Human Rights Tribunal of Ontario
BETWEEN:
Henry Freitag Applicant
-and-
Municipality of Penetanguishene Respondent
DECISION
Adjudicator: Ena Chadha Date: August 17, 2010 Citation: 2010 HRTO 1704 Indexed as: Freitag v. Penetanguishene (Municipality)
1This Decision deals with an Application filed on May 25, 2010 under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in the area of services, goods and facilities because of disability.
BACKGROUND
2The applicant alleges that a cabinet (housing electrical wires) located on a walkway in his community constitutes a barrier. The applicant believes that the cabinet poses a safety hazard for people with vision disabilities who use a cane to traverse. The applicant alleges that individuals who are blind will not be able to detect the cabinet using a cane because of the cabinet’s height and location on the walkway. The applicant notes that he raises the concern in the “public interest” and that the respondent municipality has been made aware of the concern. The applicant also indicates that he is not aware of any accidents occurring because of the cabinet. It is not clear if the applicant has a disability; however, it does appear that the applicant does not have a vision impairment requiring him to use a cane.
3On July 29, 2010, the Tribunal issued a Notice of Intent to Dismiss the Application as outside of the Tribunal’s jurisdiction because the Application and the narrative setting out the incidents of alleged discrimination failed “to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s), or the way in which any specific acts of discrimination have impacted [the applicant] personally.” The Tribunal directed the applicant to provide written submissions by August 30, 2010 addressing the issue of jurisdiction.
4The applicant filed brief submissions on August 3, 2010, wherein he states that he relies on the Standards for Barrier-Free Design, Ontario, as the basis for his Application. The applicant notes that, in his opinion, it makes no difference what the barrier is or where it is located. In his submission, if there is a barrier in a public area it should be addressed. The applicant concludes by posing the question “Should it be that the application is or will be dismissed because I am not a blind person?”
DECISION
5I am satisfied that the Tribunal does not have jurisdiction over this Application and, therefore, the Application cannot be processed. The applicant has failed to establish that he has standing to pursue this Application.
6The Code is structured such that applications can be initiated in a limited range of circumstances. Under sections 34(1) and (4), individuals who believe that one of their rights to equal treatment in relation to a Code-protected ground has been infringed may file an application. Pursuant to section 12, an individual may also file an application where discrimination is allegedly experienced because of the individual’s association with a person or persons identified by Code-protected grounds. Section 34(5) permits an individual or an organization to make an application on behalf of another person.
7It does not appear that the current Application comes within the ambit of any of these circumstances. The applicant acknowledges that he is not blind and, as such, his own right to equal treatment because of disability has not been implicated by the alleged barrier. There is no allegation that any of the applicant’s rights, or the rights of someone on behalf of whom he is filing, have been infringed within the meaning of section 34 of the Code. As explained in Oliphant v. Ontario (Attorney General), 2009 HRTO 1902 para 24, “[t]he Code is framed to require the applicant to claim and establish that a right of his has been infringed.” The Code does not permit an individual to assert that a practice or policy is discriminatory where that practice or policy does not directly or indirectly impact the individual.
8The applicant states that he launches the Application in the “public interest”. However, while I appreciate the applicant’s sense of civic responsibility, the Code does not provide an individual, whose own right has not been implicated, to file an application on behalf of the general public. Pursuant to section 35 of the Code, only the Ontario Human Rights Commission is statutorily empowered to initiate applications “in the public interest”. See [Matthews v. C.A.W. Local 1285, 2010 HRTO 1116](https://www.canlii.org/