Christopher Stark v. Research in Motion Limited, 2009 HRTO 1054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Stark

Applicant

-and-

Research in Motion Limited

Respondent

DECISION

Adjudicator: Brian Sheehan

Date: July 16, 2009

Citation: 2009 HRTO 1054

Indexed As: Stark v. Research in Motion

written submissions BY

Christopher Stark, Applicant ) on his own behalf

Research in Motion Limited, Respondent ) Christina K. Litt, ) Counsel

1This is an Application under section 53(3) of Part VI of the Human Rights Code R.S.O. 1990, c. H. 19 as amended (the "Code"). The applicant alleged in the complaint filed with the Human Rights Commission that he had been denied equal access to goods and services provided by the respondent on account of his disability. Specifically, that Blackberry "smart phones" developed by the respondent breached the protection for equal access to goods and services since they were not fully accessible to blind users, such as him, immediately out of the box.

2This Decision concerns a preliminary motion raised by the respondent asserting that the Tribunal has no jurisdiction to inquire into this matter since the respondent is a federally regulated enterprise.

3The Tribunal requested submissions on this issue from the parties. Upon review of those submissions I have concluded, for the reasons set out below, that the Tribunal has no jurisdiction with respect to this matter.

4A review of the relevant jurisprudence clearly suggests that telecommunications, including wireless telecommunications, fall under the legislative authority of the federal government pursuant to section 92(10)(a) of the Constitution Act ,1867, U.K., 30 & 31 Victoria, c. 3, which reads as follows:

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated: that is to say…..

10. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province……

5Entities, such as the respondent that are providing services associated with the Internet and/or e-mail communications are generally viewed as falling under federal jurisdiction. This view was summarized by Professor Patrick Monahan in Constitutional Law, 2nd ed. at pps. 366-367 as follows:

Since Internet service providers are integral to the transmission of telecommunications from one province to another and around the world, they must be regarded as federal undertakings subject to exclusive federal jurisdiction pursuant to Section 92 (10) (a). Moreover, any other undertakings that participate in or facilitate the transmission of communications or information via the Internet as a regular or continuous part of their business must be regarded as falling within exclusive federal jurisdiction.

6The applicant would not appear to be disputing the above noted conclusion that the transmission of Internet and/or e-mail through wireless communications generally falls under exclusive federal jurisdiction. It is his position, however, that federal jurisdiction over telecommunications does not extend to terminal equipment (i.e., telephones, "smart phones" and peripherals) utilized to access and complete such transmissions.

7The applicant's position in this matter is directly related to previous dealings he has had with the Canadian Radio Television Commission ("CRTC") regarding the issue of the accessibility of "smart phones" to individuals who are blind or visually impaired. The applicant, in 2001, along with Marie Laporte-Stark filed a request seeking the CRTC regulate terminal equipment to ensure that persons who are blind had access to the full range of telecommunications services. The CRTC in a decision dated March 30, 2007 declined to regulate terminal equipment as it related to the disability needs of blind or visually impaired individuals. In reaching this conclusion the CRTC adopted the following analysis:

35. The Commission notes that the Act confers powers on the Commission to determine standards in respect of the technical aspects of the telecommunications applicable to telecommunications facilities operated by or connected to those of the Canadian carrier. However, the Commission notes that its jurisdiction under the act does not extend to non-carrier manufacturers of terminal equipment. It also notes that the certification of terminal equipment is a responsibility of Industry Canada. Accordingly, the Commission considers the standards would be more comprehensively determined by such entities such as the CSA and/or Industry Canada,

36. For these reasons, the Commission considers that its intervention is not warranted with respect to the regulation of terminal equipment as it relates to persons who are blind. The Starks' request in this regard is therefore denied.

8Subsequently in, June 2008, the CRTC initiated a consultation process regarding unresolved issues related to the accessibility of telecommunications and broadcasting services to persons with disabilities. In the notice setting out the terms of that consultation the CRTC expressly, at paragraph 16, indicated that it does not regulate terminal equipment or the design and manufacture of communication devices.

9The applicant's argument is that the "smart phone" produced by the respondent should be viewed as separate and distinct from the transmission of e-mail and Internet information emanating from that product would seem to be premised on a rather artificial construct. It would appear to be evident that the "smart phones" produced by the respondent are integrated completely with the transmissions emanating to and from those devices. It would be an impractical, if not impossible, exercise to isolate the "smart phone" from its role in the transmission of e-mail and Internet throughout Canada and beyond.

10More importantly, the relevant constitutional analysis is on the enterprise of the respondent and the nature of the services it provides, including its operations as a whole; not on a particular product it has developed. An "undertaking" for the purposes of section 92(10)(a) has been accepted as not being a physical thing, but as an arrangement under which things are used. As was outlined in the leading decision of the Supreme Court of Canada in Alberta Government Telephones v. C.R.T.C [1989] 2.S.CR. (S.C.C.):

The primary concern is not the physical structures or their geographical location, but rather their service which is provided by the undertaking through the use of its physical equipment.

The focus of the constitutional analysis in the case at hand thus is on the services of the respondent as a whole and not on particular terminal devices it may produce.

11As to the applicant's reliance on the determination by the CRTC that it will not regulate terminal equipment, that decision, in my view, does little to advance the position of the applicant. For the purposes of this dispute the significance of that decision lies with the constitutional authority of the CRTC to decide the issue not necessarily on the decision itself. Moreover, the CRTC's decision can be viewed simply as a determination that other agencies, including Industry Canada, were more appropriate regulatory bodies to review the standards applicable to terminal equipment. Finally, it must be noted that the decision of the Commission not to exercise regulatory authority over terminal devices does not somehow create a void such that a province can assume jurisdiction over that aspect of the field of telecommunications.

12In conclusion, therefore, the Application is dismissed as this Tribunal has no jurisdiction to inquire into this matter since the respondent is a federally regulated enterprise.