HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Dream Team, on behalf of Ken Macleod, Heather Cunningham, Neil NcQuaid, Linds Chamberlain, Dennis Morency, Peter Lye, Philip Dufresne, Ester Mwangi

Applicant

-and-

City of Toronto

Respondent

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: January 5, 2012

Citation: 2012 HRTO 25

Indexed As: Dream Team v. Toronto (City)

APPEARANCES

The Dream Team, Applicant ) Kate Stephenson and ) Janina Fogels, Counsel

City of Toronto, Respondent ) Antonella Ceddia and ) Tim Carre, Counsel

Ontario Human Rights Commission, Intervenor ) Christine Elwell, 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 request by the respondent for an order dismissing the Application at a preliminary stage, without a hearing of the merits. This Decision also addresses a request by the applicant to amend the Application.

2The Application alleges that certain provisions in a number of City of Toronto zoning by-laws discriminate against persons with disabilities by imposing minimum separation distance standards for the development and location of group homes, residential care facilities and other types of supportive housing for people with disability-related needs. The applicant, The Dream Team, is an organization that advocates for supportive housing for people facing mental illness. The claimants on behalf of whom the Application is brought are members of The Dream Team, and all identify as persons who face mental health issues and who currently, in the past, or may in the future require supportive housing because of their mental health-related disabilities. They allege that the zoning by-laws, by restricting the number and location of supportive housing facilities within the City, limit the availability of their housing options, and place restrictions on where they may live. They argue that these restrictions have a fundamental and negative impact on their dignity, treatment and ability to participate as members of the community. The respondent denies the allegations.

3The Application was originally filed in February 2010. The respondent filed a Response arguing that the Tribunal had no jurisdiction to hear the Application. The respondent subsequently filed a Request for Order During Proceedings on March 2, 2011, repeating the objection to the Application. The respondent advances three grounds for its position that the Application should be dismissed at a preliminary stage: a) that the Tribunal has no jurisdiction to award the remedies requested by the applicant; b) that the appropriate forum for the claim is the Ontario Municipal Board (the “OMB”); and c) that the Application is vague, speculative, hypothetical and does not disclose a prima facie case of discrimination under the Code.

4In April 2011, the applicant filed a Request to amend the Application. The requested amendments had previously been raised in the applicant’s Reply filed on September 30, 2010. In addition to those amendments, the applicant is now seeking to rely on section 13 of the Code, which provides that certain expressions of intention to discriminate violate the Code.

5On March 8, 2011, the Ontario Human Rights Commission (“the Commission”) filed a Notice of Intervention. The applicant consented to the intervention. The respondent objected. By Interim Decision dated September 14, 2011 (2011 HRTO 1691), I ruled that the Commission was entitled to Intervene.

6People First Ontario, a disability rights advocacy organization, has also filed a request to intervene. All parties agreed that the People First Ontario request to intervene should be dealt with after the Requests brought by the applicant and respondent have been addressed.

7On October 19, 2011, I heard oral submissions from the parties on the respondent’s Request for early dismissal and the applicant’s Request to amend the Application.

THE RESPONDENT’S REQUEST FOR EARLY DISMISSAL

No Jurisdiction to Award Remedy Requested

8The Application (Form 1) does not request a monetary remedy. It asks only that the City remove the allegedly discriminatory minimum separation distance provisions from the various zoning by-laws. In the Reply to the respondent’s Response, the applicant amends the remedy sought to include a request for a declaration that the minimum separation distance provisions violate the Code, that the City take steps to bring the by-laws into compliance with the Code, and that the Tribunal suspend the operation of the impugned provisions pending the by-laws being brought into compliance with the Code.

9The City argues that the by-laws are legislation, and the Tribunal has no power to strike down legislation. It further argues that the Tribunal has no jurisdiction to direct the City to insert provisions into by-laws, again characterizing them as legislation. In support of its position, it relies on the Divisional Court decision in Malkowski v. Ontario (Human Rights Commission) et. al., [2006] O.J. No. 5140, 2006 CanLII 43415, and the recent Tribunal decisions in Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712, and Ball v. Ontario (Community and Social Services), 2010 HRTO 360.

10I cannot accept the respondent’s position that the Application should be dismissed at a preliminary stage on the basis that the Tribunal lacks the jurisdiction to award the remedies requested. There are a number of reasons. First, while I acknowledge the general principle as set out in the jurisprudence that a statutory tribunal does not have the jurisdiction to “strike down” legislation, it is not clear that municipal zoning by-laws are legislation. Municipalities, which are statutory, not constitutional entities, may enact zoning by-laws pursuant to authority delegated to them under the Planning Act, R.S.O. 1990, c. P. 13, as amended. The respondent was unable to provide any case where it has been held that by-laws are legislation, and relied only on the fact that they are enacted by elected members of a municipal council. Even if zoning by-laws are properly considered legislation, it is not clear whether the rationale that led the Court in Malkowski to find that a human rights tribunal lacks the jurisdiction to strike down legislation enacted by the provincial legislature pursuant to its constitutional powers, would apply in the context of the exercise of ministerial powers delegated pursuant to the provisions of a provincial statute. (See also Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, and Freitag, supra, at paras. 11-13).

11I make no finding here as to whether zoning by-laws are legislation, or whether the Tribunal has the jurisdiction to provide the remedy originally requested in the Application (the removal of the separation distance standards from the by-laws). I find only that it is not appropriate to grant the respondent’s request for early dismissal of the Application on this basis.

12In addition, as noted earlier, the Reply filed by the applicant broadened the remedy being sought. While the respondent maintained the Tribunal does not have the power to order the City to bring the by-laws into compliance with the Code (that is, the Tribunal may not direct the City to insert provisions into by-laws), it did not seriously argue that the Tribunal lacked the jurisdiction to make a declaration, or suspend the enforcement of the by-laws as they applied to the claimants, even if the by-laws were considered to be legislation. The respondent argued that the applicant must be bound by the remedy requested in the original Application, but provided no support for that proposition, and provided no evidence of actual prejudice it would suffer if the Tribunal considered the modifications set out in the Reply.

13Finally, in my view, any argument about the appropriate remedy, in the event the applicant succeeds in the claim, should be made at the end of the case, after consideration of the evidence and findings. The Tribunal is granted broad remedial authority under section 45.2 of the Code. The Tribunal is not bound by remedial requests made by the parties, and indeed is granted the express power to direct a person to do anything with respect to future practices, even if no such order has been requested by any party.

The Appropriate Forum is the Ontario Municipal Board

14The respondent asserts that I should dismiss the Application because the Ontario Municipal Board (“OMB”) is the appropriate forum to deal with the claim. It argues that the central issue in this case is the validity of a municipal zoning by-law, which is a matter properly brought before the OMB. The respondent further argues that the OMB has specialized expertise in land use planning matters, and has determined that it has jurisdiction to apply the Code in appropriate cases.

15The applicant argues that I have no discretion or authority under the Code to dismiss this Application because the OMB has expertise in planning matters, or the claim might otherwise have been brought before the OMB or the Court. Further, the applicant argues that while the case is a challenge to a municipal zoning by-law, it is clearly a human rights claim, and the Tribunal has established and recognized expertise in dealing with human rights claims.

16It should be noted that when the Application was originally filed, a new comprehensive zoning by-law, which also included minimum separation distance standards, and was to supersede the existing zoning by-laws, was before the respondent’s Municipal Council. In August 2010, the new comprehensive by-law was passed, and was subsequently appealed by a number of individuals and businesses to the OMB pursuant to section 34 of the Planning Act. Early in 2011, the respondent repealed the new comprehensive by-law, and as a result there are currently no proceedings before the OMB in which the impugned restrictions are, or could be challenged. In other words, at the time the respondent first advanced this argument, there was a parallel proceeding under the Planning Act underway. That is no longer the case.

17There is no question that where the subject matter of an application is being dealt with in another proceeding, the Tribunal has the discretion to defer the Application pending resolution of the other proceeding. Further, under section 45.1 of the Code, the Tribunal may dismiss all or part of an application, if, in the opinion of the Tribunal, another proceeding has appropriately dealt with the substance of the Application. In the present circumstances, there is no other proceeding, and there is no claim that the matter has been dealt with in another forum. I agree with the applicant that the Tribunal is given no power under the Code to dismiss an application on the basis that it might have been brought in another forum, even where the decision-maker in the other forum is claimed to have greater expertise in the subject matter of the Application.

18I would add that, while the impugned standard in this case is a municipal zoning by-law, the essence of the case is a claim under the Code. This is not a claim that the zoning by-law is inconsistent with the Planning Act, the Provincial Policy Statement, the City’s Official Plan, or principles of good planning, independent of the Code, matters over which the OMB has specialized expertise. This is a claim that the Code has been infringed, a matter over which the Tribunal has recognized expertise. Further, because the Code covers a number of social areas (housing, employment, contracts, goods, services, facilities, vocational associations), it is common for an application to challenge standards or policies related to matters that may also be dealt with by other specialized tribunals or the Courts. The question of whether in any particular case, a matter can be said to fall within the specialized area of expertise of the Tribunal, or another statutory tribunal, does not affect the Tribunal’s jurisdiction to hear an Application.

The Application is vague, speculative, hypothetical and discloses no prima facie case

19In its various pleadings, the respondent makes a number of interrelated arguments about why, in its view, the Application is so deficient and incomplete that the Tribunal must grant an order for early dismissal without a hearing of the merits. Those arguments include:

• that the Application fails to plead how the rights of the claimants were infringed. The Application does not allege, for example, that any of the individuals were ever unable to find, or were denied supportive housing. Neither does it allege that any of the claimants were restricted from building, operating or locating a group home in any part of the City because of the impugned provisions. The respondent argues that in an application under section 34, the applicant must set out how an individual’s rights were infringed, when they were infringed, and by whom. The respondent argues that in an application brought under section 34 (as opposed to an application brought by the Commission under section 35), an individual must identify specific and individualized impacts, and it is not sufficient to make a generalized claim that legislation or a policy has a discriminatory effect;

• that the Application is speculative and hypothetical: there are no facts pleaded that would establish that the zoning by-laws have actually had a discriminatory impact on the individual claimants;

• the Tribunal does not have the jurisdiction to hear a bare allegation that legislation infringes the Code;

• that the Application is so incomplete and lacking in particulars that the respondent is deprived of knowing the case it must meet.

20The respondent characterizes these alleged deficiencies as jurisdictional, and relies on a number of Tribunal decisions in which an application was dismissed without a hearing of the merits. (For e.g. Matthews v C.A.W. Local 1285, 2010 HRTO 1116; Shuparski v. Toronto (City), 2010 HRTO 726; Freitag, supra).

21The applicant argues that the Application is sufficiently particularized, and to the extent I may find it is not, the appropriate remedy is to order further particulars. The applicant strongly objects to the characterization of the alleged deficiencies as jurisdictional. The applicant also disagrees that the Application is speculative or hypothetical, and takes issue with the respondent’s position on the scope of section 34. The applicant argues that it would be premature to consider the challenges raised by the respondent in the absence of a fulsome factual foundation.

22I am not prepared to grant the respondent’s request for early dismissal of the Application. I agree with the applicant that it would be premature to consider and determine the challenges raised by the respondent without a proper evidentiary foundation and full legal argument. While the Tribunal has, in some cases, granted early dismissal on the ground that the Tribunal lacked jurisdiction, or that the application as drafted was outside the scope of the Code, there is no requirement that the Tribunal dispose of such challenges at a preliminary stage. Further, the Tribunal will generally decline to grant early dismissal unless it is satisfied that there is a sufficient factual foundation to determine that it is “plain and obvious” that the application will not succeed. (See for example Cochrane v. Workplace Safety and Insurance Board, 2009 HRTO 1596; Frankson v. Workplace Safety and Insurance Board, 2009 HRTO 2084.)

23The Code provides the Tribunal a broad discretion to determine, in any particular case, the procedure that will best ensure a fair, just and expeditious resolution of the merits of an application. Rule 1.7(g) of the Tribunal’s Rules of Procedure provides that the Tribunal may “determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined.”

24In the present case, there are a number of factors which lead me to conclude that it is not appropriate to determine the respondent’s Request at this stage.

25First, this is not a case where the actions of the respondent and the alleged wrongdoing are completely unrelated to the Code. Nor is it a case where the applicant or claimant fails to identify as a member of a protected group. The Application alleges that the claimants are persons with disabilities who require, have required, or may require supportive housing because of their disability-related needs. The Application further alleges that the respondent has established standards limiting the number and location of supportive housing units, standards which refer specifically to the personal characteristics of the residents as persons with disabilities. As a result of the standards, it is alleged that persons with mental health disabilities, including the claimants, face restrictions on where they can live, restrictions that are not imposed on persons who are not disabled. The applicant argues that the restrictions have a direct and fundamental impact on the claimants in respect of their housing options, their treatment and their dignity. As the applicant stated, the Application identifies a ground of discrimination, a social area, and a nexus between the actions (or policies) of the respondent and differential treatment, resulting in a negative impact related to a prohibited ground.

26Second, while the respondent states that the Application provides no particulars of any occasion where any claimant was denied access to supportive housing as a result of the application of the by-law provisions, the applicant says that is not fatal to the Application. The applicant argues that the essence of this Application is that the by-law provisions restrict the claimants’ housing options, undermine their dignity and signal that because of their disabilities, they are not welcome in certain areas of the City, or “not too many of us.”

27The Application raises important, and in some respects novel legal issues concerning the interplay between the particular circumstances, needs and conditions of people facing mental illness, and a municipality’s legitimate interest in regulating land use, and the way it may exercise its planning authority. These issues should not be determined in a factual vacuum. In my view, the best opportunity to ensure a fair and full determination of these issues is to hear submissions from the parties after a proper evidentiary foundation has been established.

28Third, the respondent has likewise raised important questions about the proper interpretation and scope of subsections 34(1) and (5). In my view, in the circumstances of this case, a full and fair determination of those questions should be made at the end of a hearing of the merits, and the respondent is not “entitled”, as it has argued, to a determination at a preliminary stage.

29In summary, I make no final finding about the merits of the legal arguments advanced by the respondent. I find only that based on the materials before me, it is not plain and obvious that the Application is outside the scope of the Code, and that it would not be fair and just to decide the Application without providing the parties the opportunity to present evidence and make full legal argument.

30Having made this determination, I do accept that the applicant should be required to clarify its claim, and provide any further particulars it may seek to rely upon.

31While counsel for the applicant stated that the essence of the claim was not that any of the claimants had been denied access to supportive housing on any specific occasion, portions of the Application do seem to suggest that the by-law provisions limit the supply of supportive housing. In my view, the applicant should be required to clarify the scope of the claim, and set out all the material facts upon which it intends to rely to support the claim. If the respondent then believes it requires additional particulars, it can make that request to the applicant, and make a formal request of the Tribunal if the applicant fails to provide adequate particulars. A party who fails to provide particulars of material facts it intends to rely upon may be limited in the evidence it is entitled to present. The Tribunal can address any claim of prejudice, should the respondent believe it has not been provided adequate particulars to prepare its defence.

REQUEST TO AMEND APPLICATION

32The applicant sought to amend the Application by adding a number of material facts and allegations:

• to properly identify the respondent as “City of Toronto” rather than the “Corporation of the City of Toronto”;

• to include the minimum separation distances in each of the 33 zoning by-laws which are the subject of the Application;

• to amend the remedies requested (as noted earlier);

• to rely on section 13 of the Code.

33The respondent objected to the request to amend the Application. It argued that I should determine its Request before considering the request to amend, and that the applicant’s request to amend was simply “more of the same” – unparticularized allegations – and therefore not proper pleadings.

34The first amendment sought by the applicant simply corrects the style of cause by identifying the proper legal name of the respondent. The second amendment particularizes the actual distance in metres of the separation distance standards. I see no reasons why these amendments should not be permitted.

35The amendment to the remedial request was originally set out in the Reply. Assuming, without deciding, that in order to rely on a remedy set out in a Reply, an applicant requires leave of the Tribunal, as noted earlier, the respondent has provided no evidence of actual prejudice it will suffer if the original remedy is amended. I see no reason not to permit the amendment.

36The respondent argues that the applicant has provided no particulars to support the claim that s. 13 has been breached. The applicant argues that it is not relying upon any additional facts, but is only giving notice that it will rely on s. 13 in legal argument.

37In the circumstances, given the early stage of the proceedings, and that the request does not seek to add a new factual dimension to the case, I am prepared to allow the applicant to argue that s. 13 has been breached.

ORDER

38For the reasons set out above, I dismiss the request for early dismissal of the Application brought by the respondent. This is without prejudice to the respondent being able to make any of its arguments at the end of the proceedings, or at an earlier stage with leave of the Tribunal. I also allow the amendments to the Application as requested by the applicant.

39In order to ensure a fair and expeditious determination of the Application, I also make the following Orders:

a. Within 28 days of this Interim Decision the applicant shall deliver to the other parties, and file with the Tribunal, a complete statement of all material facts on which it intends to rely, and a statement of the breaches of the Code it alleges;

b. Within 56 days of this Interim Decision, the respondent shall deliver to all parties, and file with the Tribunal, a statement of all material facts on which it intends to rely;

c. If the respondent believes it requires further particulars, it shall make a request directly to the applicant. The applicant shall respond within 10 days of any such request. If the respondent believes that any response from the applicant is insufficient, it may seek directions from the Tribunal by way of letter. No formal Request for Order During Proceedings is required.

d. Within 28 days of this Interim Decision, each party shall deliver to one another, and file with the Tribunal, a Response to the intervention Request of People First Ontario. Within 42 days of this Interim Decision, People First Ontario may file a Reply. The Tribunal proposes to deal with the intervention Request by way of written hearing. If any party objects to a written hearing, they must provide reasons for their objection at the same time they file their Response to the intervention Request.

e. The Registrar is requested to schedule a hearing on the merits.