HRTO, a respondent has seven (7) days to deliver and file (along with a Statement of Delivery (Form 23)) their response to the request for interim remedy (Form 17).
Rule 23.5 of the HRTO Rules requires that a response to request for an interim remedy must be delivered to all other parties and filed with the HRTO and must include:
- one or more declarations signed by persons with direct first-hand knowledge detailing all the facts upon which the respondent relies; and
- submissions with respect to
- the merits of the application,
- the balance of harm or convenience and
- why an interim remedy would not be just and appropriate in the circumstances.
Rule 23.2 of the HRTO Rules provides that the HRTO 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 first factor requires the HRTO to be satisfied that there is an arguable case and the claim is not frivolous or vexatious.
The second factor requires the HRTO to balance the harm to the applicant against the harm to the respondent. The third factor requires the HRTO to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all the circumstances.
In particular, the HRTO will weigh the likely inconvenience or damage which would be suffered by an applicant if the interim remedy is not granted against the likely inconvenience or cost for the respondent if it is granted.
In K.Z. v. Cambridge Kips Inc., 2017 HRTO 241 (CanLII), the applicant requested an order immediately reinstating her to active membership status in a gymnastics club to continue her training and to permit her to compete in competitions as a member.
The HRTO found that the applicant had an arguable case, that without an order reinstating the applicant to training and competition she would lose the balance of the competitive season and miss opportunities to compete, and that the respondent would suffer little, if any, harm if the applicant was reinstated to training and competition on an interim basis. Finally, the HRTO found that was just and appropriate to grant an interim remedy in these circumstances.
However, in Kane v. Crossbridge Condominium Services LTD, 2019 HRTO 1511 (CanLII), an applicant’s request for an interim remedy was denied.
The applicant sought an order for the respondent to amend the condominium’s bylaws to include a ban on the burning of incense or production of chemical smells. The applicant’s submission was that, if the request was denied, he would suffer medical risk and a threat to his health.
The HRTO was not satisfied that the evidence submitted by the applicant was enough. The medical professional’s letter did not establish that an interim remedy was required to avoid harm to the applicant. Finally, the balance of convenience also did not favour granting an interim remedy.
If a request for an interim remedy is granted the HRTO will usually set out the terms of the interim order. For example, in K.Z. v. Cambridge Kips Inc. (above), the HRTO ordered that:
- the respondent must permit the applicant to train at its facilities and participate in competitions;
- the respondent would place no conditions upon the applicant’s training or competition that is not also generally placed on other gymnasts; and
- the applicant’s parents remained responsible for any fees or costs associated with the applicant’s training or competition.
See also R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 130 (CanLII), an application alleging discrimination at school because of disability, where the HRTO ordered several terms to be implemented after granting the request for an interim remedy.
No. Section 45.7 of the Code provides the HRTO with authority to reconsider its decisions. Rule 26.1 of the HRTO Rules states that a party may request reconsideration of a final decision of the HRTO within thirty (30) days of the date of the decision.
A final decision is one that disposes of some or all the central issues in the complaint between the parties. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (CanLII).
Rule 26.1 does not permit the reconsideration of an interim decision. A decision denying a request for an interim remedy is not a final decision. It is an interim decision because it does not dispose of the central issues in the application. See, for example, T.B. v. Eastern Ontario District School Board, 2016 HRTO 859 (CanLII).
This means that the application continues in the HRTO process. However, an applicant may be able to re-apply for interim remedy as circumstances may develop. See, for example, Scott v. Otter Creek Co-operative Homes Inc., 2013 HRTO 1484 (CanLII).