HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marko Ivancicevic Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services and the Alcohol and Gaming Commission of Ontario Respondents
A N D B E T W E E N:
Russell Barth Complainant
-and-
Ontario Human Rights Commission Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government and Consumer Services Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson Date: July 8, 2009 Citation: 2009 HRTO 1000 Indexed as: Ivancicevic v. Ontario (Ministry of Government Services)
WRITTEN SUBMISSIONS BY
Marko Ivancicevic, Applicant ) M. Kate Stephenson, Counsel
Ontario Human Rights Commission ) Anthony D. Griffin, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services and the Alcohol and Gaming Commission of Ontario, Respondents ) S. Zachary Green, Counsel
Reasons for Decision
1This Interim Decision addresses the respondents’ Request for an Order During Proceedings (“Request”) that an Application filed with the Tribunal under section 34 of the new Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and a complaint referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) under the old Code, be consolidated or heard together. On June 26, 2009, the parties were advised that the Request was denied with written reasons to follow.
2The respondents submit that the two proceedings raise precisely the same legal issue: whether s. 45(2) of Regulation 719 under the Liquor Licence Act, R.S.O. 1990, c. L19, is consistent with the Code. The applicant and the complainant, who hold medical marihuana licenses, allege that they were discriminated against on the basis of disability in the area of services, because they were not allowed, pursuant to s. 45(2) of Regulation 719, to smoke marihuana in licensed premises. The respondents submit that their position in both cases is the same: that s. 45(2) of Regulation 719 is consistent with the Code, does not discriminate on the basis of disability, and is a reasonable and bona fide health and safety requirement within the meaning of s. 11 of the Code. They intend to lead expert evidence to demonstrate that marihuana smoke can have harmful effects on persons who are exposed to it and their evidence will be the same in both cases.
3The respondents submit that hearing the two proceedings together will be more expeditious and economical, both for the parties and for the Tribunal, than the alternative of leading essentially the same evidence and argument twice before two different panels of the Tribunal. Moreover, they submit, an order joining the two proceedings will avoid the prospect that different panels of the Tribunal will reach inconsistent findings on the same evidence and argument.
4The respondents indicate that they were advised by the Commission that Mr. Barth is unable to travel outside of Ottawa. In order to accommodate Mr. Barth, the respondents request that the two cases be heard in Ottawa. The respondents indicate that they will undertake to pay reasonable travel and accommodation expenses for Mr. Ivancicevic and his counsel to travel to Ottawa and attend the hearing.
5The other parties do not consent to the respondents’ Request. In opposing the Request, Mr. Ivancicevic submits that his case has now been scheduled for several months and is due to be heard at the end of July. As the other matter will not be ready by that time, the Request, therefore, requires an adjournment of the scheduled hearing. Mr. Ivancicevic submits that he should not have to wait more months before his case is heard and he and his expert witness will be available at the time currently scheduled.
6Mr. Ivancicevic also submits that, while it is true he is physically able to travel to Ottawa, he has a young child for whom he shares, with his spouse, primary childcare responsibilities. He shares in the job of picking up his child from daycare every day, as well as caring for his child at home every day. His spouse works full time. He submits that it would be difficult to make other arrangements for childcare and his family should not have to endure this disruption.
7The Commission submits that neither Mr. Barth nor Mr. Ivancicevic should be required to travel away from home in order to have their cases heard.
8In light of Mr. Barth’s inability to travel outside Ottawa and Mr. Ivancicevic’s childcare responsibilities in Toronto, the Tribunal declines to order that these proceedings be heard together. However, as I am assigned to hear both matters, I am prepared to consider submissions and suggestions from the parties about how to manage the evidence in the hearings in a fair, just and expeditious manner.
Dated at Toronto, this 8^th^ day of July, 2009.
“Signed by”
__________________________________
Brian Eyolfson Vice-chair