HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deniss Suhanovs
Applicant
-and-
Toronto Transit Commission, Gary Webster and Adam Giambrone
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Suhanovs v. Toronto Transit Commission
1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Decision is to address whether the Tribunal has jurisdiction to hear this Application.
2The applicant filed his Application on March 22, 2010 and alleges discrimination on the grounds of disability with respect to services, goods and facilities. The applicant alleges that an air ventilation system that belongs to the corporate respondent, the Toronto Transit Commission (the “TTC”), and that is in close proximity to the applicant’s house, is excessively noisy and has contributed to the gradual deterioration of the health and well being of the applicant and his family as well as others living nearby. The applicant identifies a number of specific health concerns he believes arise out of his exposure to excessive noise. The applicant alleges that his efforts to resolve his concerns have included attempting to contact the personal respondents, Gary Webster, the General Manager of the TTC, and Adam Giambrone, the Chair of the TTC.
3The Tribunal has not yet delivered the Application to the respondents. Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires the applicant to file written submissions.
4On May 5, 2010, the Tribunal Registrar sent a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it failed to describe how the respondents’ behaviour is related to discrimination on the basis of disability and how the allegations are related to the area of goods, services or facilities within the meaning of the Code.
5The applicant filed written submissions in response to the Tribunal’s Notice on May 12, 2010. The applicant submits that in the course of providing transportation services to the applicant and all other residents of Toronto, the corporate respondent has contributed to the applicant, his family, as well as his neighbours developing physical and psychological health problems as a result of the excessive noise generated by an air vent system close to his home. The applicant submits that the corporate respondent’s actions constitute discrimination based on disability due to the respondent’s facilities being the cause of these health conditions and argues that the corporate respondent subsequently has failed to accommodate these disabilities by relocating the offending air vents. Relocating these vents would mean that all residents of Toronto would be “on an equal footing as relates to respondent’s practice-hence no discrimination”.
DECISION
6The Application is dismissed as it is plain and obvious that it is outside the Tribunal’s jurisdiction. The presence and effect of a noisy and intrusive physical plant on persons does not constitute a service, facility or good within the meaning of the Code.
Analysis
7The Tribunal’s jurisdiction is derived from the Code and is limited to the powers conferred upon it by that statute.
8Section 1 of the Code states:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
“Services” is defined in the Code only to the degree that it is described as not including a levy, fee, tax or periodic payment imposed by law. The Tribunal has held that given the nature of the Code and the fact that the term “services” has not been limited, “services” should be given a liberal and expansive interpretation. See Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLii 56481 (ON S.C.D.C.), and Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32.
9In Cooper v. Pinkofskys, 2008 HRTO 390 at paras 10-11 the Tribunal states:
In articulating the meaning of “services”, the Tribunal has had reference to dictionary definitions of the term. In Braithwaite, supra, the Tribunal and the Divisional Court found that “service” must mean something which is of benefit that is provided by one person to another or to the public. In Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association), 2006 HRTO 1, the Tribunal referred to the definition found in the Concise Oxford Dictionary (“The action or process of serving. An act of assistance.”), as well as the definition found in Webster’s Encyclopedic Unabridged Dictionary (“…the performance of any duties or work for another; helpful or professional activity…”).
These definitions, and the various contexts in which the Tribunal has found the area of “services” to be engaged, suggest the necessity for some sort of service relationship, as opposed to a mere interaction, between the parties.
10In this case, the applicant’s concern is the noise caused by the air vents near his house and the effect that this noise has had on him, his family and others. The applicant argues that the air vents are part of the service offered by the TTC in that the service the TTC provides is safe transport to the applicant and others and that the noise created by the air vents means that the TTC is not providing this service to the applicant on a non-discriminatory basis.
11I do not agree. It is important to recognize that not all activities of a service provider necessarily involve the provision of a service within the meaning of the Code. As the Supreme Court of Canada stated in Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571:
It may be that in describing the service offered by a particular provider, a line must be drawn between activities that are part of the service, and those which are extraneous to it. However, this line-drawing exercise is essentially a determination of fact. (para 138).
12In my view, the impact of possibly excessive noise of the air vents, part of the TTC’s physical plant, on the applicant is not part of the “services” provided by the TTC. The “service” provided by the TTC is public transit. The fact that the TTC has a physical plant with noisy air vents is not part of the benefit provided to service users. It does involve an interaction between the TTC and the applicant but in my view it is not part of a service relationship. The noise does not relate to or impact on the applicant’s ability to use the TTC. At best, the air vents are extraneous to the transportation services offered by the TTC. As such it is not part of the services offered by the TTC and the applicant’s claim of differential impact falls outside the jurisdiction of the Code.
13The Tribunal does not have a general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Accordingly this Application is dismissed.
Dated at Toronto, this 2nd day of June, 2010.
”signed by”___________________
Eric Whist
Vice-chair