HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Shuparski Applicant

-and-

City of Toronto Respondent

AND B E T W E E N:

James Shuparski Applicant

-and-

Page + Steele Incorporated, Architects Respondent

AND B E T W E E N:

James Shuparski Applicant

-and-

Simerra Property Management Respondent

AND B E T W E E N:

James Shuparski Applicant

-and-

Edilcan Development Corporation Respondent

AND B E T W E E N:

James Shuparski Applicant

-and-

Toronto Standard Condominium Corporation No. 1952 Respondent

AND B E T W E E N:

James Shuparski Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Municipal Affairs and Housing Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: July 10, 2009 File Numbers: 2008-00325-I; 2008-00327-I; Citation: 2009 HRTO 1024 Indexed as: Shuparski v. Toronto (City)

INTRODUCTION

1The applicant filed six separate Applications under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The facts alleged in the Applications are identical, and relate to alleged accessibility deficiencies in the condominium building (“the condominium”), in which the applicant resides. He seeks damages for discrimination against each of the respondents, as well as an order for specific retrofits to the building.

2In an Interim Decision, 2008 HRTO 291, I refused the request by Edilcan Development Corporation (“Edilcan”), the respondent in File 2008-00324-I, and Toronto Standard Condominium Corporation No. 1952, the respondent in File 2008-00325-I, to dismiss the Applications against them. I also ordered that the Applications be consolidated for the purposes of mediation. If mediation did not result in a resolution, the parties wishing to oppose the consolidation of the Applications for the purposes of the hearing were directed to file written submissions by April 14, 2009.

3The Tribunal received submissions from the City of Toronto, respondent in File 2008-00319-I and the Her Majesty the Queen in Right of Ontario (Minister of Municipal Affairs and Housing) (“the Province”), respondent in File 2008-00327-I, opposing consolidation. Page+Steele Incorporated, Architects (“Page+Steele”), the respondent in File 2008-00320-I, filed late submissions in support of consolidation. Page + Steele provided a reasonable explanation for the late filing and requested an extension, which is granted. The applicant also made submissions in support of consolidation. Submissions were filed by Edilcan in which it did not adopt a clear position on consolidation, but it requested, in the event that consolidation is not ordered, disclosure of documentary productions in the separate Applications against the City and Province.

4The Province also brought a Request for Order During Proceedings seeking an order dismissing the Application against the Province. The other respondents did not make submissions on this Request. The applicant opposes the Request.

5This Interim Decision addresses the issue of whether to consolidate these Applications for the purpose of the hearing, and whether to dismiss the Application against the Province.

DECISION

Request for Order Dismissing Application against the Province

6The Province asks the Tribunal to dismiss the Application on the basis that the Crown is not a proper party to the Application, the relief sought (changes to the construction of the condominium) cannot be provided by the Province; the applicant has failed to properly bring his Application on behalf of a third party; and the Application fails to provide sufficient particulars about how the applicant is himself discriminated against, and/or about discrimination against a third party.

7The Application as drafted against the Province is identical to the Applications against the other respondents. However, the pertinent issues are clearly distinct. The only allegation in the Application that actually relates to the Province is the claim that the Building Code Act, 1992, S.O. 1992, c. 23 as amended and its Regulation, O. Reg. 350/06 (the “Building Code”) are discriminatorily under-inclusive because they fail to include mandatory accessibility standards. The Province argues that this allegation fails to disclose how the applicant believes the respondent caused the applicant, or a third party, to experience discrimination.

8Section 47(2) of the Code confirms the primacy of the Human Rights Code over other statutes and regulations. The applicant’s allegations against the Province appear to be restricted to the contention that the Building Code authorizes discrimination and that the Province is therefore liable for discrimination. The Province alleges that it has no power to order or perform structural modifications to the condominium.

9The applicant maintains in his submissions that the Province is responsible for drafting and implementing the Building Code; it sets the standards which are used by designers, architects and builders, and enforced by municipalities. He argues that remedying the Province’s failure to include accessibility standards in the Building Code is the only way to address the systemic problem of inaccessibility. He also argues that the Province should contribute to the cost of retrofitting the condominium.

10The applicant is seeking a broader remedy against the Province than he seeks against the other respondents. He challenges the Building Code on the basis that it is under-inclusive and therefore systemically discriminates against people with disabilities by authorizing inaccessible construction. It is at least arguable that the applicant may seek monetary damages against the Province for discriminatory legislation or regulations. It is also arguable that while the Tribunal may not have the power to invalidate laws, it does have the power to make orders related to the application of laws it finds to be in conflict with the Code.

11It is clear from the applicant’s submissions that he is seeking both systemic remedies and monetary damages from the Province. Without deciding whether the applicant is entitled to these or any remedies, I am not prepared to accept the Province’s argument that it is not a proper party to the Application or that the applicant has failed to plead an arguable case. Consequently, there is no basis for dismissing the Application.

12Regarding the issue of a potential third-party claim being included in this Application, the applicant clarified in his submissions that his Application is solely on his own behalf and is based on his association with a person with a disability. Regarding the issue of alleged insufficient particulars, the applicant has indicated that he views the Province’s liability as being of a systemic nature, authorizing discrimination by others who comply with the Building Code. He has also pleaded that he personally has confronted this alleged authorization of discrimination in the fact that the other parties to this matter have all relied on the Building Code to justify what the applicant considers to be their discriminatory actions. Any additional particulars may be sought by way of case management prior to the hearing.

Consolidation

13Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

14In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT) outlining factors that should be considered in the context of whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

15While the allegations contained in the Applications may allege different degrees of legal liability against the various respondents, all of the Applications centre on the basic allegation regarding the inaccessibility of the condominium, and point to the various stages of planning, design, development, construction and maintenance of the building. Much of the evidence required to adjudicate these five Applications will overlap and many of the legal arguments are interrelated.

16All of the Applications also raise questions about the applicability of the Code to the alleged decisions, actions or omissions of the respondents in relation to the same facts.

17I am persuaded that the most expeditious way in which to adduce evidence as to what occurred in relation to the condominium and its alleged impact on the applicant is to hear the evidence together from all of the named respondents.

18In addition, it is in the public interest to avoid the repetition of evidence that would be required if these matters were heard separately. It is also the fair and just way to proceed. It allows all parties to present their cases essentially at the same time. I find support for my decision when considering that many of the respondents themselves point to each other as part of their respective responses to the allegations. Indeed, Page + Steele expressly supports consolidation and Edilcan takes no clear position, but makes a request for disclosure that would be satisfied in the context of a consolidated hearing.

19The issue of prejudice to the respondents was raised by the City of Toronto on the basis that, because the issues of fact and law regarding the City are separate and distinct from the other respondents, it would be prejudicial to the City to be required to attend a lengthy hearing involving the presentation of the other respondents’ cases. Given my finding that there is in fact substantial overlap of the issues, especially in respect of the facts, I am not persuaded that any potential prejudice to the City would outweigh the benefit of hearing the Applications together. Moreover, anticipated disputes between and among the respondents about their respective obligations would suggest not prejudice but rather a benefit of being heard together with the opportunity to cross-examine each others’ witnesses and challenge each others’ arguments.

20The Province also raises the issue of prejudice. It argues that the Province had no involvement in the factual matters giving rise to the Application, and had no interaction with the applicant. Therefore, it would be seriously inconvenienced by having to attend a multi-day hearing canvassing facts and hearing evidence about which it has no interest or involvement. Moreover, the Province warns that consolidation could complicate and misdirect the hearing, to the detriment of all parties, should it get bogged down in examining the compliance of the Building Code with the Human Rights Code rather than the conduct of the other respondents.

21It is true that the Application in respect of the Province is unique from the other five Applications. The question at issue in the Application against the Province is whether the Building Code authorizes discrimination. The applicant does not allege that the Province was in any way involved in the planning, development, design, construction or maintenance of the condominium. He appears only to be alleging that the failure of the Building Code to mandate accessibility led to or authorized a failure to accommodate the needs of people with disabilities in the condominium. While this is a distinct legal question, it is not grounded in unrelated facts and law.

22The Province argues that there are no factual issues that necessitate its involvement in the proceeding. I find that this is an overstatement. The case against the Province is unique in the sense that it raises systemic issues regarding alleged deficiencies in the Building Code on which the other respondents rely in defence of their alleged discriminatory conduct. Systemic cases that challenge the operation of legislation are not easily decided in the absence of a factual context. The applicant is not making an abstract argument about the Building Code. Rather, he alleges that, in the context of the same facts giving rise to his allegations against the other five respondents, the Building Code authorized discrimination by those parties. There is a sufficient factual and legal nexus—which need not be predominant—to justify consolidation.

23When considering the question whether it would be fair, just and expeditious for the Applications to be consolidated, the balance in these circumstances favours consolidation. Many of the concerns raised by the respondents can be resolved by way of case management. The Tribunal will offer case management direction to the parties following the disclosure of documents.

ORDER

24The Tribunal makes the following order:

a) The Applications will be scheduled to be heard together;

b) Following the exchange of hearing materials by the parties, the Tribunal will schedule a case management conference call. The parties should be prepared to make submissions regarding the format of the consolidated hearing, including issues to be decided, witness order, bifurcation of issues of liability and remedy, scheduling, and any other relevant procedural matters;

c) The Province’s Request for Order dismissing the Application is refused.

25I am not seized of these matters.