Browne v. Niagara (Regional Municipality), 2010 HRTO 2141

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Browne

Applicant

-and-

Regional Municipality of Niagara

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: October 22, 2010

Citation: 2010 HRTO 2141

Indexed as: Browne v. Niagara (Regional Municipality)

AppearanceS BY

Angela Browne, Applicant ) On Her Own Behalf

The Regional Municipality of Niagara , ) Michael Kyne,

Respondent ) Counsel )

BACKGROUND AND PROCEDURE

1This Application was filed March 31, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission (the “Commission”) on April 21, 2006 and abandoned upon filing this Application with the Tribunal.

2The applicant self-identifies as a person with a disability. As a result of the medication that she takes for a number of medical conditions, she cannot obtain a driver’s license. The applicant asserts she is unable to secure employment because of her inability to drive and as a result, is self-employed as a paralegal.

3The applicant believes the failure of the respondent Regional Municipality of Niagara (“Niagara”) to create inter-municipal conventional transit, primarily between St. Catharines and Welland, discriminates against her on the basis of her disability.

4On March 1, 2010, Niagara filed a Request for Order during Proceedings seeking a dismissal of the Application on the basis that the facts as alleged in the Application do not contravene the Code. By interim decision dated April 16, 2010, the Tribunal determined this issue should be determined at the hearing scheduled for May 19, 2010, rather than on the basis of written submissions.

5On March 26, 2010, the applicant filed a Request for Order during Proceedings seeking to add the Ministry of Municipal Affairs and Housing (the “Ministry”) on the basis that the Ministry is ultimately responsible for municipal affairs and could issue legislation requiring Niagara to provide an accessible, affordable, reliable and useable inter-municipal transit system. By the same interim decision dated April 16, 2010, the Tribunal determined it was not appropriate to add the Ministry as a party because it was not mentioned in the original complaint and the Tribunal was not satisfied that the facts set out in the original complaint could result in any finding of a breach of the Code by the Ministry.

6By Case Assessment Direction dated May 4, 2010, the parties were advised the Tribunal would hear Niagara’s Request for an Order during Proceedings seeking a dismissal of the Application on the hearing date scheduled for May 19, 2010. The parties were advised the Tribunal would hear the applicant’s evidence and the evidence of Eric Flora, the Associate Director of Transportation Systems for Niagara, on that day.

PUBLIC TRANSPORTATION IN NIAGARA

7This case involves inter-municipal transportation between the various cities and towns in the Niagara Region.

8The Regional Municipality of Niagara is comprised of twelve municipalities that include St. Catharines, Niagara Falls, Niagara-on-the Lake, Fort Erie, Port Colborne, Thorald, Grimsby, Welland, Wainfleet, West Lincoln, Pelham and Lincoln.

9Section 11 of the Municipal Act, 2001, S.O. 2001, c. 25, assigns responsibility for public transportation (other than highways) to the individual municipalities. The municipalities are responsible for their own public transportation systems, including specialized transit and bus transportation systems. Niagara Falls, St. Catharines, Welland, Fort Erie and Port Colborne have specialized transit in their cities.

10Several of the municipalities operate limited inter-municipal transit. For example, there is conventional public transit from Brock University in St. Catharines to Niagara College in Welland, from Niagara College to Niagara Falls and from Niagara Falls to Fort Erie. The service from St. Catharines to Welland is offered mainly from September to the end of April and is provided by the city of Welland in coordination with the city of St. Catharines.

11Niagara does not have the independent authority to provide inter-municipal transit. That authority must be delegated by a majority of local municipalities within its geographical boundaries.

12To transfer authority from the local municipality to the region, Niagara must achieve triple authority that being, authority from the majority of Regional Council, the majority of local councils (7 out of 12) and a majority of electors.

13In late October 2002, Regional Council adopted a plan for the establishment of conventional inter-municipal transit and a region-wide specialized transit for persons with disabilities. On May 20, 2004, Regional Council passed a by-law to permit Niagara to fund and co-ordinate only the provision of inter-municipal specialized transit for persons with disabilities. That by-law received triple authority on or before January 31, 2005.

14Specialized transit commenced on November 6, 2006 for medical appointments only (the “trip purpose”). Eligibility was confined to mobility impairments: the service user had to be unable to board a conventional transit vehicle or walk a distance of 175 metres (approximately 600 feet).

15At the end of June 2007, the trip purpose for specialized transit was expanded to include education and employment and the hours of service were extended. The eligibility criteria, mobility impairments, remained the same.

16Today, persons must meet the following criteria in order to use specialized inter-municipal transit in the Niagara Region:

• travel from one municipality to another;

• physically unable to board a conventional transit vehicle or walk a distance of 175 metres

• use the service for one of the following:

o Medical appointments with a medical/health practitioner or institution providing medical services licensed and/or funded by the Province of Ontario

o Employment at the same place of employment in a different municipality at least three times per week. Remuneration must be received for work

o Educational purposes at elementary/secondary school, college/university, qualified institution

17The service provider for the specialized transit service is the Red Cross. Niagara owns five vehicles to provide this service. The person seeking the service calls the Red Cross number, books a pick-up time and the vehicle picks the person up at his/her home. The cost to travel one way from St. Catharines to Welland is $7.50.

THE APPLICANT

18The applicant has many medical conditions including chronic fatigue syndrome, arthritis, depression, central processing disorder and diabetes. She is unable to drive because of the medication that she takes for these conditions. Niagara concedes the applicant has a disability of some kind that prevents her from driving.

19The applicant started working as a paralegal in 1989 and has worked full-time in this capacity since 1999. As a paralegal, she has to travel to the different court houses in Welland, Port Colborne, Niagara Falls, and sometimes to Fort Erie. Most of the applicant’s work takes place in Welland and St. Catharines.

20The applicant lives in St. Catharines and has her office there.

21The applicant has not applied for specialized transit because she can walk, board a conventional bus and does not go to the same place of employment three times per week.

22The applicant states she is unable to take the bus from Brock University to Niagara College because it is too exhausting. It requires her to get up at 6:30 in the morning, take a bus from the bus terminal in St. Catharines to Brock University, take another bus from the University to Welland and then board the public transportation system in Welland. This requires two hours of her time and she is exhausted by the time she gets to Welland. The applicant claims this route also gives her motion sickness.

23The applicant asserts Niagara’s failure to provide inter-municipal transit is discriminatory. Her Application focuses mainly on the failure of Niagara to provide transit between St. Catharines and Welland, where most of her work occurs. The applicant is requesting downtown to downtown transportation between those two cities in thirty minutes or less.

ANALYSIS

Conventional Inter-Municipal Transit

24The applicant alleges discrimination in the receipt of services, conventional inter-municipal transit, on two bases. One, she claims unequal treatment under section 1 of the Code and two, she claims constructive discrimination under section 11 of the Code. I will address the allegations under section 1 first.

25In order to establish an infringement of section 1 of the Code, the applicant must prove she has a disability and that her right to equal treatment with respect to a service, conventional inter-municipal transit, was denied on the basis of her disability.

26There is no dispute in this case that the applicant has a disability. Niagara concedes the applicant has a disability that prevents her from driving. It is not necessary for me to decide the exact nature of the applicant’s disability/disabilities.

27The difficulty in this case is the applicant has not established unequal treatment with respect to the provision of conventional inter-municipal transit because Niagara does not provide this service. Neither the applicant nor others who use conventional transit have access to inter-municipal transit provided by Niagara. While there is limited inter-municipal transit, it is provided by municipalities, not Niagara. In the absence of establishing a service provided by Niagara, the applicant is unable to prove differential treatment. Accordingly, the applicant’s claim under section 1 of the Code is dismissed.

28The applicant also claims constructive discrimination under section 11 of the Code. She argues that because she is unable to drive as a result of her disabilities (or medications that takes for these conditions), she is adversely impacted by the absence of conventional inter-municipal transit. The applicant asserts she is unable to fully operate her para-legal practice without conventional inter-municipal transit. She then argues the Code requires Niagara to provide conventional inter-municipal transit.

29At the root of the applicant’s argument is her belief that section 11 of the Code can be used to impose an obligation to provide services that are not currently being provided that by doing so, the disadvantage experienced by persons with disabilities is lessened. This interpretation is not supported by the clear language of section 11.

30Section 11 of the Code recognizes that discrimination can occur because of the existence of barriers (requirement, qualification or factor) which exclude a group of persons identified by a prohibited ground of discrimination. It then imposes the duty to remove those barriers to the point of undue hardship. One of the central purposes of section 11 is the amelioration of disadvantage experienced by protected groups through the eradication of barriers that prevent their full participation in our society.

31That being said, in order to have recourse to section 11 in a service complaint, a claimant must establish a service is being provided and that a requirement, qualification or factor exists which prevents them from accessing the service. An inaccessible movie theatre is an example that readily comes to mind. Once that service is provided, it must be accessible to all persons. However, if that service is not being offered, section 11 cannot be used to require an accessible theatre to be built.

32In this case, there is no service. Conventional inter-municipal transit is not provided by Niagara. In the absence of a service, there can be no barrier as one cannot be excluded from a service that does not exist. Like the movie theatre, section 11 cannot be used to require Niagara to provide a service that it does not provide.

33The applicant’s claim under section 11 is also dismissed.

34For these reasons, the applicant’s claim that Niagara’s failure to provide conventional inter-municipal transit contravenes the Code is dismissed and Niagara’s Request for an Order during Proceedings is granted.

35One of the collateral issues raised during the hearing relates to inter-municipal specialized transit, a service that Niagara does provide, and the applicant’s exclusion from this service. This is not the essence of the applicant’s claim, and was referred to more as an aside rather than a substantive complaint. The applicant does not qualify for inter-municipal specialized transit for two reasons: she does not have a mobility impairment (the eligibility criteria) and she does not travel to the same place of employment for the purposes of remuneration (the trip purpose). It is unclear based on the evidence before me whether the applicant is even seeking access to specialized transit as opposed to conventional inter-municipal transit, through this Application.

36The evidentiary record before me is insufficient to decide the question of whether inter-municipal specialized transit discriminates against the applicant on the basis of her particular disability. The issue of specialized inter-municipal transit raises complex legal questions, including whether it is a special program, that must be determined on a full evidentiary record with detailed legal argument provided. I have neither of those things in this case and as such, I am unable to make any determination on the issue of specialized transit in this Decision.

ORDER

37This Application is dismissed.