Simon Lee v. City of Toronto, 2012 HRTO 412

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simon Lee

Applicant

-and-

City of Toronto

Respondent

DECISION

Adjudicator: David A. Wright

Date: February 27, 2012

Citation: 2012 HRTO 412

Indexed as: Lee v. Toronto (City)

WRITTEN SUBMISSIONS

Simon Lee, Applicant ) Self-represented

City of Toronto, Respondent ) Rosanne Giulietti, Counsel

INTRODUCTION

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) alleges that the City of Toronto (the “City”) has discriminated against the applicant with respect to goods, services and facilities because of race, ancestry, ethnic origin and association with a person identified by a prohibited ground, contrary to s. 1 of the Code. In October, 2011, City Council passed a by-law prohibiting the possession, consumption and sale of shark fin products within the City. The applicant takes issue with the fact that the by-law only prohibits shark fins, not other shark products. Shark fins are, he says, a “part of traditional Chinese culture/diet” and the by-law “specifically targets Canadians of Chinese ancestry”.

2The respondent filed a Request for Order During Proceedings, seeking the dismissal of the Application as outside the Tribunal’s jurisdiction. It argues, among other things, that law-making is not a “service” within the meaning of the Code.

3I find that the Application is outside the Tribunal’s jurisdiction. Municipal by-laws of the type at issue here, that are an exercise of the City’s general legislative authority, are an exercise of political powers. In my view, a challenge to the mere existence of a by-law of this nature, where the applicant does not allege that it affects a social area covered by the Code, is not within the Tribunal’s jurisdiction. Nor is a challenge to the by-law based on the political process that led to its passage. The applicant does not allege that he will, or wants to consume shark fin products, or that the by-law will or could have any effect on him other than by allegedly reflecting or increasing anti-Chinese sentiment in the community. The Application does not fall under the Code.

THE APPLICATION

4The applicant states that the councillor who proposed the by-law has “specifically and consistently singled out the Chinese community” in comments. He states that the by-law affects only Chinese restaurants and their patrons. He states that the by-law and the campaign behind it are focused on Chinese consumption as the cause of the decline in shark population and that other causes of this decline are ignored.

5The Application cites various comments made by members of the public in the media in conjunction with coverage of the by-law that allegedly target Chinese Canadians. He says that as a result of the campaign and subsequent comments he has “felt ashamed to be of Chinese ancestry”. He compares the banning of shark fin products, but not other shark products, to the head tax that was historically imposed on Chinese immigrants to Canada.

6The principal remedy the applicant seeks is a change to the by-law to prohibit the possession, sale and consumption of all shark products. He also seeks an acknowledgement that the by-law is discriminatory, an explanation of the rationale for only targeting shark fins rather than all shark products, a statement to the public on the multiple factors of shark decline, and an apology “for focusing the campaign on shark fin soup and increasing anti-Chinese sentiment”.

ANALYSIS

7Various cases establish that the Tribunal does not have jurisdiction to deal with a challenge that alleges merely that the passage of legislation or the legislative process is discriminatory. In Malkowski v. Ontario Human Rights Commission, 2006 CanLII 43415 (Ont. Div. Ct.), the Divisional Court dealt with a challenge to a provincial legislation that the applicant alleged was underinclusive in not imposing certain building requirements. The Court held that the Tribunal cannot make an order that legislation be changed, and suggested that the complainant in that case had not been denied a service. In Freitag v. Penetanguishene (Municipality), 2009 HRTO 1712 at para. 17, the Tribunal held that it does not have “the power to rule on the bare question of whether legislation, in whole or in part, breaches the Code”. In Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at para. 154, the Tribunal held that the development and passage of provincial legislation and regulations are not “services” within the meaning of the Code. These cases establish that the Tribunal has no jurisdiction to deal with a challenge merely to the existence of legislation or regulations and/or the process of passing them.

8In my view, the principles in Freitag and Ball apply to this Application. The by-law in question states that it was passed pursuant to the City’s powers under the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, and the powers granted to the City in that legislation to pass by-laws in respect of animals, the health, safety and well-being of persons, the economic, social and environmental well-being of the City and the protection of persons and property, including consumer protection.

9Unlike provinces, municipalities have no inherent powers under the Constitution. Provincial legislatures delegate them powers to make decisions in respect of certain matters. Municipal governments are democratic institutions with powers to make delegated legislation, which involve an array of social, economic, political and other considerations: Catalyst Paper Corp. v. North Cowichan, 2012 SCC 2 at para. 19. Like regulations, by-laws of the type at issue here are passed pursuant to delegated legislative powers.

10As in Freitag, the bare question of whether the by-law breaches the Code, when the applicant has not alleged any effect on him in one of the social areas, is not a matter that falls within the Tribunal’s jurisdiction. As in Ball, which found that the policy-making process is not a “service”, statements made by politicians in the course of the by-law making process do not fall under any social area in the Code. In making these determinations, I make no finding about municipal zoning by-laws made under the Planning Act, at issue in Dream Team v. Toronto (City), 2012 HRTO 25. Such by-laws are made pursuant to a specific regime which may or may not involve the same general considerations as the by-law at issue in this case and in Catalyst Paper, which involved a taxation by-law.

11The applicant relies upon the primacy clause of the Code (s. 47(2)), which provides as follows:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

12By-laws of this nature are not immune from the Code. If a by-law, like provincial legislation or regulations, creates, requires or authorizes discrimination in services, s. 47(2) applies and the Tribunal can evaluate whether it is inconsistent with the Code and order as a remedy that it not be applied or enforced: Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 at para. 42 (Div. Ct.); Ball, supra at para. 172; Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1715 at paras. 136-150. However, the primacy clause does not suggest that an applicant can challenge the mere passage of a legislative by-law or contest the by-law based on the political process that led to its passage. The applicant has not alleged that he experienced any discrimination with respect to services within the meaning of the Code. He makes no suggestion that but for the by-law, he would possess or consume shark fin products or that he wants to do so. Accordingly, this Application is outside the Tribunal’s jurisdiction.

ORDER

13The Application is dismissed.