Ontario Human Rights Commission v. Toronto Transit Commission, 2005 HRTO 21

Human Rights Tribunal of Ontario

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

David Lepofsky

Complainant

-and-

Toronto Transit Commission

Respondent

INTERIM ORDER

Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.

Date: July 7, 2005

Citation: 2005 HRTO 21

Human Rights Tribunal of Ontario

400 University Avenue, 7^th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Amyn Hadibhai, Counsel

David Lepofsky, Complainant ) On his own behalf

Toronto Transit Commission ) Angela Rae, Counsel

BACKGROUND

1The Commission and the Complainant argued that a monitor was necessary in order to carry out the terms of my decision dated June 30, 2005 [2005 HRTO 20]. The argument of the Commission is outlined as follows:

iv) Apppointment of a Monitor is Appropriate

At paragraph 112, the TTC argues that the appointment of a monitor is an improper delegation of authority. This argument is made notwithstanding that such a remedy was ordered in McKinnon v. Ontario Human Rights Commission [[2002] O.H.R.B.I.D. No. 22, aff’d [2004] O.J. No. 5051 (Ont. C.A.)]. Like McKinnon, this case involves the need for systemic remedies and the appointment of a monitor will facilitate the implementation of the Tribunal’s Order. In McKinnon, the need for systemic remedies was due to the Ministry’s continuing failure to rectify a racially poisoned work environment. In this case, systemic remedies are needed to address the fact that the TTC has failed to provide a reliable accommodation for in excess of 10 years, notwithstanding numerous complaints and internal documents showing that the accommodation was not being properly provided.

It is reasonable that the TTC be required, at its expense, to hire an independent monitor to oversee the implementation of the Tribunal’s order.

2Although the TTC opposed the appointment of a monitor, I have come to the conclusion that a monitor is necessary in order to expedite my interim order of June 30, 2005. Accordingly, I make the following order.

ORDER

(1) I appoint Matthew Garfield, former Chair of the Human Rights Tribunal of Ontario as Monitor.

(2) Mr. Garfield is to have all necessary authority to deal with the parties as well as such others as he deems appropriate in order to expedite the carrying out of my interim order, and any other interim orders that I may make in the future.

(3) Mr. Garfield shall deal with, but not be limited to, the following:

(a) The Ontario Human Rights Commission whose legal obligation is to enforce the Tribunal’s order;

(b) The Advisory Committee on Accessible Transit (“ACAT”);

(c) TTC Human Rights Officer;

(d) TTC senior management;

(e) TTC commissioners; and

(f) The Union.

(4) Mr. Garfield shall:

(a) work with TTC personnel planning the seminars specified in my order of June 30^th, 2005, including but not limited to the choice of speakers, the appropriate content of the seminars, and help ensure that the guards are educated with regard to microphone use and speaking voice;

(b) work with TTC personnel to encourage sufficiently frequent audits of the progress being made with regard to the announcing of subway stations clearly and consistently at each station; and

(c) report to me from time to time as frequently as the Monitor deems appropriate.

(5) The TTC shall pay reasonable fees and disbursements of the Monitor as invoiced by him to the TTC.