The test for awarding an interim remedy in Ontario Human Rights Code (“OHRC”) proceedings is described in Rule 23.2 of the Rules of Civil Procedure :
The Tribunal may grant an interim remedy where it is satisfied that:
(a) the Application appears to have merit;
(b) the balance of harm or convenience favours granting the interim remedy requested; and
(c) it is just and appropriate in the circumstances to do so.
Normally, the Tribunal’s power to order a respondent to do, or refrain from doing something, is contingent on a finding of a violation of the OHRC. Interim remedies are extraordinary as they constitute an order to do, or refrain from doing , something in the absence of a finding that the ORHC has been breached. Because of this, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy.
The ORHC is remedial legislation. The main consideration in determining whether to award an interim remedy is whether the interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of the hearing, should a violation of the ORHC be established.*
William Poulos, Barrister
* This legal blog is not a substitute for legal advice. Should you require legal advice a lawyer should be consulted to advise on the specific circumstances of your case.