Anemone Cerridwen v. City of Ottawa and OC Transpo, 2011 HRTO 1969

Human Rights Tribunal of Ontario

B E T W E E N:

Anemone Cerridwen

Applicant

-and-

City of Ottawa and OC Transpo

Respondents

DECISION

Adjudicator: Ena Chadha

Date: November 1, 2011

Citation: 2011 HRTO 1969

Indexed as: Cerridwen v. City of Ottawa

1The applicant filed an Application on August 18, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of disability.

2The respondents filed a Response on October 4, 2011, requesting the early dismissal of the Application on the basis of that the issues in dispute are within exclusive federal jurisdiction. The respondents clarify that, although the Application lists two respondents, there is, in fact, only one respondent, namely the City of Ottawa. The respondent City requests that the Tribunal dismiss the Application as against it because its transit services are a federal undertaking pursuant to section 92(10) of the Constitution Act, 1867.

3In Reply submissions, filed on October 15, 2011, the applicant opposed the respondents' request to dismiss on the basis that the subject matter of the Application appears to relate to both federal and provincial jurisdiction. The Application alleges a failure to accommodate in the provision of transit services by OC Transpo and an alleged discriminatory transit by-law issued by the City of Ottawa.

ANALYSIS

4The Code only applies to matters that come within provincial jurisdiction and does not apply to federally-regulated enterprises or undertakings. The Canadian Human Rights Commission has the power to deal with human rights matters that fall under federal jurisdiction. Pursuant to subsection 92(10)(a) of the Constitution Act, 1867, transportation works and undertakings that extend beyond the limits of the province are within federal jurisdiction.

5The respondent submits that OC Transpo is a department of the City of Ottawa and that OC Transpo regularly engages in inter-provincial transportation. The Tribunal has previously held that the City of Ottawa's OC Transpo transit service is a federally regulated transportation business that crosses provincial boundaries: Morgan v. Ottawa (City), 2008 HRTO 145; Jarabek v. OC Transpo, 2009 HRTO 1466; Goloii v. OC Transpo, 2010 HRTO 1734 and Ayoubloo v. OC Transpo, 2011 HRTO 1184.

6I understand that the applicant believes that with respect to the alleged discriminatory transit by-law the respondent City is under provincial jurisdiction. However, based on the material in the file, it is clear and not disputed that the impugned regulation is a "transit by-law". The respondent City undertakes cross-provincial transit services and enacted the impugned by-law as part of these transit services. I find that the respondent City was acting qua a federally-regulated undertaking and that the by-law is an integral part of the federal undertaking, namely the cross-provincial transit. While I recognize that by-laws in general are provincially regulated, the applicant's allegations pertain to a transit services that fall within federal jurisdiction. I accept that by virtue of section 92(10) of the Constitution Act, 1867, the City of Ottawa's transit services are a federally-regulated enterprise and, therefore, the applicant's allegations of alleged discriminatory transit service and transit by-laws do not fall under provincial jurisdiction.

7In summary, I conclude that by virtue of section 92(10) of the Constitution Act, 1867, the City of Ottawa's transit services are a federally-regulated enterprise. The respondent City in enacting this transit by-law was legislating with respect to the vital and essential elements of the operations of a federally-regulated undertaking, and therefore, the applicant's allegations of alleged discriminatory transit service and transit by-laws do not fall under provincial jurisdiction. As such, I find that the Application falls exclusively under federal jurisdiction, and in particular, within the exclusive jurisdiction of the Canadian Human Rights Commission.

8Accordingly, the Application is dismissed.