Owyn Giggey by his next friend Mike Giggey v. York Region District School Board, 2009 HRTO 2236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Owyn Giggey by his next friend Mike Giggey

Applicant

-and-

York Region District School Board

Respondent

DECISION

Adjudicator: David A. Wright

Date: December 21, 2009

Citation: 2009 HRTO 2236

Indexed as: Giggey v. York Region District School Board

APPEARANCES

Owyn Giggey by his next friend Mike Giggey, ) Mike Giggey

Applicant )

York Region District School Board ) Brenda Bowlby, Counsel

INTRODUCTION

1The world is divided into time zones. Two events that happen in different parts of the world at the same moment in time may be recorded as occurring on two different dates. This Decision is about whether it is discrimination on the basis of place of origin for a service provider to consider persons to be born on the date in the time zone of their birth, without making modifications to take into account that it may have been a different date in Ontario or other parts of the world.

2The applicant, Owyn Giggey, was born in Hong Kong on January 1, 2006, at 4:30 a.m. local time. His birth certificate therefore records his birth as January 1, 2006. At the moment he was born, it was 4:30 p.m. on December 31, 2005 in York Region. Under the Education Act, R.S.O. 1990 c. E.2, s. 34, individuals born in 2005 are eligible for public junior kindergarten in the 2009-10 school year. Owyn’s father wants him to attend junior kindergarten with the York Region District School Board this year. The Board has refused, on the basis that he is not eligible because he was born in 2006 as reflected on his birth certificate. The applicant, through his next friend, argues that this is discrimination on the basis of place of origin, since had he been born at the same moment in time in the eastern time zone like many other children in the Board’s schools, he would be eligible for junior kindergarten this year.

TRIBUNAL PROCEEDINGS

3On November 10, 2009, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination based on age and place of origin and a Request to Expedite his Application. The respondent filed a Response to both on November 19, 2009, together with a Request for Order During Proceedings asking that the Application be dismissed on the basis that the allegations do not amount to a violation of the Code.

4In a Case Assessment Direction dated December 2, 2009, the Tribunal directed that a conference call hearing be scheduled to hear oral submissions on the Request to Expedite and the Request for Order During Proceedings. That hearing took place on December 14, 2009. During the call, the applicant’s next friend indicated that he was not pursuing the allegations of discrimination based on age. Moreover, in view of my determination on the issue of discrimination, there is no need to consider the Request to Expedite.

ANALYSIS

5After considering the parties’ submissions, I have determined that the allegations made by the applicant are not discrimination on the basis of place of origin. Accordingly, the Application is dismissed.

6It is a basic principle of interpretation that rights in the Code must be given a broad and liberal interpretation, and exceptions should be narrowly construed. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 at paras. 26-32, the Supreme Court reviewed these principles, and emphasized that human rights statutes must be interpreted in a flexible manner, taking into account the statutory objectives, changing social conditions and evolving conceptions of human rights.

7The ground of place of origin reflects the general value that in Ontario society, people should not be discriminated against based upon where they came from. As the Supreme Court stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817:

Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world.

The ground of place of origin reflects the purpose of ensuring that in the social areas covered by the Code, discrimination based upon where someone came from is prohibited and that people from particular places are not unjustly disadvantaged.

8In the Education Act, the Legislature has chosen to make admission to junior kindergarten contingent on the year a child was born. The result of this is that there is necessarily a cut-off: a child born at 11:59 p.m. on December 31 is eligible for junior kindergarten one year earlier than a child born two minutes later at 12:01 a.m. on January 1. While I make no comment on the wisdom of the Legislature’s choice, it appears that it chose an approach that involves a cut-off (rather than having eligibility to enter kindergarten occur when a child reaches his or her birthday) so that school classes would be stable throughout the school year. In any time-based distinctions, such as the coming into effect of a new government program or law, there is an element of seeming arbitrariness in how people are affected, but that is a necessary consequence of legislation in a complex and changing society. I appreciate that the applicant believes that a better system would make admission depend upon an individual child’s development, but that much larger issue is not before me in this case.

9In this context, I cannot conclude that basing the date of birth for purposes of junior kindergarten admission on the date of the child’s birth certificate constitutes discrimination on the basis of place of origin within the meaning and intention of the Code. While, technically, time zones do relate to the “place” a person was born, the interpretation of “place of origin” the applicant suggests would be an overly technical interpretation of the Code that is inconsistent with its purposes of eradicating discrimination, disadvantage and stereotyping based upon presumed rather than actual characteristics.

10Time zones stretch the world, covering all places of origin. While Hong Kong is in a later time zone than York Region, those born in places to the west such as Kenora, Vancouver, Guadalajara, or Tahiti late on December 31 local time may be eligible for kindergarten a year earlier than a person born at the same moment in time in York Region. Like the cut-off of midnight, the use of local time and the date on a birth certificate creates some seemingly arbitrary cut-offs, but does not, in this context, engage the purposes of the prohibition of discrimination based upon place of origin. There is no particular place of origin or type of place of origin impacted by this distinction.

11That is not to say that the place of origin impacted cannot be broad in certain cases, but there must be a connection between the “place” impacted and the purposes of the prohibition. In this case I find there is none. Whether a particular time zone is earlier or later than another results from the rotation of the earth, and choices of human society about time zone boundaries and the placement of the international date line. It in no way engages considerations of stereotyping, social or historical disadvantage, or presumed characteristics.

12Accordingly, I conclude that the Application does not allege discrimination based on “place of origin” as set out in the Code. The Application is dismissed.