HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Dream Team on behalf of

Ken Macleod, Heather Cunningham, Neil NcQuaid,

Linda Chamberlain, Dennis Morency, Peter Lye,

Philip Dufresne and Ester Mwangi

Applicants

-and-

City of Toronto

Respondent

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: September 14, 2011

Citation: 2011 HRTO 1691

Indexed as: The Dream Team v. Toronto (City)

APPEARANCES

The Dream Team, on behalf of Applicants ) Kathy Laird and

) Toby Young, Counsel

City of Toronto, Respondent ) Antonella Ceddia and

) Amy Murakami, Counsel

Ontario Human Rights ) Christine Elwell, Counsel

Commission, Intervenor )

People First Ontario, Proposed Intervenor ) Laurie Letheren, Counsel

INTRODUCTION AND BACKGROUND

1This is an Application brought under section 34(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Application alleges discrimination with respect to housing and goods, services, and facilities on the ground of disability. This Interim Decision addresses the objection of the respondent, City of Toronto (“the City”), to a Notice of Commission Intervention filed by the Ontario Human Rights Commission (“the Commission”), as well as providing procedural directions for the hearing of a number of preliminary issues.

2The Dream Team is an organization, founded in 2000, which advocates for safe and affordable supportive housing for people living with mental health and addiction issues. The Application is brought on behalf of a number of individuals who identify as persons facing mental health issues, who require, or have required supportive housing. Together they allege that certain provisions of a number of City zoning By-laws discriminate against persons with disabilities by limiting the availability of group homes and supportive housing units, by imposing minimum separation distances. A minimum separation distance is a land use planning mechanism, used to regulate development and land use, and prevent an over-concentration of a particular land use in a defined area.

3The City filed a Response to the Application, and on March 2, 2011, also filed a Request for Order During Proceedings (“RFOP”). The RFOP repeats a number of objections raised in the Response and seeks early dismissal of the Application. It puts forward three principal grounds for early dismissal: it alleges that the Tribunal does not have the jurisdiction to award the remedies requested by the applicants, that the Application is vague, hypothetical, speculative, and does not disclose sufficient facts to establish a violation of the Code, and that the appropriate forum for the hearing of the applicants’ claim is the Ontario Municipal Board. The City also raised a number of other alleged deficiencies in the Application, including whether the requirements of a s. 34(5) application had been met and whether the applicants had correctly named the City (the Application named the “Corporation of the City of Toronto” as opposed to “City of Toronto”).

4The applicants also filed a Request for Order During Proceedings which seeks to amend the Application, in part responding to some of the alleged deficiencies raised by the City.

5On March 8, 2011, the Commission filed a Notice of Commission Intervention (intervention with the consent of the applicant) pursuant to section 37(2) of the Code and Rule 11.11 of the Tribunal’s Rules of Procedure.

6The City objects to the Commission’s intervention. It says the Tribunal should defer dealing with the Commission’s “request to intervene” until after its preliminary challenges to the Application are addressed. It argues that it has raised threshold jurisdictional issues which must be determined before any intervention is considered. The City asked that the Tribunal convene a case conference to discuss the Commission’s Notice of Intervention.

7In accordance with a Case Assessment Direction dated March 18, 2011, the parties filed submissions and legal argument on the Commission’s Notice of Intervention. On July 29, 2011, the Tribunal held a telephone case conference. In addition to addressing various procedural matters and setting a date to hear oral submissions on the RFOPs, I heard submissions on the issue of the Commission’s intervention. The parties indicated they were satisfied that I could determine the issue based on their oral submissions presented at the case conference and the written materials previously filed.

8Before turning to the matter of the Commission’s Notice of Intervention, I would note that the Tribunal also received a request to intervene from People First Ontario, a disability rights organization. The parties agreed, and People First Ontario was content that its request would be deferred until after the hearing of the preliminary issues.

COMMISSION INTERVENTION UNDER SECTION 37(2)

9The City makes a number of arguments in support of its position that the Commission’s “request to intervene” be refused, or deferred until after its request for early dismissal of the Application is determined. It characterizes its objections to the Application as threshold and jurisdictional, and argues that it is entitled to a decision on those objections before the Commission’s intervention is considered. The City says the Commission’s right to intervene is predicated on there being a proper, jurisdictional application before the Tribunal.

10The City also argues that it would be prejudicial to permit the Commission to intervene. It says the Commission’s Notice of Intervention was filed after it filed an RFOP raising serious deficiencies in the Application, and argues a Commission intervention cannot be used to provide “a cloak of authority” to a deficient application. Further, the City raises concerns that if the Commission is permitted to intervene at this stage, it will make submissions on the merits of the Application, which would be both unhelpful and unfair. Finally it argues that the Commission is seeking to broaden the scope of the Application, turning an individual application brought under section 34 into a public interest application under section 35.

11The Commission takes the position that where it seeks to intervene in an application with the consent of an applicant, pursuant to section 37(2), it does not “request” the right to intervene, but rather “gives notice” that it is intervening. The Commission says that in these circumstances another party cannot object to the Commission’s participation as a full party, and the Tribunal has no jurisdiction to refuse the intervention. The Commission, along with the applicants argue, on that basis alone, the City’s objections should be dismissed.

12In the alternative, the Commission submits that the objections raised in the City’s RFOP are not jurisdictional questions, and even if they could be considered to be jurisdictional, the Commission can be of assistance to the Tribunal in determining the matters.

13Section 37 of the Code provides:

Intervention by Commission

37. (1) The Commission may intervene in an application under section 34 on such terms as the Tribunal may determine having regard to the role and mandate of the Commission under this Act.

Intervention as a party

(2) The Commission may intervene as a party to an application under section 34 if the person or organization who made the application consents to the intervention as a party.

14The Commission is a public agency established under the Code. Section 29 sets out its broad and important mandate, and that section, along with others, sets out the Commission’s powers and the mechanisms by which it may fulfill its mandate. The Tribunal has recognized the Commission’s broad mandate, and the important role it can play in section 34 applications that may be brought before the Tribunal. (See: de Pelhan v. Mytrak Health Systems, 2008 HRTO 147, 2009 HRTO 172; Carmilo v. Ottawa Police Services Board, 2009 HRTO 1533, 2009 HRTO 1988; Whiteley v. Osprey Media Publishing, 2010 HRTO 1063, 2010 HRTO 1554; Seberras v. Workplace Safety and Insurance Board, 2011 HRTO 199, 2011 HRTO 541).

15Section 37 provides for Commission interventions in applications brought by individuals or organizations under section 34. The Legislature’s inclusion of a specific section dealing with Commission interventions is noteworthy because, amongst other things, it makes a distinction between the Commission and others who might seek to intervene in applications before the Tribunal, thereby recognizing the Commission’s public interest mandate, expertise and special role under the Code.

16Section 37 also distinguishes between circumstances where the Commission seeks to intervene in an application and where the intervention is with the consent of the applicant. In the latter case, the statute dictates that the Commission “may intervene as a party.”

17There is no dispute that the applicants have consented to the Commission’s intervention. In my view, a plain reading of subsection 37(2), in the context of section 37, and the Code as a whole, leads to the conclusion that the Commission is entitled to intervene as of right, as a full party. In an intervention under subsection 37(2), the Commission does not request the right to intervene, the Commission is entitled to intervene.

18The Commission submits that where it intervenes under subsection 37(2), the provision of subsection 37(1) – that the intervention may be “on such terms as the Tribunal may determine…” – does not apply. I need not decide that question here, though I would note that in any event, under subsection 43(3)(b)(i), the Tribunal may define and narrow the issues in an application, and limit the evidence and submissions of any party, in order to ensure a fair, just and expeditious resolution of the merits of an application.

19Having decided that the Commission is entitled to intervene upon providing notice under section 37(2) and Rule 11(11), I need not deal at length with the City’s arguments that I should defer considering the Commission’s Notice of Intervention. It is doubtful that I have that power, and the City provided no authority to support the proposition that a person with a statutory right to intervene as a full party, may do so only after the Tribunal has addressed any jurisdictional challenges raised by the respondent.

20Section 39 of the Code provides that the Tribunal has the power to determine all questions of fact and law. This includes questions of whether the Tribunal has the jurisdiction to deal with an application. Persons who have party status, as of right, also have the right to make submissions on jurisdictional issues, subject only to the Tribunal’s powers to control its process.

21Finally, as noted above, the City argues that the Commission’s intervention would be prejudicial, as it would provide “a cloak of authority” to a deficient application, and would turn this Application, filed under section 34, into a public interest application under section 35.

22It is not entirely clear what the City means by the Commission giving the Application a “cloak of authority”, or that its intervention will convert the Application into a public interest application. The Code is a public statute, quasi-constitutional in nature, whose ultimate purpose is the elimination of discrimination and the protection of our most basic democratic rights and freedoms. This public interest objective is reflected in a number of Code provisions, including section 37 and subsection 36(5), which provides the Tribunal the power to add any person or the Commission as a party to a section 34 application. The Tribunal recently noted the important role intervenors can play in section 34 applications, particularly where the issues involve matters of broad public interest (CAW - Canada v. Presteve Foods Ltd., 2011 HRTO 1581, at paras 9-10).

23The Code’s public interest objective is also reflected in the broad remedial authority granted to the Tribunal in applications under both sections 34 and 35. It is not only applications by the Commission brought under section 35 that may have a public interest component.

24The Application now before the Tribunal is the Application that has been filed by the applicants. The Commission’s participation does not give the Application any greater importance, weight or authority. Nor does the Commission’s intervention convert a section 34 application into a public inquiry into legislation as the City alleges. The Tribunal will deal with the Application based on the material facts set out in the Application, Response and Intervention, along with any amendments to those pleadings as may be permitted.

25For the reasons provided, the City’s objection to the Commission’s intervention is dismissed.

PROCEDURE FOR THE OCTOBER 19 PRELIMINARY HEARING

26The parties have filed extensive written materials on the City’s RFOP and the applicant’s request to amend the Application, and are all represented by experienced counsel. I expect that oral submissions can be completed in one day. The following procedure will apply:

a. The City will proceed first with submissions and argument on its RFOP and its position on the applicants’ request to amend the Application. The City will have up to 2 hours;

b. The applicants will respond to the City’s submissions and argument on both the RFOP and the request to amend, followed by the Commission. The applicants and Commission will have up to 2½ hours in total for their submissions and argument, and may divide the time as they consider appropriate;

c. The City will provide reply, if any, and will have up to one half-hour.

d. As previously agreed, the hearing will be held on October 19, 2011, commencing at 10:00 am;

e. Should the parties wish to address any issues other than those set out in the City’s RFOP and the applicants’ request to amend, they must advise the Tribunal, with copies to each other, no later than September 23, 2011.