HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Peter Sicheri,
Complainant
-and-
Her Majesty The Queen In Right Of The Province Of Ontario
As Represented By The Ministry Of Community And Social Services
Windsor-Essex Children’s Aid Society
Respondents
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Interim DECISION
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Adjudicator: David A. Wright
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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
INTRODUCTION
1This Interim Decision deals with various preliminary issues that have arisen through correspondence with the Tribunal.
BACKGROUND
2On April 13, 2005, these Complaints were referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”).
3By letter dated December 7, 2006, Counsel for the Complainant adopted the Commission’s pleadings. On December 8, 2006, the Commission filed its Statement of Facts, Issues and Remedy with the Tribunal. On January 31, 2007, each Respondent filed its Response.
4On February 14 and 15, 2007, the Tribunal received correspondence indicating that new counsel would be representing the Complainant. On February 16, 2007, new Counsel for the Complainant filed a Reply to the Responses. The Reply is seventeen pages in length and outlines four issues under the heading, “Further Issues in Dispute”. The Reply identifies the prohibited ground of age in addition to the grounds indicated in the Commission’s Statement of Facts, Issues and Remedy. The Commission also filed a Reply on that date.
5On February 16, 2007, Counsel for the Complainant requested a date from the Registrar for a motion to deal with a Notice of Constitutional Question. Following further enquiries from the Registrar, Counsel for the Complainant provided a draft Notice of Constitutional Question in the form of a Notice of Motion under the Tribunal’s rules. The Notice states the following constitutional question:
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.
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.
6This Notice was served upon the parties and upon the Attorney General of Canada on March 14, 2007.
7On February 23, 2007, the Respondent Crown filed a Supplementary Response “in response to the new allegations and legal issues raised in the Complainant’s Reply dated February 16, 2007.”
8By letter dated the same date, Counsel for the Respondent, Windsor-Essex Children’s Aid Society, wrote to all counsel with a copy to the Tribunal in part as follows:
The Respondent Society takes the position that the Reply which has been filed on behalf of the Complainant goes well beyond the nature of a Reply. In essence, counsel for the Complainant has engaged in argument with respect to the Reponses filed and has raised new issues which could not have been “triggered by the Respondent’s answer to the Commission’s and Complainant’s pleadings” as alleged by Ms. Venhola in her letter dated February 22, 2007.
Although the Tribunal’s Rules do not contain a specific provision allowing the Responding Parties to respond to the Complainant’s Reply, we request an opportunity to deliver a sur-reply, if necessary, by March 2nd, 2007.
Further, we reserve the right to object to the expanded scope of the Complainant’s pleadings at the hearing.
DECISION
(A) The Complainant’s Reply
9The Tribunal agrees with Counsel for the Society that the Complainant’s Reply raises new arguments and issues to which the Respondents should have an opportunity to respond. Moreover, the constitutional challenge will necessitate pleadings addressing this issue by the Respondents.
10The Tribunal accepts the Supplementary Response filed by the Crown as forming part of its pleadings and gives both Respondents leave to file any further Supplementary Response on or before April 17, 2007.
(B) The Constitutional Question
11Rule 70 of the Tribunal’s Rules of Procedure reads as follows:
Where a party intends to raise a question about the constitutional validity or applicability of legislation, these Rules or a regulation or by-law made under legislation, or a rule of common law, or where a party claims a remedy under s. 24 (1) of the Canadian Charter of Rights and Freedoms, a Notice of Constitutional Question must be served on the other parties and the Attorneys General of Canada and Ontario as soon as the circumstances requiring notice become known and, in any event, at least fifteen (15) days before the question is to be argued.
12This Rule follows from s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, which reads as follows:
109 (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:
The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.
A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.
(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.
(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.
(2.2)The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise.
(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.
(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.
(5) Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceeding for the purpose of any appeal in respect of the constitutional question.
(6) This section applies to proceedings before boards and tribunals as well as to court proceedings.
13The Tribunal’s Rules of Practice (the “Rules”) do not have a specific form for the Notice of Constitutional Question. However, Form 4F under the Rules of Civil Procedure, R.R.O. 1990, Regulation 194 can be used, adapted to the Tribunal’s style of cause, to comply with the obligation to use a “substantially similar form” in s. 109 (2.1). The document filed by the Complainant does not comply with s. 109 (2.1).
14Further, the Tribunal is of the view that a preliminary motion may not be the appropriate manner to deal with the constitutional question. This is for three reasons. First, and most important, it appears to the Tribunal from reviewing the pleadings that the resolution of the constitutional issue may not shorten the remainder of the hearing. The evidence may be substantially or completely the same regardless of which way the constitutional issue is resolved. Second, the constitutional question may not be necessary to a resolution of the case. It may be that after hearing the evidence, the Tribunal finds that it can decide the case without determining the constitutional issue. Third, constitutional issues often depend significantly on context and evidence. The hearing, rather than a motion, may be the best procedure in which to hear the necessary evidence.
15This interim decision does not decide what procedure will be used for determining the constitutional issue. The parties should consult with each other prior to the Pre-Hearing Conference Call, exchange positions and attempt to reach agreement on the process. The Tribunal will hear submissions on this issue during the call if necessary.
16The Complainant is directed to serve and file an amended Notice of Constitutional Question based upon Form 4F of the Rules of Civil Procedure on or before April 10, 2007. As the Tribunal has not set a date for the argument of the question, the second paragraph should read, “The question is to be argued on a date to be set by the Human Rights Tribunal of Ontario at a location to be set by the Tribunal”. The Complainant is directed to include a copy of this Interim Decision with the Notice when it is served upon the Attorney General of Ontario, Constitutional Law Branch, and the Attorney General of Canada.
(C) Pre-Hearing Conference Call
17The Tribunal has the following dates to offer the parties for a Pre-Hearing Conference Call in this matter: April 18, 19, 23 and 24, 2007. The parties are directed to advise the Registrar of their availability no later than April 10, 2007.
Dated at Toronto, this 27th day of March, 2007.
“Signed by”
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David A. Wright
Vice-Chair