Human Rights Tribunal of Ontario
B E T W E E N:
Christopher Klack by his Next Friend Helena Klack Applicant
-and-
Ontario Hockey Federation and Hockey Canada Respondents
INTERIM DECISION
Adjudicator: Sherry Liang Date: April 22, 2010 Citation: 2010 HRTO 875 Indexed as: Klack v. Ontario Hockey Federation
1The applicant, through his mother acting as his Next Friend, filed an Application with the Tribunal on February 18, 2010 alleging discrimination in services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application as originally filed was incomplete and was completed on March 15, 2010. 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 2009 to obtain a waiver in order to allow him to play for a team in a different residential zone.
2In 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 his skill 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, Rapp v. Ontario Hockey Federation, 2010 HRTO 526 and Dickinson v. Ontario Hockey Federation, 2010 HRTO 537, 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).
8On March 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. 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.
9Finally, 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.
10I would note that in the earlier Interim Decisions involving similar Applications filed on behalf of other young male hockey players, the Tribunal directed that the applicants either deliver and file a Notice of Constitutional Question or advise the respondents and the Tribunal that they do not wish to pursue the claim of discrimination based on age. To date, it appears that none of the other applicants seek to pursue the claim of discrimination based on age.
11If this applicant wishes to maintain an allegation 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.
12The applicant shall either deliver and file a Notice of Constitutional Question by May 7, 2010 or advise the respondents and the Tribunal that he does not wish to pursue the claim of discrimination based on age.
13I am not seized.
Dated at Toronto, this 22^nd^ day of April, 2010.
"Signed By"
__________________________________
Sherry Liang
Vice-chair