BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF the complaints by Tracy Odell, dated August 27, 1996; Helen Sarlina dated August 26, 1996; David Condie, dated November 14, 1996; Kelly Cluskey, dated December 4, 1996; Ralph Edwin Lang, dated December 12, 1996; and Jeremiah Shell, dated December 9, 1996 alleging discrimination with respect to services on the basis of handicap.
B E T W E E N:
Ontario Human Rights Commission
-and-
Tracy Odell; Helen Sarlina; David Condie; Kelly Cluskey; Ralph Edwin Lang; Jeremiah Shell
Complainants
- and -
The Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Mary Anne McKellar
Board File No: BI-0335/336/337/338/339/340-00
Decision No: 01-015-I
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Kikee Malik, Counsel
) Jennifer Servinis, Student-at-Law
Tracey Odell, )
Helen Sarlina, Complainants ) on her own behalf
Jeremiah Shell, Complainant ) Sarah Rimmington, Student-at-Law
Toronto Transit Commission, Respondent ) Paul Schabas, Shaun O’Brien,
) Counsel
Transportation Action Now Inc., ) Lisa Cirillo, Ena Chadha,
Proposed Intervenor ) Counsel
INTRODUCTION
This proceeding arises under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (“the Code”). The Ontario Human Rights Commission (“the Commission”) combined the complaints of six individuals against the Toronto Transit Commission (“the TTC”) and referred them to the Board of Inquiry (“the Board”). Common to all the complaints were allegations that the introduction of a registration fee and interview process as conditions to the complainants’ use of the Wheel-Trans service constituted discrimination in the provision of services on the basis of handicap.
By Interim Decision dated January 17, 2001, the Board struck the pleadings of the Complainant Tracey Odell and noted that they broadened the scope of the complaint and called into question the entirety of the way in which the TTC delivers its services.
THE ISSUE
This interim decision deals with a motion by Transportation Action Now, Inc. (“TAN”) which seeks to intervene in these proceedings. TAN wishes to adduce evidence, to cross-examine on the evidence adduced by other parties, and to make legal submissions, all in respect of the following issues set out in the Affidavit of Janice Tait, Co-Chair of TAN:
the barriers posed by and the discriminatory effect of the registration fee and the requirement for an in-person interview;
what constitutes a “special program” for the purposes of section 14(1) of the Code;
Wheel-Trans as a means of accommodation for persons who are unable to access the regular transit system; and
remedy, and in particular, the various forms of servicing and entry mechanisms utilized by accessible transportation services in other jurisdictions.
THE DECISION
The motion is denied.
THE FACTS
The following recitation of the facts is based on the Affidavit of Janice Tait, as well as her viva voce examination and cross-examination.
TAN is the incorporated successor to a non-profit coalition of organizations throughout Ontario that was formed in 1985. TAN’s concerns are province-wide, and its mandate is twofold:
to broaden awareness on the part of individuals and organizations about the need for accessible transportation for all people not now served by public transit services; and
to accelerate the integration of all people of disabilities into the mainstream of provincial life through promotion of accessibility of current public transportation.
TAN receives both private and government funding. As a consequence of losing most of its core funding in 1995, TAN functions almost exclusively as a volunteer Board of Directors. TAN’s Board of Directors currently has eight members and meets monthly. TAN has only one paid staff person who works two days per month.
In cross-examination Ms. Tait agreed with the suggestion that TAN’s “membership” consists essentially of its Board of Directors, but that it maintains a mailing list of “friends of TAN”, which she referred to as members. All of the names appearing on the list appended to her affidavit are those of organizations and not of individuals.
Although two of its member organizations have intervened in judicial proceedings, TAN itself has never done so. TAN’s history of advocacy in support of accessible transportation has taken the form of committee memberships, both local (1991 Joint Review Committee on Transportation for Persons with Disabilities in Metropolitan Toronto) and international (European Economic Union transportation committee). TAN has also made submissions and deputations in support of accessible transportation to various levels of government and other organizations, including submissions to the 1998 Ontarians with Disabilities Act committee. In addition to producing a quarterly publication, TAN has also produced policy and other documents in furtherance of its mandate. TAN has consulted and/or worked at the municipal government level on issues of cross-boundary travel and accessible transit services.
TAN’s previous involvement with respect to the subject matter of these Complaints involved making deputations in October 1996 to the TTC and to Metro Council opposing the imposition of the registration fee and the interview process. In 1994 TAN approached the Commission with concerns about Wheel-Trans’ large number of unaccommodated rides, that is ride requests that could not be met. TAN, along with six individuals, filed a formal complaint in respect of these concerns. At the time, TAN opposed the Commission’s view that Wheel-Trans constituted a “special program” under the Code. TAN’s complaint was withdrawn, and Ms. Tait suggested that the decision to do so was at least partially attributable to the Commission’s position on the “special program” issue. TAN did not file any further complaints, nor did it take on the “special program” issue in any other forum.
In this hearing, and in its “Discussion Paper on Accessible Transit Services in Ontario” (January 16, 2001), the Commission has clearly reversed its earlier position. It now opposes any characterization of para-transit systems as “special programs”.
Much of TAN’s advocacy work is concerned with the issues of “reciprocity” and cross-border travel, which Ms. Tait defined as relating to the ability of para-transit users from one system being able to access those services in another municipal jurisdiction without the necessity of meeting additional or different qualifying criteria. To this end TAN has collected and worked with survey data respecting the various para-transit services in Ontario. This information has not been updated since 1994.
The Commission’s discussion paper also addresses the issue of available para-transit services across Ontario. The data on which the discussion is based was collected commencing in July 1999. It does not, however, include information for six of the larger municipalities surrounding the Greater Toronto Area, as they declined to participate in the Commission’s survey. The discussion paper does not indicate what questions were posed of the participating transit providers, so it is impossible to ascertain from the document what information the Commission actually has in its possession relating to cross-border issues.
THE PARTIES’ POSITIONS
In its Notice of Motion, TAN initially sought to be made a party to the Complaints. At the outset of the hearing, however, TAN indicated that it wished to be granted non-party intervenor status, with the full right to adduce evidence and make submissions, as indicated above. Essentially, TAN’s Counsel asserted that her client’s years of expertise and advocacy in issues relating to accessible transit across the province, and indeed internationally, would broaden the Board’s perspective on the issues.
The Commission supported TAN’s motion. The Commission took the position that TAN should be granted full non-party intervenor status. Alternatively, the Commission took the position that if the Board was not prepared to grant such status now, then it should leave open the possibility of hearing evidence and submissions from TAN at a later date. At the very least, the Commission took the position that TAN should be afforded the right to make legal submissions.
The Complainants in attendance supported TAN’s request to participate in the hearing, to whatever degree the Board deemed appropriate.
The TTC opposed the Board’s granting any participatory rights to TAN, even those limited to making legal submissions. Generally speaking, the TTC’s position was that TAN had no particular knowledge or perspective to bring to the hearing that was not already being presented by the Commission and the Complainants.
THE ANALYSIS
(i) Statutory bases for intervention
Section 39(2) of the Code deals with parties to a hearing. It provides:
39(2) The parties to a proceeding before the board of inquiry are,
(a) the Commission, which shall have the carriage of the complaint;
(b) the complainant;
(c) any person who the Commission allleges has infringed the right;
(d) any person appearing to the board of inquiry to have infringed the right;
(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which the person ought to have known of the conduct and who had authority to penalize or prevent the conduct.
(3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper.
Other than the Commission, only those persons who claim to have been aggrieved by the incidents alleged in the complaint, or those who are alleged to have or appear to have participated in them, are parties under the above provision. Nor is there any other provision in the Code that contemplates the participation in a hearing of non-party intervenors.
The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, contains only one provision respecting “parties”. Section 5 provides that the persons specified by statute, or “those entitled by law” shall be parties to a proceeding.
The Board’s Rules of Practice do contemplate the participation of intervenors. These Rules are as follows:
Persons who are not parties to a proceeding but who wish to participate shall make a written request to the Board setting out their interest in the matter, the status and degree of participation or intervention sought, and shall file their requests with the Board as soon as possible after they become aware of the proceeding.
A person who requests the right to participate or intervene in a proceeding shall serve a copy of the request on the Board, all parties and any other person(s) the Board considers appropriate and shall file a Statement of Service (Form 2) with the Board.
The right of persons to participate or intervene my be full or partial, may relate to all or part of the proceeding, and may be limited to written submissions as the panel considers appropriate.
Counsel for the TTC submitted that because the Code itself does not address the issue of intervenors, the Board should approach the issue very cautiously, and grant intervenor status in much narrower circumstances than do the courts. I will return to that point later in these reasons. At this juncture, however, it is useful to set out Rule 13 of the Rules of Civil Procedure, pursuant to which the courts determine intervention issues, particularly since some of the caselaw cited to the Board arose under these provisions.
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceedings;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions at issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.
(ii) The Board’s jurisprudence
Five decisions of the Board were referred to in argument. They can be summarized briefly. I will deal with them in chronological order, based on the date of release.
The earliest case cited was Sinclair v. Peel Non-Profit Housing Corp. (No. 2) (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342. The complainant alleged that the Respondent discriminated against her in the provision of accommodation based on her receipt of public assistance. Numerous organizations sought to intervene in the proceeding. Some were tenant advocates and organizations working to ensure accommodation for low-income persons. One was an umbrella organization for landlords. Another was the Ministry of Housing. The Board commenced its analysis by noting that there are two types of intervention possible. A person may be made an added party with full participation rights, or may be made a friend of the court, with the extent of the right to participate determined by the decision-maker. Pursuant to the provisions of the Code, none of the proposed intervenors could be made parties. The Board determined that its power to control its own proceedings vested it with the jurisdiction to add amicus curiae, or friends of the court, and proceeded to do so with all of those requesting to participate. The following paragraphs set out the parameters within which the Board allowed them to participate:
In this case, all the applicants for intervenor status have considerable expertise on many of the issues that may be canvassed and have a serious interest in the outcome of the case. The issues, I am told by the applicants, could have an important effect on housing policy in Ontario. I would find it helpful to have their views at the conclusion of the case on the issues with which I will be called on to deal.
Written submissions can therefore be made by the applicant interveners at the conclusion of the case and prior to the final arguments by the parties. At that time I will determine whether I would find it helpful to have oral argument as well on some parts of the submissions.
I also leave open the possibility that I will permit the interveners to call evidence at the conclusion of the Commission’s and complainant’s case and at the conclusion of the respondent’s case if I conclude at the time that issues that I may have to deal with have not been adequately explored, and if the calling of this evidence would not prejudice the position of the parties.
Leshner v. Ontario (No. 1) (1991), 1991 CanLII 13134 (ON HRT), 16 C.H.R.R. D/175, also deals with an intervenor issue. Leshner is a gay employee of the provincial government. His complaint was based on the fact that he could not obtain spousal employment benefits for his same sex partner. The insurance company for the employer’s health and dental plans sought to intervene. By the time it sought to intervene, the policies affecting the complainant in his employment with the Respondent had already been changed to provide coverage for the latter’s gay and lesbian employees. Although the Board referred only briefly to the Sinclair decision above, it proceeded to determine the insurer’s participatory rights having regard to the same two categories of participation, party status or friend of the court status. In doing so, the Board relied on the distinctions set out in Rules 13.01 and 13.02 of the Rules of Civil Procedure. The Board denied the insurer’s motion to be made a party. Noting that the Board retained absolute discretion to make it a friend of the court, the Board gave leave to the insurer to intervene and render assistance to the Board by way of argument. For our purposes, the most pertinent part of the decision is that setting out the criteria for consideration in an amicus curiae application:
(1) as a general rule, amicus intervention should be looked upon more favourably in cases involving matters of public interest than cases where only private rights are concerned;
(2) the characterization of “matters of public interest” should be made in a liberal and common sense fashion with the understanding that, while on one hand almost every decision of the court affects the public in one way or another, many issues, even those couched in terms of private litigation, carry with them significant implications for the development and implementation of public policy and the public rights;
(3) as a general rule, interventions should be permitted only where the proposed applicants can demonstrate that they have a significant commitment to the matters that are represented in the issue presented; and
(4) as a general rule, interventions should be favourably considered where the issue to be argued is more likely to be understood in terms of its practical implication or impact or where the intervenor may bring to the exposition of the problem or to its solution a dimension or argument, experience or understanding which the court may find useful.
Findlay v. Mike’s Smoke and Gifts (No. 2) (1993), 1993 CanLII 16454 (ON HRT), 21 C.H.R.R. D/15 involved an allegation that convenience store owners discriminated against women with respect to services by displaying and selling pornographic magazines. Close to thirty different organizations sought to intervene. The Board applied the analyses set out above in Sinclair and Leshner, and readily determined that none of the proposed intervenors ought to be made parties to the complaint. Turning to the question of amicus status, the Board noted:
. . . the applicants for interested party status have considerable resources and empirical data with respect to many of the issues that may be canvassed and have demonstrated a serious interest in the outcome of the case. We recognize that the issues we may potentially consider could have an important effect on public policy in Ontario. We would find it helpful to have the views of all the applicants at the conclusion of the case on the issues upon which we shall be called upon to determine. (at Paragraph 16)
The Board thus permitted the intervenors to make written submissions at the end of the case and prior to the presentation of argument by the parties. Like the Sinclair Board, it left open the possibility that the intervenors might be permitted to call evidence at the conclusion of the Commission’s and complainants’ cases and at the conclusion of the respondents’ cases. The Board also remarked:
We note that Rule 13.02 of the Ontario Rules of Civil Procedure provides that a friend of the court may be given leave to intervene in civil litigation only by way of argument. Human rights inquiries should similarly restrict the participation of non-parties. We would rather encourage interveners given amicus curiae standing to contact one of the parties to the Inquiry or counsel to the Human Rights Commission to discuss the possibility of giving evidence. (at Paragraph 18)
In Christian v. Northwestern General Hospital (No. 1) (1993), 1993 CanLII 16507 (ON HRT), 20 C.H.RR. D/487, several nurses employed by the hospital complained of systemic racial discrimination. Their bargaining agent sought to be made a party and the Board refused, on the basis that the Code only empowered it to add as parties those alleged to have, or who appeared to have infringed the rights of the complainants. Given the nature of the complaints, the Board did not find that the bargaining agent came within this category, nor did he find that the collective agreement would be directly affected by any remedial order. Having regard, however, to the fact that his remedial orders might tangentially impact on the collective agreement, he granted the bargaining agent amicus curiae status to call evidence and make submissions with respect to the question of an appropriate remedy.
In similar circumstances to those in Christian, the bargaining agent in Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, sought and was granted intervenor status to call evidence and make submissions with respect to remedy. In reaching its decision, the Board identified three considerations:
whether the intervention will unduly prejudice the determination on the rights of the parties to the proceeding;
whether the applicant has a significant interest in the issue on which intervention is sought; and
whether the applicant is likely to provide assistance the Board that will not otherwise be provided. (at p. 19)
The Board notes that there are many examples of cases in which bargaining agents that appeared to have interests in the proceedings similar to those of the bargaining agents in Christian and Jeppeson have either been named as respondents to the complaint from the outset, or have been added as parties pursuant to the Code. See Anonuevo v General Motors of Canada Ltd., [1996] O.H.R.B.I.D. No. 44.
(iii) B.C. Human Rights Tribunal jurisprudence
The Human Rights Code, R.S.B.C. 1996, c. 210 (“the B.C. Code”) expressly permits the Tribunal to allow any person or group to intervene in a complaint, on terms specified by the panel. The following decisions are of interest primarily as illustrations of the manner in which the Tribunal has tailored intervenors’ participation rights in the circumstances of each case.
Murphy v. British Columbia (Ministry for Children and Families), [1999] B.C.H.R.T.D. No. 8, suggests that the Tribunal’s approach when faced with a request to intervene is to strike a balance between the desirability of permitting interventions by those who bring a different perspective to the proceeding, and the immediate parties’ right to control the scope of the issues in dispute. Some of the proposed intervenors were granted full intervenor status of the kind requested by TAN here. Others were restricted to the submission of evidence in affidavit form. All were permitted to make legal submissions.
Okanagan Lesbian and Gay Pride Week Committee v. Oliver (Town), [2000] B.C.H.R.T.D. No. 11 summarizes the Murphy et al. principles usefully at Paragraph 4:
These cases make it clear that the fact that a potential intervenor brings a different perspective to an issue is not sufficient to warrant granting leave to intervene. Rather, considering the nature of the issue, the Tribunal must determine how likely it is that the intervenor will make a useful contribution to its resolution. Further, the utility of the contribution must be balanced against the rist of injustice to the parties: the parties retain the power to define the issues and should not be compelled to deal with issues raised by non-parties. An intervention should not “take the litigation away” from the parties.
In this case, the proposed intervenor did not demonstrate in its application that it could make a useful contribution to the evidence in the case, but because it had a demonstrated interest in free speech issues and wished to raise Charter issues, the Tribunal restricted its participation to the making of oral and written legal submissions.
(iv) Superior Court jurisprudence
Counsel for the TTC submitted to the Board two endorsements the Divisional Court had made respecting Rule 13 interventions in the case of Canadian Foundation for Children, Youth and the Law v. Attorney General in Right of Canada (Court File 98-CV-158948). The first, dated January 12, 1999, allows the Canadian Teacher’s Federation to intervene on the basis that:
It has a real, substantial & identifiable interest in the constitutionality of s. 43 of the Criminal Code; it has an important perspective distinct from the parties, & it is a well-recognized group with special expertise & a broad identifiable membership base. (per Swinton, J.)
In the second endorsement, dated August 31, 1999, Swinton J. denied intervenor status to several applicants:
Most importantly, though, these groups have failed to show in any detail how they offer a perspective different from the applicant, or how they can assist the court in the determination of the legal issues. Their motion record, for the most part, does not set out in any detail the ways in which they can assist in the determination of the legal issues in this case. Rather, it demonstrates the lobbying efforts that have been made to have s. 43 repealed. While Defence for Children International – Canada does claim to offer international expertise, the applicant has introduced expert evidence on this issue and intends to make argument based on international legal principles. There is no reason to believe that it cannot make these arguments effectively.
The Board itself asked the parties to make submissions to it in respect of Halpern v. Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 (Div. Ct.). EGALE (Equality for Gays and Lesbians Everywhere) sought to intervene under Rule 13.01 in an application by gay and lesbian couples seeking an order directing the City Clerk to issue them marriage licences. This decision contains a useful list of things that do not warrant the granting of intervenor status: taking the same position on the legal issues as other parties; an extensive record of lobbying; experience as a witness; and repeating the same perspectives as those of other parties. In Halpern, the court found EGALE had an interest in the outcome based on its lengthy history of intervention in judicial proceedings; the breadth of its institutional knowledge and expertise on equality rights for gays and lesbians, based on extensive research and canvassing of its members; and its representation of a broad-based spectrum of gays and lesbians across Canada. The court also found that EGALE could make a useful contribution by bringing to the hearing the perspective of those members of the gay and lesbian community who do not choose to marry. Even so, stringent requirements were placed on EGALE’s participation.
In a very recent court of Appeal decision, Authorson v. Canada (Attorney General),
(Docket M27437) (July 9, 2001), McMurtry C.J.O. declined to grant intervenor status to the National Council of Veteran Associations in Canada in a case relating to the entitlement to surplus statutory benefits administered by Veterans Affairs Canada:
While I recognize the valuable contributions that the NCVA has made and, continues to make in the political and legislative process, in speaking for the interests of veterans and their dependants, I am not persuaded that the NCVA has any special contribution to make in relation to the interpretation of the legislation and the scope of any fiduciary duty on the federal government in the circumstances of this action. (at paragraph 18)
(v) Application of jurisprudence to the facts of this case
TAN cannot be made a party pursuant to s. 39(2) and (3) of the Code.
The Board has jurisdiction to control its own proceedings, and the exercise of that jurisdiction may encompass the granting of intervenor status. The extent of the participation rights afforded to an intervenor is a matter within the sole discretion of the Board.
Where someone wishing to participate in a hearing does not qualify as a party capable of being added under s. 39(3), the Board has historically turned its attention to whether that person qualifies for amicus curiae status. Where it finds that the person has an interest in the subject matter of the proceeding and its participation would likely be of assistance to the Board, the Board has permitted the person to participate but has usually restricted such non-party intervenor to making legal submissions. Non-party intervenors are not entitled to present evidence themselves or to participate in the cross-examination of other witness, except that the Board has left open (in Sinclair and Findlay) the possibility that they may present evidence at the request of the Board. In the case of intervenors who support the complaint, such evidence would be introduced at the conclusion of the evidence led by the complainant and the Commission. Neither Findlay nor Sinclair proceeded to hearing on the merits, so there is no decision discussing the circumstances in which the Board might have considered availing itself of the ability to request the intervenor to call evidence.
In at least two decisions (Christian and Jeppesen), the Board permitted non-party intervenors to adduce and call evidence on restricted issues. They did so notwithstanding the suggestion in Findlay that this involvement is inappropriate, because non-party intervenors can only function as amicus curiae and ought to be restricted to the participatory rights accorded to amici under Rule 13.02. The Board rejects the Findlay analysis on this point. The mere fact that the Board cannot afford s. 39(3) party status to a proposed participant in the hearing does not mean that those participants must necessarily be restricted to the rights of amicus curiae set out in Rule 13.02 of the Rules of Civil Procedure. Counsel for the TTC argues, however, that considerations of the difference between the Rules of Civil Procedure and the Code, ought to influence the Board to proceed cautiously in granting participatory rights in excess of the right to make submissions to non-parties. It is not necessary for the Board to determine or comment on this issue. Even if the Board had the equivalent jurisdiction to add parties that Rule 13 confers on a court, it would not have permitted TAN’s participation in this proceeding.
Turning to examine the considerations that have generally informed the decision of whether to grant participatory rights to intervenors, the Board notes first that interventions are granted more readily in cases involving the public interest. The notion is that it is useful in such cases where the decision may have broad implications to be able to canvass interests beyond the immediate concerns of the party. Many human rights cases involve a significant element of public interest, and certainly this case does. The structure of litigating human rights complaints in Ontario, however, necessarily involves the representation of at least some aspects of broader public interest since the Commission is a party to the complaint, separate and apart from the complainant. In these circumstances, the utility of intervenor participation cannot be presumed merely because the issues are of public interest. The Board notes that the British Columbia cases which appear to readily grant intervenor applications may be affected by the fact that the B.C. Commission does not necessarily appear before that Tribunal.
In any event, an applicant for intervenor status must have a demonstrated record of involvement in the issues in dispute that enable it to bring to the Board a factual and analytical underpinning not otherwise available. Furthermore, it must have a different perspective from that of any of the other parties, a perspective that will be of assistance to the Board in understanding and determining the issues.
TAN has an undeniable interest in the issue of accessible transit services and of reciprocity with respect to para-transit users. Historically, however, that interest has manifested itself primarily in lobbying efforts of one kind or another. TAN has never intervened in a judicial proceeding. It is not at all clear from the record what kind of informational depth TAN could bring to this inquiry. TAN has not satisfied the Board that it is possessed of a current expertise with respect to the factual matters the Board will be required to address.
The Board is sympathetic to the impact that TAN’s loss of funding had on its ability to conduct research and maintain whatever expertise it had in areas relevant to the Board’s inquiry. The fact remains, however, that for at least six years TAN has simply not been able to afford to engage in this type of activity that would render its participation of assistance to the Board.
The Commission and the Complainants allege that the registration fee and the interview process are discriminatory. So does TAN. The Commission and the Complainants deny that Wheel-Trans is a special service. So does TAN. As far as the Board can tell, TAN’s position on all issues is the same as that of the Commission, which, as noted, is already charged with protecting and promoting the public interest, separate and apart from any interests of the Complainants. TAN has failed to satisfy the Board that it has a different perspective to offer on the issues.
From its review of the documents filed, and the testimony of Ms. Tait, the Board concludes that whatever useful information TAN may be able to provide in this hearing can be adduced by the Commission calling persons affiliated with TAN as witnesses. For example, it may be that TAN has relevant information pertaining to the six municipalities that did not participate in the Commission’s survey. As well, the Board notes that the parties have indicated an intention to call expert witnesses, but those individuals have not yet been identified to the Board, nor the reports of their proposed testimony provided.
Many of the cases reviewed granted intervenor status, but limited its exercise to the filing of affidavits, or, at a minimum, to making legal submissions. In the Board’s view, even that minimal participation is not appropriate in the circumstances of this case, where TAN has not demonstrated a particular legal expertise in the areas in question. By contrast, the intervenor in Oliver had demonstrated precisely such expertise.
Having regard to the fact the Board has declined to grant TAN intervenor status on the basis of its interest in the subject matter of the proceeding and the utility to the Board of its participation, the Board need not address the question of the impact TAN’s participation might have had on the immediate parties’ right to control the scope of issues.
ORDER
The motion is dismissed. The Registrar will contact the parties shortly with respect to the continuation of this proceeding.
Dated at Toronto this 13th day of July, 2001
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair