Toronto Community Culture Centre v. Ontario (Citizenship and Immigration), 2010 HRTO 2319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Toronto Community & Culture Centre

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Citizenship and Immigration, Jenny Vane, Luby Carr and Katherine Hewson

Respondents

Interim DECISION

Adjudicator: Brian Sheehan
Date: November 24, 2010
Citation: 2010 HRTO 2319
Indexed as: Toronto Community Culture Centre v. Ontario (Citizenship and Immigration)

APPEARANCES

Toronto Community & Culture Centre, Applicant Davies Bagambiire, Counsel

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Citizenship and Immigration, Jenny Vane, Luby Carr and Katherine Hewson, Respondents Anita Lyon and Kristen Smith, Counsel

INTRODUCTION

1This Application was filed on May 22, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990 c.H.19, as amended (the "Code").

2The applicant organization alleges that it was subject to discrimination by the respondents with respect to services on the basis of ethnic origin and place of origin contrary to sections 1 and 9 of the Code.

3This Interim Decision addresses the Request of the respondents that the Tribunal dismiss the Application on the following basis:

(a) it is time barred;

(b) it is frivolous and vexatious and it would be an abuse of process to allow the matter to proceed to a hearing on its merits.

THE FACTUAL BACKGROUND

The Delay Issue

4The applicant is an incorporated not-for-profit organization whose mandate, amongst other things, is to provide immigrant services to newcomers to Canada from Mainland China. Simon Zhong was the Executive Director of the applicant organization when the facts associated with this matter arose.

5The corporate respondent, Ministry of Citizenship and Immigration (the "Ministry"), is responsible for providing services that meet the needs of newcomers to Canada. The respondent Jenny Vane was a Program Consultant for the Ministry's Newcomer Settlement Program (the "NSP"). The respondent Luby Carr was Manager of the Ministry's Settlement Unit. The respondent Katherine Hewson was Director of the Ministry's Citizenship Development Branch.

6The Ministry operated and funded the Voluntary @ction Online Program (the "Program"). The purpose of the Program was to provide funding to assist community service agencies in building websites that would provide volunteer, service and community specific information.

7The Ministry also funded and operated the NSP. The purpose of NSP was to provide grant funding to community based agencies to deliver settlement services to immigrants, refugees and refugee claimants across Ontario. NSP funding was at the discretion of the Ministry and covered a 12 month period with service agencies submitting applications for funding annually. Funding was granted to those agencies that, in the view of the Ministry, met the criteria of the program. Entitlement to funding for one year did not guarantee funding for future years.

8By no later than October 2001, the applicant was advised that the Ministry would not provide funding to it under the Program.

9The applicant was approved and did receive NSP funding for the period from 1997 to 2000. In August 2000, however, the applicant was advised that its NSP funding for 2000/2001 would be at a reduced level in comparison with NSP funding for 1999/2000.

10The applicant subsequently applied for NSP funding for the 2002/2003 year. By a letter of August 21, 2002, the applicant was advised that it would only receive funding for six months and that NSP funding for that year would be terminated as of September 30, 2002.

11By a letter dated September 4, 2002, Carl DeFaria, Minister of Citizenship, responded to Mr. Zhong's request that the Ministry reconsider the decision to terminate the applicant's NSP funding. He advised that no further assistance would be provided to the applicant and that the Ministry viewed the matter as closed.

12Later in November 2002, in response to a letter from Mr. Zhong to a Ministry official suggesting that the Minister's Office had recommended that the 2002/2003 NSP funding issue be reopened, Minister DeFaria again advised the applicant that the 2002/2003 funding decision was final and would not be reconsidered. Mr Zhong, at that time, was directed to stop contacting Ministry staff.

13Notwithstanding the above directive, Mr. Zhong continued to make overtures to various officials of the Ministry regarding the decision to terminate the applicant's NSP funding. At a meeting in December, Mr. Zhong was again advised by Ms. Hewson that the applicant would not be receiving any further NSP funding for the 2002/2003 year.

14The focus of the applicant at this time, and for a short time period, turned to securing a partnership with another community service agency in hopes of satisfying the Ministry's criteria for NSP funding. To aid in these efforts of finding an appropriate NSP partner, Mr. Zhong sought the assistance of officials of the Ministry.

15In September 2003, Mr. Zhong met with Barb Fisher, the Executive Assistant to the Minister, and Ms. Hewson. Mr. Zhong subsequently suggested that, at that meeting, Ms. Fisher directed Ms. Hewson to reopen NSP funding for the applicant. The day after that meeting, the applicant forwarded to the Ministry an application for NSP funding for the period from October 2003 to March 2004.

16From the perspective of the Ministry all that transpired at the September 11, 2003 meeting was that Ms. Fisher advised Mr. Zhong that a 2003/2004 NSP application form would be forwarded to the applicant and a completed application would be reviewed to determine whether the applicant had made significant progress in meeting the required NSP funding criteria.

17By letter dated February 11, 2004, Ms. Hewson advised Mr. Zhong that the Ministry had completed its review of the applicant's 2003/2004 NSP application and concluded that the applicant was still not eligible for funding under the NSP criteria.

18The underlying complaint was filed with the Ontario Human Rights Commission ("Commission") on August 13, 2004.

The Abuse of Process Issue

19The applicant claimed in various representations to the Ministry that individuals from Hong Kong have a different societal, cultural and linguistic background than those from Mainland China. Accordingly, it was claimed that settlement services funded through the NSP directed to newcomers from Mainland China should only be provided by an agency such as the applicant.

20This view was set out by the applicant in an Assessment of Settlement Services for Mandarin Speaking population in Ontario that was forwarded to the Ministry:

Immigrants from Hong Kong have formed the Chinese Interagency Network (CIN) and Canadian Chinese National Council (CCNC) in Toronto to help their communities. However their leaders are Hong Kong Chinese and their social backgrounds are similar to that of Canadians. Although Hong Kong and Mainland Chinese are from the same country, their social and cultural backgrounds are totally different due to the" "One country, two systems" political structure carried out by the Chinese government and as a result, two different communities in Toronto were formed.

The Mandarin speaking population has a lot of barriers that prevent them from accessing the settlement services from the current agencies.

21In the same document, it was asserted that "most Hong Kong immigrants look down on Mainland Chinese immigrants because they think they are richer." In another document relied upon by the applicant in support of its application for NSP funding, it was stated that "Mandarin speaking individuals are generally discriminated against by the Cantonese speaking Chinese community so, therefore, it is unlikely that Mandarin speaking individuals will seek assistance from a Cantonese speaking organization".

22It was further asserted by the applicant that Ms. Vane was an immigrant from Hong Kong, who previously had worked for the Chinese Interagency Network which the applicant identified as a "Hong Kong Chinese agency". On that basis, the applicant claimed, Ms. Vane's decision making was biased against the applicant.

Relevant Statutory Provisions

23Section 34 of the Code reads as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

34(2) a person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

24Section 34(1)(d) before the amendments to the Code in 2008 read as follows:

34(1) Where it appears to the Commission that,

(b) the subject matter of the complaint is trivial, vexatious or made in bad faith;

(d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result in any person affected by the delay,

the Commission may in its discretion decide to not deal with the complaint.

25The relevant provisions of the Legislation Act, 2006, S.O 2006, c. 21, Schedule F, are as follows:

Effect of repeal and revocation

51(1) The repeal of the Act or the revocation of a regulation does not,

(a) affect the previous operation of the repeal or revoked act or regulation;

Effect of amendment and replacement

Proceedings continued

52(3) Proceedings commenced under the former Act or regulation shall be continued under the new or amended one, in conformity with the new or amended one as much as possible;

New Procedure

(4) The procedure established by the new or amended Act or regulation shall be followed, with necessary modifications, in proceedings in relation to matters that could happen before the replacement or amendment.

26Under the Part VI Transitional Provisions of the Code, section 53(6) stipulates "that the new Part IV applies to an application made under" subsection 53(3) and 53(5).

27Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990 c.S.22, as amended ("SPPA"), provides this Tribunal with the power to "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes".

The Commission's Section 34 Analysis

28The respondent had previously requested that the Commission not deal with the complaint on the basis of delay under the former section 34(1)(d) and that it was trivial, frivolous, vexatious, or made in bad faith under the former section 34(1)(b). The Commission only dealt with the argument that the complaint was trivial, frivolous, and vexatious or made in bad faith, as the delay issue was put into abeyance. The recommendation of Commission staff was that the Commission should exercise its discretion and not deal with the complaint on the basis that the complaint could be characterized as vexatious. Notwithstanding that recommendation, the Chief Commissioner on January 6, 2006 advised the parties that the Commission would not exercise its discretion under section 34(1) to dismiss the complaint.

Position of the Parties

The Respondents

29The respondents assert the former section 34(1)(d) of the Code is the relevant statutory provision upon which the Tribunal should determine the delay issue. It was submitted that the amendments to the Code in 2008 did not impact upon the ongoing applicability of section 34(1)(d) to events that transpired when that provision was in effect. In support of this argument, the respondents relied upon section 51 of the Legislation Act, 2006, which provides that the repeal or revocation of a statutory provision does not affect the previous operation of the repealed or revoked provision. Accordingly the former section 34(1) remained the operative provision.

30It is also asserted that there is a presumption against the retrospective application of a statutory provision that adversely impacts upon vested substantative rights. In support of its argument, the respondents relied upon the decision of the Supreme Court of Canada in Martin v. Perrie 1986 CanLII 73 (SCC), [1986] 1 S.C.R. 41 ("Martin").

31The respondents assert that if the six month time period were applicable, the events relied upon by the applicant all would be undeniably time-barred. In particular, the decision not to provide the applicant funding under the Program was communicated to the applicant as of October 2001. Therefore, any complaint regarding that decision should have been filed on or before March 2002. Likewise, the decision to reduce the NSP funding for the 2000/2001 year was communicated to the applicant by a letter in August 2000. Accordingly, the latest any complaint regarding that decision should have been filed was before February 2001. The decision not to grant NSP funding for the 2002/2003 year was communicated in August 2002. Accordingly, any complaint about the decision not to provide NSP funding for the 2002/2003 year should have been filed by no later than February 2003. The applicant asserts that the decision not to grant NSP funding for the 2003/2004 year was not relied upon by the applicant in its complaint as an additional cause of action.

32The respondents further assert they would be prejudiced if the Tribunal allowed this matter to proceed to a hearing as a number of potential witnesses had left the employ of the Ministry and the Ministry did not have contact numbers for those individuals. It was also suggested that generally the memories of witnesses will no doubt be adversely impacted by the delay associated with the litigation of this matter.

33Alternatively, the respondents assert that this matter should be dismissed as the application is frivolous and vexatious in nature and that section 23(1) of the SPPA empowers the Tribunal to dismiss a matter if it deems it appropriate to prevent the abuse of its processes. It is asserted that the applicant's "ethnic exclusive" position that individuals from the Hong Kong community could not provide the services in question is antithesis of the rights guaranteed under the Code and the principles of equality enshrined in the Code.

The Applicant

34The applicant asserts that the respondents should be precluded from asserting its preliminary motion as the arguments being relied upon had been previously advanced and rejected. Specifically, it was asserted that the respondents had unsuccessfully advanced to the Commission that the complaint should be dismissed pursuant to section 34(1)(b) and 34(1)(d) of the Code.

35The applicant additionally asserts, even if it were found that the Application was filed outside the limitation period, that the Tribunal should exercise its discretionary authority under section 34(2) to allow the complaint to precede as any delay that transpired was incurred in good faith. On this point, it was asserted that the applicant, through a number of different overtures, sought to have the Ministry reinstate its NSP funding so that the applicant would not have to resort to litigation to resolve the issue.

DECISION

36The first issue to be decided is the applicable delay provision. At the hearing both parties were referred to the decision of the Tribunal in Boncori v.TRW Canada, 2009 HRTO 564, where the Tribunal determined that the one year period set out in the section 34(1) of the Code applied with respect to transitional application proceedings. In reaching that conclusion, the Tribunal placed reliance on section 53(6) of the Code which expressly stipulates that the new Part IV of the Code applies to section 53(3) and 53(5) applications.

37Section 34(1) and (2) are part of the new Part IV of the Code. This express statutory language rebuts and overrides any presumption against retrospective application of those provisions and distinguishes this case from the facts before the Supreme Court of Canada in Martin.

38As to the provisions in the Legislation Act 2006, reference is made to section 52(3) which provides that proceedings commenced under a former Act shall continue in conformity with the amended legislation as much as possible.

39Applying the twelve month time period set out in section 34(1), there were three discrete subject matters raised in the Application: the denial of funding under the Program; the decision to reduce NSP for the 2000/2001 year; and the decision to terminate NSP funding for the 2002/2003 year and onwards.

40Mr. Zhong was advised no later than October 2001 that the applicant would not be receiving funding under the Program. Accordingly, that claim of discriminatory treatment is time barred as that event clearly occurred outside the twelve month time period set out at section 34(1)(a) and there is no basis to suggest that the delay was incurred in good faith as contemplated under section 34(2).

41The reduction in funding for the 2000/2001 year was communicated to the applicant in August 2000. No facts were pleaded to provide a justifiable explanation for the four year delay in filing a complaint about this particular claim of discriminatory treatment. It is also noteworthy that, in the complaint, no reference was made to the reduction in funding for the 2001/2002 NSP funding year. Accordingly, that claim of discriminatory treatment is time barred as that event clearly occurred outside the twelve month time period set out at section 34(1)(a) and there is no basis to suggest that the delay was incurred in good faith as contemplated under section 34(2).

42As to the termination of funding in the midst of the 2002/2003 year and the decision to not grant funding for the 2003/2004 year, those events can either be viewed as a continuum of events associated with the Ministry's decision to deny the applicant NSP funding, or as a series of incidents, as contemplated under section 34(1)(b) of the Code. As the facts associated with that last incident occurred in February 2004, when the applicant was advised it would not be receiving funding for the 2003/2004 period, then the Application was filed in a timely matter. With respect to the February 2004 decision, there is some validity in the respondent's assertion that the decision to terminate funding as of September 2002 was the focus of the applicant's claim of discriminatory treatment. That being said, in the complaint there is an express reference to the February 2004 decision to deny funding for the 2003/2004 year.

43This is also not a case where it can be asserted that the applicant sat back and did not seek to rectify the situation. From September 2002 to February 2004 the applicant repeatedly made various overtures to officials of the Ministry, including the Minister, seeking a change in the Ministry's decision to terminate the applicant's NSP funding. From that point of view, the respondents had no reason to believe that the matter was a dead issue from the applicant's perspective.

44Turning to the issue of whether the Application should be dismissed on the basis that it constitutes an abuse of process on the grounds that it is frivolous and vexatious. As previously noted, prior to the 2008 amendments, the Code provided the Commission with the express statutory authority to decline to deal with a complaint if it was of the view that the complaint was frivolous, vexatious or made in bad faith. That provision was not continued in the amended Code. This Tribunal, therefore, does not have that express statutory authority to dismiss a matter on the basis that it was frivolous or vexatious.

45That being said, there may be a particular set of circumstances which would lead the Tribunal to conclude that it would constitute an abuse of process to allow a matter to proceed on account of its frivolous and vexatious nature.

46In the case at hand there is no basis to suggest the matters raised in the application are frivolous in nature. The issue involves an allegation that a provincial ministry that operated a significant program denied funding to a community based service agency on the basis of that that agency's place of origin and or ethnic background.

47In terms of vexatious behaviour the respondents placed reliance on a definition of "vexatious action" found in the Dictionary of Canadian Law suggesting that an action may be vexatious if "it is obvious it cannot succeed". It could be suggested, however, for the purposes of determining whether an application should be dismissed as an abuse of process the definition for a "Vexatious Proceeding" --"a proceeding in which the party bringing it wishes only to embarrass or annoy the other party"-- found in the same dictionary is more germane. There is no basis to suggest that the applicant proceeded with the Application only to embarrass or annoy the respondents. Accordingly, it would not constitute an abuse of its processes for this Tribunal to hear this matter on its merits.

48In conclusion, the respondents' Request to have the matter dismissed on the basis that it constitutes an abuse of process is therefore denied. Additionally, the allegations pertaining to the termination of NSP funding for the 2002/2003 and 2003/2004 years are not time barred. That, however, does not necessarily end all the issues that should to be addressed at this stage of this proceeding. Pursuant to the Code and Rule 4 of the Rules of Procedure for Transitional Applications, the Tribunal has the power, on its own initiative, to define and narrow the issues in the proceeding in order to ensure the fair and expeditious resolution of the matter.

49The focus of this proceeding should be narrow. The only relevant issue for this Tribunal is whether the applicant suffered differential treatment regarding NSP funding decisions on account of its ethnic origin or place of origin. Any evidence led by the parties should be directly relevant to that specific issue.

50Further to the above, the overall appropriateness of the Ministry's decision that the settlement needs of newcomers from Mainland China could be served by other agencies other than the applicant is not an issue that needs to be resolved by this Tribunal. Accordingly, assertions that the Ministry did not "fully grasp that the dynamic between Cantonese and Mandarin communities and the ability of members of one community to properly assess services provided by the other"; or that the applicant was "uniquely situated to provide services to a distinct faction of the Mandarin speaking community"; or that the decision to deny funding to the applicant had a sweeping impact on the "members it serves", are not matters that the Tribunal needs to hear evidence about.

51A review of the pleadings suggests that the only fact(s) cited by the applicant connecting the decision to deny it NSP funding for the years in question and the cited prohibited grounds is the allegation that Ms. Vane, being an immigrant from Hong Kong and a former employee of the Chinese Interagency Network, was biased against the applicant because it was an organization founded and operated by individuals from Mainland China. The focus of the hearing, therefore, should be the extent and nature of the involvement of Ms. Vane, if any, in the decision-making pertaining to the applicant's requests for NSP funding for the 2002/2003 and 2003/2004 years.

52While the respective viewpoints of counsel will be canvassed at the outset of the hearing, it is anticipated that it would be appropriate to commence the evidentiary stage of the proceeding with the evidence of either Ms. Vane or Ms. Hewson.

Dated at Toronto this 24th day of November, 2010.

"signed by"___________

Brian Sheehan

Member