Connor Kearney by his Next Friend Peter Kearney v. Ontario Hockey Federation and Hockey Canada, 2010 HRTO 522

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Connor Kearney by his Next Friend Peter Kearney

Applicant

-and-

Ontario Hockey Federation and Hockey Canada

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 10, 2010

Citation: 2010 HRTO 522

Indexed as: Kearney v. Ontario Hockey Federation

1The applicant, through his father acting as his Next Friend, filed an Application with the Tribunal on February 5, 2010 alleging discrimination in services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant is a ten year old boy. His Application alleges that residency rules that require minor hockey players to play with a team or association that matches their place of residence, or to obtain waivers/releases to play elsewhere, discriminate against him on the basis of sex and gender. He alleges that girls of the same age and boys who are over 16 do not face similar restrictions on where they may play and are not required to obtain waivers/releases in order to play where they choose. The Application describes the process that the applicant went through during the spring and summer of 2009 to obtain waivers enabling him to play outside of his home league. He also went through a similar process in 2008.

2On February 17, 2010 the applicant filed a Request to Expedite the Application. In describing the urgent circumstances that warrant expediting the Application, he states that hockey tryouts for the upcoming year are on April 12, 2010 and he will be required to go through the waiver process for a third year. He further states, in specifying the harm that would result if the Request is denied, that he may not be able to play hockey in the Greater Toronto Hockey League next year, a League that does not correspond with his place of residence but in which he wants to play.

3The respondents have filed a Response to the Request to Expedite stating the Application should proceed in the normal course. They state that the rules that are being challenged govern the activities of tens of thousands of minor hockey players in Ontario, all of whom could be affected by the Application. They submit that the applicant will not be prejudiced should the Application not be expedited as he will, as he has in the past, have the opportunity to try out for the AAA hockey team within his residential zone and outside of his residential zone if he obtains waivers. The respondent has indicated that the applicant will not be suspended from trying out for a team for the 2010-2011 hockey year as a result of having brought this Application.

4Rule 21.1 of the Tribunal's Rules of Procedure provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

5The applicant has filed further submissions with regard to the respondents' the Response to the Request to Expedite stating that a decision on the Application is required as quickly as possible so that players, teams and associations can properly plan for next year and to prevent further discrimination.

6In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9 the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal's regular process.

7In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

8Having reviewed the materials filed in relation to the Request to Expedite, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal's jurisprudence. The rules alleged to be discriminatory have been in place for at least several years. The applicant describes how they have affected him in the previous two hockey seasons, in that he has been compelled to obtain waivers each year. The respondent has indicated that, as he has in the past, the applicant will continue to be able to try out for the hockey team in his residential zone or other hockey teams, if he obtains waivers. Therefore, the potential harm the applicant points to if the Application is not expedited is, in essence, that there will be ongoing discrimination. Many applications before the Tribunal involve allegations of ongoing discrimination and I cannot conclude that the harm which the applicant states may occur warrants giving this Application priority over other matters.

9In addition, although the applicant has known about the alleged discrimination for some years, he has chosen to bring this Application within a few months of hockey try-outs for the next season, and wishes to expedite the Application in order to have a decision before those try-outs begin. An expedited hearing results in tightened timelines and exceptionally quick hearing dates, which may lead to inconvenience and costs for other parties to the application. Moreover, an expedited application is given priority for Tribunal resources over other matters. The Tribunal is reluctant to impose those burdens on other parties to the Application, and other parties before the Tribunal, when the applicant seeking a quick resolution has delayed in raising the issues. The Tribunal has stated that, except in the rarest of circumstances, a party who has delayed in filing his or her Application without explanation will not be given the priority for Tribunal resources of an expedited proceeding: Kwan v. Hospital for Sick Children, 2009 HRTO 621.

10I find that the applicant has not identified truly urgent circumstances that might prevent the "fair and just resolution" of his Application on the merits if the proceedings are not expedited. The Request to Expedite is denied.

11It is appropriate to set out further case management directions for this Application.

12On February 18, 2010, the applicant filed a Request for Order During Proceedings asking to have this Application heard with similar Applications filed on behalf of other young male hockey players. He states that other parties have consented to the Request, although he does not specify who those parties are, and it is not apparent that he has delivered the Request to any other party. If the applicant wishes to rely on the agreement of other similarly situated applicants, to support the request to have this Application heard together with others, he should obtain and file the written consent of those other applicants. The respondents are not required to respond to the Request to hear applications together at this time. The Tribunal will issue further directions in due course.

13The respondents have requested an extension to file their Response (Form 2) to the Application until May 5, 2010. The Response is currently due March 30, 2010. Among other things, the respondents cite as the reason for the extension request the absence of the Executive Director of the Ontario Hockey Federation ("OHF") from March 11 to March 18, 2010 and the fact that the next scheduled meeting of the OHF Board of Directors is April 25, 2010. I note that the respondents have already provided detailed submissions concerning many of the issues in this Application in responding to the Request to Expedite. I have considered all of the circumstances surrounding the request for an extension, and have determined that the request for a five-week extension will not be granted. The respondents may have a two-week extension to file their Response. If necessary, the respondents may file a Request for Order During Proceedings asking to amend the Response after it is filed on or before April 13, 2010.

14Finally, this application alleges, in part, discrimination on the basis of age. Section 10(1) of the Code restricts the definition of "age" in the Code to "an age that is 18 years or more". Therefore, in order to maintain a claim of discrimination on the basis of age, it may be necessary for the applicant to challenge the constitutional validity or applicability of the definition of "age" in s. 10(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended; see C.M. v. York Region District School Board, 2009 HRTO 735. If the applicant wishes to pursue the claim of discrimination based on age, and wishes to bring a constitutional challenge to the definition of "age" in the Code, his attention is directed to Rule 4 of the Tribunal's Rules of Procedure and s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which require that a Notice of Constitutional Question be delivered to the Attorneys General of Canada and Ontario and the other parties and filed with the Tribunal in such circumstances. The form of the Notice is similar to Form 4F under the Rules of Civil Procedure: see Sicheri v. Ontario (Community and Social Services), 2007 HRTO 13.

15The applicant shall either deliver and file a Notice of Constitutional Question by March 24, 2010 or advise the respondents and the Tribunal that he does not wish to pursue the claim of discrimination based on age.

16I am not seized.