HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond McLennon

Applicant

-and-

City of Toronto, Municipal Licensing and Standards Division, Bruce Robertson, Carol Ruddell-Foster, Scott Baker and Giovanna Priolo

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: July 21, 2009

Citation: 2009 HRTO 1089

Indexed as: McLennon v. Toronto (City)

1The applicant filed an application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on February 24, 2009, alleging discrimination on the basis of race, disability and age in the areas of employment and in goods, services and facilities.

2The respondents did not file a Response. On May 27, 2009, they filed a Request for Order During Proceedings (RFOP) seeking a dismissal of the Application on the basis of delay, bad faith and abuse of process, lack of a prima facie case, lack of jurisdiction, and incompleteness, incomprehensibility and incoherence. The applicant had until June 10, 2009, to file a response to the RFOP, which he did not do. This Interim Decision addresses the respondents’ Request.

3The Application appears to raise two principal allegations of discrimination. The first relates to an alleged denial of a taxicab licence in 1983. The second relates to the alleged discriminatory enforcement of municipal law by the personal respondent Scott Baker. It is not clear when this alleged incident occurred, but it appears the applicant is referring to a charge that Officer Baker laid against the applicant in November 2006.

4While the respondents raise numerous objections to the Application as filed, the main concern is the timeliness of the allegations, given that they pertain to incidents they argue well exceed the one-year limitation period prescribed in the Code.

5In addition to the delay issue, the respondents argue that the Application should be dismissed for the following reasons:

(a)The Application as drafted is incomplete, incomprehensible and incoherent, making it very difficult to respond to the allegations.

(b)There are no specific allegations made against the personal respondents Ms. Ruddell-Foster and Ms. Priolo and as such they are improperly named.

(c) There are no specific allegations made against the personal respondent Mr. Robertson and he has had no involvement in this case. The applicant improperly identified him as Bruce Robinson rather than Bruce Robertson, and fails to provide any particular allegation that relates to him personally, and as such he is improperly named.

(d)The applicant has failed to plead an appropriate social area that is covered by the Code. The situation is neither one of employment or services, nor is it contractual. Therefore, the Tribunal has no jurisdiction to consider the applicant’s allegations.

(e)The applicant has failed to make out a prima facie case, meaning that even if his allegations were believed, they would not lead to a conclusion that the respondents violated his Code rights.

6There is also an issue with respect to the sufficiency of the respondents’ submissions. They brought a RFOP without filing a full Response, as required by the Rules. There are very few circumstances in which a respondent is not required to file a Response to an Application. Such circumstances generally relate to Code-prescribed jurisdictional bars, none of which is raised in the present case. In this case, however, I am satisfied that it is fair, just and expeditious not to require the respondents to file a complete Response before considering the preliminary issues. The length of time since many of the alleged events to which the Application pertains is so extraordinary that it would not be fair to require the respondents to expend resources to inquire into them for the purpose of providing a full Response to the Application before the Tribunal determines whether it will accept the Application.

7Of the issues raised by the respondents, two are fundamental threshold issues. First, the respondents submit that the applicant has failed to situate his allegations in the context of a social area that is covered by the Code, and is therefore beyond the jurisdiction of the Tribunal. Second, they submit that the Application is significantly out of time and should be dismissed for that reason.

8Regarding the first issue, the respondents do not deny that the City is providing a “service” within the meaning of the Code in licensing and regulating taxicabs and drivers. Their argument is that the applicant currently operates a taxicab and has a licence from the City and, as a result, no service has been denied him. This is not a jurisdictional question but rather an issue that goes to the merits of the applicant’s case. The Tribunal does not find it appropriate to decide this issue at this stage of the proceedings.

9At this time, the sole preliminary issue for the Tribunal to decide is whether the applicant is out of time within the meaning of section 34(1) of the Code and, if so, whether the Tribunal is satisfied that the delay was incurred in good faith and without substantial prejudice to any affected person, in accordance with section 34(2).

10The Registrar will schedule a one-hour oral hearing to determine the issue of timeliness. The applicant will be expected to make submissions addressing the respondents’ assertion that the Application is significantly out of time and their request that it not be accepted by the Tribunal.

[11] The respondents have already made extensive legal arguments in writing, supported by case law, on this question. The Tribunal does not expect it will be necessary to hear from the respondents at the hearing except to reply to any new issues or facts raised by the applicant. If the applicant wishes to rely on case law or other supporting material (including facts not already provided in the Application) during the hearing, he is directed to deliver this material to the respondents, and to the Tribunal, by no later than two weeks before the date scheduled for the hearing.

12The Tribunal draws the applicant’s attention to the “Applicant’s Guide” and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal’s website, www.hrto.ca, or from the Registrar.

13The respondents are not required to file a Response, or any further material, at this time. The other issues raised in the RFOP will be addressed following a decision on the issue of delay.

14I am not seized of this matter.