James Shuparski v. City of Toronto, 2010 HRTO 726

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Shuparski

Applicant

-and-

City of Toronto

Respondent

A N D B E T W E E N:

James Shuparski

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the

Minister of Municipal Affairs and Housing

Respondent

decision

Adjudicator: Faisal Bhabha

Date: March 31, 2010

Citation: 2010 HRTO 726

Indexed as: Shuparski v. Toronto (City)

Appearances

) James Shuparski, Applicant ) On his own behalf ) Her Majesty the Queen in Right ) of Ontario as represented by the ) Judie Im, Counsel Minister of Municipal Affairs and ) Housing, Respondent ) ) City of Toronto, Respondent ) Ansuya Pachai, Counsel ) ) Edilcan Development Corp., ) Claudia Scherman, Counsel Affected Party )

INTRODUCTION

1The applicant filed six separate Applications under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The facts alleged in the Applications relate to alleged accessibility deficiencies in the condominium building in which the applicant resides. He sought damages for discrimination against each of the respondents, an order for specific retrofits to the building and a declaration in respect of applicable legislation.

2The matters were scheduled to be heard together beginning on March 22, 2010. As a result of settlements and withdrawals involving four of the six respondents, the consolidated hearing proceeded only as between the applicant and the two remaining respondents, the City of Toronto and the Ministry of Municipal Affairs and Housing (the “Ministry”).

3This Decision addresses a preliminary request for dismissal brought by the respondents. I heard submissions from the parties on March 22-23, 2010 in relation to the respondents’ request.

4Counsel for one of the four settled parties attended the hearing as an affected party and made limited submissions with regard to her client’s interests in this proceeding. Counsel expressed concern that factual findings made in these proceedings could potentially undermine the finality and confidentiality of the settlement reached between the applicant and the other four original respondents. Counsel requested that it be reflected on the record that none of the four settled respondents have made any admission of liability under the Code.

5The respondents jointly requested that the proceedings be recorded. In accordance with the Tribunal’s Practice Direction, the respondents undertook to pay privately for the court transcription services and to produce a copy of any transcript requested to the applicant and to the Tribunal. I granted the request.

FACTS AND ISSUES

6The Tribunal has not yet heard any oral evidence. The following is based on the pleadings and on an Agreed Statement of Facts filed by the parties on the first day of the hearing.

7The applicant is a person with a disability. On September 15, 2005, he entered into an agreement to purchase a residential condominium unit in a new, high-rise condo tower in downtown Toronto (the “condo”). He assumed occupancy on October 5, 2007 and ownership on June 30, 2008.

8On September 5, 2008, the applicant filed six separate Applications to the Tribunal naming the condominium corporation, the developer, the property manager, the architects, the City and the Province. The Applications allege that the construction of the condo failed to ensure accessibility for persons with physical disabilities. He sought a retrofit order to install power door openers, and damages.

9Subsequent to filing the Applications and prior to the first day of hearing, the applicant resolved four of the six Applications. The City and the Ministry were not involved in the resolution of those matters and have no knowledge of the terms of those agreements.

10As part of one of the agreements, the condominium corporation agreed to retrofit a number of doors in the building, including all garage door entrances, main lobby doors, inner lobby doors, doors to the main floor lounge, main floor mail room and the door to the shared facilities on the second floor. The applicant had made numerous requests to the builder for power door openers to be installed on these doors prior to filing his Applications. The applicant agrees that the condo is now sufficiently accessible.

11At the time of the condo’s construction, its design and construction were required to be in compliance with the Ontario Building Code, Ontario Reg. 350/06 (the “OBC”). By all accounts, it appears that the condo was constructed in accordance with the relevant OBC provisions in force at the time.

12The OBC is a regulation adopted by the Lieutenant Governor in Council made under the authority of section 34 of the Building Code Act, 1992, S.O. 1992, c. 23 (the “Act”). The Province is responsible for the administration of the Act and the City is responsible for enforcing it and the OBC.

13The Ministry had no connection to or involvement with the ownership, design, construction, management or operation of the condo. The applicant’s case as against the Ministry is a challenge to the OBC on the basis that it is under-inclusive and therefore systemically discriminates against people with disabilities by authorizing inaccessible construction.

14During the site plan approval process and prior to initiating construction, the developer entered into an agreement with the City of Toronto in accordance with By-Law No. 683-2004 (the “by-law”) enacted under the authority delegated to the City by sections 34 and 37 of the Planning Act, R.S.O. 1990, c. P.13. This is known as a “section 37 Agreement”. Section 37 Agreements provide for increases in density and height beyond what is otherwise permitted under the Planning Act, in exchange for the provision of the facilities, services and matters set out in the by-law. Such conditions can include matters related to parks, traffic control and community centres. Neither the by-law nor the section 37 Agreement at issue in this case contained any conditions with respect to construction. The applicant alleges that the City’s failure to mandate power door openers in its section 37 Agreement with the condo amounted to a breach of the Code.

15City staff inspected the construction of the condo, in accordance with the Act, and ensured its compliance with the OBC. The applicant alleges that the City further breached the Code when its staff inspector authorized the condo construction as OBC compliant. The City adopted Accessibility Design Guidelines in 2004, which promote “universal design” principles and emphasize the importance of a barrier-free City. The applicant alleges that the City should have made its inspection of the condo conditional on compliance with the accessibility standards articulated in its own Accessibility Design Guidelines.

16The Ministry and the City raised as a preliminary issue the question of the Tribunal’s jurisdiction to enquire into this matter.

ISSUES TO BE DETERMINED

17The issues to be decided are as follows:

I Does the Tribunal have jurisdiction to make a finding of discrimination as against the Province?

II Does the Tribunal have jurisdiction to make a finding of discrimination as against the City?

RELEVANT LEGISLATION

18The following provisions of the Code are relevant to my consideration of these issues:

2 Every person has a right to equal treatment with respect to occupancy of accommodation, without discrimination because of … disability…

9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

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 (...)

47(1) This Act binds the Crown and every agency of the Crown.

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

PARTIES’ POSITIONS

19The respondent Ministry argues that the Tribunal does not have the jurisdiction to grant the relief sought by the applicant. The Code, it was argued, has quasi-constitutional qualities, not constitutional status. The Ministry argued that the Tribunal does not have the jurisdiction to “read in” accessibility language to the OBC or to award monetary compensation for the Ministry’s alleged breach of the Code in failing to mandate “universal design” in all new construction in Ontario. It submits that legislation and regulations are not subject to direct challenges under the Code, in the absence of actions by any “person” subject to the Code. In these circumstances, it is argued, the only impugned action alleged against the Crown is legislative action.

20Counsel argued that while section 47(2) affirms the supremacy of the Code over all other legislation, that provision only applies where there is a conflict between the Code and another statute. In such cases, the Tribunal may set aside the application of the other statute or regulation and enforce the Code. However, counsel argued that the supremacy of the Code in resolving a conflict between statutes does not allow the Tribunal to use the Code to invalidate legislation.

21The respondent City adopted the Ministry’s arguments and submitted additionally that any potential liability on the part of the City with respect to the enforcement of the OBC is contingent on a finding of liability on the part of the Ministry. With respect to the section 37 Agreement, counsel argued that while the City has some discretion to set conditions, such conditions are statutorily required to be set by way of by-law enactment. All municipal by-laws concerning the construction or demolition of buildings are superseded by the OBC. Therefore, counsel argued that any prospective liability finding against the City first necessitates an enquiry into the Ministry’s liability.

22The applicant conceded that the threshold issue concerns the Ministry’s liability, and that City liability under the Code is connected to its administration of the OBC. He argued that the Ministry should be compelled to bring the OBC into harmony with the Code by setting not minimal standards, but rather comprehensive accessibility guidelines for all construction across the province. He argued that the supremacy of the Code means little if it cannot be enforced as against other statutes to compel compliance with human rights principles. He acknowledged that the only interest at stake remaining in these Applications is a broad public interest in remedying what he views as under-inclusiveness in the OBC, and urges the Tribunal proceed to hear the case and grant the orders sought in order to ensure future compliance.

ANALYSIS AND DECISION

23The first jurisdictional threshold to examine is section 34(1) itself, which establishes the ability of an individual to commence an application to the Tribunal to remedy a violation of the Code. Only if “a person believes that any of his or her rights under Part I have been infringed” may she or he then bring an application. Section 9 prohibits any person from infringing the Code, directly or indirectly.

No alleged discriminatory action by the Ministry

24While the applicant maintains that the deficiencies in the OBC give rise to ongoing breaches of the Code, it is not clear how his rights under the Code are impacted. The Code is designed to protect persons from invidious conduct carried out against them on the basis of a protected ground. The applicant has not identified what the invidious conduct about which he complains is, nor has he identified who committed the breach or how it impacts on him directly.

25Relying on section 47 of the Code, the applicant mounts a challenge to the OBC itself. There is no alleged discriminatory action. There is no alleged perpetrator. There is only legislation, the OBC, which the applicant believes authorizes discrimination by others because it fails to mandate a satisfactory level of accessibility standards.

26Where the only discriminatory action alleged is legislative action, the doctrine of legislative privilege applies to protect the elected body from being subject to an Application under the Code: Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712.

No jurisdiction to strike down legislation

27Even if the Tribunal had the jurisdiction to enquire into the matter, it would not have the jurisdiction to grant the remedy of setting aside or modifying legislation. In Malkowski v. Ontario (HRC), 2006 CanLII 43415 (ON SCDC), [2006] O.J. No. 5140 (Ont. Div. Ct.), the Court refused to grant judicial review of a decision by the Ontario Human Rights Commission not to refer a matter to Tribunal on the basis that there was no incident in which the complainant was denied services. The complainant in that case, decided under the old provisions of the Code, sought amendments to the OBC. The Court held at para. 40: “The actual amendment sought by the applicant is not within the power of the Tribunal to grant, although it might make a declaration with persuasive effect.”

28In Tranchemontagne, the Supreme Court of Canada similarly held:

When a tribunal or court applies s. 47 of the Code to render another law inapplicable, it is not “going behind” that law to consider its validity…. It is not declaring that the legislature was wrong to enact it in the first place. Rather it is simply applying the tie-breaker supplied by, and amended according to the desires of, the legislature itself.

29The applicant relies on section 47 to argue that it confers jurisdiction to make declarations of invalidity and for the Tribunal to “correct” allegedly flawed legislation. In Malkowski, supra at para. 36, the Court stated:

The Code is not a constitutional document. It has been described as quasi-constitutional, and as more important than all others… but it falls short of being a constitutional document entitling the Tribunal or the Courts to disallow legislation or require changes to it.

30Although sometimes the Tribunal will be forced to consider whether another statute is consistent with the Code, it is only for the purposes of resolving a direct conflict between legislation and the Code that has the effect of infringing the Code rights of the person complaining. Here, there is no infringement of the applicant’s Code rights alleged, and there is no connection between the alleged statutory conflict and any actual impact on the applicant.

31The applicant has therefore failed to meet the threshold requirement of asserting an infringement of his rights under the Code. There is no impugned action on the part of the Ministry that is within the jurisdiction of the Tribunal to consider. Furthermore, the applicant has failed to establish that the relief he seeks as against the Ministry is within the jurisdiction of the Tribunal.

No alleged discriminatory action by the City

32With respect to the City, the applicant conceded in argument that his case against the City rests substantially on an underlying anticipated finding that the OBC is discriminatory, and that City liability flows from that. In the light of my conclusion above, there is no need to consider this argument.

33The applicant also argues however that the City was required by virtue of the Code and the City’s own accessibility policies to incorporate accessibility standards into its negotiation of section 37 Agreements and its granting of building permits. Again, it is not clear how the applicant’s rights under the Code were infringed when the City issued a permit prior to construction or entered into a section 37 Agreement with respect to the condo.

34The applicant appears to be arguing that the City authorized the discriminatory actions of others involved in the planning, construction and administration of the condo. It is unclear that there are any direct actions of the City that allegedly infringed the applicant’s rights under the Code. The building permit is not a blueprint for construction and is not comprehensive. Builders are at liberty to exceed the minimum standards established, not to mention those minimum standards are set not by the City but by the Province.

35Thus, the alleged infringement of the Code is too remotely connected to the City’s actions both temporally and causally. The permit was issued well before construction began. More importantly, the City was mandated by the OBC to grant the permit if the OBC conditions were met.

36The temporal problem is illustrated if one considers the following scenario: what if the applicant had filed his Application on the day the permit was issued (the date of the allegedly discriminatory action); how would the Tribunal address the issue of whether the building is accessible? It would be impossible to adjudicate. The building would exist only in theory and the City would not necessarily have any further involvement in the project. Any alleged discriminatory action would be prospective and by others, not the City.

37The Code is not designed to protect against hypothetical or even anticipated violations. It is retrospective and remedial in nature.

38As for section 37 Agreements, they are planning instruments which have no direct relation to construction and building. The applicant believes that the City should incorporate accessibility standards into its planning initiatives. There is again a temporal and causal problem for this argument as well. The entering into a section 37 Agreement did not occasion the alleged breach of the Code. If the condo had not sought an exception to the planning rules there would have been no section 37 Agreement. There appears to be absolutely no connection between the section 37 Agreement and the alleged accessibility deficiencies in the building, other than a connection the applicant wishes to make in order to promote his vision of a more accessible Ontario.

39The applicant’s case raises issues that he verily believes are important matters of public interest. While he is motivated by altruistic purposes, no matter the nobleness of his mission, there is simply no basis for the Tribunal to continue to hear these Applications. The applicant has secured a remedy from the appropriate actors, ensuring the accessibility of his building. Some of the issues raised are moot, and the remainder are beyond the jurisdiction of the Tribunal. The Applications are therefore dismissed.