Harrington v. Hamilton (City), 2010 HRTO 2395

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Harrington

Applicant

-and-

The Corporation of the City of Hamilton

Respondent

A N D B E T W E E N:

Christine Harrington

-and-

The Corporation of the City of Hamilton

Respondent

DECISION

Adjudicator: David A. Wright

Date: December 1, 2010

Citation: 2010 HRTO 2395

Indexed as: Harrington v. Hamilton (City)

APPEARANCES

Mark Harrington, Applicant ) Self-represented

Christine Harrington, Applicant ) Mark Harrington, ) Representative

The Corporation ) Daniell F. Bartley of the City of Hamilton, Respondent ) Counsel

INTRODUCTION

1Pursuant to its by-laws, the City of Hamilton will pick up only one waste container per household at the curb. Households with more garbage must arrange for it to be disposed of at the dump. The applicants have six children. They allege that the City’s container limit, which is the same for families of all sizes, discriminates against them on the basis of family status, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2Families with three or more children under the age of five are allowed to apply for “special consideration”, permitting them to put out up to three containers of garbage. The applicants currently qualify for this exemption, as their sixth child was born on May 11, 2010. However, the Application relates to the period between March 1, 2010 and May 11, 2010 when they did not qualify for an exemption because they did not have three children within the required ages.

SUMMARY HEARING

3The Application was filed on May 10, 2010. On July 9, 2010, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The Application was delivered to the respondent with the CAD, which directed that the respondent need not file a substantive Response. The CAD provided that either party could file any cases or documents they intended to rely upon at the Summary Hearing no later than seven days prior to the teleconference.

4The CAD noted that the parties should address the issue of whether the Application has a reasonable prospect of success, and that they should be prepared to address two specific issues as part of their submissions:

1. Does the by-law restricting the amount of household waste that will be picked up by the respondent constitute substantive discrimination on the basis of family status against individuals with larger families?

2. If there is substantive discrimination, is there a reasonable prospect that the by-law would not be found reasonable and bona fide pursuant to s. 11 of the Code?

5The summary hearing was held on October 12, 2010.

ANALYSIS

6Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8This case falls into the first category, where the focus is on the legal analysis. The allegations and the facts are clear. The issue is whether, as a matter of law, there is a reasonable prospect that the applicant can show discrimination on the basis of family status.

9The applicants argue that it is evident that the by-law discriminates on the basis of family status. A single person living alone in a household, they argue, is allowed to put out the same amount of garbage as parents with children living together in a household. Waste is created depending upon the number of persons in the household. There is an adverse impact on persons with children on the basis of their family status, they say, when the permitted quantity of waste is defined by household instead of by person. The respondent argues that this is not discrimination on the basis of family status.

10I find that the Application does not have a reasonable prospect of success. The City of Hamilton’s policy restricting the amount of garbage that a household can have collected by City employees does not constitute substantive discrimination.

11The Code is concerned with substantive discrimination. As stated in C.M. v. York Region District School Board, 2010 HRTO 1494 at para. 4, the Code does not aim to eliminate all differences in treatment, but rather discrimination, in the form of disadvantage, prejudice and stereotyping, on the grounds set out in the Code: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p. 174; R. v. Kapp, 2008 SCC 41; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 80-84. Not all actions that may have an impact on people identified by a ground constitute substantive discrimination.

12Assuming that the applicants can show that the restriction on garbage has an adverse impact on them because of family status, the Applications do not raise issues of substantive discrimination. Absent more, it is not substantive discrimination for there to be greater costs for greater use of goods and services, including municipal services. Larger families may need to buy more food, at a higher cost, but this is not substantive discrimination. Similarly, it is not substantive discrimination when larger families have higher costs to use recreational services where admission is based on the number of people. Human rights law recognizes that it is not prejudicial to charge based on the use of a service.

13There is nothing different about the by-law challenged in this case. The City of Hamilton has decided that it will collect one garbage bag per household as part of its municipal services, with consideration for the special circumstances with very young children. A household that needs a greater level of service must bear the cost of using more of that service, either by bringing it to the landfill themselves or arranging for someone to do it for them, and by paying the landfill charges. The by-law, in essence, imposes a charge for greater use of waste removal services, and the Code does not protect against the financial consequences of greater consumption by larger families.

14Accordingly, I find that these Applications have no reasonable prospect of success and they are dismissed.