Dickinson v. Ontario Hockey Federation, 2010 HRTO 537

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josh Dickinson by his Next Friend Mark Dickinson

Applicant

-and-

Ontario Hockey Federation and Hockey Canada

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 15, 2010

Citation: 2010 HRTO 537

Indexed as: Dickinson v. Ontario Hockey Federation

1The applicant, through his father acting as his Next Friend, filed an Application with the Tribunal on February 9, 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 twelve 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 in 2008 to obtain a release from the team in his residential area in order to allow him to play for a team in a different residential zone. The applicant indicates that for the 2009/2010 hockey season he stayed with the same team and as a result was not required to get another release.

2On February 26, 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 in April 2010. He states, in specifying the harm that would result if the Request is denied, that he may not be able to participate in AAA hockey at a competitive level.

3Rule 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.

4In 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.

5In 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.

6In accordance with Rules 5.2 and 21.3 of the Tribunal’s Rules of Procedure, the Tribunal does not require a Response to Request to Expedite from the respondents. Having reviewed the applicant’s materials, and for the same reasons as set out in the Tribunal’s decisions in Kearney v. Ontario Hockey Federation, 2010 HRTO 522 and Rapp v. Ontario Hockey Federation, 2010 HRTO 526, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence.

7This Interim Decision will be sent to the parties with the Notice of Application. In accordance with the Tribunal’s Rules of Procedure, the respondents will have thirty-five (35) days from the date of receipt of the Notice of Application to file their Response (Form 2).

8Finally, 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.

9The applicant shall either deliver and file a Notice of Constitutional Question by March 26, 2010 or advise the respondents and the Tribunal that he does not wish to pursue the claim of discrimination based on age.

10I am not seized.