Gary Rochester v. Ontario (Attorney General), 2009 HRTO 270

Human Rights Tribunal of Ontario

Between:

Gary Rochester Applicant

-and-

Her Majesty the Queen in Right of Ontario, as Represented by Ministry of the Attorney General Respondent

Interim Decision

Adjudicator: Alison Renton Date: March 11, 2009 Citation: 2009 HRTO 270 Indexed as: Rochester v. Ontario (Attorney General)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), on November 13, 2008. The applicant alleges discrimination in sex and age in goods, services and facilities.

2The applicant is divorced. Mr. Justice Sedgwick of the Superior Court of Justice issued an endorsement in February 2008 for spousal support setting out the amount the applicant is required to pay to his ex-spouse (the "endorsement"). The endorsement references the Spousal Support Advisory Guidelines (the "Guidelines") that were prepared for the Federal Department of Justice. The applicant alleges that the respondent encourages Judges to use the Guidelines in divorce proceedings when determining the amount of spousal support payments. He alleges the Guidelines provide that the longer a marriage existed before its breakdown, the more support (as a proportion of income) should be paid without any other factors taken into account. He alleges there is a direct relationship between the duration of a marriage and the age of the person who is required to pay support. The longer the marriage, the more support. He alleges this discriminates against on the basis of age as only older people can have longer marriages. He also alleges that most of the individuals who pay spousal support are male and the Guidelines also discriminate on the basis of sex.

3The respondent filed its Response. The respondent submits that it is not the proper party to these proceedings as the Guidelines were prepared for the Federal Department of Justice. The respondent asks for early dismissal of the Application, pursuant to s. 45.1 of the Code because another proceeding has in whole or in part appropriately dealt with the substance of the Application, specifically the applicant's divorce proceeding. The respondent also submits that the Tribunal does not have the jurisdiction to determine the Application as the substance of the allegations pertain to his divorce proceedings which are governed by the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended. The respondent also denies that it is providing goods, services and facilities in the manner contemplated by the Code.

4The Code only applies to matters that fall within provincial, not federal, jurisdiction. The Canadian Human Rights Commission deals with matters that come under the jurisdiction of the government of Canada.

5Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

Decision

6In the circumstances, it is appropriate to hear argument on the respondent's requests for dismissal of the Application. Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a hearing to address the following issues:

a) Should the Application against the respondent be dismissed because it is not a proper party to these proceedings as the Guidelines were prepared for the Federal Department of Justice?

b) Should the Application against the respondent be dismissed because another proceeding (the applicant's divorce proceeding) has in whole or in part appropriately dealt with the substance of the Application?

c) Should the Application against the respondent be dismissed because the Tribunal does not have the jurisdiction to determine the Application, as the substance of the allegations pertain to his divorce proceedings which are governed by the federal Divorce Act?

d) Should the Application against the respondent be dismissed because it is not providing goods, services and as defined in the Code?

7The following directions shall apply to the hearing:

a) The applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondents on the questions set out in paragraph 6 above.

b) Any party that wishes to rely on any written materials (including written submissions, documents and caselaw) in addition to the submissions set out in paragraph 3 above, or rely upon any facts not contained in the Application, Response or Reply, must deliver them to the other party and file them with the Registrar within 21 days of the date of this Interim Decision.

8In preparing for the hearing, the parties may want to review s. 45.1 of the Code, the Tribunal's jurisprudence on that section and the Applicant's Guide, pages 4 – 5, 7 – 9, available on the Tribunal's website at www.hrto.ca or from the Registrar's office.

9I am not seized of this matter.