Atamanyk v. The Regional Municipality of Niagara, 2009 HRTO 148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Atamanyk Applicant

-and-

The Regional Municipality of Niagara and The Regional Municipality of Niagara Police Services Board Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart Date: February 13, 2009 Citation: 2009 HRTO 148 Indexed as: Atamanyk v. The Regional Municipality of Niagara

APPEARANCES BY

Gary Atamanyk, Applicant ) On his own behalf

The Regional Municipality of Niagara ) and The Regional Municipality of Niagara, ) Woodward McCaig, Police Services Board, Respondents ) Counsel

1This is an Application dated July 28, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on September 6, 2007.

2The Case Resolution Conference in this matter took place on February 10, 2009. At the start of the Case Resolution Conference, I advised the parties that I would first like to address the issue raised by the respondents as to whether the application established a prima facie basis to support a potential finding of a violation of the Code.

3In keeping with the highly expeditious manner in which s. 53(3) applications are to be conducted, at the conclusion of the hearing on February 10, 2009, I issued the following oral decision.

1. The applicant alleges that he has experienced discrimination both personally as a senior and because of his association with seniors as a result of the interpretation of a licensing by-law by the Regional Municipality of Niagara Police Services Board that would require a business operated by the applicant called TakeKare Kompanions to obtain a licence as operating “vehicles for hire”. The applicant stated clearly that he does not take the position that the by-law itself is discriminatory in violation of the Code.

2. The applicant asserts six bases upon which he alleges a violation of the Code. First, the applicant alleges that no other municipality in Ontario requires licensing for companion services for seniors. This however is not borne out by the material submitted by the parties, which indicates that companion services for seniors are provided by a variety of organizations in Niagara without running afoul of the licensing by-law. Rather, what the Niagara Police Services Board appears to take issue with is the specific business model being implemented by the applicant, which they regarded as providing “vehicles for hire”.

3. The next basis upon which the applicant asserts a violation of the Code is in relation to a difference in the appeal process from licensing decisions which the applicant alleges is different in Niagara than in other areas of the province. Whether or not that is true, this is not something that can support a violation of the Code.

4. The same applies to the next allegation raised by the applicant, which is that the interpretation of “vehicles for hire” in the licensing by-law appears to be used to give preference for taxi services. Again, whether or not this is true, this is not a basis upon which a Code violation is capable of being alleged.

5. The next allegation raised by the applicant relates to the fact that the Niagara Police Services Board is not applying the licensing by-law to other organizations that provide companion services to seniors in the Niagara region, including an organization called Seniors for Seniors and two other organizations that were in operation in 2000 and two different operations that were operating in 2008. While I can appreciate the applicant’s feeling that the by-law is being unfairly applied to his business while not being applied in the same manner to other similar businesses, this does not support an allegation of a violation of the Code. In order to support an allegation of a Code violation, there must be a link between the conduct complained of (i.e. the interpretation of the licensing by-law) and a prohibited ground of discrimination (eg. age). In this case, while it may be accurate to state that the applicant’s business provides services to seniors and has been made into a non-viable enterprise as a result of the costs imposed by the application of the licensing by-law, there is no basis alleged to support that the application of the licensing by-law was “because of” the applicant’s association with seniors. Indeed, the fact that the by-law is not being imposed on other businesses that provide companion services to seniors seems to indicate that the Police Services Board’s interpretation of the by-law has everything to do with the applicant’s specific business model and nothing to do with his association with seniors.

6. The fifth basis upon which the applicant alleges a violation of the Code is due to harassment, by which the applicant alleges that he has been the target of vexatious comment and conduct, including suspected untrue statements, contradictions and intimidation. This allegation of harassment was not raised in the complaint filed with the Commission, nor have any particulars been provided in advance of the hearing to support this allegation. As a result, in accordance with the Rules applicable to transition proceedings and specifically in accordance with Rule 6.3, I am not prepared to allow this allegation to proceed.

7. Finally, the applicant alleges personal discrimination because as a senior, he is not able to access companion services for his own needs from TakeKare Kompanions. Again, while this may be true, the applicant clearly has other options for senior services available to him in Niagara Region.

8. I am aware that the applicant does have legal issues regarding the proper interpretation of the term “vehicle for hire” within the meaning of the licensing by-law and whether or not the licensing by-law is being inconsistently applied. These issues, however, are not capable of being addressed in this forum, as they are beyond the Tribunal’s jurisdiction under the Human Rights Code. While the applicant has indicated that he may face a variety of problems in finding an appropriate venue to address these issues, including issues of financial cost and the emotional toll of instituting or becoming embroiled in court proceedings, these problems are not capable of conferring upon this Tribunal a jurisdiction that it simply does not have.

9. Accordingly, this application is dismissed as failing to disclose a prima facie basis upon which a potential violation of the Code could be found.

4As a result, the Application is dismissed in its entirety.