Neusch v. Ontario (Ministry of Transportation) (No. 2), 2002 CanLII 78196

Neusch v. Ontario (Ministry of Transportation) (No. 2)

2002-05-31

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 Gwen Neusch and Kate Fox dated July 6, 1998 and July 7, 1998 alleging discrimination in services on the basis of disability.

B E T W E E N:

Ontario Human Rights Commission

-and-

Gwen Neusch and Kate Fox Complainants

-and-

Ministry of Transportation; City of Hamilton; Disabled and Aged Regional Transit System Respondents

INTERIM DECISION

Adjudicator: Steven J. Faughnan Date: May 31, 2002 Board File No.: BI-413-01 to BI-418-01 Decision No.: 02-012-I

ISSUE

1This interim decision deals with a motion by way of written submissions whereby Transportation Action Now Inc. ("TAN") seeks to intervene in these proceedings, pursuant to section 39(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") and Rules 16, 17 and 18 of the Board of Inquiry's Rules of Practice.

DECISION

2The motion is denied.

PROCEDURAL SEQUENCE

3As set out at paragraph 22 of the affidavit of the co-chair of TAN, Janice Tait, TAN initially sought to make oral and written submissions at the conclusion of the hearing on the following issues:

1. Whether persons with disabilities are entitled to expect an equal level of public transportation service, based on principles of comparability, where needs are comparable (e.g. fares and hours of service) and accommodation where "built in headwinds" reflecting discriminatory assumptions of "normalcy" (eg. the need for a "door to door" service to meet the needs of those unable to access service a (sic) conventional stops) would prevent the person from experiencing equal benefit from the services;
2. Whether the respondents are under an obligation to fund an equal level of transportation service for those with disabilities to that provided to persons who are able bodied, and the proper application of accommodation principles if undue hardship has been established; and
3. Whether the respondents' obligation to fund and provide a comparable level of public transportation service to persons with disabilities is overridden by section 14 of the Code.

4In addition, as set out in paragraph 23 of the affidavit, TAN was originally seeking permission to call up to two witnesses to address, and to cross-examine witnesses in relation to two specific issues. As a result of subsequent events that are set out hereafter, TAN changed its position and no longer wishes to call evidence or cross examine witnesses.

5Finally, as discussed in paragraph 25 of the affidavit, TAN asserted that its involvement will be of particular assistance in fashioning an appropriate remedy, in the event that the Board finds there has been a violation of the Code.

6By letter dated July 18, 2001, the Ministry of Transportation (the "Ministry") advised the Board that it wished to cross-examine Ms. Tait on her affidavit. This was not pursued, probably as a result of the events that unfolded shortly thereafter which are recounted in this Interim Decision.

7By letter dated July 18, 2001, counsel for the City of Hamilton (the "City") advised that it was prepared to consent to the application to intervene on the following terms:

As intervenor, TAN's role would be limited to making written submissions at the conclusion of the evidentiary portion of the hearing on the issues set forth in the affidavit of Janice Tait dated July 10, 2001 at paragraph 22;

TAN would therefore not have status to lead any evidence or cross-examine any witnesses; and

TAN would provide its written submissions prior to the closing arguments by the party litigants.

8As set out in a letter dated July 19, 2001, Mr. Baker accepted these conditions on behalf of TAN. The acceptance took place after the Board released its decision in Odell v. Toronto Transit Comm. (No.2) (2001), 2001 CanLII 26223 (ON HRT), 40 C.H.R.R. D/254 (Ont. Bd. Inq.). In Odell, TAN sought intervenor status in proceedings that arose out of complaints brought by six complainants alleging that the introduction of a registration fee and interview process as conditions to those complainants' use of the Wheel-Trans service constituted discrimination in the provision of services on the basis of handicap. In the decision the Board reviewed the law of intervention generally and how it applied to the facts before the Board. TAN's request for intervention in that proceeding was denied.

9After receiving a copy of Odell on July 20, 2001 and after notifying TAN that it would do so if TAN sought to rely on its consent, counsel for the City forwarded to the Board a copy of a letter to TAN dated July 31, 2001 setting out its position in light of the Odell decision. The City advised in the letter that while the City does not withdraw its consent to TAN's request to intervene, it insisted that it be brought to the Board's attention that such consent was provided immediately prior to their receipt of the decision in Odell. This was followed up by a letter dated September 11, 2001 from counsel for the City which reiterated that the City's consent was provided before it received Odell, and that although the City was not opposing TAN's application, it does not agree with the factual, policy or legal submissions TAN has made in support of its application.

10In its reply to the written submissions of the Ministry and Disabled and Aged Regional Transit System ("DARTS"), TAN modified its request for intervenor status to conform with its acceptance of the City's proposed consent set out in the City's letter of July 18, 2001. Although not material to this decision, TAN alleges this proposal was submitted on behalf of all the respondents, as TAN was under the belief that counsel for the City represented the respondents collectively when it extended its conditional offer contained in the letter dated July 18, 2001, discussed above.

11As set out in a letter dated July 31, 2001, the Ontario Human Rights Commission (the "Commission") consented to an order granting the status to intervene to the extent set out in the affidavit of Janice Tait, but was prepared in the alternative to accept any order to intervene in the proceedings to the extent as is mutually agreed to between counsel for TAN and counsel for the respondents.

12As set out in TAN's materials and the Ministry's response, apparently the complainants have also indicated that they are prepared to consent to an Order along the modified terms suggested by TAN.

13The Ministry and DARTS are opposed to TAN intervening in this proceeding.

THE FACTS REGARDING THE INTERVENOR APPLICATION

14The following recitation of facts is based on the affidavit of Janice Tait and while repeating some of the facts set out in Odell, is of a summary nature.

15TAN was incorporated in 1995 as the successor to a non-profit coalition of organizations throughout Ontario that was formed in 1985. TAN's concerns are province wide and it defines itself as the provincial organization that represents the transportation interests of Ontarians of all ages with disabilities. TAN has adopted a set of principles as a focus for its work. Amongst these principles are the following:

Accessible transportation is a right or entitlement as it is for able-bodied people. It is not a charity, social service, "special program" or frill'

Accessible transportation is an essential service for integrating people with disabilities into the mainstream of Canadian life;

Accessible transportation must be operated on a comparable basis to that which is provided for public transit services; that is comparable hours of service, comparable fares, comparable geographic areas served, comparable waiting times and no prioritizing of trips.

16Apparently while a predecessor organization intervened in hearings before the Ontario Highway Transport Board, TAN itself has never done so. In the 1980's, a predecessor to TAN was supportive of individual litigants who filed human rights complaints on such issues as differential fares, safety and inferior standards of service and accountability. However, its predecessor was not directly involved as a party in those cases, it only provided support to the litigants. The exact nature of the support given was not specified.

17TAN's history of advocacy in support of accessible transportation has taken the form of committee membership. TAN has also made submissions in support of accessible transportation to various levels of government and committees, including submissions to the 1998 Ontarians with Disabilities Act committee. In addition to producing a quarterly publication, and a publication entitled "You're on the move! Vehicle Choices and Adaptive Driver Equipment for Passengers and Drivers with Disabilities", TAN has produced policy and other documents in furtherance of its principles. When the Federal Government announced its purchase of rolling stock, TAN filed a complaint with the Canadian Transportation Agency, pursuant to section 172 of the Canada Transportation Act, S.C. 1996, c.10, as amended.

18TAN acted as lead complainant, with several other individual complainants, in a human rights complaint that focused on allegedly increasing refusal rates of the Toronto Transit Commission Wheel-Trans service. The complaint was withdrawn. TAN has worked with ARCH: A Legal Resource for Persons with Disabilities ("ARCH") with a goal to drafting and distributing generic human rights complaints that would ensure that equality issues were addressed comprehensively, rather than in isolation, and encouraging persons with disabilities to bring any discrimination they were experiencing to the attention of the Commission, however, TAN has never been granted any participating rights in any proceedings before the Board.

19While the affidavit of Janice Tait sets out that TAN's counsel, David Baker has served as counsel in many cases involving equality based and regulatory litigation in support of its goals of full accessibility, has experience in many transportation cases before federal regulatory tribunals and has served as counsel to intervenors in several of the leading Charter and human rights disability cases in which equality principles have been applied, there was no evidence before the Board that in its current incarnation TAN itself was ever granted intervenor status in any proceedings before any board or agency dealing with the issues which are the subject matter of these complaints.

THE PARTIES' POSITIONS

20A summary of TAN's submissions as to why it should be granted intervenor status is set out at the final paragraphs of its submissions in reply. Those paragraphs state as follows:

35. TAN represents the interests of all those with transportation handicaps, including but not limited to those in wheelchairs.

36. TAN has a long involvement with the issues raised in these complaints both from a policy and a legal perspective. It is the only group that has been involved in both areas over an extended period, and it remains the leading group advocating in this area today.

37. It is submitted that TAN has a valuable contribution to make through the filing of written submissions prior to the parties making their submissions.

21After the release of Odell, the Ministry filed its response to TAN's request stating by way of summary that TAN should not be granted intervenor status on the following bases:

TAN fails to meet the test for intervenor status established by the Board. Specifically, it is the Ministry's position that TAN has no particular knowledge or perspective to offer the Board that will not be offered by the Commission or the complainants.

TAN fails to provide evidence that establishes it has any current expertise to assist the Board with the factual matters before it.

22In the alternative, the Ministry submits that in the event that TAN were granted intervenor status, then the participation of TAN should be limited to similar conditions to those set out in the City's letter dated July 18, 2001, with the added caveat that the respondents would be permitted an opportunity to respond to TAN's written submissions, if they elect to do so.

23Again by way of summary, DARTS opposes granting participatory rights to TAN on the following grounds:

TAN has no particular knowledge or perspective to bring to the hearing that cannot also be presented by the Commission and/or the complainants;

To DARTS' knowledge, TAN has never intervened in a judicial proceeding;

TAN is not possessed of any current expertise with respect to the factual matters the Board will be required to address; and

TAN's intervention will have an adverse impact on the immediate parties' right to control the scope of the issues.

24In its reply TAN acknowledges that the timing of the Odell decision has presented the parties to this complaint as well as TAN with difficulties. However, TAN submits that the following factors differentiate this case from Odell and militate against denying TAN intervenor status in the case before the Board:

In reviewing the Odell decision it is apparent that the evidence before the Board in Odell did not include information about the legal and research activities of TAN, which it states is before the panel of the Board in this case.

The issues in these complaints are much broader in their application than those in the Odell case. This is the first and only case which raises issues which have provincial application, and concern how public transportation works for persons with disabilities.

ANALYSIS

25In Odell, the Board set out the factors that should be considered when determining the extent to which a person requesting the status of an intervenor may participate in a proceeding before the Board. This panel of the Board will only re-emphasize that consent by any or all parties on intervenor status and scope, does not relieve the Board of ensuring that the intervention is appropriate in all the circumstances. That is a matter within the sole discretion of the Board.

26It now remains to apply the analysis in Odell to the facts of this case.

27It is trite to say that TAN cannot be made a party under sections 39(2) and 39(3) of the Code, and based on its modified request for intervenor status, it no longer seeks to be added in that capacity. Accordingly, consideration must be given whether TAN should be added as amicus curiae.

28Since the modified intervenor request relates to the provision of written submissions only, provided that the submissions from TAN deal with issues raised by the subject matter of the complaints, it would not appear that the modified intervenor request would lead to an undue delay in the proceeding or prejudice the determination of the rights of the parties to the proceedings. That being said, however, the request for intervention still fails.

29TAN does have an interest in the issue of accessible transit services and has done a great deal in that area to assert its position and to accomplish its goals, but that is not enough. Mr. Baker may have a great deal of experience in litigating Charter, disability and equality issues, however, Mr. Baker is TAN's counsel, not TAN. TAN, in its current format, has never successfully intervened in a judicial proceeding.

30Just as in Odell, there is an evident overlap of positions between TAN and the current parties before the Board. The Commission and the complainants allege that the two tiers of service and taxi scrip system are discriminatory. The Commission and the complainants allege that the services offered by the City is not accommodation up to the point of undue hardship. The Commission and the complainants allege that the decrease and ultimate withdrawal of funding by the Ministry is discriminatory. TAN seeks to make submissions whether services offered qualify as a special program under section 14(1) of the Code. It is expected that the Commission and the complainants will address why, in their view, the services offered are not a special program under section 14(1) of the Code. The Board is not satisfied that the materials establish that TAN will take a different position with respect to these issues. To hear the same from TAN on these issues would amount to unnecessary duplication.

31Just as in Odell, as far as the Board can tell, TAN's position on all issues that arise from the subject matter of these complaints is the same as that of the Commission, which is already charged with protecting and promoting the public interest and that of the complainants, who have used specialized transportation services for Hamilton residents with disabilities and are currently represented by counsel from ARCH. The Board is not satisfied that TAN has a different perspective to offer on issues that arise from the subject matter of these complaints, that the counsel for the complainants and Commission cannot adequately do any required research or that by assuming the role of amicus curiae TAN would be of assistance to the Board. These complaints do involve a matter of public interest, however, the Board is satisfied that that interest and the positions sought to be asserted by TAN as set out in paragraph 22 of the affidavit of Janice Tait, will be adequately addressed in the positions asserted by the complainants and the Commission.

32However, that does not mean that TAN cannot assist in other ways. Whatever research or information that TAN feels is useful can be provided to the Commission or the complainants and/or adduced by the Commission or the complainants by calling persons affiliated with TAN as witnesses, subject to their evidence being relevant and admissible and, if necessary, the proper qualification of the witness called.

ORDER

33The motion for intervention is dismissed.