HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa MacDonald Applicant

-and-

Downtown Health Club for Women, Fulton Fitness and John Fulton Respondents

DECISION

Adjudicator: Kaye Joachim Date: October 9, 2009 Citation: 2009 HRTO 1647 Indexed as: MacDonald v. Downtown Health Club for Women

written submissions by

Lisa MacDonald, Applicant ) Bradley J. Troup, ) Counsel

Downtown Health Club for Women, ) Andrew J. Roman, Fulton Fitness and John Fulton, ) Gita Anand and Respondents ) Erik Marshall, Counsel

[1] This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the "Code").

[2] The purpose of this Decision is to address the applicant's request to withdraw the Application and the respondents request for legal costs or other remedial relief.

[3] The applicant self-identifies as a transgendered person. She alleged that she was discriminated against in the provision of services on the basis of sex contrary to sections 1 and 9 of the Code by the respondents with respect to her request for admission to a women's only fitness facility in the summer of 2006. The respondents denied that they have breached the applicant's rights under the Code.

[4] The respondents raised various preliminary objections and the Tribunal sought written submissions on some of them. The Tribunal scheduled a hearing to commence on November 30, 2009 and the parties filed their statements of facts and remedies and made disclosure of arguably relevant documents. Shortly after my Interim Decision [2009 HRTO 1308](https://www.minicounsel.ca/hrto/2009/1308) ordering the applicant to disclose some medical documents, the applicant sought to withdraw her Application without explanation on August 27, 2009.

[5] The respondents sought their costs or other relief to compensate the respondents for the loss of dignity and stress associated with the accusation of discrimination and their time and money lost in preparing a defence. With respect to the injury to dignity, the respondents assert that they have been stigmatized as having discriminated against the applicant and have been deprived of the opportunity to have the discrimination allegations dismissed.

[6] The Tribunal has no inherent jurisdiction to award costs. It can only do so if such jurisdiction is expressly given to it either by the Code or some other legislation: Ontario (Liquor Control Board) v. Ontario (Human Rights Commission), [1988 CanLII 8926 (ON HCJDC)](https://www.minicounsel.ca/odc/1988/8926), [1988] O.J. No. 167 (Div. Ct.). The Code is silent on the power to award costs. Accordingly, I must determine whether the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended ("SPPA") gives the Tribunal the power to award costs in the circumstances.

[7] The SPPA provides that a Tribunal that may order costs if it has made rules setting out the circumstances in which costs may be awarded:

17.1 (1) Subject to subsection (2), a tribunal may, in the circumstances set out in a rule made under section 25.1, order a party to pay all or part of another party's costs in a proceeding.

(2) A tribunal shall not make an order to pay costs under this section unless,

(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and

(b) The tribunal has made rules under section 25.1 with respect to the ordering of costs which include the circumstances in which costs may be ordered and the amount of the costs or the manner in which the amount of the costs is to be determined.

(3) The amount of the costs ordered under this section shall be determined in accordance with the rules made under section 25.1.

(4) Despite section 32, nothing in this section shall prevent a tribunal from ordering a party to pay all or part of another party's costs in a proceeding in circumstances other than those set out in, and without complying with, subsections (1) to (3) if the tribunal makes the order in accordance with the provisions of an Act that are in force on the day this section comes into force.

[8] Pursuant to s. 17.1 (2) of the SPPA, a Tribunal may only award costs if it has made rules regarding each of the matters set out in s. 17.1(4): Ontario (Director (Environmental Protection Act)) v. Becker Milk Co., (2005) [2005 CanLII 38894 (ON SCDC)](https://www.minicounsel.ca/odc/2005/38894), 78 O.R. (3d) 556 (On.S.Ct.) at para. [9](https://www.minicounsel.ca/odc/2005/38894).

[9] The Tribunal has not made Rules regarding the awarding of costs and therefore, in my view, I have no authority to award costs: Dunn v United Transportation Union, Local 104, [2008 HRTO 405](https://www.minicounsel.ca/hrto/2008/405).

[10] The respondents asked, in the alternative, that I exercise my discretion to prevent the applicant's abuse of this Tribunal's process caused by the unexplained withdrawal, by making a monetary award against the applicant.

[11] In my view, this may be simply another way to frame the request for costs and I am concerned about whether the Tribunal appropriately can avoid the lack of statutory authority to award costs by framing it as an order to prevent an abuse of process.

[12] In any event, I do not find that the applicant has abused the process in any way. The applicant filed an allegation of discrimination based on a refusal or possibly an unwarranted delay in accepting her gym application. On the respondent's own evidence, they did delay in accepting her application and in their view would have been justified in refusing the application. The Application therefore raised important and novel questions about the scope of the Code and its application to transgendered individuals.

[13] Further, I find that the respondents may have caused unnecessary legal costs by raising spurious preliminary issues. They raised constitutional arguments which they subsequently abandoned. The respondents also sought extensive production of the applicant's entire medical history, some of which I found to be completely irrelevant to the issues raised in the Application.

[14] The request to withdraw the Application is accepted. The request for costs or other relief is dismissed.

Dated at Toronto, this 9th day of October, 2009.

"Signed by"

Kaye Joachim Alternate Chair