Carter v. Elementary Teachers Federation of Ontario, 2011 HRTO 1604

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Carter

Applicant

• and-

Elementary Teachers Federation of Ontario

Respondent

decision

Adjudicator: Ian R. Mackenzie

Date: August 26, 2011

Citation: 2011 HRTO 1604

Indexed as: Carter v. Elementary Teachers Federation of Ontario

APPEARANCES and wRITTEN SUBMISSIONS BY

Mark Carter, Applicant ) Self-represented

Elementary Teachers Federation ) Cynthia Peterson and Stephanie Hobbs,

of Ontario, Respondent ) Counsel )

1Mark Carter filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in membership in a vocational association on the basis of sex. The applicant alleges that the policies and practices of the Elementary Teachers Federation of Ontario (the “ETFO”) exclude men from approximately 50% of all education programs and also exclude men from 5 out of the 14 elected Executive positions. The respondent ETFO submitted that the impugned programs and policies are “special programs” within the meaning of subsection 14(1) of the Code.

2The ETFO requested a summary hearing under Rule 19A of the Tribunal’s Rules of Procedure on the basis that the Application had no reasonable prospect of success.

3In a Case Assessment Directive issued on January 10, 2011, a summary hearing was ordered. The applicant was required to address the issues raised by the respondent in its Request for Summary Hearing, in particular, “whether the Application has a reasonable prospect of success in light of the uncontested facts and the defence in s. 14” of the Code.

4The summary hearing was held by teleconference on June 10, 2011.

5The applicant is a teacher and a member of the ETFO.

6The ETFO represents elementary school teachers in Ontario. The majority of the members of the ETFO are women (approximately 81%).

7The ETFO constitution provides for 6% of the annual budget to be dedicated to women-only education and training programming. The constitution also provides that 5 of 14 provincial Executive positions are open to women only, including 1 of 2 vice-president positions.

8The ETFO states that women-only programming and women-only Executive positions are designed to relieve against the effects of systemic sex discrimination experienced by women teachers, assist disadvantaged women teachers to achieve equal opportunity within their profession and within the ETFO and contribute to the elimination of sex discrimination against women teachers.

9The ETFO filed documentation showing that women have been consistently under represented among delegates attending Annual Meetings, in positions on the provincial Executive, among Local presidents, and as chief negotiators. The applicant did not contest this documentation.

10The relevant parts of section 14 of the Code are as follows:

14. (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

(2) A person may apply to the Commission [Ontario Human Rights Commission] for a designation of a program as a special program for the purposes of subsection (1).

(3) Upon receipt of an application, the Commission may,

(a) designate the program as a special program if, in its opinion, the program meets the requirements of subsection (1); or

(b) designate the program as a special program on the condition that the program make such modifications as are specified in the designation in order to meet the requirements of subsection (1).

(6) A designation under subsection (3) or (5) expires five years after the day it is issued or at such earlier time as may be specified by the Commission.

(10) For the purposes of a proceeding before the Tribunal, the Tribunal may make a finding that a program meets the requirements of a special program under subsection (1), even though the program has not been designated as a special program by the Commission under this section …

11The respondent submitted that section 14 of the Code is a complete bar to the Application. A special program does not need the approval of the Ontario Human Rights Commission (the “OHRC”) in order to meet the requirements of a special program under the Code. The programs of women-only education programs and designated positions on the Executive are clearly designed to relieve disadvantage of women within the ETFO.

12The respondent stated that the applicant is not contesting the purpose of the program, but is contesting that women are a disadvantaged group. The fact that 81% of the ETFO membership is female does not change the fact that women are disadvantaged within the organization. The uncontested statistics on under-representation in leadership positions demonstrates this. There is systemic sexism within society and within the ETFO itself. These special programs are designed to overcome the barriers to participation of women within the organization. The applicant has no evidence that can be adduced that would establish that women within the ETFO are not disadvantaged.

13The respondent also submitted that the purpose of women-only education is to encourage women’s active participation in educational programs and to provide networking opportunities for women.

14The respondent submitted that it is not the role of the Tribunal to determine the efficacy of the programs. The role of the Tribunal is limited to an examination of the purpose of the program in question. If the purpose of the program is to eliminate disadvantage, then it falls within the exception set out in section 14 of the Code. The respondent concluded that since section 14 is a complete defence available to the respondent in this case, there is no reasonable prospect of success of the Application.

15The applicant submitted that the 2006 amendment of section 14 to provide for an expiry of a designation as a special program showed the intent of the legislature that these programs not be permanent. Such programs must be re-evaluated periodically and either cease or be renewed.

16The applicant stated that he did not dispute that women within the ETFO face disadvantages. He also stated that he did not dispute the purpose of the program. What is at issue here is the implementation of the programs and their breadth.

17The applicant submitted that simply telling men that they cannot attend a program does not make it a women’s program. He cited some examples of health and safety training and workshops on discrimination available to women only. He stated that the structure of the educational program meant that a disabled man was prevented from attending a workshop on disability. The training that is exclusively for women goes beyond the scope of what should be in a special program.

18The applicant stated that he was asking the Tribunal to review the special programs, recommend changes and specify an expiry date for the special programs.

19The respondent submitted that there were extensive parallel programs for both genders. The suggestion of the applicant that men are excluded from professional development is not true. Health and safety training is available for all members of the ETFO. The respondent also submitted that the special programs are routinely re-evaluated by the ETFO.

20The respondent submitted that the Tribunal does not have jurisdiction to put conditions on a special program.

Analysis and decision

21The purpose of this Summary Hearing is to determine whether what the applicant has alleged “may be reasonably considered to amount to a Code violation” (Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 8). I have concluded that section 14 of the Code provides a complete defence to an allegation of discrimination by the applicant, in this case, for the reasons set out here. Accordingly, the Application has no chance of success and must be dismissed.

22Special programs that meet the criteria set out in the Code are exempted from challenge under the Code (with an exception that does not apply on the facts of this case, discussed at para. 24). A special program does not need to be designated by the OHRC in order to fall within section 14: subsection 14(10). In order to qualify as a special program within the meaning of the Code, the special program must be “designed”:

a. to relieve hardship or economic disadvantage; or

b. to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity; or

c. to contribute to the elimination of the infringement of rights under Part I.

23There are two special programs at issue in this Application: women-only training and the designation of some positions on the Executive Committee for women. The relative under-representation of women (relative to their representation within the organization) was not contested by the applicant. These programs are clearly designed to assist a disadvantaged group (women) to achieve or attempt to achieve equal opportunity within the ETFO and therefore, I find that they meet the requirements of a special program under the Code.

24Section 14 of the Code is a complete defence to an allegation of discrimination when the challenge to the program comes from someone whose needs do not fall within the purpose or underlying rationale of the program (Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (at para. 123). In Ontario (Human Rights Commission) v. Ontario (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 (C.A.) (“Roberts”), at page 401, the court stated that the exemption of section 14 is invoked when the challenge to the program comes from a member of a historically privileged group. A special program can only be challenged by a member of a disadvantaged group that the special program is designed to assist, but who is otherwise excluded from that program (on the basis of age, for example).

25In Roberts, the complainant was 71 years old and legally blind. He was not eligible for a special program for financial assistance for assistive devices solely because of his age. The Court concluded (at p. 407) that section 14 of the Code has a dual purpose: the exemption of affirmative action programs from review and the promotion of substantive equality. Programs, such as the ETFO programs, are reviewable depending on the context in which the challenge is brought. The Court stated that the analysis that the Tribunal must engage in is a two-step analysis:

…(1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage the program was designed to benefit, and (2) whether the provision or limitation is reasonably related to the scheme of the special program.

26In the present Application, the applicant’s needs do not fall within the purpose of the special programs and he is a member of a historically-privileged group. It is therefore not necessary to consider the second step in the analysis. (whether the limitation is reasonably related to the scheme of the special program). Accordingly, the Application has no reasonable prospect of success and must be dismissed

Order

27The Application is dismissed.