Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag Applicant

-and-

Municipality of Penetanguishine and Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services Respondents

INTERIM DECISION

Adjudicator: Judith Keene Date: October 20, 2009 Citation: 2009 HRTO 1712 Indexed as: Freitag v. Penetanguishine (Municipality)

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

Respondents to the Application

2The Application originally named the Legislature of Ontario, Government of Ontario and Dalton McGuinty, Premier, and The Corporation of the Town of Pentanguishine as two of three respondents. The correct legal names for these respondents are, respectively, the Legislative Assembly of Ontario (“Legislative Assembly”) and the Municipality of Penetanguishine (“Penetanguishine”) and the style of cause is amended accordingly.

Jurisdiction

3This Interim Decision addresses issues concerning the Tribunal’s jurisdiction over the matters raised in the Application.

4The Application takes issue with a provision of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11 (“the AODA”) that makes accessibility advisory committees (“AAC”s) mandatory only for municipalities having a population of 10,000 or more. The Application states that the “Legislature of Ontario committed a grave discrimination against the citizens who reside in a municipality of less than 10,000.” In the part of the Application that notes the effect of the events at issue on the applicant, the applicant does not identify himself as a person with a disability, and addresses the effect on himself as “a person committed to the rule of law and democracy.”

5On June 8, 2009, the respondent Legislative Assembly of Ontario filed a Request for an Order During Proceedings seeking an order dismissing the Application as against it. The applicant did not respond to this Request.

6On June 8, 2009, the Legislative Assembly and her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (“the Minister”) filed Responses to the Application. On July 27, 2009, the respondent Penetanguishine filed a Response to the Application. The applicant has not replied to the Responses.

7Both the Request for an Order During Proceedings and the Responses raise issues of jurisdiction. I will deal with these separately.

The Request for an Order During Proceedings

8The Legislative Assembly submits that, insofar as the applicant is challenging the validity of a provincial statute, the proper respondent would be the Ministry of the Attorney General, not the Legislative Assembly.

9In addition, the Legislative Assembly submits that if, instead, the applicant is challenging the legislative process, “neither this Tribunal nor the courts would have jurisdiction in relation to such matters, in light of the constitutional doctrine of parliamentary privilege”.

10It is clear on the face of the Application that the applicant is saying that the AODA itself is flawed, allegedly in a way that infringes the Code, and it appears, subject to what the applicant may submit to clarify the issue (see below), that this Application is largely or wholly concerned with that issue. In requesting as a remedy a “Guaranty” of ACCs in municipalities with fewer than 10,000 individuals, the applicant is asking that the AODA be amended. It follows that the applicant has included the Legislative Assembly as a respondent.

11Pursuant to s. 47(2), the Code has primacy over all other legislation in Ontario, unless the other legislation states that it prevails over the Code. This primacy has been recognised in, for example, Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, at para. 34; Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32; Braithwaite v. Ontario (Attorney General) (No. 1) (2005), 54 C.H.R.R. D/116, 2005 HRTO 31; O'Neill and Coles v. Ministry of Transportation (1994) 1994 CanLII 18422 (ON HRT), 27 C.H.R.R. D/405. Further, the Supreme Court of Canada has ruled on numerous occasions that anti-discrimination legislation should attract the most liberal and purposive interpretation, and that “[W]e should not search for ways and means to minimize those rights and to enfeeble their proper impact” (Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, at 1134). However, there are areas in which the Tribunal does not have jurisdiction. Some of the limits of Tribunal jurisdiction are stipulated in the Code. Others may exist as part of the operation of other legislation or of the common law.

12In Reference Re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, the Supreme Court of Canada, considered an appeal by British Columbia concerning federal legislation by which the federal government, in order to reduce the federal budget deficit, decided to cut expenditures and limit the growth of payments made to financially stronger provinces under the Canada Assistance Plan. The Supreme Court, in a discussion of parliamentary privilege, stated that “[T]he formulation and introduction of a bill are part of the legislative process with which the courts will not meddle (2 S.C.R. at 558-559, emphasis added)”. The Court ruled that if a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms, the courts have no jurisdiction to supervise the exercise of legislative power. A similar position in respect to parliamentary privilege was taken by the Ontario Court of Appeal in respect to a challenge to actions taken pursuant to Standing Orders of the Legislative Assembly: see Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission) (2001), 54 O.R. (3d) (C.A.) 595.

13In view of the jurisprudence cited above, I agree that the Legislative Assembly is protected in these circumstances by parliamentary privilege. The Legislative Assembly’s Request for an Order During Proceedings is granted and it is removed as a respondent.

The Responses

14At this preliminary stage in the proceedings, I will deal only with those submissions from the respondents that raise issues of jurisdiction, rather than with defences to a prima facie case of discrimination under the Code.

15Penetanguishine submits that the Application should be dismissed on the basis of section 34 of the Code, essentially because of insufficient connection with a right of the applicant. The relevant parts of section 34 provide as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

16The Minister also submits that the Application should be dismissed on the basis of section 34 of the Code. In addition, the Minister submits that the Application’s claim of discrimination is concerned with the AODA’s differentiation in requirements applicable to municipalities having a population of under 10,000 or 10,000 or more. The Minister notes that the applicant has indicated that Penetanguishine has an AAC, and that any service provided by a municipality must comply with section 1 of the Code, but also notes that “to the extent that the applicant takes specific issue with the actions of the Town of Penetanguishine or its AAC, the Crown takes no position”.

17On the face of the Application, it is not clear why, in the words of section 34, the applicant “believes that any of his…rights under Part I have been infringed”. I see nothing in the Code that would give the Tribunal the power to rule on the bare question of whether legislation, in whole or in part, breaches the Code.

18In the circumstances the applicant is required to deliver to the remaining respondents, and file with the Tribunal, submissions setting out precisely how his right under section 1 to “equal treatment with respect to services, goods and facilities, without discrimination because of… disability” has been infringed by each of the respondents. Such submissions must be delivered and filed by no later than October 29, 2009.

19At this point, the respondents are not required to file responses to the applicant’s submissions. The Tribunal will review the submissions, and may dismiss the Application or issue further directions to the parties.

ORDER

20The Application is dismissed as against the Legislative Assembly of Ontario.

21The applicant is required to deliver to the remaining respondents, and file with the Tribunal, submissions setting out precisely how his right under section 1 to “equal treatment with respect to services, goods and facilities, without discrimination because of … disability” has been infringed by each of the remaining respondents. Such submissions must be delivered and filed by no later than November 6, 2009.

22I am not seized.