HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Co.K. by his next friend P.K.
Applicant
-and-
Ontario Hockey Federation and Hockey Canada
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed as: Co.K. v. Ontario Hockey Federation
APPEARANCES
Co.K. by his next friend P.K., Applicant ) Self-represented
Ontario Hockey Federation and ) Craig Vander Zee, Counsel
Hockey Canada, Respondents )
1In this Application the applicant, through his father acting as his next friend, alleges discrimination in services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that residency rules that require minor hockey players to play with a team or association that matches their place of residence, or to obtain waivers/releases to play elsewhere, discriminate against him on the basis of sex. He alleges that girls of the same age do not face similar restrictions on where they may play and are not required to obtain waivers/releases in order to play where they choose. Initially, the applicant also alleged discrimination on the ground of age, but this part of the claim was withdrawn.
2The Application describes the process that the applicant went through during the spring and summer of 2009 to obtain waivers enabling him to play outside of his home area. He also went through a similar process in 2008.
3In my Interim Decision of February 22, 2011, I directed that this Application proceed as the “lead case” amongst a group of six Applications all raising the same issue. Following the Interim Decision, the parties exchanged documents and witness statements in relation to the hearing. After review of the material filed, I held a conference call with the parties on June 9, 2011 and then issued a Case Assessment Direction (“CAD”) in which I cancelled two days of hearings and directed the parties to provide submissions on two preliminary issues at the outset of the hearing. The issues were:
Whether the Application should be dismissed based on the time limit specified under the Code, and
Whether, assuming the facts in the Application are true, the applicant could establish that the respondents discriminated against him under the Code.
4In my CAD, I provided the following comments:
The applicant should address how he experienced adverse treatment in comparison with others receiving the same service, because of his sex. Also, to the extent that he compares himself with female hockey players in the Ontario Women’s Hockey Association, he should address why this is a valid comparison for the purpose of section 1.
The parties should also address whether the applicant could establish a violation of the Code based on section 11 (constructive discrimination). In this regard, what is the “requirement, qualification or factor” that is said to result in the “exclusion, restriction or preference” of a group of persons identified by sex? How is it that the “requirement, qualification or factor” has a discriminatory impact on male hockey players in the OMHA? As in paragraph 9 above, to the extent that the applicant compares himself with female hockey players in the OWHA, he should address why this is a valid comparison for the purpose of section 11.
BACKGROUND
The organization of minor hockey in Ontario
5Amateur hockey in Canada is governed by the respondent Hockey Canada. Hockey Canada is a voluntary association of members and individuals, subdivided into branches. The Ontario Hockey Federation (“OHF”), a not-for profit Ontario corporation, is a member branch of Hockey Canada and governs amateur minor hockey in Ontario along with the Ottawa District Hockey Association and Hockey Northwestern Ontario.
6The OHF in turn is composed of seven member partners including the Greater Toronto Hockey League (“GTHL”), the Ontario Minor Hockey Association (“OMHA”), and the Ontario Women’s Hockey Association (“OWHA”). Each member partner of the OHF must operate in a manner consistent with the Constitution, By-laws, Regulations and Rules of Hockey Canada, but have their own respective governing rules and regulations.
7The jurisdiction of the member partners is described in the OHF Constitution. The Northern Ontario Hockey Association covers minor hockey in northern Ontario. The GTHL governs minor hockey in an area including the Cities of Toronto, Mississauga and Vaughan. The OWHA has jurisdiction for “female hockey” within the province. The OMHA governs minor hockey in most of the areas not covered by the GTHL and the Northern Ontario Hockey Association.
8Within each age category there are various levels for a player to play in, from House League to the AAA level. AAA is the most skilled level.
9For all minor hockey programs in Hockey Canada there is a general requirement that players shall play hockey for a team that matches their residence. A player must play hockey in the branch in which he or she resides. Each branch moreover may establish its own residency requirements and geographic sub-divisions.
10The OHF’s Regulations require that players are required to try out and play in the geographic area in which they reside. There are particular rules for AAA level hockey. A hockey player who wishes to play AAA level hockey must play for the team in his or her residential zone. If he or she wishes to play for another AAA team within the OHF but outside his or her residential zone, he/she must obtain a “waiver” from the hockey club/association in that residential zone in order attend a tryout for another team. In some instances, a player must obtain waivers from all hockey clubs adjacent to their residential zone, in order to try out for a team not adjacent to the zone.
11Each member partner of the OHF has jurisdiction over a certain geographic area and may establish further subdivisions/zones within their respective area. Within the OMHA, AAA level hockey is organized through member clubs or associations that operate within specified residential zones. In the Newmarket area, the York Simcoe Express Hockey Association governs AAA hockey for the region. Under the residency rules of the OHF, a player who lives in the area and wishes to play AAA level hockey must play for the York Simcoe Express Hockey team, or obtain a waiver to join a team in another area.
12The residency rules in the OWHA are less restrictive. Unlike in the OMHA, there is no AAA level in minor girls’ hockey. The OWHA also does not operate through residential centres or zones and therefore it appears that the only geographic restriction is that players must reside in Ontario, the geographic area of the OWHA’s jurisdiction. However, players who wish to change teams must, under the OWHA regulations and by-laws, obtain a release form from their previous team.
13The respondents’ Response indicates that the rationale for having residency rules is to promote accessibility and competitiveness in minor hockey. It states that without residency rules, players would move from one zone to another without restriction. Communities would no longer have reasonable certainty as to the resources required for minor hockey in their area, or whether monies spent by them were being spent ultimately on players who reside in the community. The respondents state that the unrestricted movement of players would infringe upon municipalities’ rights and obligations to provide opportunities to the residential tax-paying constituency.
14Further, the respondents state that it would be unfair to force players to travel outside their residential areas in order to play for a team at their skill level, because roster spots on the team in their residential area have been taken by non-residents.
15In addition, the respondents state that residency rules are intended to eliminate the recruitment and solicitation of players, and especially, minors, by coaches, teams, clubs and associations outside of a player’s residential area.
The applicant
16The applicant is a resident of Newmarket. In April of 2009, he was ten years of age and had already played several years of competitive hockey. His OMHA home centre is the Newmarket Minor Hockey Association and for AAA level play, the hockey club in his residential zone is the York Simcoe Express Hockey Association. The applicant played hockey with the Newmarket Minor Hockey Association from 2004 to 2007 and then joined a team outside of his home centre in 2007-2008. During the 2008-2009 hockey season, he played AAA level hockey with the Vaughan Kings, and then in the 2009-2010 season with the Markham Majors, both teams outside his AAA residential zone.
17In order to try out for the Vaughan Kings and the Markham Majors, which are in the GTHL, the applicant had to obtain waivers from the AAA hockey clubs in the OMHA in and adjacent to his residential zone, which numbered six.
18In the Application, the applicant describes the inconvenience and expense of having to travel to or contact the six different hockey clubs, some of which are located a considerable distance from his home, in order to obtain waivers. In some cases, he was able to obtain the waiver without having to travel to the other centre, but only after some effort. In some cases, he obtained a waiver without participating in the team’s tryout but in at least one case was asked to take to the ice. The applicant states that the process of obtaining waivers/releases can be arbitrary, and he describes times when a coach seemed to delay unnecessarily in providing a waiver, or even attempt to use the ability to refuse a waiver to further a personal grudge. In some cases, the applicant was compelled to appeal a delay or a refusal to provide a waiver to the OMHA, which intervened and ultimately granted it.
19A particularly difficult time for the applicant was in the spring of 2008, when his grandfather died. He was in the process of obtaining waivers so that he could try out for a team in the GTHL. He was obliged to take to the ice after having just received the news about his grandfather, simply in order to obtain a waiver. He felt this was unnecessary and callous.
20The applicant believes that the residency rules described above and the requirement to obtain waivers in order to play for an AAA team outside his residential zone discriminate against him on the basis of sex. The applicant believes that the system discriminates on the basis of sex because girls who play in the OWHA may play on any team in Ontario regardless of where they live, whereas boys in the OMHA have to go through a waiver process. He believes that he should be able to play for a team in the GTHL without having to obtain the permission of teams in his geographic area in the OMHA. He wishes to see the elimination of all policies or rules that restrict minor hockey players from playing on any team in Ontario regardless of their residence.
21Section 1 of the Code, upon which this Application is based, states:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability
22Section 11 of the Code provides, in part:
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement
23The Supreme Court of Canada has described discrimination as
. . a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143
24The Supreme Court has also stated that “there is a difference between discrimination and a distinction. Not every distinction is discriminatory”: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at para. 64. This is reflected in the wording of section 1 of the Code which provides a right to “equal treatment…without discrimination.”
25Generally speaking, discrimination can be direct or indirect. Direct discrimination occurs when an individual is treated adversely because of a personal characteristic covered by the Code such as gender. This case does not raise direct discrimination in that the respondents’ residency rules are not based on gender. The residency rules do not state that they apply to boys only, and there is no suggestion that they were put into place in order to single out or disadvantage boys. An example of direct discrimination is found in the case of Blainey v. Ontario Hockey Assn. (No. 1) (1987), 1987 CanLII 8494 (ON HRT), 9 C.H.R.R. D/4549 (Ont. Bd.Inq.), in which Justine Blainey was prevented from joining a hockey team in the Metropolitan Toronto Hockey League (“MTHL”), just because she was a girl. This was found to be discriminatory and, as a result, the MTHL and the OHF changed their rules so that players of either gender were eligible to play. It is not in dispute that the GTHL (the successor to the MTHL) and the OMHA are now open to both boys and girls.
26Section 11 of the Code recognizes the reality that discrimination can occur when neutral rules that do not appear to be discriminatory have a disproportionate and adverse impact on a group identified by one of the personal characteristics covered by the Code. An example of indirect or “constructive discrimination” (as it is referred to in the Code) is the case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU (“Meiorin”), 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, in which an aerobic standard that disproportionately prevented women from obtaining firefighter jobs was found to be discriminatory.
27I have decided that this case does not give rise to direct discrimination, in that the residency rules do not distinguish on the basis of gender. Does it, however, give rise to constructive discrimination? Can it be said that the residency rules, which appear to be neutral, have a discriminatory impact on boys?
28The applicant believes that the rules are discriminatory because the OMHA’s rules are more onerous than those in the OWHA. His theory of discrimination is that the girls playing in the OWHA are not subject to the same residency rules as the boys playing in the OMHA. He is a boy, the OMHA is primarily composed of boy hockey players and, in reality, there are likely few, if any, girls playing at the AAA level. On the other hand, the OWHA, which does not have the same restrictions, is composed only of girl hockey players.
29Comparing the situation of AAA hockey players in the OMHA with the situation of hockey players in the OWHA, however, is like comparing apples and oranges. Even in a case of constructive discrimination, there has to be a finding that the rules would not have had the same impact on a person who does not share the same personal characteristic (in this case, gender), but who is otherwise in the same situation. I find it is not appropriate to compare the applicant to hockey players playing a different level of hockey in another league who are subject to different rules covering various aspects of their play, including residency restrictions. In the case before me, in order to establish constructive discrimination based on the prohibited ground of sex, it would have to be shown, at the very least, that the residency rules have a disproportionate negative impact on boys in the OMHA, as compared to girls in the OMHA.
30Applying section 11 of the Code starts with the identification of the rule in question. Here, the rules under challenge are the residency rules applicable to players playing AAA hockey in the OMHA. In order to assess whether they are discriminatory on the basis of gender, I have to determine their impact on girls in the OMHA as compared to boys in the OMHA. There is nothing in the facts suggesting that the same residency rules would not apply to a girl player in the same situation as the applicant, playing AAA level hockey in the OMHA. Although it may be true that more boys are affected by the rules than girls, this is not because the rule itself has a greater adverse effect on a boy playing AAA level hockey in the OMHA than a girl playing AAA level hockey in the OMHA; it is because of the greater number of boys than girls playing in the OMHA. Ultimately, if the rules are more onerous for the applicant than for girls playing hockey, it is not because the applicant is a boy. It is because he is playing AAA level hockey in the OMHA.
31Does it make a difference that both the OMHA and the OWHA are member partners of the OHF? I do not think so. The rules of the OHF establish general residency rules that apply to both organizations, but it is up to each organization to decide how it wishes to organize within its geographic area and whether it wishes to establish residential centres or zones. The OMHA has established residential zones; the OWHA has not.
32It might be discriminatory for the same organization to have different rules for boys and girls, or to have rules that have a disproportionate adverse affect on girls or boys (subject to any defences under the Code). But it is not discriminatory for two organizations serving different individuals to have two sets of rules, especially where, as here, the two sets of rules apply to players playing different levels of hockey.
33I therefore find that the residency rules do not discriminate on the basis of sex.
34I appreciate the applicant’s frustration with the residency rules. He believes that the rules are outmoded and points to other organizations (such as the GTHL) that have moved away from restrictions on player movement. He believes that the rules, which leave too much discretion in the hands of a few coaches, have given rise to unfairness. As I have indicated, however, it is not this Tribunal’s role to determine the wisdom or the fairness of the respondents’ rules, but only to decide whether they are discriminatory under the Code.
35In the result, the Application is dismissed.
36The other related Applications have been held in abeyance pending the conclusion of this case. The Tribunal will contact the applicants in those other matters about whether wish to proceed with their Applications in light of the outcome in this case.
Dated at Toronto this 13th day of January, 2012.
“Signed by”
Sherry Liang
Vice-chair