MacDonald v. Downtown Health Club for Women, 2009 HRTO 868

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

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: June 17, 2009

Citation: 2009 HRTO 868

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

Reasons for Decision

1This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The complaint which underlies the current Application was filed with the Ontario Human Rights Commission on August 4, 2006 and abandoned upon the filing of the present Application with the Tribunal on November 18, 2008.

2A Case Resolution Conference scheduled for June 15, 2009 was adjourned on the consent of the parties in light of the applicant’s health condition. The applicant is unable to predict when she will be able to participate in a hearing. The purpose of this Interim Decision is to determine the process for resolving various preliminary matters raised by the parties.

3The applicant self-identifies as a transgendered person. She alleges 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 deny that they have breached the applicant’s rights under the Code.

4On June 1, 2009, the respondents filed a Notice of Constitutional Question and gave notice to the Attorneys General of Ontario and Canada, in accordance with Rule 22 of the Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code (the “Transitional Rules”).

5The respondents raised three Constitutional arguments. First, they submitted that if the Tribunal were to rule that the respondents breached the applicant’s rights, this would violate the freedom of association of women to associate in women-only settings, contrary to section 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). Second, the personal respondent submitted that his section 7 Charter right to remain silent is violated by the:

(…) onus-shifting provision in human rights law that requires the Respondent to justify a case of prima facie discrimination by proving that accommodating the Applicant would cause “undue hardship.

Third, the personal respondent submitted that his right to be tried within a reasonable period of time has been infringed contrary to section 11(b) of the Charter.

6The respondents seek to have the above issues determined before the hearing on the merits begins. The applicant asks that these issues be heard together with the evidence on the merits, because the respondents may have to call evidence with respect to the alleged prejudice they may have suffered as a result of delay.

7In my view, the section 2(d) freedom of association argument would be best dealt with at the hearing. It may be that, depending on my factual findings, the issue may be moot.

8However, I find that it would fair, just and expeditious to request written submissions on the section 7 and 11(b) arguments during the interval necessitated by the applicant’s health situation.

9Accordingly, I make the following orders:

1. The respondents shall file written submissions, including case law and facts upon which they rely in support of their section 7 and 11(b) Charter arguments within 30 days of the date of the Interim Decision.

2. The applicant and the Attorneys-General (if they wish to participate) shall file written submissions in response, including case law and facts upon which they rely within 20 days of receipt of the respondents’ submissions.

3. The respondents may file reply submissions, if any, within 10 days of the receipt of the written submissions of the applicant and the Attorneys-General (if any).

10Unless the Tribunal directs otherwise, the Charter issues will be determined on the basis of the written submissions. If the Tribunal determines that oral submissions or evidence is required, the Registrar-Transition will contact the parties to schedule a hearing.

11In addition, the Tribunal will determine the production disputes on the basis of the written submissions already received.

12The Registrar-Transition will contact the parties to secure dates for a Case Resolution Conference on the merits in the fall of 2009, to avoid further delay, should this Application proceed.