HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Henry Freitag
Applicant
-and-
Municipality of Penetanguishine
Respondent
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Freitag v. Penetanguishine (Municipality)
1The applicant filed an Application on February 19, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in the areas of goods, services and facilities on the basis of disability.
2The Application takes issue with a provision of the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c.11 (“the AODA”) that makes accessibility advisory committees (“AAC”s) mandatory only for municipalities having a population of 10,000 or more. The Application states that the “Legislature of Ontario committed a grave discrimination against the citizens who reside in a municipality of less than 10,000.”
3In the part of the Application that notes the effect of the events at issue on the applicant, the applicant addressed the effect on himself as “a person committed to the rule of law and democracy”, and indicated that the AAC on which he volunteers “was prohibited by the CEO Rath to do that which was required under” the AODA. He provided no further information to indicate whether he is a person with a disability, and no information as to what he alleges was done by the individual named.
4An earlier Interim Decision, 2009 HRTO 1712, dismissed the Application as against the Legislative Assembly of Ontario, leaving the Municipality of Penetanguishine and Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services named as respondents. The Interim Decision directed the applicant to deliver to the remaining respondents, and file with the Tribunal, submissions setting out precisely how his right under section 1 to “equal treatment with respect to services, goods and facilities, without discrimination because of … disability” has allegedly been infringed by each of the remaining respondents. The remaining respondents were told that they did not have to respond at that point.
5The applicant filed a response to the Interim Decision on October 27, 2009. In his response, the applicant indicates that he is a person with disabilities. His submission indicates two concerns. First, he alleges that the Penetanguishine AAC does not have sufficient members with disabilities to form a majority. Second, the applicant indicates that “the discrimination is in the abstract and of the duty, of the…[AAC], by the municipality of Penetanguishine”. He makes no allegations within the jurisdiction of the Tribunal against Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services.
6It appears that the applicant is alleging that the Penetanguishine AAC does not fulfill the duties set out in the legislation. He quotes subsection 29(4) of the AODA, which states the duties of AACs. These include advising “council about the requirements and implementation of accessibility standards and the preparation of accessibility reports”, reviewing “site plans and drawings” and performing other functions “specified in the regulations”. The applicant particularly references the review of site plans. He states that “I was at numerous occasions told we are not a municipality over 10,000, and we do not have to conform to the duties set out in the Act”.
7In conclusion, the applicant indicates that there are many places in the municipality where improvements to accessibility are required, that he wished to record these and move that they be placed on the agenda of the AAC, and that he requested the assistance of a summer student to help him with this project, at his age and disabilities make it difficult for him to take measurements. He states that his request was denied by the municipality.
Jurisdiction
8The Tribunal does not have the power to deal with most of the allegations noted above as there is insufficient connection with the applicant himself.
9As noted in a Decision dismissing another Application involving the applicant and the respondent Municipality, Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704, the Code is structured such that applications can be initiated in a limited range of circumstances. Sections 34(1) and (4) state that individuals who believe that one of their rights to equal treatment in relation to a Code-protected ground has been infringed may file an application. Pursuant to section 12, an individual may also file an application where discrimination is allegedly experienced because of the individual’s association with a person or persons identified by Code-protected grounds. Section 34(5) permits an individual or an organization to make an application on behalf of another person. Pursuant to section 35 of the Code, only the Ontario Human Rights Commission is statutorily empowered to initiate applications “in the public interest”. See Matthews v. C.A.W. Local 1285, 2010 HRTO 1116.
10Clearly, if the applicant identified a barrier to accessibility that affected him because of his disabilities, and that barrier was the responsibility of the Municipality, he could allege a breach of the Code with respect to goods, services and facilities by the Municipality. While the responsibility of AACs is to address such issues, a simple allegation that the ACC is not properly representative or is not doing its job does not have the required connection to the applicant, for the purposes of an Application under the Code.
11The exception is the applicant’s allegation that he was denied the assistance of a summer student to help him with carrying out volunteer activities for the AAC. He states that his request was made because his disabilities make it difficult for him to take measurements, and that his request was denied by the municipality. This is clearly an allegation of failure to accommodate disability with respect to services, goods or facilities.
12The applicant has not indicated the date of the alleged refusal nor identified the individuals involved. In making allegations in respect of an application, an applicant is expected to provide as much detail as possible of the “who, what, when and where” variety. Specific events should be described and, if possible, specific dates should be given. The respondent Municipality has not responded to this allegation in its Response, as this degree of particularity was not a feature of the original Application.
13In his Application, the applicant indicated that he was willing to attempt to settle the matter through mediation. The respondent Municipality has not, but since the Response was filed some time ago and the substance of the matter has been reduced in the course of preliminary Interim Decisions either party’s position in regard to mediation may have changed. Both parties will be given a chance to indicate whether they would be willing to attempt mediation.
ORDER
14There being no allegation within the jurisdiction of the Tribunal against Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, the Application against the Minister is dismissed, and the style of cause is amended accordingly.
15The Application against the remaining respondent is dismissed but for that part that deals with the alleged refusal by the respondent of assistance to the applicant in carrying out his volunteer activities for the respondent’s AAC.
16The applicant is required to give as much information as possible of the “who, what, where and when” variety, detailing the request for assistance that was allegedly denied by the respondent, within fourteen days of the date of this Interim Decision.
17The respondent will be given the usual time to respond in respect of this allegation.
18The respondent has written to the Registrar’s Office with a number of enquiries. Some of the enquiries concern the Application; the respondent inquires whether the Application can be circulated to its AAC, whether the Application may be received and discussed at open public meetings, and whether the application is available in a format accessible to blind individuals. It also enquires “whether all of the matters currently before the Tribunal may be disclosed to the Committee”. Assuming that the last question also refers to Applications, the respondent should note that there are no restrictions in the Code or in the Tribunal's Rules on the parties’ sharing of information, other than the confidentiality that applies to mediations at the Tribunal.
19I am not seized.
Dated at Toronto, this 14th day of April, 2011.
“Signed by”
___________________________________
Judith Keene
Vice-chair