Interim Remedies (Human Rights)

TA v. 60 Montclair, 2009 HRTO 369 (CanLII)

[12] Rule 23 envisages an expedited process where parties are required to serve the Request for Interim Remedy and Response to the Request directly, and evidence is received by way of signed declaration. Cross-examination on the declarations is not generally permitted. The Tribunal may schedule a hearing, but may decide the Request based only on the written materials filed by the parties. As a result, the Tribunal relies on the parties to provide full and complete materials in support of their respective positions.

[13] Because the Tribunal will rarely receive evidence through the oral testimony of witnesses, it is critical for the parties to provide sufficient evidence through signed declarations from persons with first hand knowledge of the facts being alleged. Failure to comply with this requirement may result in the Request being dismissed outright, or in the Tribunal deciding there are insufficient facts to support the Request. (See: Chopra, supra; Lewis, supra.)

[15] The parties referred me to a number of court decisions, and in particular RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, which set out the criteria to be applied when determining applications for interlocutory injunctions. In RJR-MacDonald, the Supreme Court established a three-part test: whether there is a serious issue to be tried, whether the applicant has established that it will suffer irreparable harm if the injunction is not granted, and whether the balance of convenience favours the granting of the injunction.

[29] An applicant seeking an interim remedy will 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.

[30] Courts and tribunals have generally taken the view that the threshold for meeting the first element is low. Whether the criteria is described as a “serious issue to be tried”, a “prima facie” or “strong prima facie case”, or as here “appears to have merit”, the traditional view is that it would be inappropriate to set the bar any higher than requiring the applicant show it has an arguable case and that the claim is neither frivolous nor vexatious. (See: Robert J. Sharpe, Injunctions and Specific Performance, looseleaf (Aurora: Canada Law Book, 2008); RJR-MacDonald, supra; Loeb, supra).

[33] The second element in Rule 23.2 involves the balancing of the relative harm or convenience in granting or refusing the request. In Injunctions and Specific Performance, supra, Mr. Justice Sharpe explains (at paras. 2.90 to 2.100):

The problem… may… best be understood in terms of balancing the relative risks of granting or withholding the remedy. These risks may be simply stated as follows. The plaintiff must show a threat to his or her rights produced by the combination of the defendant's conduct and the delay until trial. The risk to the plaintiff in such cases is that, if an immediate remedy is withheld, his or her rights will be so impaired by the time of trial and final judgment that it will be too late to afford complete relief.

Against this risk to the plaintiff must be balanced the risk of harm to the defendant, should the injunction be granted. This risk is inherent in that the court, on an interlocutory application, can only guess what the result at trial will be. It may well transpire that, although the plaintiff now appears to have a reasonable prospect of success, the plaintiff will fail in the end. … Accordingly, inherent in the exercise lies a risk of harming the defendant by enjoining a course of conduct which may ultimately be shown to be rightful.

[34] The question, therefore, is whether the harm the applicant will suffer if the Request is not granted outweighs the harm to the respondent if the Request is granted.

[35] Finally, the last element recognizes the discretionary nature of interim relief. There will be a number of factors the Tribunal will consider, but ultimately it calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code, and is fair in all of the circumstances.

[36] The three criteria in Rule 23 are all ingredients to be considered in determining whether to grant an interim remedy. An applicant will be required to demonstrate that all three elements are met before being entitled to the remedy requested. However, they should not be seen as successive hurdles, where the applicant must meet the first, before moving onto the next. Rather, the decision to grant or refuse the Request should consider the collective impact of all factors, and the purpose of the provision as a whole. (see: Hall (Litigation Guardian of) v. Powers, (2002) 2002 CanLII 49475 (ON SC), 59 O.R. (3d) 423 at para. 12; Loeb Highland, supra at para 27.)