HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

[Indexed as: Arzem v. R. (Ontario)]

Ontario Human Rights Commission

Commission

-and-

Arzem, et al. "Group A"

-and-

Aslanboga, et al. "Group B"

-and-

Brooke, et al. "Group C"

-and-

Ciccone, et al. "Group D"

-and-

Athanasopoulos, et al. "Group E"

-and-

Burrows "Group F"

-and-

Cariou, et al. "Group G"

-and-

Martin "Group H"

-and-

McKee, et al. "Group I"

Complainants

-and-

Her Majesty the Queen in Right of Ontario

(as represented by the Minister of Community and Social Services, the Minister of Education, and the Minister of Children and Youth Services)

Respondents

INTERIM DECISION

Adjudicator: Patricia E. DeGuire

Date: June 23, 2006

HR-0844-04 to HR-0845-04 (Group C); HR-0870-04 to HR-0882-04 (Group D); HR-0921 to HR-0931-05 (Group E); HR-541-03; HR-0567-03 (Group F); HR-0966-05 to HR-0974-05 (Group G); HR-0987-05 (Group H); and HR-1038 to HR-1044-05 (Group I).

Citation: 2006 HRTO 17

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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

The Complainants * ) Ellie Venhola, counsel "Luke Burrows, et al." ) Norah Whitney,agent ) Sharon Ffolkes-Abrahams, counsel

Ontario Human Rights Commission ) Allyssa Case, counsel ) Margaret Flynn (Student-at-Law) ) Kerri Joffe (Co-op Law Student)

Her Majesty the Queen in Right of Ontario ) (as represented by the Minister of ) Community and Social Services, Minister ) Robin Basu, counsel of Education, and the Minister of Children ) Sarah Wright, counsel And Youth Services), Respondents ) Bruce Ellis, counsel ) Kris Crawford-Dickinson, ) (Student-at-Law)

• See Appendixes for the names of the Complainants, and for the identity of the Complainants who are represented by Ms Venhola.

INTRODUCTION

1The Complainants bring this motion seeking a specific declaration, among other remedies, that—for the purpose of these proceedings—the definition of "age" in subsection 10(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") infringes subsection 15(1) of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter" or the "Canadian Charter of Rights and Freedoms"), and that the limit on the right cannot be demonstrably justified in a free and democratic society as required by section 1 of the Charter.

BACKGROUND

2Between August 12, 2003 and December 15, 2005, the Ontario Human Rights Commission (the "Commission") has referred 245 cases to the Human Rights Tribunal of Ontario (the "Tribunal"). All Complainants are minors who are afflicted with Pervasive Developmental Disorders, which includes Autism Spectrum Disorder ("autism"), and Asperger's Disorder.

3The Commission and the Complainants allege that Her Majesty the Queen in Right of Ontario (as represented by the Minister of Community and Social Services; the Minister of Health and Long Term Care; the Minister of Education; and the Minister of Children and Youth Services), (the "Respondents" or "Ontario") has discriminated against them with respect to services because of disability (the "Complaints").

4On the consent of all the parties, the Tribunal issued an Order dated May 1, 2006, removing the Minister of Health and Long Term Care from these proceedings.

5In its May 11, 2006 decision, Arzem v. R. (Ontario), 2006 HRTO 12, the Tribunal added numerous school boards as parties to these proceedings. In addition, several bargaining agents were granted intervenor status, which is limited to making submissions on the issue of remedy only.

6Specifically, the Complainants allege that Ontario provides a public service known as Applied Behaviour Analysis ("ABA") or Intensive Behavioural Intervention ("IBI") to children between the ages of two and five, and five to six years through an Intensive Early Intervention Program ("IEIP"). Ontario terminates or refuses to provide the said service when they attain the age of six. The Complainants submit that such government action constitutes discrimination because of disability, which is contrary to sections 1 and 9 of the Code.

7Ontario contends that the content of the Complaints should be classified as discrimination because of age as opposed to or in addition to disability. Ontario's position is that the definition of age in the Code precludes the Complainants from bringing these claims to the Commission and thus, a referral to the Tribunal. Ontario states that subsection 10(1) of the Code defines age to mean an age that is 18 years or more, except in subsection 5(1) where age means an age that is 18 or more and less that 65 years. Ontario asserts that this legislative preclusion is a legitimate response to the reality of children's lives.

8In Arzem v. Ontario (Ministry of Community and Social Services) (No. 1), 2005 HRTO 11, at paras. 78-80; (2005), 52 C.H.R.R. D/170, the Tribunal concludes that "on the face of the record, it appears that all the Complainants in these cases face discrimination because of age as well as disability". Further, the Tribunal held that the "factual underpinnings about the ground[s] of age and disability are linked inextricably". Therefore, whether Ontario has infringed the Complainants' rights on the ground of age or disability or both, could be determined only in a hearing. It concluded that the scope of the hearing could be limited significantly and unnecessarily if the Tribunal were to try to separate the grounds and proceed on either disability or age alone.

9The Complainants say they would not be able to bring their Complaints based on age discrimination to the Tribunal, or to obtain a remedy if the definition of age under subsection 10(1) of the Code remains in effect. Therefore, they launched a constitutional challenge to subsection 10(1) on the ground that it violates subsection 15(1) of the Charter.

JURISDICTION TO DECIDE THE CONSTITUTIONAL QUESTION

10The Complainants aver that the Tribunal has jurisdiction to decide the Constitutional question. To support her position, Ms Venhola relies on Nova Scotia (Worker's Compensation Board) v. Martin; Nova Scotia (Worker's Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504; Dudnik v. York Condominium No. 216 (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd. Inq.) aff'd on other grounds (19911), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 (Ont. Div. Ct.); and Rule 70 of the Tribunal's Rules of Practice, July 2004. (See paras. 19 to 28 of Ms Venhola's factum). For the purpose of this motion, the Commission and Ontario concur in that proposition.

11Based on the case law, the Tribunal concludes that it has jurisdiction to determine the Constitutional question.

12There is no question that the Tribunal has explicit jurisdiction to decide questions of law. It is trite that the Code is fundamental law, which is quasi-constitutional in scope. And, like the Charter, it is the law of the ordinary people and must be recognised as such. (Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission) (Cooper), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70; and Martin, at para. 29, citing Cooper with approval.

13The guiding principles on the jurisdiction of administrative tribunals to consider the constitutional validity of a provision of their enabling statutes were enunciated by the Supreme Court of Canada in the trilogy: Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5; and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22.

14McLachlin J., as she then was, in her dissent in Cooper, succinctly states the general obligations of a tribunal when faced with a constitutional challenge in a case that is properly before it. It is apt to restate her comments at paras. 70 and 82:

In my view, every tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The fact that the question of law concerns the effect of the Charter does not change the matter. The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it. But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of its enabling statute unconstitutional. [Emphasis added]

The general obligation of tribunals empowered to decide questions of law to apply the Charter and render decisions reflecting the Charter is confirmed by the court structure dictated by the Constitution of Canada.

15In Martin, the Court unanimously upholds those guiding principles.

issues

The Constitutional Question

16The Complainants, the moving parties, pose the following questions:

1. Does the decision to exclude persons under age 18 years from the definition of "age" in subsection 10(1) of the Code, infringe or deny children the rights guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms?

2. If the answer to Question 1 is "yes", is the infringement or denial demonstrably justified as a reasonable limit pursuant to section 1 of the Canadian Charter of Rights and Freedoms?

disposition

17The motion is granted. The Tribunal's answer to the first question is yes. The answer to the second question is no.

Dispositive Analysis of Subsection 15(1) of the Charter

I. Does the definition of "age" in subsection 10(1) of the Code offend Subsection 15(1) of the Charter?

18Section 1 of the Code affords to "every person" in Ontario the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

19Section 9 states: "No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part."

20Subsection 10(1) defines age to mean "an age that is eighteen years or more, except in subsection 5(1) where "age" means an age that is eighteen years or more and less than sixty-five years".

21Subsection 15(1) of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [Emphasis added]

22The Commission and the Complainants argue that the definition of the word age in the Code draws a "formal distinction" between individuals under the age of 18 and those who are over the age of 18. They argue that the definition fails to take into account the disadvantaged position of children within Canadian society.

23The Complainants argue that in Ontario, children's inability to bring a complaint of discrimination because of age in any circumstance that is not restricted under criminal, quasi-criminal or otherwise primary legislation constitutes unlawful differential treatment. Further, the Commission argues that denying persons under age 18 protection against discrimination because of age robs them of a fundamental right.

24More particularly, the Commission submits that in Ontario, children under age 18 are denied protection against discrimination because of age. In the Commission's view, children will be treated equally only if they are allowed access to the human rights regime the same as adults. This difference in treatment, the Commission argues, denies them equal protection of the law and equal benefit under the law of Ontario.

II. Is Discrimination Made out in this Case?

25In determining whether discrimination has been made out in this case, the Tribunal considers the three central issues enunciated by Iacobucci J. in Law, at paras. 59 to 87. First, whether the law causes differential treatment. Second, whether the differential treatment constitutes discrimination substantively as intended by subsection 15(1). Third, whether the impugned law has a purpose or effect that is discriminatory within the scope of the equality guarantee.

26To determine whether a claim is indeed discriminatory, it must be determined whether there is a conflict between the purpose and effect of the impugned law and the purpose of subsection 15(1) of the Charter. That determination must be made through an analysis of the full context surrounding the claim and the complainant.

27To determine whether the purpose of subsection 15(1) is invoked in a complaint, it is critical to carry out a comparative analysis. That is because the equality guarantee is an abstract idea, which becomes existential only when differential treatment is identified as compared to one or more other persons or groups. The comparative analysis also considers the full context surrounding the claim and the complainant: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 55. Thus, in a subsection 15(1) enquiry, two analyses must be done: a comparative analysis, and a contextual analysis, where certain factors may be considered to determine whether subsection 15(1) has been infringed. The Tribunal will carry out these two analyses below.

A. The Appropriate or Relevant Comparator

28When selecting the appropriate comparator, one must begin by giving consideration to the view of the claimant: Law, at para. 58. The phenomenon about selecting the appropriate comparator is that one may cast the net broadly or narrowly. Not selecting the proper comparator may result in skewing the analysis or the enquiry or both, and that likely would lead to inaccurate results. Ordinarily, the claimant chooses the comparator. However, the Court has reserved the selecting of the proper comparator to the power of a court or tribunal to refine or modify the comparator selected by the complainant if it is inaccurate.

29The method of identifying the proper comparator has been stated by the Court in Law, at para. 58:

When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced: see Symes, supra, at p. 762. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted. [Emphasis added]

30In Arzem, 2005 HRTO 11, the Commission argued that the proper comparator was "non-autistic children, adults with mental disabilities and persons with physical disabilities". That identification, it argued, was based on Ontario's erroneous characterisation of the ground of discrimination as "age" and not disability. (See para. 43). At that time, the Tribunal concluded that identifying the proper comparator was best done during the hearing on the merits. It had commented that it appeared that the proper comparator was a non-disabled person with a lifetime physical or mental illness other than an autistic child. (See para. 73 and 75).

31The Tribunal is now asked to determine a constitutional question, and in this enquiry it must turn its mind to selecting the appropriate or relevant comparator. Further, at this juncture the ground of age is now properly before it.

32In this motion the Commission states that the proper comparator group is individuals over the age of 18. The characteristics of the claimants in this proceeding are: children with a mental disability. Thus, the Tribunal concludes that the proper comparator group is, adults without a mental disability, but may include adults with a physical disability.

B Contextual Factors

33There are two general contextual factors: (i) the appropriate perspective and (ii) general contextual factors. The latter include four sub-factors, namely: (a) pre-existing disadvantage; (b) the relationship between the ground and the claimant's characteristics or circumstances; (c) the ameliorative purpose or effect of the impugned provision; and (d) the nature of the interest affected.

B.1 The Appropriate Perspective

34Determining the appropriate comparator, and evaluating the contextual factors—which determines whether the legislation has the effect of demeaning the dignity of the Complainants—must be done from the Complainants' point of view. The determination about whether the Complainants' equality rights have been infringed must be considered objectively within the context of the impugned legislation and the systemic past and present treatment of the Complainants and of other persons or groups with similar characteristic or circumstances: Law, at para. 59).

35Essentially, the plain language of the definition of age under subsection 10(1) of the Code precludes children—persons under 18—from gaining access to justice in the human rights system because of age. The definition of age under the Code makes a distinction based on age, which is an enumerated ground of discrimination under subsection 15(1) of the Charter. The question that arises is whether this distinction is discriminatory under subsection 15(1)?

Proper Perspective Test

36By inference, simultaneously, a minor's views and developmental needs must be considered subjectively, and the purpose of the limitation on age in the Code and societal treatment of children, past and present, must be considered objectively.

37McLachlin C. J., writing for the majority in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76, and Law, at para. 53 states it this way:

The test is whether a reasonable person possessing the claimant's attributes and in the claimant's circumstances would conclude that the law marginalizes the claimant or treats her as less worthy on the basis of irrelevant characteristics: Law, supra. Applied to a child claimant, this test may well confront us with the fiction of the reasonable, fully apprised preschool-aged child. The best we can do is to adopt the perspective of the reasonable person acting on behalf of a child, who seriously considers and values the child's views and developmental needs. To say this, however, is not to minimize the subjective component; a court assessing an equality claim involving children must do its best to take into account the subjective viewpoint of the child, which will often include a sense of relative disempowerment and vulnerability.

38Thus, the question before the Tribunal is whether the Legislature's choice to exclude minors from gaining access to the human rights system in Ontario offends their human dignity and freedom by marginalizing them or treating them as less worthy without regard for their actual circumstances?

39In Law, the Court states that numerous factors ought to be considered when determining whether impugned legislation demeans the dignity of the complainant. But what is "human dignity"? The Court has acknowledged that human dignity cannot be defined exhaustively, but gives a blueprint of that concept for an analysis of subsection 15(1) of the Charter.

. . .There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C. J. in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances, which do not relate to individual needs, capacities, or merits. It is enhanced by laws, which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

40In Law, the Court earmarks four factors to be the most important ones to apply in a contextual analysis. Those factors are listed in paragraph 28 above. Below, each factor is discussed and applied separately to this case, seriatim.

B.2 Are the Four Contextual Factors Satisfied?

41Before addressing whether the Commission and the Complainants have met the Pre-existing Disadvantage factor, the Tribunal makes comments on the interpretative and applicable relationship between the Charter and human rights legislation. This is a direct commentary to Ontario's position that within the context of the Code, children, as a group, are not historically disadvantaged because they are not treated "equally" with adults. Therefore, the Court's conclusion in the Canadian Foundation case that children experience pre-existing disadvantage and vulnerability is not applicable in this case.

The Context of the Congruent Instruments: Charter and Human Rights Interpretation and Application

42Under the first of the four contextual factors, pre-existing disadvantage, Ontario puts forth the position that "in the context of the Code", children are not historically disadvantaged because they are not treated equally with adults. In other words, Ontario's position is, in the context of human rights, children are not historically disadvantaged in comparison to adults. That view is inconsistent with the Supreme Court's finding in Canadian Foundation, that as a group, children are "highly vulnerable" members of Canadian society: paras. 56 to 58. In that case, the Court considered and upheld the constitutional validity of section 43 of the Criminal Code of Canada, which permits the use of reasonable force by specified persons to discipline children. The relevance of this factor is profound.

43Ontario's position gives rise to the question whether human rights legislation ought to be reflective of Charter interpretation and application and vice versa. Invariably, the answer should be yes. The short answer is, both have a common noble philosophy and objective: the recognition and protection of the human dignity and worth of every person. The deviation that follows explains and supports this proposition.

44Quite broadly, Canada has a psychology of human rights, which have been codified into legislation as early as 1944. Human rights legislation, which pre-dates the patriation of the Constitution Act, 1982—including the Charter—is the expression of core philosophical preferences, in particular those that correlate with Canada's libertarian ideologies; describes the arrangement of the lives of its citizens; and orders public and private institutional schema to achieve a mode of being. Today, in each province or territory, human rights legislation enjoys a supreme position to other provincial statutes: e.g., subsection 47(1) of the Code. Although human rights legislation does not have to "mirror" the Charter's text, Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, critically, such legislation is subject to section 52 of the Constitution Act, 1982.

45The Canadian Constitutional texts, in particular the Charter, are the outcomes of representative processes and sensible, collaborative deliberations written by drafters, who were informed by the Canadian philosophy of human rights. The Constitution texts are the ordering of the Canadian polity: the definition of the arrangements of the essential powers of the executive, the legislature and the judiciary; and have authority over all governmental institutions.

46The Constitution Act, 1982, particularly the Charter, is the entrenchment and continuation of the philosophical ideals and the attendant protections of human rights, which have become integral to the fabric of Canada's societal norms. Human rights legislation extends these democratic ideals to the private sector. Thus, the participation to achieve that desired way of life becomes more multilateral and is given a greater audience.

47Human rights legislation and Constitutional texts are the united expressions of Canadian values. They answer the fundamental questions of who are included as members of a political community, and the type of rights, responsibilities and liberties to which people are entitled. Essentially, human rights texts and the Charter's text are the minimalist approach to the regulation of the collective interests of the majority, the concerns and interests of the disadvantaged or vulnerable, and the State's apportionment of its finite resources to implement those ideals. Therefore, by inference, human rights are entrenched in the Charter's text, and vice versa. The supremacy clause, section 52 of the Constitution Act, 1982, which declares all constitutions of Canada the supreme law, makes the Constitution and human rights legislation a body of fundamental laws.

48Indeed, unlike the Charter, human rights legislation provides defences. However, given the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employee's Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at para. 48 (Meiorin), those defences must be consistent with the principles of the Charter.

49By inference, the telling confirmation that human rights have been entrenched in the Charter, giving a united expression of Canadian values, was manifested in the Supreme Court of Canada's decision in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, paras. 35 to 39, the seminal case, which provides the basis of the interpretation of "discrimination" under section 15 of the Charter. In doing so, McIntyre J., who wrote the definition of discrimination for the entire Court, embraces concepts of discrimination from human rights jurisprudence, rather than looking to, e.g., the United States' jurisprudence, which had a long history of judicial rights-speak. The Court's definition of discrimination enunciated in Andrews has been the interpretative thread of section 15 since then, including the Court's expansive interpretation in Law. In addition, the courts have enunciated that the interpretation of human rights legislation must be consistent with the Charter, and that the interpretation of section 15 of the Charter should inform the interpretation of human rights legislation across Canada: Québec (Commission des droits de la personne & des droits de la jeunesse) c. Montreal (Ville), 2000 SCC 27, [2000] 1 R.C.S. 665; British Columbia (Public services employee relations Commission) v. BCGSEU 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3; and Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), [2000], O.J. No. 2689, (2000) 2 C.C.E.L. (3d) 19 (Ont. C.A.).

50Since writing the above, the Tribunal notes the Ontario Divisional Court's conclusion on a similar question posed by the parties in Ontario Secondary Teachers' Federation v. Upper Canada District School Board et al. (2006), 2005 CanLII 34365 (ON SCDC), 78 O.R. 194. At issue in that case was whether the arbitration board had erred in applying the Law analysis in the interpretation of the Code. In other words, whether the approach to discrimination ought to be the same under the Code and the Charter. Writing for the panel, Swinton J. states:

There has long been [sic] a cross-fertilization between human rights legislation and s. 15 of the Charter. In [Andrews], the first major case interpreting s. 15 of the Charter, the Supreme Court of Canada looked to human rights code jurisprudence to assist it in determining the meaning of "discrimination" (at pp. 174-75 S.C.R. . . .). McIntyre J., writing for the majority on this issue, was well aware that the Charter and the codes were differently structured, as the codes contain specific defences (at p. 175 S.C.R. . . .). Nevertheless, he found helpful the concepts of discrimination, which had developed to date under the codes. [Para. 26]

Since Andrews, the concept of equality and discrimination in human rights codes has reflected the developing equality jurisprudence under the Charter . . .. It is also noted that both s. 15 and the codes pursue the same objective—namely, the protection of human dignity . . .. Indeed the preamble to the Ontario codes states, in part . . .. [Para. 27]

In my view, the arbitration board in this case did not err in applying the analysis used in Law. [Para. 28]

51These are compelling reasons why the interpretation and application of the Charter and human rights legislation ought to be the same. Against that backdrop, the Tribunal returns to determine whether the Commission and the Complainant have met the first of the four contextual factors.

(a) Pre-existing Disadvantage

52The Tribunal concludes that the Complainants have met this factor.

53As Iacobucci J. observes in Law, the Supreme Court of Canada's jurisprudence is replete with cases in which it recognises that the most compelling factor, which supports a conclusion that differential treatment imposed by legislation is discriminatory, is where the individual or group sustains or experienced pre-existing disadvantage, vulnerability, stereotyping or prejudice: para. 63. In Canadian Foundation case McLachlin C. J. held that, as a group, children are "highly vulnerable" members of Canadian society: paras. 56 to 58. The Tribunal relies on those decisions to support its conclusion at paragraph 52 above.

54As noted in paragraph 42 above, Ontario submits that in the context of the Code, an instrument that regulates employment, services and accommodation, children are not historically disadvantaged because they are not treated equally with adults. Based on the congruency of Charter and human rights legislation, the Tribunal is unable to accept this argument.

55Ontario argues that international legal instruments, e.g., the United Nations Convention on the Rights of the Child (1959) demands "special protection measures" regarding children, including protection against labour. Ontario thus surmises that the Code carves out an age distinction for children so that the Legislature may deal with children more appropriately through other legislative means.

56By recognising that there is an age distinction, and that that distinction was "carved" out to give children special protection, implicitly, Ontario acknowledges that in the context of human rights, children, as a group, have pre-existing disadvantages and are vulnerable, that is why they are "entitled to special care and assistance". More specifically, the enactment of legislation for children, to use the parties' examples, about free education at the public's expense; the imposition of age limits when children can cease to attend school full time, or to work; the benefits of a wide variety of low cost programmes; the perceived advantages in health care over adults; and others, are all means of special protection put into place because society recognises, as far back as the Industrial Revolution or the days of Dickens' Oliver Twist—albeit a fictitious tale—that children are inherently disadvantaged and vulnerable. Furthermore, recognising the United Nations Convention on the Rights of the Child (1959), an instrument embraced in Canada's domestic laws (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 71) Ontario not only acknowledges, but also demonstrates that children, as a class, have pre-existing disadvantages and are vulnerable within the context of human rights.

57Arguably, when any tribunal considers the "best interests of the child", that is done against the backdrop and context of human rights or constitutional rights, or both, regardless of the specific statute that is being considered. Implicitly, the Supreme Court of Canada took that approach in the Canadian Foundation case, in determining the constitutionality of section 43 of the Criminal Code of Canada, when it concluded that children, as a group, experience pre-existing disadvantages and are vulnerable. The fact that the Court was dealing with corporal punishment of children does not negate McLachlin C. J.'s conclusion that children, as a group, are "highly vulnerable". Writing for the majority, at para. 58 McLachlin C. J.'s concludes:

Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical needs of all children for a safe environment. Yet, this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

58It is reasonable to conclude that to make the right to be free from discrimination because of age meaningful to children, there might be an obligation on the government to provide protection for children under the Code as well as the Charter. Indeed, neither the Code nor the Charter expressly imposes a positive obligation on the Legislature or the Parliament to facilitate the exercise of fundamental rights or freedoms. Ordinarily, neither is obliged to do so.

59To understand this difference from the ordinary, one must give nuance to the obligation of the State—which includes the Executive, Legislature, and the Judiciary—and consider this in the context of its role to act in the best interests of children, in the sense that, for example, in employment and gaining access to the human rights system, excluding children from the protective regime of the Code because of age—the single most factor that contributes to their vulnerability—markedly contributes to the violation of their protected rights.

60Historically, and by legislative action, the State has assumed the role of parens patriǽ, i.e., sovereign and guardian of a person under legal disability, which includes children: Arzem, 2005 HRTO 11, at para. 226, relying on E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, pp. 425-426. To that end, the State has enacted legislation to protect the best interests of children, as extended under the scope of wardship. The situations under which the parens patriǽ jurisdiction can be exercised are legion. Two significant example are: (a) The State assuming the jurisdiction to apprehend children from their birth or adoptive parents if the children are deemed to be in need of protection; and (b) the parens patriǽ jurisdiction, an inherent power of superior courts, which is a carefully guarded one, used to appoint guardians ad litem, among other uses, to protect the best interests of children in gaining access to justice.

61It is evincible from history, that when government fails to protect children, they are exposed to and become the victims of unfair treatment. Simply put, the State has a duty to take care of those who cannot take care of themselves in the area of education, health, property, religion, to name a few.

62The Law analysis requires the Tribunal to consider whether the blanket exclusion of persons under age 18 from gaining access to the human rights system because of age, corresponds to the needs of the child. Indeed, there is nothing wrong with using age as a proxy for maturity and self-control. Using employment as an example, there is something fundamentally wrong with allowing children, as young as age 14, to become employees, while failing to provide protection for them under the quasi-constitutional instrument of the province. That failure to provide such protection to children is particularly odd, since implicitly, the Legislature recognises that there is a civic imperative to provide adults with a safe workplace. Thus, it has enacted minimum standards to create a safe work-environment for adults under the Code, the Labour Relations Act 1995, S.O. 1995, c. 1, the Employment Standards Act, 2000, S. O. 2000, c. 41, and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA") and its regulations, to name a few. Thus, it is reasonable to conclude that having granted children the right to be employed, providing protection for children under the Code is a critical need for a safe working environment.

63Notably, by the Education Act, and OHSA children are allowed to work, indeed subject to specific qualifications. Significantly, children ages 14 and 15 may be employed full-time or part-time at an approved work station for a pre-determined period of time, subject to restrictions, under the Supervised Alternative Learning for Excused Pupils ("SALEP") regulation of the Education Act. (See sections 21 and 30 of the Education Act and Reg. 308). Subject to specific restrictions, OHSA allows children age 16 and over to work in mines and mining plants (R.R.O. 1990, Reg. 854, subsection. 8(1); to work in logging operations (R.R.O. 1990, Reg. 851, s. 4); to work in construction (Ibid, s. 16), and children over age 16, subject to qualifications, may work as apprentices. Other than those restrictions imposed under SALEP, currently there are no minimum age requirements for health care establishments, libraries, museums, golf courses or schools.

64In those circumstances where children are allowed to work, they may be exposed to the direction of unscrupulous or badly informed employers. Should such an employer direct a child to perform duties, which are contrary to any of those statutes, and then terminate the child because he or she refused to do the said acts by reason that the child believes he or she is too young to do so, that child would have no recourse under the Code. The disadvantage or vulnerability is amplified even more if the child has removed herself or himself from parental protection and thus, has assumed financial responsibilities for himself or herself. Thus, the Tribunal concludes that because of age, children are not shielded from psychological and physical harm in the workplace. There are critical needs to create a safe work-environment to which government has not responded, but such protection has been provided to adults. As counsel for the Commission points out, in Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, the Court concluded that the Code sets out the enforcement procedures, and thus forecloses any civil action based directly upon a breach of the Code and any common law action based on an invocation of the policy the Code expresses. The vexing result is that such a child would have no civil recourse.

65Ontario admits that "invidious, wrongful and harmful discrimination exists in employment and the provision of goods and services". At paragraph 7 of its factum Ontario argues: "In enacting anti-discrimination instruments applicable to the private sector, the [L]egislatures have targeted clearly invidious, wrongful and harmful discrimination in employment and the provision of goods and services, such as discrimination based on race, religion, sex, and sexual orientation." Such discrimination, it argues, "is generally [i.e., except in limited cases, such as, e.g., distinctions based on religion made by churches or distinctions based on national origin made by certain social clubs] wrong per se and is generally deserving of condemnation and redress."

66It is odd that Ontario argues that the same cannot be said regarding differential treatment of children despite the fact that some children are allowed by law to work. Ontario's justification appears to be that "the differential treatment of children in accordance with their age simply cannot be regarded as generally wrong, per se, or deserving of a general prohibition". Ontario submits that in private and public spheres such differential treatment is pervasive, widely accepted and "in nearly all cases legitimate and justified". (Paragraph 8 of Ontario's factum).

67Absent from Ontario's rationalisation is an appreciation that children who are allowed to work are more vulnerable to experience these clearly invidious, wrongful and harmful discriminations in employment, and in the provision of goods and services. It fails to justify why children are not deserving of protection under the Code from such discriminatory practices while adults are protected. The Tribunal is not convinced that the differential treatment or the limit on children's access to justice under the Code prevents the violation of the dignity and freedom of children.

68Ontario submits that it is apparent from the legislative history that the rationale for imposing an age limit in the Code is to preserve the multitude of statutory and private sector regimes, which are structured around age. Absent such limitation, Ontario argues, the private and public sectors would face barriers in offering programmes and services that are developmentally appropriate for children. Ontario further submits that the status of majority and private law principles, which depend on that regime, would be put into question. For example, Ontario argues, the right to be issued a marriage licence, to conduct legal proceedings without a next friend, and to purchase ammunitions, would likely be held to be rights to equal enjoyment of services and facilities that could not be denied a child because of age. In addition, Ontario adds, private sector actors would not know whether they could refuse to contract with minors and the legal ramifications if they did so. Ontario presents no evidence to the Tribunal to buttress those submissions.

69The Tribunal agrees with Ontario that historically, age is an appropriate proxy in determining developmentally proper programmes and services for children. However, using chronological age as a proxy to derive a benefit from some goods and services might be superfluous. In fact, using age as a proxy to determine access to some services might be a barrier instead of providing protection for children as a group. One should be mindful always that the Code ought to be interpreted liberally, consistent with its legislative philosophy and objectives. It should be interpreted and applied to enhance rights, not to limit or take away rights.

70As Ontario points out, age, as a ground of discrimination, was first added to the Code in 1972—some 10 years after the enactment of the Code—to protect 40-year old adults from age discrimination in employment. Conversely, some examples Ontario uses as statutory limitations enacted for the benefit of children were laws in some form—common law or statute law or both—well before the enactment of the Code. By Ontario's submission, adding age to the Code was not motivated by any desire to protect the best interests of children, but rather, to preserve adults employment. There is no evidence before the Tribunal that the people who were replacing middle-aged workers were persons under age 18. Nevertheless, protecting 40-year old workers from age discrimination in employment does not preclude the protection of children under the Code against age discrimination. Ontario has not presented any evidence that the ground of age, which was added to the Code in 1972, was added to preserve or protect a benefit of children, as a group, then or now, in the private or broader public sector services.

71Ontario submits that it is apparent from the legislative history that the reason for the age 18 threshold as a prohibited ground is to preserve the multitude of statutory and private sector regimes, which are structured around age. Specifically, Ontario submits that in enacting Bill 7, An Act to Revise and Extend Protection of Human Rights in Ontario 1981, the Ontario Legislature refused to lower the age limit to age 16 for children who had withdrawn from parental control and were financially independent. The Minister had stated: "I do not want to get into the moral debate about whether it should be 16, 17 or whatever. But it is a fact of life today that 18 is a contractual age when you become responsible for your actions. . . I just think that we would be going a little too far interfering with a lot of existing legislation, a lot of common law traditions and a lot of things that are built into society's function, if we were to move the age 18." [Ontario's factum, at para. 42]

72With respect, the Hon. Robert Elgie's reason for refusing to amend the majority age to 16 or 17 is not supported by any factual underpinning. Whether to provide human rights protection is a matter of law; it is not a moral imperative. Besides, that comment was made in 1981, and does not seem to reflect the Bhadauria decision, which had been decided in that year by the Supreme Court of Canada making the human rights system the only place to seek redress for discriminatory acts. Moreover, the comment was made before the patriation of the Constitution Act, 1982, and the Charter. Ontario has not provided any evidence to support its submissions. This is not to say that Ontario bears the onus in the subsection 15(1) enquiry. Simply put, Ontario's position is untenable; it cannot be supported by the legislative history it presents to the Tribunal.

73Another argument Ontario presents is that the Legislature chose to retain age 18 as the age of majority, but amended the Code to address situations where 16 and 17 year olds were no longer under their parents' protection, and thus had to assume financial responsibility for themselves: subsection 4(1). Such children, Ontario argues, were often denied accommodation in the private market and had no recourse under the Code. Further, Ontario argues that easily, one can name numerous private enterprises with "perfectly legitimate reasons for limiting or regulating the goods and services they might offer to children depending on their age". It is noted that in allowing certain minors to enter into contracts for accommodation, the Legislature hastened to protect private enterprise by making said minors legally responsible for contracts of accommodation entered into by them: subsection 4(2).

74It cannot be said with any conviction that at age 16 or 17, where a child has removed herself or himself from parental responsibility and must seek a livelihood to support herself or himself financially, the risk of harm is minimal or that he or she stands in a more advantaged position because of their youth. As noted above, such a child is highly vulnerable to discrimination and needs the protection of the Code with respect to employment. The Code as it is now does not recognise that children are highly vulnerable to discrimination with respect to employment and that children need protection, and thus, extend such protection to them.

75As Iacobucci J. states in Law, at para. 104, it is open to the Legislature to use age as a proxy for long-term needs where legislation does not demean the dignity of those it excludes in either its purpose or its effect. For these Complainants, the age restriction does not provide a need or protection; it facilitates the perpetuation of being devalued, which has dire long-term negative effects. Giving children statutory permission to work, for example, and yet failing to provide protection to them on the very characteristic which renders them vulnerable is destructive of dignity and worth from anyone's perspective, including the fictitious reasonable person who seriously considers and values the child's views and developmental needs.

76Indeed, the determination of whether the impugned legislative provision violates a claimant's dignity must be considered in the full context of the claim: Law, at para. 105. At this juncture, having not heard all the evidence, the Tribunal does not know the full context of the claim. However, by the evidence before the Tribunal to date, these Complainants are markedly disadvantaged because of their tender age and a debilitating disability: an incurable mental illness. They seek to challenge the very legislation, the supreme law of Ontario, which has as its noble purpose, the recognition of the "inherent dignity and worth of every person in Ontario, and to provide them with equal rights and opportunities without discrimination that is contrary to law". The definition of age in subsection 10(1) of the Code in purpose and effect, withholds that protection from children as a class, which not only demeans these Complainants, but also reinforces or perpetuates the stereotype that they are not equally capable and equally deserving of concern, consideration, and respect.

77These Complainants are doubly vulnerable: they are very young minors with a mental disability. On each ground separately, they are already subject to unfair circumstances or treatment in society. The Tribunal takes judicial notice that as a group, the mentally ill are highly vulnerable, and have experienced pre-existing disadvantages, stereotyping and general social prejudice. For centuries, the mentally ill have been systematically isolated and segregated from main stream society, devalued, ridiculed, and excluded from participation in ordinary social and political processes (R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 974); and endured non-therapeutic sterilization (Re Eve.) The intersection of the Complainants' age and mental disability make them markedly more vulnerable. Thus, precluding them from gaining access to the human rights system will no doubt contribute to the perpetuation or promotion of their unfair social characterisation and will have a more severe impact upon them, since they are already vulnerable: Law, at para. 63.

(b) The Corresponding Factor or the Relatedness between the Ground and the Complainants' Characteristics or Circumstances

78In applying this factor, the Tribunal considers whether the impugned legislative provision corresponds to the actual needs and circumstances of children: Canadian Foundation, at para. 56. Where the law properly accommodates the claimant's needs, capacities and circumstances, generally it will not offend subsection 15(1) of the Charter: Law, at para. 70; Canadian Foundation, at para. 57. On the other hand, if the law imposes restrictions or denies benefits because of presumed or unjust attributed characteristics, it denies essential human worth, and is thus discriminatory: Canadian Foundation, at para. 57, citing Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 37.

79The Commission and the Complainants argue that the overall effect of the definition of age in subsection 10(1) of the Code is a blanket denial of children's ability to make complaints because of age discrimination. They argue that there is no correspondence between a blanket denial of the protection against age discrimination and a child's vulnerability and need for protection. Further, they claim that only a limited relationship exists, for example, between the minimum drinking age, compulsory school age, and the age definition and the actual needs and capacities of children. There is no evidence before the Tribunal to support the latter argument.

80The Complainants argue that the Legislature has failed to keep current with the principles of the Charter and other jurisdictions in enacting legislation to protect the rights of children. They aver that children may experience discrimination because of age in the provision of or access to public services, e.g., education or health as is alleged in these Complaints. As members of the work force, children may be denied, arbitrarily, opportunities to participate in the community or to reach their full potential simply because they are perceived to be too young. Nonetheless, they argue, children are barred from seeking justice in the human rights system because of age under sections 1, 2, 3, 6, and subsection 5(1) of the Code. That is the result of the definition of age under subsection 10(1). Conversely, once a person reaches age 18, such claims can be brought. Ontario contends that the Code's definition of age allows government and the private sector to use age as a proxy to regulate and safeguard children's development.

81The problem with Ontario's argument is that it presupposes that the Legislature has the capacity to envisage every eventuality when drafting legislation. Nothing is farther from the truth. The very existence of the blunt constitutional and quasi-constitutional instruments which apply to government contradict that notion. The Tribunal agrees with Ontario's major proposition that it is appropriate to have legal differentiation of children at different ages, to do otherwise would deny that there are fundamental differences in the psychological capabilities among children at different ages. The obvious difficulty with Ontario's argument is that it undermines the very major premise on which Ontario asserts its case. The definition of age in the Code refutes that proposition. By the definition of age in the Code, all children, from birth to 17 years and 364 days—regardless of their "psychological capabilities", whether they are under parental control, financially self-supporting, or gainfully employed—are denied access to the human rights justice system under sections 1, 2, 3, 6, and subsection 5(1) because of age. In some circuitous way—under some substratum akin to age-protection, like "family status"—they may try to achieve protection under the Code where the pith and substance of their complaint is age discrimination.

82That children are in need of protection in many areas of life is a concept the Commission argues it recognises. It submits that compared to adults, children are less able to make informed decisions in many cases and the Legislature should be able to set specific age limits to protect them. Nonetheless, argues the Commission, denying children protection in a blanket fashion against age discrimination under the Code promotes the view that they are less capable, less worthy of recognition, less valuable as human beings in our society and are not equally deserving of concern, consideration, and respect. Moreover, the Commission argues, there is no link between a blanket denial of protection against age discrimination, and a child's vulnerability and need for protection. The Tribunal agrees that there is a marked disconnection. However, the Tribunal cannot accept its submission that the Legislative protection such as minimum drinking or a compulsory school age, demonstrates a limited relationship between the age definition and the actual needs and capacities of children. Neither the Commission nor the Complainants have adduced any evidence to support that latter assertion.

83Ontario argues that age 18 selection coheres with widespread organising of principles and benefits to the public, such as age of majority principles, contractual principles, the economic structure of families and the principle of child development. Ontario submits that the Legislature recognises that in many areas, developmentally appropriate distinctions are beneficial and desirable for those below the age of majority. Thus, it has selected age 18 on which age discrimination claims can be made in respect of private and public acts or omissions. Ontario submits that when it was established[1] that people younger than 40 were suffering discrimination in housing and employment, the definition was extended to include individuals over age 18 and less than 65. Except for qualification in section 4—which is not being challenged in this motion—the definition that existed in 1977 is the same in the current version of the Code.

[84] The Tribunal is not convinced that selecting age 18 as the age of majority coheres with the beneficent purpose of allowing children, in particular these Complainants, to gain access to the human rights system. Nor is the Tribunal convinced that the widespread organising of principles and benefits to the public, such as age of majority principles, contractual principles, the economic structure of families and the principle of child development, correspond with the needs of these Complainants. The mere fact that the Legislature, to some degree, has taken into account the actual situation of children or that the Code has a beneficent purpose is not enough to defeat a claim made under subsection 15(1). (Law, para. 70; McLachlin C. J. (for the majority) in Gosselin, at para. 27). The focus must remain subjectively on the question of whether the treatment imposed by the impugned legislation has the effect of violating human dignity. The Legislature's failure to take into consideration the actual needs of these Complainants infringes these Complainants' human dignity.

85The second problem with Ontario's argument is that it ignores the objective of the Code as expressed in the Preamble: to protect the dignity of all Ontarians, including children. Clearly, the objective is not to foster the economic and social relations of the private or public sector. That is clear from the plain language of section 26 of the Code. It cannot be said with any conviction that the Legislature has addressed the needs of children's safety and security in an age-appropriate manner, when for example, it grants permission to children to be employed, and yet precludes all children from making a claim under the human rights system because of age: the very factor that makes them disadvantaged and vulnerable.

86The Tribunal is convinced that a reasonable person acting on behalf of a child, who appreciates the purpose and effect of the impugned provision, and being aware that the human rights system is the forum in Ontario where ordinary people can seek determination of discrimination allegations and particularly, considering the vulnerability and disempowerment of these Complainants, would conclude that the impugned provision, in purpose and effect, marginalizes the Complainants and treats them as less worthy on the basis of an irrelevant characteristic.

87The Tribunal finds that the Complainants have satisfied the second factor.

(c) Ameliorative Purpose or Effect

88The Tribunal is satisfied that the purpose or effect of the Code, as a quasi-constitutional instrument, is ameliorative for all the people of Ontario, including these Complainants. Also, the Tribunal is satisfied that at the time of the amendment, the restrictive definition had an ameliorative purpose. The obvious objection is that it interferes with the benefits of children. Thus, following Iacobucci J.'s guidelines in Law, at para. 72, the Tribunal concludes that it is not necessary to engage in an analytic enquiry into this factor. The Tribunal is mindful that even when legislation has an ameliorative purpose, it still may not escape the charge of discrimination: Ibid.

(d) The Nature of the Interest Affected

89In this case, the Complainants argue, children are denied access to justice because of age. As a result, they are precluded from filing a complaint to the Commission. That restricts children's access to the Tribunal, which is a fundamental socially desirable legal institution. Access to justice, they submit, is an aspect of full membership in Canadian society. The Complainants argue that the purpose of the Code is to protect the rights of everyone in Ontario. Yet, the primary purpose of the restrictive definition of age in the Code is to exclude children from the protection of rights which are available to adults. An effect of the impugned provision accentuates the rights of adults to the detriment of children. Both are inconsistent with the general purpose of the Code. The Complainants submit, citing Vriend to support their proposition, that the principle of subsection 15(1) of the Charter is that discrimination arises from under-inclusive legislation.

90The Tribunal accepts the Complainants' submission. As Iacobucci J., states in Law, at para. 72 (citing Cory J. in Vriend, at paras. 94 -104), even under-inclusive ameliorative legislation, which excludes from its scope members of a historically disadvantaged group, will rarely escape the charge of discrimination.

91The nature of the interest affected by the Code's definition of age is apparent from its Preamble, which states pithily the legislative objective and philosophy underlying the Code.

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario. . .

92Of significance, is that implicitly, the philosophy and purpose of the Code "is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations". Of relevance is Article 2 of the UDHR, which states: "Everyone is entitled to all rights and freedoms set forth in this Declaration without distinction of any kind."

93The Universal Declaration of the Rights of the Child (1959) lends greater certainty that "everyone" includes children, and that children are so vulnerable and disempowered, that even in light of the UDHR, there was a need to create a specific instrument to protect them.

94The nature and extent of the interest affected is understood more fully when one appreciates the human rights enforcement procedure. As noted above, in Bhadauria, the Supreme Court of Canada delineates the enforcement mechanism for making a claim for discrimination. The Court concluded that the human rights scheme was the exclusive jurisdiction to do so. As noted above, the effect of that ruling forecloses any civil action with respect to an allegation of conduct, which was based on any enumerated ground in the Code. That was the state of affairs until 1995 when the Legislature enacted provisions, which conferred authority on the Ontario Labour Relations Board and boards of arbitration to determine the human rights component of a matter that was properly before it. In addition, courts have determined that it is proper for tribunals to deal with the human rights aspect of a matter properly before them. Nonetheless, everyone is still barred from bringing a human rights matter in a civil court. Thus, as the Commission argues, the impugned provision not only makes it impossible for children to gain access to the human rights system to make a claim of discrimination, but also affects the fundamental right of children, which deviates from the principles enunciated in the Preamble. The Commission argues forcefully that this results in a "severe and complete denial of access to justice to the human rights system for children in Ontario who face age discrimination". Moreover, only if the government is the alleged actor can children seek redress in civil courts by invoking the Charter, which is very costly. The Tribunal agrees.

95Gonthier J.'s observation in Martin, at para. 29 with respect to accessibility concerns is apt:

From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts: see Douglas College, supra, at pp. 603-4. In La Forest J.'s words, "there cannot be a Constitution for arbitrators and another for the courts" (Douglas College, supra, at p. 597). This accessibility concern is particularly pressing given that many administrative tribunals have exclusive initial jurisdiction over disputes relating to their enabling legislation, so that forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of proceedings. [Emphasis added]

96The exclusionary definition of age under the Code does not prevent the violation of the essential human dignity interests of children. It does not protect children from discrimination. It prevents them from gaining access to redress, and that imposes a further disadvantage and perpetuates economic, political and social prejudice.

97Ontario submits that it is not necessary for human rights codes to "mirror" the Charter to be constitutionally valid. It cites McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, to support that submission. Further, it argues, although section 52 of the Constitution Act, 1982 requires that human rights legislation, like all legislation in Canada, conforms to its requirement, section 32 of the Charter is clear, it applies to government action or omission only. By contrast, says Ontario, the Code applies to private and public conduct. The Constitution has left the task of "defining human rights protection offered in the private sector to the Legislative branch".

98Without engaging in a full analysis of the "notion of mirroring", the apparent difficulty with Ontario's submission is that it ignores that the ground under question, age under the Code, is also an enumerated ground under the Charter. The notion of mirroring therefore is not applicable in this case.

99Having made that conclusion, one must be mindful of the notion of mirroring and Cory J.'s comments so that it is not used as no more than a mere simplistic approach or a mere riot of thoughts. By inference, Cory J. was cautioning an applicant, as well as a respondent, not to rely on such an argument, without more. At para. 106 he states:

It is true that if the appellants' position is accepted, the result might be that the omission of one of the enumerated or analogous grounds from key provisions in comprehensive human rights legislation would always be vulnerable to constitutional challenge. It is not necessary to deal with the question since it is simply not true that human rights legislation will be forced to "mirror" the Charter in all cases. By virtue of s. 52 of the Constitution Act, 1982, the Charter is part of the "supreme law of Canada", and so, human rights legislation, like all other legislation in Canada, must conform to its requirements. However, the notion of "mirroring" is too simplistic. Whether an omission is unconstitutional must be assessed in each case, taking into account the nature of the exclusion, the type of legislation, and the context in which it was enacted. The determination of whether a particular exclusion complies with s. 15 of the Charter would not be made through the mechanical application of any "mirroring" principle, but rather, as in all other cases, by determining whether the exclusion was proven to be discriminatory in its specific context and whether the discrimination could be justified under s. 1. If a provincial legislature chooses to take legislative measures which do not include all of the enumerated and analogous grounds of the Charter, deference may be shown to this choice, so long as the tests for justification under s. 1, including rational connection, are satisfied. [Emphasis added]

100The Court's approach in Vriend no doubt is different from its approach in McKinney. It can be inferred from the quote above, that more than likely, a deliberate omission of a Charter enumerated ground from a human rights code will attract Charter scrutiny and be found to be discriminatory. It is challenging to envision a case that is not discriminatory where there is a deliberate omission of a ground from human rights codes that is an enumerated in the Charter.

101Second, there is the troubling inference from Ontario's argument that since the Legislature has deliberately omitted the protection of children from discrimination on the ground of age from the Code, the Legislature's action is or should be immune from Charter scrutiny. It is immune because it was acting within its scope to define the human rights protection, which should be offered in the private sector. Third, another inference drawn from Ontario's argument is that because human rights legislation is enacted to govern private sector action, it falls outside the scope of government action to satisfy section 32 of the Charter. It is apparent that Ontario ignores the fact that what is under scrutiny here is government action—its enactment of the definition of age under Code, which precludes children because of age—not private sector action.

102The purpose and effect of the definition of age in the Code, brings the Code within the realm of under-inclusive legislation. As the Court established in Vriend, under-inclusive legislation is an act of the Legislature. It is trite that when government acts, it must not do so in a discriminatory way. In this case, there is no doubt that the Legislature deliberately precluded every person under age 18 less a day from the protection of discrimination because of age by the restrictive definition of age. Surely, the Charter leaves the task of regulating and advancing the cause of human rights in the private sector to the Legislature: McKinney, at p. 318. Yet, in Vriend—a case, which challenged the Individual's Right Protection Amendment Act, 1996, S. A., 1996, c.25—where the Court considered McKinney at length, the majority refused to give any deference to the Legislature's choice. The words of Cory J., writing for the majority in Vriend, at paras. 61, 62, and 65 are apt:

The IRPA is being challenged as unconstitutional because of its failure to protect Charter rights, that is to say its under-inclusiveness. The mere fact that the challenged aspect of the Act is its under-inclusiveness should not necessarily render the Charter inapplicable. If an omission were not subject to the Charter, under-inclusive legislation which was worded in such a way as to simply omit one class rather than to explicitly exclude it would be immune from Charter challenge. If this position [were] accepted, the form, rather than the substance, of the legislation would determine whether it was open to challenge. This result would be illogical and more importantly unfair. Therefore, where, as here, the challenge concerns an Act of the legislature that is underinclusive as a result of an omission, s. 32 should not be interpreted as precluding the application of the Charter.

It might also be possible to say in this case that the deliberate decision to omit sexual orientation from the provisions of the IRPA is an "act" of the Legislature to which the Charter should apply. This argument is strengthened and given a sense of urgency by the considered and specific positive actions taken by the government to ensure that those discriminated against on the grounds of sexual orientation were excluded from the protective procedures of the Human Rights Commission. However, it is not necessary to rely on this position in order to find that the Charter is applicable.

The respondents further argue that the effect of applying the Charter to the IRPA would be to regulate private activity. Since it has been held that the Charter does not apply to private activity (RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530, McKinney, supra), it is said that the application of the Charter in this case would not be appropriate. This argument cannot be accepted. The application of the Charter to the IRPA does not amount to applying it to private activity. It is true that the IRPA itself targets private activity and as a result will have an "effect" upon that activity. Yet it does not follow that this indirect effect should remove the IRPA from the purview of the Charter. It would lead to an unacceptable result if any legislation that regulated private activity would for that reason alone be immune from Charter scrutiny.

Conclusion on Section 15 Analysis

103In summary, subject to specific qualification, in Ontario the Code has primacy over other statutes. It is a quasi-constitutional text which objective is to provide comprehensive protection from discrimination for every person in Ontario: Preamble of the Code. The Legislature deliberately excluded children, that is, persons under age 18, from the protection of age-discrimination under the human rights scheme. The Tribunal is satisfied that a reasonable person, who is fully apprised of the purpose of the Code, acting on behalf of these Complainants, seriously considering and valuing their developmental needs and points of view, would conclude that the under-inclusion of children in the Code based on age perpetuates or promotes the view that children are less capable or less worthy of respect and recognition as members of the Canadian society. That effect is exacerbated by the fact that children have no civil remedy for age-discrimination unless the alleged violator is government. In that situation, they must resort to a Charter challenge, the cost of which likely would be far more prohibitive than seeking redress under the Code.

104In its under-inclusive state, the Code creates an intentional distinction based on age of persons under 18. That results in the imposition of burdens, obligations or disadvantages on these Complainants, which it does not impose on persons over age 18. As such, these Complainants are denied access to the human rights system, which is available to every other person in Ontario. Thus, it is clear that, in its present state, the Code denies these Complainants equality before and under the law, and the equal protection and benefit of the law because of age, which is an enumerated ground in section 15 of the Charter.

105That is sufficient for the Tribunal to conclude that there is discrimination, and thus, the definition of age in subsection 10(1) of the Code violates subsection 15 (1) of the Charter. The serious discriminatory effects of the exclusion of protection from age-discrimination for children alone reinforce this conclusion.

106Having concluded that the definition of age under the Code, which precludes children alone from gaining access to justice under sections 1, 2, 3, 6 and subsection 5(1), violates the Complainants' equality rights, the Tribunal turns to determine whether such violation can be justified under section 1 of the Charter.

Section 1 analysis

107The rights and freedoms guarantees set out in the Charter are subject to an override if the State can establish that the limits are imposed by law, and that those law-imposed limits can be reasonably justified in a free and democratic society. The government always bears the onus to show, on the balance of probabilities, that the limit is reasonably justifiable. The Code and the impugned subsection 10(1) are statutory provisions. Thus, the limits are imposed by law.

108Section 1 of the Charter is reproduced below, verbatim.

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

109The analytic framework for determining whether a limit is reasonable to curtail a Charter right or freedom, is enunciated in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, the seminal case, and has been the consistent analytic approach, albeit of varying rigidity, in subsequent cases, e.g., Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, at para. 182; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 84; and Vriend, at para. 108.

110A limit on a Charter right will be sustained only if the government can meet two conditions. First, that the legislative goal is "pressing and substantial"; second, that the limit imposed to achieve the legislative objective is reasonable and can be justified based on the values held in a free and democratic society. The second condition has three parts, and the government must meet all of them to succeed: (i) there must be a rational connection to the right violated and the aim of the legislation; (ii) the impugned provision must impair the right as little as possible; and (iii) the effect of the measure compared with its objective must be proportionate so that to achieve the legislative goal cannot be more important than the infringement of the right. Below, the Tribunal deals with each one separately.

1. Pressing and Substantial Objective

111The Tribunal is required to determine whether the objective of the impugned provision is pressing and substantial: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016. To do so, the Tribunal must look at the purpose of subsection 10(1) of the Code, against the backdrop of the Code as a whole, to give the objective of the impugned provision the proper context and to have a complete grasp of its operation within the scheme of the Code: Vriend, at para. 111. Generally, under the pressing and substantial enquiry, the government is able to meet this test: it is not very hard to meet.

112What is under Charter scrutiny is the purpose and effect of the impugned provision only. Clearly, the objective of the impugned provision must not only be urgent, it must be of real importance also to meet this branch of the test.

113Applying the foregoing principles to this case, it is clear from the Preamble of the Code that its whole object is to recognise and protect the inherent dignity and the equal and inalienable rights of every person in Ontario, without discrimination that is contrary to law. Few things, if any, are more pressing and substantial in a free and democratic society than the State's protection of the inherent dignity and the equal and inalienable rights of every person.

114Concerning the impugned provision, the Complainants argue forcefully that the impugned provision is the antithesis of the principles embodied in the Code. Moreover, they argue, nothing in the Code indicates that excluding all children from the human rights system based on age is pressing and substantial to justify overriding the object of the Code.

115The Commission submits that it accepts that the need to protect and provide benefits for children is a pressing and substantial objective.

116Ontario submits that adding age to the Code in 1972 was to protect 40-year old adults from ageism in employment. The further amendment to the Code in 1981 was to provide protection with respect to entering into contracts for accommodation for 16 and 17-year olds, who were no longer under parental control, and thus, had to be financially responsible.

117Ontario submits that to comply with the effective date of section 15 of the Charter, after reviewing over 700 statutes, the Legislature retained age 18 as the age of majority because it recognised that it is an "age that represents a point at which the risk of harm to young persons because of their age is minimal". Nonetheless, it chose to expand the definition of age for children 16 and 17 who were no longer under parental control and needed to contract for accommodation and occupancy. Ontario submits the objective of that amendment was to protect this subset of children who often were not allowed accommodation in the private market "because they were not protected by the Code".

118Concerning the impugned provision, there is no question that the objective for adding the ground of age to the Code in 1972, to protect a specific group against discrimination in employment, was appropriately pressing and substantial. Also, expanding the definition to protect children from ageism with respect to contracting for accommodation is appropriately pressing and substantial. Nevertheless, what can be said about the other objectives proffered by Ontario for the over-broad definition of age which excludes all children from the human rights system today? It might be of real importance to narrowly define age, but is it pressing or urgent today to maintain that limit on a right if that limit does not seek to protect the violation of dignity and freedom?

119Even without deciding whether Ontario has met the standard of evidence required by the government to show that the objective of the impugned provision is pressing and substantial today, the Tribunal concludes that Ontario's information is neither cogent nor shows that: (a) a problem existed that was a Legislative imperative to "preserve the multitude of statutory and private sector regimes structured around age" to protect adults or children; (b) that the objective of the definition was to protect children; (c) that ascribing such a narrow definition to age, which had such a blanket exclusion, is the right ameliorative measure to cure such a problem if it did exist; or (d) that the blanket exclusion necessitated the measure used, and that it affects the right of every person in Ontario under age 18 as little as possible. The last two points will be addressed under the second branch of the enquiry.

120Looking at the Code on a whole and the stated objective of the impugned provision, the Tribunal concludes that there is no discernable objective for the exclusion of every child in Ontario that might be described as pressing and substantial to justify overriding a Charter-protected right. There is no doubt the impugned provision intentionally excludes all children from the human rights system because of their age. To limit a right for any reason other than to prevent the abridgement of human dignity is inimical to the fundamental principles embodied in the scheme of the Code. There is no cogent evidence before the Tribunal that those stated objectives exist or are imperatives today. The conclusion of Cory J. in Vriend, at para. 106 is apropos at this juncture:

[W]here, as here, a legislative omission is on its face the very antithesis of the principles embodied in the legislation as a whole, the Act itself cannot be said to indicate any discernible objective for the omission that might be described as pressing and substantial so as to justify overriding constitutionally protected rights. Thus, on either analysis, the respondents' case fails at the initial step of the Oakes' test.

121One may postulate that the objective of the age definition in the Code is to preserve and provide benefits to children under age 18, or to protect children under age 18 from age discrimination. Further, one may argue that the object to protect adults from discrimination in specific circumstances is appropriately pressing and substantial. And, one may accept that there is a need to protect and provide benefits for children and to protect children from ageism, which are pressing and substantial. However, the blanket exclusion of children is why it fails: the means used was an overkill of the objective to prevent discrimination against adults or children. The means produced a by-product of discrimination against a group, which is one of society's most vulnerable.

122In the event that the view that the age definition in the Code is appropriately pressing and substantial prevails, for greater certainty and to deal with the matter more fully, the Tribunal considers the second branch of the test.

2. The Proportionality Analysis

123Under this analysis, the Tribunal postulates that Ontario has demonstrated that the object of the impugned provision, within the scheme of the Code as a whole, is pressing and substantial.

a. Rational Connection

124In the first part of this tripartite enquiry, the Tribunal is required to consider whether a rational connection exists between the objective of the impugned provision and the measure the Legislature used to achieve it. Specifically, Ontario must show that there is a rational connection between the objective of protecting from discrimination every person in Ontario who belongs to specific groups in various settings, and the exclusion of all children by the definition of subsection 10(1) of the Code: Vriend, at para. 118.

125Ontario submits that it is apparent from the legislative history that the objective for the age 18 threshold is to "preserve the multitude of statutory and private sector regimes structured around age". In addition, Ontario submits that "these regimes ensure that children are exposed to age-appropriate treatment", which is ultimately of benefit to them, to their families and to society as a whole. This objective, it argues, "is confirmed and supported by the uncontroverted expert evidence of Dr. Moore".

126Indeed Dr. Moore's affidavit speaks to age-appropriateness of treatment; the appropriateness of having legal differentiation of children at different ages; and the need to recognise that there are fundamental differences in the psychological capabilities of children. As stated above, this position undermines the very objective Ontario seeks to advance. The purpose and effect of the definition result in the treatment of all children the same: blanket exclusion from the human rights system based on age. There is no distinction or grouping of children by chronological or psychological age other than children ages 16 and 17 who have withdrawn from parental control and wish to contract for accommodation or occupancy: Section 4 of the Code. With respect, the correlation between those stated objectives of the impugned provision, and the abridgement of these Complainants' right to gain access to a fundamental justice regime as significant as the Code, is not clear. Furthermore, on Dr. Moore's evidence alone, the Tribunal concludes that treating all persons under age 18 the same, that is, excluding them from gaining access to the human rights system denies that there are fundamental differences in their psychological abilities at different ages.

127Ontario submits that an additional and related objective includes the prevention of trivialising and diluting the prohibitions in the Code "against invidious and harmful discrimination, which would result from including an unjustified general prohibition on age discrimination on ages under 18". However, there is no evidence that there was ever such a threat to the human rights system. Thus, this argument too must fail.

128Ontario argues that the Legislature must consider the effect of including as a prohibited ground in legislation, a ground of distinction that is legitimately and pervasively used in the private and public sector. Moreover, it argues, to expand the definition of age to include persons under age 18 may weaken human rights by spreading the Commission's efforts too thin, and thus, limit the Commission's ability to deal with prohibited grounds effectively. It cites a 1977 report entitled Life Together, and comments by the Hon. Mr. Elgie in the Legislature of Ontario Debates (Hansard) in 1981, to support that proposition. Finally, it submits that neither the Complainants nor the Commission have adduced any evidence to show why age discrimination, where the age is less than 18, has become a problem since that time.

129The Complainants argue that Ontario cannot show that a rational connection exists between the aim of the Code, the aim of the definition of age in subsection 10(1) and measures used by the Legislature. The Commission submits that the measure is over-broad, which is a drastic limitation on children's right to be free from discrimination. Therefore, it cannot be said that there is a logical connection to the need of protecting children.

130The Tribunal concludes that Ontario's position on this point is no more than a riot of thoughts, and does not satisfy its onus on this arm of the test. Ontario has not shown how a pre-Charter report that deals specifically with the enactment of legislation, which has no obvious nexus to the protection of children, supports a definition that is inimical to the explicit objective of the Code. Given that the report is nearly 30 years old, Ontario has not shown the relevance of it today. Without more, the content of the report is, most likely, out of date. Further, Ontario does not adduce any evidence to buttress its argument that providing protection to persons under age 18 would dilute the delivery of human rights services. The onus is not on the Commission or the Complainants to show that age discrimination has become a problem since 1977. It is clear that a provision that is found to be in violation of subsection 15(1) of the Charter is invalid from the more recent of, the instant of its enactment or after April 17, 1985, when the government had to ensure that all its legislation complied with section 15 of the Charter. The onus is on the government to establish that the provision should be upheld.

131To paraphrase the words of Cory J. in Vriend, at para. 119, citing Egan, at p. 141 with approval, the blanket exclusion of children from the Code is antithetical to the goal of protecting everyone in Ontario, including children, against discrimination. Surely, it would be "nonsensical to say that the goal of protecting persons from discrimination is rationally connected to, or advanced by", denying such protection to children, a group which the Supreme Court of Canada has recognised as historically disadvantaged.

132The Tribunal is mindful of the few changes to the Code with respect to age. There is the argument that a rational connection to the purpose of a statute can be achieved through the use of incremental means which, over time, expand the scope of the legislation to all those whom the Legislature determines to be in need of statutory protection. It cannot be said, however, with any degree of persuasion that by adding age as a ground to the Code in 1972; expanding the definition to include persons age 18, but less than age 65 with respect to employment in 1977; and the further expansion in 1985 to address the situations of persons age 16 and 17 who were no longer under parental control, are incremental means sufficient to establish a rational connection, even if such argument were tenable. With respect, not much use can be made of Ontario's argument that an expansion of the definition of age to include ages under 18, may weaken human rights by spreading the Commission's efforts too thin. Although it implies negative financial and service-delivery impacts, Ontario has not provided any evidence to show that extending the protection against ageism to children under the Code would result in undue financial hardship or substantial deficiency to cause a change in the scheme of the Code. Ontario's duty to present evidence for a section 1 analysis goes beyond mere assumptions, normal evidence or opinions. The evidence must be more than what is usual or normal: Cooper.

133In sum, based on the foregoing, the Tribunal concludes that Ontario has not demonstrated that there is a rational connection between the goal of protecting children, preserving or providing them with benefits in the private or public sector, the protection of specific groups from discrimination in various settings, and the definition of age in subsection 10(1) of the Code, which has for its purpose and effect the blanket exclusion of all children from a fundamental right to be free from discrimination because of age, and to advance complaints under the human rights system based on age.

b. Minimal Impairment

134Under this prong, Ontario must show that the means used to achieve the objective of the impugned provision minimally impair the Complainants' right.

135Ontario submits that the Legislature has considered the issue of age discrimination experienced by children and has adopted a regime "carefully tailored" to impair minimally their right to be free from discrimination. "A serious issue" identified was the inability of children ages 16 and 17, who had withdrawn from parental support and were in need of accommodation, but unable to obtain it, Ontario submits. Towards that end, the Legislature enacted section 4 of the Code.

136Ontario's submission cannot be sustained, nor is the Tribunal able to accept it. Ontario has not provided any evidence that this was a social imperative at the time or that in the interests of protecting or providing benefits for children, there were competing interests between providing children with protection to contract and acquire accommodation or any other need: for example, protection in employment, the protection and preservation of benefits in the private or public sector, or the protection of adult needs that were imperatives.

137It should be recalled that there are legislation and common law practices which allow children as youth as 14 to be employed. Ontario has not adduced any evidence to show that a less intrusive definition of age would not have achieved its objective as effectively as the absolute exclusion of children from age-based discrimination under the Code. Moreover, Ontario has not satisfied the Tribunal through any evidentiary means that to preserve and protect special treatment or access to services, facilities or other benefits for children effectively, it was imperative to define age, let alone to ascribe such a narrow definition to it, which in effect bars children from seeking redress from the human rights system for juvenile ageism. Simply put, there is no evidence to suggest that the absence of that definition would pose a threat to the special status that children enjoy with respect to services, facilities, or other benefits in the private or public sector.

138Another argument put forward by Ontario consistently and forcefully is that the Complainants are not denied recourse to a system to have their allegations of age discrimination adjudicated. It stresses that the courts have jurisdiction to decide these Complaints under the Charter—as some children have done in the Wynberg v. Ontario, 2005 CanLII 8749 (ON SC), [2005] O. J. No. 1228 cases. In light of the Supreme Court of Canada's cautions about avoiding "the legal expense of a litigation detour", and the right of complainants to gain access to the most convenient forum, Ontario's submission is vexing: the Tribunal is unable to accept this argument.

139There is the cogent argument that often, the disadvantaged, the vulnerable, or both have no other place but the human rights system to seek redress for discrimination because they are also very impecunious, unsophisticated, or both. If Ontario's position were correct, then the Charter would be a boom to the human rights system, especially for these Complainants. Thus, human rights legislation might no longer be a safe harbour. The words of Sopinka J. in Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] 2 S.C.R. 321, at para. 18 are worth iterating here:

Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a special nature, not quite constitutional but certainly more than the ordinary . . .. One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised." [Emphasis added].

140Children, as a group, and in particular these Complainants, are disadvantaged and disenfranchised. As stated above, at paragraph 61, in Martin, at para. 29, Gonthier J. makes the following edifying comment:

From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts . . . .

141The Supreme Court of Canada stresses consistently that a major advantage of administrative tribunals is the relative accessibility to justice they provide the people compared with the regular court system: Zurich, Cooper, Tetreault-Gadoury, and most recently, Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] S.C.J. No. 14. As Gonthier J. states in Martin, at para. 29, "[t]his accessibility concern is particularly pressing given that many administrative tribunals have exclusive initial jurisdiction over disputes relating to their enabling legislation, so that forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of proceedings".

142In light of those comments, especially given the type of complainants who seek to assert their rights in this case—the very young and most markedly mentally disabled children—this submission is not indicative of an appreciation of the laudable goals of human rights legislation, which include "bringing justice closer to the people": Tranchemontagne, at para. 52. Ontario's suggestion helps neither it nor the Complainants. Whether the government or the Complainants are able to afford the legal costs of the "litigation detour"—to use the expression of McLachlin J., as she then was, in Cooper, at para. 75—the process may never provide an answer to the question about whether the definition of age in the Code violates the Charter. Ultimately, the citizens of Ontario will be ill-served by the process proposed by Ontario.

143Ontario argues that one cannot conclude that the impugned statute fails the minimal impairment test because some other jurisdictions might have chosen to deal with children differently from Ontario. Relying on McKinney, and Professor P. Hogg, Constitutional Law in Canada, vol. 2, at 35:34-35, Ontario submits that one may conclude only that the Legislature adopted a different balance to deal with complex competing values, for it is rarely self-evident that a law limiting a Charter right does so by the least drastic means. "Indeed, 'a judge would be unimaginative indeed if he could not come up with something a little less 'drastic' or a little less 'restrictive' in almost any situation, and thereby enable himself to vote to strike legislation down . . .." Ontario submits. Nonetheless, Ontario adds, "it is important to note that only three of 13 provincial and territorial jurisdictions and the federal government do not provide for some form of exemption for age distinctions in their respective human rights instruments": the Northwest Territories, Yukon and Nunavut. The trouble with Ontario's submissions is that they provide no other jurisdiction that has such a blanket exclusion.

144By contrast, age is an enumerated ground in the human rights acts in the ten provinces and three territories in Canada. Counsel for the Commission points out that age is not defined in the human rights acts of five provinces, the three territories and that which governs the federal jurisdiction: (Manitoba The Human Rights Code, C.C.S.M. c. H175; New Brunswick Human Rights Act, Ch H-11 1985, c.30, s.1; Nova Scotia Human Rights Act, R.S.N.S. 1989, c.214; Prince Edward Island Human Rights Act, R.S.P.E.I. 1988, c.H-12; Quebec Charter of human rights and freedoms; R.S.Q., c. C-12; the Northwest Territories Human Rights Act, S.N.W.T. 2002, c.18; Nunavut Human Rights Act, S. Nu. 2003, c. 12; and the Yukon Human Rights Act, R.S.C. 1985, c. H-6; and the Canadian Human Rights Act, R.S.C. 1985, c. H-6).

145In addition, the Commission submits, human rights codes that protect children from ageism contain exceptions or defences, which permit discrimination under specified circumstances. Specifically, clause 6(a) of the Nova Scotia Act, does not apply to preclude "the provision of or access to services or facilities, to the conferring of a benefit on or the providing of a protection to youth . . .". Further, counsel for the Commission points out that the human rights codes, which protect children from ageism, contain exceptions or defences that permit discrimination under certain circumstances. For example, some Legislatures used terms such as "bona fide, "reasonable cause", "justification". The exceptions in the Nova Scotia, Manitoba and federal legislation are worthy of further consideration.

146Nova Scotia permits discrimination if the "denial, refusal or other form of discrimination is based on bona fide qualification, or a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society". (Clause 6(f): emphasis added). Yet, an array of private and public services is age-based. For example, city services; fares, which are reduced and set in three categories—under age 4, 5-12, and 13 to under age 18; and health care services. Further, children over age 12 must give consent before they can be adopted: (Children and Family Services Act, S.N.S. 1990, c.5., subsection 74(1); children under age 16 are prohibited from working in certain industries, e.g., industrial and forestry (Labour Standards Code, R.S.N.S. 1989, c. 246, clauses 2(a)(b) and 3(a)(b); and children under age 14 are prohibited from working more than eight hours daily or more than three during the school day unless allowed to do so under Nova Scotia's Education Act. The age of majority in Nova Scotia is 19. Barriers to offering developmentally appropriate programmes and services private law principles, the status of majority, all of which depends on age are not put into question.

147In near terms, Manitoba permits discrimination if the "denial or refusal of a service, accommodation, facility, good, right, licence, benefit, program or privilege to a person who has not attained the age of majority" if such is authorised by statute: subsection 13(2). The age of majority is age 18. The Commission points out that in Manitoba, under such provisions children are not precluded from enjoying reduced transit fares, reduced membership in organisations, and the benefit of age-based social or educational programmes, to name a few special benefits. Nonetheless, children under age 16 cannot obtain a driver's licence, must attend school if between ages 7 and 16, and cannot vote if under age 18.

148The Canadian Human Rights Act permits the refusal or termination of employment if the individual has not attained the minimum employment age or has attained the maximum age, which applies to that employment by law or regulation. New Brunswick's and Quebec's human rights legislation prohibits age-based discrimination, except as provided by law. These are among the notable democratic societies which have chosen to protect children from age-based discrimination as well as preserve special benefits for them qua children in the private and public sector. It is obvious that these instruments respond to the reality of children's lives by addressing their needs for services, good, and facilities in an age-appropriate manner. Offering both special benefits because of their tender age and providing protection under human rights legislations, do not appear to be in conflict with other services. Nor does the provision of such services create such a barrier to offering developmentally appropriate programmes and services; nor does doing so put into question the status of majority and the private law principles which depends on age.

149In sum, the Tribunal concludes that the purpose and effect of the definition of age in subsection 10(1) of the Code is more like a maximum blanket impairment of children's right to gain access to the human rights system: indeed, quite far from impairing the right as little as possible. It is worth noting that the Preamble, which sets out the objective of the Code, recognises the dignity and worth of every person, and provides for equal rights and opportunities without discrimination, and permits a limit only if it is not contrary to law. By inference, any defence must meet the stricture of the supreme law. That provision is quite consistent with the exceptions and exclusions in human rights legislation of other provinces examined above. Therefore, the Tribunal has no choice but to conclude that Ontario has failed this part of the Oakes' test as well.

c. Proportionality between the Effect of the Measure and the Object of the Legislation

150Under this enquiry, the Tribunal is required to determine whether there is proportionality between the deleterious effect of the exclusion or under-inclusion of children and the object of the Code. The objective of the Code is noted in the Preamble reproduced at paragraph 58 above: it protects the inalienable rights, dignity and worth of every person in Ontario. The effect of the exhaustive definition of age has been iterated many times in these Reasons: children are barred from seeking redress on the ground of juvenile ageism in the human rights system. In the language of the majority in Tranchemontagne at para. 33:

The most important characteristic of the Code for the purposes of this appeal is that it is fundamental, quasi-constitutional law: see Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S,C,R, 566, at para. 18; Insurance Corp. of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at p. 158. Accordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies: see B v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, 2002, S.C.C.66, at para. 44. And not only must the content of the Code be understood in the context of its purpose, but like the Canadian Charter of Rights and Freedoms, it must be recognized as being the law of the people: see Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70, aff'd in Martin, at para. 29, and Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223, 2004 S.C.C. 40, at para. 28 ("Charette"). Accordingly, it must not only be given expansive meaning, but also offered accessible application. [Emphasis added]

151Under this arm Ontario iterates the submission that if the age limit was edited out of the Code, numerous benefits available to children would be disrupted:

a. the legal status of majority in the province would be put into doubt along with the provision of every statute that [refers] to it;

b. uncertainty would be created regarding the special protection given to minors under the law of contract; and

c. the private sector would no longer be entitled to rely on the generally accepted principles of age-distinctions as proxy for developmental stage but be subject to an onerous burden of defending each age distinction as bona fide in the face of a potential human rights complaint. This would lead to [either the wholesale] invalidation of these age distinctions or to the dilution of existing Code jurisdiction so as to [sic] permit such distinction to stand.

152The recurring fatal problem with Ontario's argument is that there is no evidence to support it. Its evidence about the approach adopted by other provinces to protect children under their human rights legislation does not support its position. To simply say that the legislative choice to impose certain principles on the private sector does not oblige it to impose the entire Charter on the private sector is neither supportive nor cogent evidence. Ontario's argument is not sustainable. Even if there were any salutary effect of the definition of age, the absolute barring of children from the human rights system because of age, for some children, in particular these Complainants, overrides the legislative objective and purpose of the Code. The effect is a blanket barrier not a boon.

153Although age is common to everyone, it is a significant immutable characteristic in children qua children because it is that single factor, which defines them, makes them disadvantaged, vulnerable, and causes discriminatory practises against them qua children. It would be an under-appreciation of the concept of ageism to conclude that McKinney is a complete answer to these Complaints. Age is a common factor in every person. Thus, in this case, one may conclude only that McKinney may support the view that the normal age of retirement may not necessarily constitute a defence to a claim of ageism. This is particularly so because of the inherent status of children as a group, within the context of the State, and its attendant obligations to them.

154In sum, the Tribunal concludes that the ratios between the deleterious effects of the blanket exclusion of the protection of children from the human rights system because of age, and on the other hand, recognising the dignity and worth of every person, and providing equal rights and opportunities without discrimination that is contrary to law, are not equal. The deleterious effects are obvious and severe.

155Ontario has failed to show any salutary effect of the exclusion or under-inclusion of all children regardless of age, and protecting human rights in Ontario.

156The Tribunal concludes that the impugned provision of the Code, subsection 10(1), is not reasonably justified under section 1 of the Charter.

Conclusion

157The Complainants' motion is granted. Subsection 10(1) of the Code, specifically the definition of age infringes subsection 15(1) of the Charter. The infringement is not justified under section 1. That specific phrase, which defines age, is inconsistent with the Charter. The corollary is, by the operation of the Charter, and subsection 52(1) of the Constitution Act, 1982, that specific part is of no force and effect with respect to these Complaints.

158Accordingly, the following are the Tribunal's answers to the constitutional questions:

1. Does the decision to exclude persons under age 18 years from the definition of "age" in subsection 10(1) of the Code, infringe or deny children the rights guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms?

Yes.

2. If the answer to Question 1 is "yes", is the infringement or denial demonstrably justified as a reasonable limit pursuant to section 1 of the Canadian Charter of Rights and Freedoms?

No.

159Having concluded that the definition of age in subsection 10(1) of the Code, which bars all children from the human rights system because of age, is an unjustifiable abridgement of the Complainants' equality rights, the Tribunal now addresses the remedy within the purview of section 52 of the Constitution Act, 1982.

Remedy

The Law

160Gonthier, J. in Martin, at para. 33 captures the essence of the Tribunal's function when it must deal with a constitutional question of a provision of its enabling statute:

When a case brought before an administrative tribunal involves a challenge to the constitutionality of a provision of its enabling statute, the tribunal is asked to interpret the relevant Charter right, apply it to the impugned provision, and if it finds a breach and concludes that the provision is not saved under s. 1, to disregard the provision on constitutional grounds and rule on the applicant's claim as if the impugned provision were not in force.

161Subsection 52 of the Constitution Act, 1982, that states:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

162Unlike subsection 24(1), the plain language of subsection 52(1) does not have any qualification with respect to the competency or jurisdiction of a court or tribunal to determine its application. Subsection 24(1) requires that an application can be brought only to "a court of competent jurisdiction to obtain a remedy, as the court considers appropriate and just in the circumstances".

163In Cooper, McLachlin J., as she then was, in her dissent, succinctly states the general obligation of a tribunal when faced with a constitutional challenge in a case that is properly before it. Her conclusion is consistent with the plain language of subsection 52(1). Paragraphs 70, 82, are quoted at paragraphs 14 above; para. 83 is quoted below:

[A] tribunal's ruling that a law is inconsistent with the Charter is nothing more, in the final analysis, than a case of applying the law of the land -- including the most fundamental law of the land, the Constitution. It is common to speak of courts or tribunals "striking down" or invalidating laws, regulations and government actions, suggesting action that transcends mere application of the law and hence, must be reserved for the highest courts. This view of the Charter is, with respect, inaccurate. The Charter confers no power on judges or tribunals to strike down laws. The Constitution Act, 1982, however, provides that all laws are invalid to the extent that they are inconsistent with the Charter. Laws are struck down not by judicial fiat, but by operation of the Charter and s. 52 of the Constitution Act, 1982. [Emphasis added]

164Martin, Gonthier J., speaking for the entire Court, expresses the extent of the administrative tribunals' power in these terms:

[A]dministrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks, supra, at p. 17. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal's administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada. [Emphasis added]

165In Martin, at para. 47, the Court held unanimously that "[t]o the extent that [Cooper] is incompatible with [its] reasons, . . .the ratio of the majority in Cooper is no longer good law. By inference, the dissent, which is consistent with the reasons in Martin, is the current state of the law, except for paras. 70, 82 and 83, which seems to be inconsistent with the conclusion in Martin.

166Essentially, the state of the law is that administrative tribunals lack jurisdiction to make general declarations that an impugned provision or statute is inconsistent with the Charter. The extent of their jurisdiction to grant a remedy if they find an impugned provision or statute is inconsistent with subsection 52(1) is limited to specific declaration relating to the matter before them.

167The Complainants, by their counsel Ms Venhola, say that the appropriate remedy according to para. 118 in Martin, is to declare that subsection 10(1) of the Code is inconsistent with the Constitution Act, 1982, and according to subsection 52(1), it is of no force and effect. Counsel submits that within the purview of that power, the Tribunal may issue "specific declarations" about the particular nature of the constitutional invalidity relating to these proceedings.

168Counsel submits that the Tribunal may "[strike] down the definition of age under subsection 10(1) of the Code. From that remedy, counsel proffers two options, which the Tribunal may use in granting a remedy: (i) proceed to hear the Complaints as if the definition of age in the Code neither exists, nor has any force and effect with respect to these Complaints; or (ii) "read into the phrase means an age that is eighteen years or more the words means an age that is birth to eighteen years or more". By doing so, counsel submits, the age of children would become a ground of discrimination. Counsel relies on Haig v. Canada (1992), 1992 CanLII 2787 (ON CA), 16 C.H.R.R. D/226 (Ont. C.A.) to support her proposal. [Emphasis in original: Complainants factum at para. 89]

169Within the purview of counsel's proffered remedy, in addition to the above, she requests:

• an order that the minor Complainants are entitled to amend their pleadings to include discrimination based on age under the Code; and
• a declaration that the Complainants are entitled to substantively respond to issues of age discrimination in an equal manner for the duration of the proceedings before the Tribunal.

170The Commission requests that the Tribunal issue a declaration that the definition of age in subsection 10(1) of the Code is of no force and effect with respect to these Complaints.

171Ontario asks the Tribunal to dismiss the constitutional challenge.

172The Tribunal cannot issue a general declaration (Martin, at para. 31). As counsel for the Complainants and the Commission request, the Tribunal issues a specific declaration of invalidity that, for the purpose of the Complaints in these proceedings, the specific phrase in subsection 10(1), which defines age, is of no force and effect. As a result, these Complainants would be able to add the ground of age to their Complaints.

ORDER

173Therefore, the Tribunal makes the following orders:

1. The definition of "age" in subsection 10(1) of the Code is struck, and is therefore of no force or effect for the purpose of the Complaints in these proceedings.

2. The Complainants are entitled to amend their pleadings to include discrimination because of age.

3. Any amendment must be filed and served within 25 days of the date of this decision.

4. The Respondents are entitled to respond to the amended pleadings within the 50th day of the date of this decision.

5. Any reply shall be filed and served within the 57th day of the date of this decision.

Dated at Toronto, this 23rd day of June, 2006.

Patricia E. DeGuire

Vice Chair

APPENDIX A

List of Complainants' Counsel and Agents

HR-0602-04 to HR-0722-04 Arzem et al. v. R. (Ontario) (Group A)

HR-0747-04 to HR-0825-04 Aslanboga et al. v. R. (Ontario) (Group B)

HR-0844-04 AND HR-0845-04 Brooke/Allan v. R. (Ontario) (Group C)

HR-0870-04 to HR-0882-04 Ciccone et al. v. R. (Ontario) (Group D)

HR-0921-05 to HR-0931-05 Athanasopoulos et al. v. R. (Ontario) (Group E)

HR-0541-03 AND HR-0567-03 Burrows et al. v. R. (Ontario) (Group F)

HR-0966-05 to HR-0974-05 Cariou, et al v. R. (Ontario) Group G)

HR-0987-05 Martin v. R. (Ontario) (Group H)

HR-1038 to HR-1044-05 McKee, et al v. R. (Ontario) (Group I)

Complainants "Group A"

ARZEM, Andrew by his next friends Sheri and Gary Arzem † represented by Ellie Venhola

BARGER, Brendan by his next friend Thomas Berger † represented by Ellie Venhola

BRADY, Adam by his next friend Susan Brady † represented by Ellie Venhola

BROOKHOUSER, Jordan by his next friend Lucy Brookhouser † represented by Ellie Venhola

CANDIDO, Jared by his next friend Marti Candido † represented by Ellie Venhola

CIUMMELLI, Lucas by his next friend Lucas Ciummelli † represented by Ellie Venhola

COLACICCO, Nicholas by his next friend Susan Colacicco † represented by Ellie Venhola

COLLINS, Benjamin by his next friend Lise Collins † represented by Ellie Venhola

CRISTINI, Anthony by his next friend Paul Cristini *** on own behalf

CROWDER, Ben by his next friend Kimberley Crowder † represented by Ellie Venhola

DELAHUNTY, Kyle by his next friends Terry and Maltie Delahunty † represented by Ellie Venhola

D'ULISSE, Christian by his next friend Giancarlo D'Ulisse† represented by Ellie Venhola

FIALA, Thomas by his next friend Yvette Fiala † represented by Ellie Venhola

FRENCH, Tyler by his next friends Terry and Elisa French † represented by Ellie Venhola

FRYER, Evan by his next friend Timothy Edwin Fryer † represented by Ellie Venhola

GALATI, Michael by his next friend Teresa Galati † represented by Ellie Venhola

GIVELAS, Michael by his next friend Angela Givelas † represented by Ellie Venhola

GOEBEL, Connor by his next friend Gavin Goebel † represented by Ellie Venhola

GUBERNAT, Rick † represented by Ellie Venhola

GUBERNAT-VOLINZ, Elise by her next friend Rick Gubernat † represented by Ellie Venhola

HUNT, Riley Andrew by his next friend Juliana Hunt † represented by Ellie Venhola

IACONO, Liam by his next friend Gaetano Iacono † represented by Ellie Venhola

JOHNSTON, Payton by his next friend Sandi Johnston † represented by Ellie Venhola

KRUMINS, Kieran by his next friend Jennifer Krumins † represented by Ellie Venhola

KUHLMANN, Grant by his next friend Laura Kuhlmann † represented by Ellie Venhola

LI, Nathan by his next friend Chris Li † represented by Ellie Venhola

MADDOCK, Chad by his next friend Tracy Maddock † represented by Ellie Venhola

MAJOOR, Quenten by his next friend Barry Majoor † represented by Ellie Venhola

MEDD, Luke by his next friend Wendy Arnott-Medd † represented by Ellie Venhola

MEIN, David by his next friend John Mein † represented by Ellie Venhola

MELAMED, Jay by his next friend Andrea Bellman † represented by Ellie Venhola

MICELI, Giacinto by his next friend Rita Miceli † represented by Ellie Venhola

MOORE, Curtis by his next friend Joanne Moore † represented by Ellie Venhola

MOORE-JEHA, Joseph by his next friend Christine Jeha † represented by Ellie Venhola

MORRISON, Sean by his next friends Nancy and Philip Morrison † represented by Ellie Venhola

MURACA, Robert by his next friend Flavia Muraca † represented by Ellie Venhola

MYERS, Daniel by his next friend Leah Myers † represented by Ellie Venhola

NOLAN, John Eric by his next friend Beth Nolan † represented by Ellie Venhola

PANOKOS, Sara by his next friend Julie Panakos † represented by Ellie Venhola

QUANSAH, Cameron by his next friend Damian Quansah † represented by Ellie Venhola

ROY, Adam by his next friend Ellen Farrington † represented by Ellie Venhola

RUPAKUMAR, Krishan by his next friends Juliet and Rock Rupakumar†represented by Ellie Venhola

SCHMALZ, Jacob by his next friend Michael Schmalz † represented by Ellie Venhola

SEGAL Eric by his next friend Sharon Gabison ** represented by Ellie Venholaf

SISTI, Nicholas by his next friend Joanne Sisti † represented by Ellie Venhola

STEFFEN, Benjamin by his next friend Darla Steffen † represented by Ellie Venhola

THIELE, Robert by his next friend Nelly Thiele † represented by Ellie Venhola

UTHAYAN, Nakulan Vishal by his next friend Usha M. Uthayan † represented by Ellie Venhola

UTHAYAN, Sahadaevan Vittal by his next friend Usha M. Uthayan † represented by Ellie Venhola

VELIKONJA, Ernest by his next friend Sandra Velikonja † represented by Ellie Venhola

Vijayarajah, Jonathan by his next friend Joseph Vijayaraj † represented by Ellie Venhola

VOGELS, Jacob by his next friend Ms. Cindy Vogels **** represented by Karen Canatta

WAGMAN, David by his next friend Lillian Wagman † represented by Ellie Venhola

WAGMAN, Michael by his next friend Lillian Wagman † represented by Ellie Venhola

WALSH, Cameron by his next friend Ms. Sheri-Lee Walsh † represented by Ellie Venhola

WEE, Jan-Eric by his next friend Ms. Tessie Wee † represented by Ellie Venhola

WEICHEL, Kieran by his next friend Sandra Weichel † represented by Ellie Venhola

ZUCCARO, Michael by his next friend Lina Zuccaro † represented by Ellie Venhola

Complainants "Group B"

Aslanboga, Burak by his next friend Ms. Nazile Baydir † represented by Ellie Venhola

BRIDE, Emily Sara Elizabeth by her next friend Mr. Peter Bride † represented by Ellie Venhola

BORGSTADT, Cameron by his next friend Carolyn Borgstadt * represented by Ellie Venhola

CARDONA, Jonathan by his next friend Ms. Laura Cardona † represented by Ellie Venhola

CESARIO, Andrew by his next friend Mrs. Patricia Cesario † represented by Ellie Venhola

CRAREY, Samantha by her next friend Elli Crarey ** represented by Ellie Venhola

CURRIE, Joshua by his next friend Mrs. Donna Currie † represented by Ellie Venhola

DEWIT, Nicholas by his next friend Michael DeWit † represented by Ellie Venhola

FRANKLIN, Calvin by his next friend Alex Franklin *** on own behalf

GELLER-CUMMINGS, Adam by his next friend Gail Geller ** on own behalf

HEWITT, Jonathan by his next friend Mrs. Deborah Campbell * represented by Ellie Venhola

MARKAKIS, Jon by his next friend Ms. Constantina Arvanitis † represented by Ellie Venhola

MICANOVIC, Ana by her next friend Mladen Micanovic † represented by Ellie Venhola

MILLAR, Brandonby his next friend Victoria Millar † represented by Ellie Venhola

MOGYORODI, Samuel by his next friend Gary Mogyorodi † represented by Ellie Venhola

NIKOLIC, Eric Benjamin and James by their next friend Mark Nikolic † represented by Ellie Venhola

ROBINSON, Brandon by his next friend Karen Robinson † represented by Ellie Venhola

SCANDRETT, Shawn by his next friend Cindy Scandrett * represented by Ellie Venhola

SCANTAMBURLO, Luigi by his next friend Vesna Scantamburlo † represented by Ellie Venhola

SHONUCK, John by his next friend Laurene Shonuck * represented by Ellie Venhola

SNELL, Laura by her next friend Mary Snell *** represented by Ellie Venhola

TESFAY, Robel by his next friend Tsigeweyin Tesfay † represented by Ellie Venhola

THOMASON, Tyler by his next friend Martin Thomason * represented by Ellie Venhola

TOBIN, Jeffrey by his next friends Barbara and Brian Tobin † represented by Ellie Venhola

TURNER, Kathleen, Scott and Stephen by their next friend Mary Turner † represented by Ellie Venhola

VAUSE, Justin by his next friend Linda Vause † represented by Ellie Venhola

WALSH, Matthew and Michael by their next friend Anita Walsh † represented by Ellie Venhola

Complainants "Group C"

ALLAN, Mackenzie by his litigation guardian Brad Allan † represented by Ellie Venhola

BROOKE, Daniel by his litigation guardian Sylvia Brooke † represented by Ellie Venhola

Complainants "Group D"

CICCONE, Michael by his litigation guardian Ms. Tina Ciccone *** represented by Ellie Venhola

DOWSETT, Aidan by his litigation guardian Jennifer Dowsett † represented by Ellie Venhola

EVRENIADIS, Jonathan Alexander by his litigation guardian Dina Vardouniotis *** represented by Ellie Venhola

FRICK, Thomas by his litigation guardian Mrs. Rose Frick *** represented by Ellie Venhola

GALATI, David by his next friend Teresa Galati † represented by Ellie Venhola

McLEOD, Connor by his litigation guardian Brenda Bogardis † represented by Ellie Venhola

WU, Adonia by her litigation guardian Yvonne Wu † represented by Ellie Venhola

Complainants "Group E"

Athanasopoulos, Spiridon by his litigation guardian Mrs. Voula Kant*** represented by Ellie Venhola

Boufford, Jordan by his litigation guardian Mr. Bradley Boufford*** represented by Ellie Venhola

Cruz, Linda and Sandra by their litigation guardian Mrs. Rosemary Cruz*** represented by Ellie Venhola

Millington, Aidan by his litigation guardian Ms. Janette Jones*** on own behalf

Nahmiache, Cody by his litigation guardian Ms. Jackie Martin*** represented by Ellie Venhola

Nesbitt, Thais Victoria by her litigation guardian Ms. Kiritea Nesbitt*** on own behalf

Shonuck, John by his next friend Laurene A. Shonuck*** represented by Ellie Venhola

Van Louwe, Dylan by his litigation guardian Mr. Nancy Van Louwe *** represented by Ellie Venhola

Complainant "Group F"

BURROWS, Luke by his next friend Norrah Whitney ** represented by Ellie Venhola

Complainant "Group G"

CARIOU, Matthew by his litigation guardian Ms. Kim Cariou*** on own behalf

DEWITT, Madison by her litigation guardian Mr. Michael DeWitt** represented by Ellie Venhola

HARABAJZA, Mark by his litigation guardian Ms. Carol Ivic*** represented by Ellie Venhola

THOMPSON, Matthew by his litigation guardian Ms. Manuela Beni*** represented by Ellie Venhola

MARAS, Mackenzie by her litigation guardian Mr. Tom Maras*** represented by Ellie Venhola

ZARETSKY, Daniel by his litigation guardian Ms. Mona Taylor*** represented by Ellie Venhola

Complainant "Group H"

MARTIN, Gordon by his litigation guardian Ms. Janet Martin*** on own behalf

Complainant "Group I"

MCKEE, Conlan Jarvis by his litigation guardian Neil McKee** represented by Ellie Venhola

PAUK, Andrew by his litigation guardian Ms. Heather Hutchison** represented by Ellie Venhola

VAVALA, Blake by his litigation guardian Ms. Kyla Vavala** represented by Ellie Venhola

ZIMMERMANN, Erika by her litigation guardian Ms. Patti Zimmermann** represented by Ellie Venhola

OLIVEIRA, Daniella by her litigation guardian Ms. Patricia Oliveira** represented by Ellie Venhola

PAUK, Matthew by his litigation guardian Ms. Heather Hutchison** represented by Ellie Venhola

VAVALA, Brandon by his litigation guardian Ms. Kyla Vavala ** represented by Ellie Venhola

APPENDIX B[2]

ARZEM v. R. (Ontario).

File Nos. HR-0602-04 to 0722-04 (Group A)

HR-0747-04 to 0825-04 (Group B)

HR-0844-04 and 0845-04 (Group C)

HR-0870-04 to 0882-04 (Group D)

HR-0921-05 to 0931-05 (Group E)

HR-0541-03 and 0567-03 (Group F)

HR-0966-05 to 0974-05 (Group G)

HR-0987-05 (Group H)

HR- 1038-05 to 1044-05 (Group I)

List OF ontario SCHOOL Boards in 2002 or At Time Complaints Were Filed

1. Bluewater District School Board

2. Durham District School Board

3. Durham District Catholic School Board

4. Halton District School Board

5. Halton Catholic District School Board

6. Hamilton-Wentworth Catholic District School Board

7. Hamilton-Wentworth District School Board

8. Kawartha Pine Ridge District School Board

9. Niagara District School Board

10. Niagara Catholic District School Board

11. Peterborough Victoria Northumberland Clarington Catholic District School Board

12. Ottawa-Carleton District School Board

13. Simcoe County District School Board

14. Simcoe Muskoka Catholic School Board

15. Thames Valley District School Board

16. Toronto District School Board

17. Toronto Catholic District School Board

18. Trillium Lakelands District School Board

19. Waterloo Region District School Board

20. Waterloo Catholic District School Board

21. Greater Essex County District School Board

22. Windsor Essex Catholic School Board

23. York Region District School Board

24. York Catholic District School Board

25. Lakehead District School Board

26. Northeastern Catholic District School Board

27. Peel District School Board

28. Dufferin-Peel Catholic District Board

29. London Catholic District Catholic School Board

APPENDIX C

ARZEM v. R. (Ontario).

File Nos. HR-0602-04 to 0722-04 (Group A)

HR-0747-04 to 0825-04 (Group B)

HR-0844-04 and 0845-04 (Group C)

HR-0870-04 to 0882-04 (Group D)

HR-0921-05 to 0931-05 (Group E)

HR-0541-03 and 0567-03 (Group F)

HR-0966-05 to 0974-05 (Group G)

HR-0987-05 (Group H)

HR- 1038-05 to 1044-05 (Group I)

List of Bargaining agents in 2002 or At Time Complaint Filed

1. Association des enseignantes et des enseignants franco-ontariens

2. Ontario English Catholic Teachers' Association

3. CUPE Local 4400

4. CUPE National

5. Elementary Teachers' Federation of Ontario

6. Halton District Educational Assistants Association

7. Peel Educational Resources Facilitators Association

8. Dufferin Peel Educational Resources Workers' Association

1This was determined in a report commissioned by the Ontario Human Rights Commission entitled Life Together: A Report on Human Rights in Ontario, 1977.

2From the list submitted by Ms Venhola February 24, 2006.