Pamela Howson v. City of Ottawa, 2012 HRTO 946

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pamela Howson Applicant

-and-

City of Ottawa Respondent

DECISION

Adjudicator: Michael Gottheil Date: May 10, 2012 Citation: 2012 HRTO 946 Indexed as: Howson v. Ottawa (City)

APPEARANCES

Pamela Howson, Applicant ) Self-represented City of Ottawa, Respondent ) Beth Turner and ) David Paticairk, Counsel

INTRODUCTION

1This is an Application brought under section 34(1) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent’s failure to grant her permission or to consider her request to build a parking space at the front of her house constitutes discrimination on the ground of family status.

2The respondent denies the allegation. It argues, amongst other things, that it does not have the legal authority to grant the applicant’s request. It says that the appropriate route for the applicant is to seek permission under the Planning Act, R.S.O. 1990, c. P.13 (“the Planning Act”), either through a request for a minor variance before the Committee of Adjustment, or a zoning by-law amendment before municipal council. The applicant argues that she does not want to pursue those avenues, and is not required to do so.

3For the reasons that follow, I find the Application should be dismissed.

BACKGROUND

4The applicant lives in a single family home in a residential area of Ottawa with her husband and children. The residence has one legal parking space which is located at the rear of the property, accessed by a narrow, shared laneway. The laneway is 12 meters long, and ranges from 2.6 to 2.78 meters wide.

5In the spring of 2010, the applicant and her husband were expecting their third child. Up to that point, the family owned a subcompact car, which the applicant says fit through the laneway. With the expected arrival of their third child, the applicant and her husband wanted to purchase a larger car which could accommodate three car seats. They test drove a number of vehicles and settled on a Mazda 5, which the applicant says was the narrowest vehicle which could accommodate three car seats. The Mazda 5 was 2.25 meters wide.

6There was some dispute between the parties as to whether the applicant’s first child, who was 7 years old in the spring of 2010, required a car seat. It was also unclear whether the applicant’s subcompact car could in fact accommodate three car seats. I do not find it necessary to decide these issues.

7The applicant felt that while the Mazda 5 fit through the laneway, the clearance was so tight that she was uncomfortable, and indeed felt it would be unsafe to use the rear parking space. She said it would be particularly unsafe at night and in the winter, when snow and ice would build up along the walls of the laneway, further reducing the clearance. She stated that she was concerned that if the car became stuck while backing through the laneway, given the narrow width, there would be no way to open the doors to get out. As a result, she felt that she needed an alternate parking spot.

8The zoning for the area does not allow for on-street parking. However, a number of the applicant’s neighbours had front yard parking, so she decided to seek approval from the respondent to build a parking pad on her front yard.

9In February 2010, the applicant approached a number of City departments to obtain approval to build a front yard parking space. She was told that the zoning regulations did not permit front yard parking in her area and therefore, if she wanted to pursue an approval, she would have to either seek a zoning by-law amendment before municipal council, or a minor variance before the Committee of Adjustment. In addition, she was told her home was located in a heritage district, and there were additional restrictions on alterations to the property.

10At each point of inquiry, the applicant asserted that her request was being made on the basis of a Code-related ground – family status. She argued that because of the size of her family (three young children), she required a larger car, and in turn required “accommodation” in the nature of front yard parking. She stated that she should not be required to go through the Committee of Adjustment process and pay the $1500.00 fee. Instead, because her request was based on a Code related ground, the respondent should consider this as an accommodation, and simply grant approval. She was told by several planning department officials there were no provisions to allow for such approval, and the applicant would have to proceed through either the by-law amendment, or minor variance process.

11On March 17, 2010, the applicant wrote to a number of officers and employees of the respondent, including Timothy Marc, Senior Legal Counsel. She restated her claim for front yard parking on the basis of Code related accommodation. She also stated that:

We believe the lack of a Human Rights provision for Family Status considerations by the City of Ottawa, and particularly in the “special circumstances where parking abutting street is permitted in residential zones”, constitutes discrimination, that such an omission constitutes a form of systemic or institutional discrimination. We also believe that the lack of consideration for family status creates a circumstance for us that is unreasonable and imposes an undue burden upon our family, as well as limiting our access to opportunity, benefits, and advantages available to other members of society.

The applicant went on to request a meeting.

12On March 24, 2010, Mr. Marc responded to the applicant. He indicated that he had conducted a case law review, and could find no case similar to the applicant’s. Nonetheless, he offered to meet with the applicant. That meeting was held on March 30, 2010, and was attended by a number of other planning and legal staff of the respondent. The applicant originally alleged that she was told that the Committee of Adjustment did not have the authority to consider the Code, and that the respondent would take that position should the applicant seek a minor variance. Under cross-examination, the applicant conceded that this was not correct, that legal staff said that the Committee in fact had the authority and obligation to apply the Code, but that the respondent did not agree the applicant had a legitimate Code-related claim.

13Subsequently, Mr. Marc wrote the applicant indicating the respondent would not grant her request for front yard parking, and would not present a staff report in support of her request. He again advised that the applicant could pursue either an application for a by-law amendment, or an application for a minor variance.

14The applicant chose not to pursue either of those options, and filed this Application with the Tribunal.

DECISION

15As noted, the applicant argues that the respondent should simply have granted her request for front yard parking based on the alleged need for accommodation on the ground of family status. She says she should not be required to make an application for a by-law amendment, or minor variance. The applicant also argues that the respondent should have special provisions that allow for consideration of human rights based claims.

16I agree with the respondent that it did not, and does not, have the jurisdiction to simply grant, as an administrative matter, variances to zoning regulations. The Planning Act provides the authority to municipalities to enact zoning by-laws. Once enacted, there is no power in municipal officials to grant exemptions or exceptions. Rather, as the applicant was advised, a person who proposes a use or alteration to a property which is not permitted under a by-law must either seek an amendment to the by-law, or seek a minor variance from a Committee of Adjustment. An official in the respondent’s planning department does not have the statutory authority to grant this type of permission under the provisions of the Planning Act.

17The applicant argues that because her claim for front yard parking is based on a human rights ground, she should not be required to go through the Committee of Adjustment process, or at least she should not have to pay the application fee. I disagree. The applicant provided no legal support for the proposition that where a claim is advanced, based on a Code ground, normal processes and procedures do not apply. While section 47(2) of the Code provides that the Code has primacy over other legislation, it does not say that where a Code issue is engaged, all other legislative procedures are supplanted.

18The applicant did not allege, and there is no evidence before me, that the procedures for seeking minor variances under the Planning Act are discriminatory, place an undue burden on a protected group, or have a systemic or disproportionate negative effect on a protected group or class of persons. The applicant simply seeks to avoid the Committee of Adjustment process on the basis that her claim engages a Code ground.

19Finally, I cannot accept the applicant’s claim that the respondent violated the Code by failing to provide for special dispensation or exceptions based on family status within the zoning by-law. First, there is some doubt as to whether the Tribunal would have the jurisdiction to require a municipality to include particular provisions in a by-law. See: Malkowski v. Ontario Human Rights Commission, 2006 CanLII 43415 (Div. Ct.).

20Second, while the applicant alleged that the respondent allows for exceptions to by-law regulations based on disability-related needs, the evidence before me established that those claims are always made through the minor variance process. I am satisfied that there is no basis to conclude that the applicant was discriminated against on the basis of family status.

21The Application is dismissed.