McLennon v. Toronto Port Authority, 2013 HRTO 1437

Human Rights Tribunal of Ontario

B E T W E E N:

Desmond McLennon

Applicant

-and-

Toronto Port Authority and Antonella Tarantino

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 22, 2013

Citation: 2013 HRTO 1437

Indexed as: McLennon v. Toronto Port Authority

APPEARANCES

Desmond McLennon, Applicant

Self-represented

Toronto Port Authority and Antonella Tarantino, Respondents

Gerald J. Griffiths, Counsel

Introduction

1The applicant alleges that the respondents discriminated against him and other taxi drivers by prohibiting them access to the Passenger Transfer Facility (“the Facility”) of the Billy Bishop Toronto City Airport (“Airport”). In particular, the applicant alleges that the respondents discriminated against him because of age, disability, colour, race, ancestry, creed, ethnic origin, place of origin, marital status and family status by preventing him and other taxi drivers from using the washrooms located inside the Facility. The applicant also alleges that he was discriminated against because of association with persons identified by a ground of discrimination. Finally, he alleges that the respondents reprised against him contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code).

2The applicant believes that by prohibiting taxi drivers from accessing the Facility, the respondents treated them like “third class citizens”. The applicant claims that the group of affected taxi drivers is disproportionately composed of members from racialized groups and other persons identified by the grounds protected under the Code. For this reason, the applicant claims that the respondents’ actions have a discriminatory effect that contravenes the Code.

3The respondents filed a Request for Dismissal submitting that the Application does not fall within provincial jurisdiction. By Interim Decision, 2013 HRTO 507, dated March 26, 2013, the Tribunal held that more detailed evidence and argument was required in order to determine the jurisdictional issue. The Tribunal also noted that the applicant had filed an Application with the Canadian Human Rights Commission (“CHRC” or “Commission”). The Tribunal held that further information and argument was required in order to determine whether the Application should be deferred pending the outcome of the CHRC process. As a result, the Tribunal directed the respondents to file a full Response to the Application. It also directed the applicant to update the Tribunal on the progress to date of his complaint to the CHRC.

4In addition to filing an Application with the Tribunal, the applicant also filed a complaint with the CHRC raising identical factual allegations to those raised in his Application. It appears that the CHRC is currently reviewing his complaint. According to the latest correspondence from the CHRC, it appears that the Commission has not denied jurisdiction over the complaint on federal/provincial grounds. The Commission is currently preparing a report to assist in deciding whether the complaint establishes a clear link to a prohibited ground of discrimination under the Canadian Human Rights Act (“CHRA”).

5By Case Assessment Direction dated May 24, 2013, the Tribunal ordered a preliminary hearing to determine the jurisdictional and deferral issues in light of the additional information filed by the parties. The preliminary hearing in this matter took place July 23, 2013.

6At the hearing, the respondents submitted that the subject matter of the Application concerns access to the Facility which, it submitted, is a vital and essential part of the Airport as an undertaking. Accordingly, the respondents submitted that the subject matter of the Application falls under federal jurisdiction. The respondents argued that, if the Tribunal does not dismiss the Application on jurisdictional grounds, it should defer it pending the completion of the CHRC proceeding.

7The applicant submitted that the subject matter of the Application relates to discrimination as a result of being barred from accessing the Facility’s washrooms. He submitted that this matter falls under provincial jurisdiction. In the alternative, he argued that the Application should be deferred pending the conclusion of the CHRC proceeding.

8At this time, the Tribunal will not dismiss this Application on jurisdictional grounds. In my view, deferral is the most fair, just and expeditious way of proceeding with this Application. It appears that the CHRC has accepted jurisdiction over the applicant’s complaint. At the very least, the CHRC has not refused jurisdiction based on federal/provincial grounds as it is proceeding with a review of whether the complaint is linked to a protected ground of discrimination.

9If, contrary to appearances, the CHRC were to deny jurisdiction over the applicant’s complaint on federal/provincial grounds, the applicant may request to reactivate his complaint before the Tribunal. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure which outline the procedure by which a deferred application may be reactivated. In particular, the parties should note that a request to reactivate an application must be filed no later than 60 days after the conclusion of the other proceeding.