Pamela Howson v. City of Ottawa, 2011 HRTO 254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela Howson

Applicant

-and-

City of Ottawa

Respondent

INTERIM Decision

Adjudicator: David A. Wright

Date: February 4, 2011

Citation: 2011 HRTO 254

Indexed as: Howson v. Ottawa (City)

WRITTEN SUBMISSIONS

Pamela Howson, Applicant ) Self-represented

City of Ottawa, Respondent ) Beth Turner, Counsel

1Is a municipality subject to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in passing and administering land use planning by-laws? Does the prohibition on discrimination because of family status include the consequences of the need for a larger vehicle because of the size of one’s family and the age of children? These are among the legal issues raised by this novel Application under s. 34 of the Code. This Interim Decision removes the personal respondents named by the applicant and determines that the legal issues about the Tribunal’s jurisdiction are best dealt with not as a preliminary issue, but by the adjudicator hearing the Application on the merits.

2The applicant alleges that the respondent City has discriminated against her with respect to goods, services and facilities on the ground of family status. The facts of her Application also appear to potentially raise the social area of housing.

3The parking spot for the house owned by the applicant is accessible only through a small laneway behind her house. She states that she has three children who require car seats. She alleges that the narrowest vehicle that will accommodate three car seats is too wide to reasonably fit through this lane. Accordingly, she wants to park her vehicle in a front pad directly in front of her house. She asserts that to fail to permit her to do so would be discrimination on the basis of family status.

4As a result of the zoning of the applicant’s property, she cannot have front pad parking. She states that when she addressed this issue with the respondent, she was informed that she would have to reach an encroachment agreement with the City and apply for a minor variance. The application fee for the minor variance is $1,500. The applicant states that she has been informed by city staff they will not support the application and that they do not believe that municipal by-laws are subject to the Code. Accordingly, she did not apply for a minor variance because the process would be, in her view, useless, expensive and time-consuming. She suggests that the Code requires that there be an exemption for this fee where the variance is required for human rights reasons.

5The respondents take the position that the matter does not fall within the jurisdiction of the Tribunal. They argue, among other things, that without having made an application to the Committee of Adjustment for a minor variance, the applicant cannot pursue an Application to the Tribunal. They argue that the “appropriate venue” for the matter is an application to the Committee of Adjustment and then an appeal to the Ontario Municipal Board if the applicant disagrees with the result. They argue that the by-law or committee of adjustment process is not a “service” within the meaning of the Code, as it does not apply to legislation, citing Shuparski v. Toronto (City), 2010 HRTO 726, and Freitag v. Penetanguishene (Municipality), 2009 HRTO 1712.

6The respondents also suggest that there is, in fact, no physical impediment to the ability of the applicants to reach their back parking spot through the laneway in their chosen vehicle.

7The respondents argue that their objections should be dealt with as a preliminary matter. I do not agree. In my view, it would be most appropriate for the jurisdictional issues to be addressed together with the merits of the Application, as they raise novel and complex issues about the interpretation of the Code and its interaction with planning statutes. A more detailed factual context and submissions on the allegations and defences are important. All these issues are best dealt with by the adjudicator assigned to deal with the Application on its merits. The Tribunal’s power to determine the order in which issues will be dealt with is clearly established in s. 43(3)(d) of the Code and Rule 1.7 (g).

8It also appears that, although not identified by the applicant, who is self-represented, the facts of the Application may relate to the social area of housing under s. 2 of the Code. The applicant may wish to seek leave to add this social area to her Application.

9It is appropriate to address at this time the respondents’ request to remove the individual respondents Alain Miguelez, John Moser, Rick O’Connor and Susan Jones, all of whom are employees of the respondent City. I find that these respondents should be removed. Applying the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, the City is alleged to be liable for the same conduct, there is no issue regarding the City’s deemed or vicarious liability and there is no issue regarding the ability of the City to respond to or remedy the alleged Code infringement. There is no compelling reason to continue the proceeding as against these individual respondents; their personal conduct is not a central issue. Finally, there would be no prejudice caused to any party if the individual respondents were removed from the proceeding.

10The respondent has not agreed to mediation. Accordingly, the Application will be placed in the queue to be scheduled for a one-day hearing. I am not seized.