HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alan Whiteley
Applicant
-and-
Osprey Media Publishing Inc. and Sun Media Corporation
Respondents
- and-
Ontario Human Rights Commission
Intervenor
DECISION
Adjudicator: David A. Wright
Indexed as: Whiteley v. Osprey Media Publishing
APPEARANCES
Alan Whiteley, Applicant ) Self-represented )
Osprey Media Publishing and ) Tycho Manson, Counsel Sun Media Corporation, Respondents ) )
Ontario Human Rights Commission, Intervenor ) Anthony D. Griffin, Counsel
1The issue in this Application is whether the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), governs the opinions a newspaper can express on its editorial page. The applicant, a lawyer, alleges that the respondents discriminated against him on the basis of place of origin in goods, services or facilities through the publication of an editorial in the newspaper The County Weekly News that he says disparaged persons who have moved to Prince Edward County from elsewhere. The respondents and the Ontario Human Rights Commission take the position that the Application is not within the Tribunal’s jurisdiction.
2In an Interim Decision dated May 12, 2010, the Tribunal scheduled a hearing to hear legal submissions on whether the Application falls within the Tribunal’s jurisdiction and whether, if it does, the Application has a reasonable prospect of success: see 2010 HRTO 1063. The Tribunal subsequently granted the Ontario Human Rights Commission leave to intervene: see 2010 HRTO 1554. A hearing was held on September 7, 2010, in Kingston.
DECISION
3The Tribunal has no jurisdiction to scrutinize the content of newspaper editorials. The content of a newspaper editorial is not a “service” within the meaning of s. 1 of the Code, nor is it a “notice, sign, symbol, emblem or other similar representation” within the meaning of s. 13 of the Code. Accordingly, the Application is outside the Tribunal’s jurisdiction and it is dismissed.
FACTS
4The editorial in question was published on July 9, 2009, and reads as follows:
Ask a Prince Edward County native to describe an import and they’re not likely to tell you about their Saab, Subaru or Lexus.
In fact, if you drive one of those, you’re likely what the true County resident would derisively describe as an import – a know-it-all city slicker moved to the bucolic shores of Prince Edward from Toronto or the 905, bringing along your urban sensibilities, baggage, gripes, niggles and attitudes.
Worse still, when the import starts telling the locals they’re all backward hicks who don’t know better than to stand up for themselves, you have to start wondering what’s behind the bluff and bluster.
There is no shortage of cataclysmic fights under way in the county right now, ranging from seasonal cottage development on East Lake to the wind turbine debate that still rages.
There are import doctors who are using their newly minted county address to bolster their claim that the infernal wind machines will ruin your health, make your cat crazy, stop your cows from milking and flatten your soufflé.
As well, it seems there’s some real estate types now trying to protect their prized Prince Edward pied a terre under the guise of a campaign to actively oppose the introduction of wind farms in the County.
There was a bus trip being advertised for a ride in July from the County to Wolfe Island by a group that doesn’t identify itself (unless you look at the email addresses attached).
The ad suggests the unnamed organizers planned the trip solely to show County residents what their little piece of paradise can look like if they let wind farms establish in Prince Edward.
“This trip is not for profit, nor to convince anyone of anything,” states the ad’s copy. “Every resident of Prince Edward County is invited, whatever your position.”
County residents don’t need bus tours put on by real estate agents with a vested interest in preserving wind-turbine-free vistas to increase the saleability of County properties.
What they need is a way to produce green energy for a polluted province and planet and farmers who’ve been scratching out a living on notoriously poorly irrigated land for decades can finally make a little money by leasing out land on which the clean energy machines will operate.
Nothing a County native hates worse than an import telling them what to do or how to think and this is a good example of just that sorry principle at work again.
ANALYSIS
5The relevant provisions of the Code are as follows:
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.
(1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.
(2) Subsection (1) shall not interfere with freedom of expression of opinion.
6Prior to the hearing, the applicant took the position that the editorial itself was a service within the meaning of s. 1 of the Code. At the hearing, he agreed with the intervenor and the respondent that the content of the editorial was not a “service” within the meaning of s. 1. However, he took the position that the editorial was a notice, sign, symbol, emblem or other similar representation that announced the intention of the newspaper to discriminate by refusing letters to the editor from persons from outside Prince Edward County. He argues that the editorial essentially suggested that the opinions of “imports” are not worthwhile, and that it suggests that the paper would not accept such letters, or if it published them, would not expect its readers to give them much consideration.
Whether the Editorial is a “Service”
7I agree with the position of all parties that the content of the editorial is not a service within the meaning of the Code. The Supreme Court of Canada’s decision in Gay Alliance Toward Equality v. Vancouver Sun, 1979 CanLII 225 (SCC), [1979] 2 S.C.R. 435 makes it clear that the content of a newspaper is not a service within the meaning of statutory human rights codes. That case involved the question of whether the acceptance of advertisements was a “service…customarily available to the public” under British Columbia human rights legislation. The majority held that the definition of service was “subject to the right of the newspaper to control the content of such advertising” (at p. 455).
8Even the dissent of Dickson J., which would have found that the advertising was a service, was careful to emphasize that the content of newspapers is not a service under human rights legislation. It held as follows, at p. 469:
It should also be made clear that the right of access with which we are here concerned has nothing to do with those parts of the paper where one finds news or editorial content, parts which can in no way be characterized as a service customarily available to the public.
9Accordingly, under the reasoning of both the majority and Dickson J., the content of the editorial does not fall within the social area of services. This conclusion is further strengthened by the Canadian Charter of Rights and Freedoms, which came into force after Gay Alliance Toward Equality was decided. Section 2(b) of the Charter guarantees freedom of expression, including freedom of the press. Expression of editorial opinion is at the very core of that right. Even assuming there is ambiguity about whether services in s. 1 includes the content of editorial opinions, such ambiguity should be resolved in favour of the protection of the Charter right of expression: see generally Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-66.
10The content of newspaper editorials is therefore not a “service” within the meaning of s. 1 of the Code.
Whether the Editorial falls under s. 13
11The applicant argues that the editorial is a “notice, sign, symbol, emblem, or other similar representation” that indicates the intention of the person to infringe a right or that is intended to incite the infringement of such a right. The intention, he says, is to refuse to publish letters to the editor from outsiders or to comment on the worth of such letters. The Commission, whose argument is adopted by the respondents, takes the position that a newspaper editorial is not a “notice, sign, symbol, emblem, or other similar representation”. In my view, the Commission’s argument is correct.
12In support of its position, the Commission relies upon the decision of the Manitoba Court of Appeal in Warren v. Manitoba Human Rights Commission (1985), 1985 CanLII 5260 (MB CA), 6 C.H.R.R. D/2777, and the decision of the Saskatchewan Court of Appeal in Saskatchewan (Human Rights Commission) v. Engineering Students’ Society (1989), 1989 CanLII 286 (SK CA), 10 C.H.R.R. D/5636. Both found that the content of newspapers did not fall within similar language in those provinces’ human rights legislation.
13In Warren, the Court dealt with the issue of whether newspaper columns could be considered a “notice, sign, symbol, emblem or other representation” within the meaning of s. 2 of the Human Rights Act, C.C.S.M. Chap. H175. The Court suggested that had the legislature intended s. 2 to apply to newspaper articles and editorials, it could easily have done so.
14In Engineering Students’ Society, the Court was dealing with a prohibition on the publication or display, including in a newspaper, of “any notice, sign, symbol, emblem or other representation…” The Court agreed with the analysis in Warren and went on to refer to the more specific Ontario provision in reaching the conclusion that the Manitoba provision did not cover the content of newspapers. It held, as follows, at paras. 41312-41313:
For the most part, we agree with this analysis, and that being the case, the phrase in our view has to be taken as prohibiting notices, signs, symbols, emblems or other similar representations. That, incidentally, is how the phrase is cast in the Ontario counterpart to s. 14. Section 12 [now s. 13] of the Ontario Human Rights Code reads thus:
12.(1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.
Now if the words “or other representation” be taken as meaning other “similar” representation, then, having regard for the structure of the section and the fact the phrase is concerned with the form of the message, by similar representation is meant representation similar in form.
Construed thus, the phrase does not embrace the content, generally, of a newspaper. It certainly includes the publication in a newspaper of a notice, sign, symbol, emblem or other representation having the prohibited effects, but it does not include the content, generally, of a newspaper. And so we find ourselves unable to agree with the Commission's view of the scope of the section.
15The Commission also relies upon the placement of s. 13 in Part II, the interpretation section of the Code. It notes that prior to 1981 amendments to the Code, it contained a general prohibitions on signs or symbols indicating discrimination or an intention to discriminate. It states that an applicant must assert that a right under Part I has been infringed, and cannot rely only upon s. 13 as a source of independent rights.
16It is a general principle of human rights legislation that rights are to be broadly construed and exceptions must be defined narrowly. In interpreting any statute, a court or tribunal must take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.
17I find that an editorial is not a “notice, sign, symbol or other similar representation” within the meaning of s. 13. An editorial expressing opinions is not similar to the other items in the list, and I adopt the reasoning of Warren and Engineering Students’ Society in this regard. Section 13(2) confirms this interpretation, since to hold otherwise would be to interpret s. 13(1) to interfere with the freedom of expression of opinion. Moreover, to the extent there is ambiguity after considering s. 13, s. 2(b) of the Charter mandates an interpretation that excludes editorials from the section. As publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society, any ambiguity should be resolved in favour of the exclusion of such matters from the Code.
18The applicant relies upon R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, for the proposition that there are limits on freedom of expression. In that case, specific criminal law provisions aimed at hate speech were upheld under the Charter. It in no way suggests that general Code provisions should be interpreted in a manner that restricts free expression of opinions by the media.
19Therefore, I find that this Application is outside the Tribunal’s jurisdiction as it does not raise a social area covered by the Code. There is no need to deal with the issue of whether the Application in fact raises the ground of “place of origin”.
ORDER
20The Application is dismissed.
Dated at Toronto, this 26th day of October, 2010.
“Signed by”
David A. Wright
Interim Chair```