HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephanie Wheaton

Applicant

-and-

The City of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 23, 2013

Citation: 2013 HRTO 1597

Indexed as: Wheaton v. Ottawa (City)

APPEARANCES

Stephanie Wheaton, Applicant ) Self-represented

The City of Ottawa, Respondent ) David Patacairk, Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant with respect to goods, services and facilities because of sex.

2The applicant is a street performer in the Byward Market area of Ottawa. The respondent city has a by-law that prohibits the use of voice amplification (i.e. microphones) by street performers, such as the applicant. The applicant alleges that the respondent’s prohibition of voice amplification discriminates against her as a woman.

3Specifically, the applicant contends that the prohibition against voice amplification has an adverse effect on female street performers, because of their sex. This, the applicant alleges, is because, in general, female street performers, because of their physiology, tend to be less able to project their voices, without the use of microphones, than male street performers. The applicant alleges that the respondent’s rule against voice amplification prevents her from performing her solo “circle show”. Instead, she submits, she has been relegated to performing a non-speaking role in her boyfriend’s show.

4A summary hearing was held in this matter on the Tribunal’s own initiative on August 16, 2013. Pursuant to Rule 19A of the Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an Application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.

5Having considered the allegations in the Application and the parties’ submissions during the summary hearing, I am not persuaded that the Application ought to be dismissed at this stage. The summary hearing process is a mechanism by which the Tribunal may dismiss, typically at an early stage, only those Applications that clearly have no reasonable prospect of succeeding if they are permitted to proceed to a hearing on the merits. It is not clear to me that the Application has no reasonable prospect of success. The Application will therefore continue in the Tribunal’s process.

6During the summary hearing, the respondent argued that the Application has no reasonable prospect of success because it effectively constitutes a challenge to a legislative provision and is therefore outside of the Tribunal’s jurisdiction. I cannot agree.

7As the respondent correctly points out, the Tribunal has stated that it has no jurisdiction to rule on “the bare question” whether legislation or a by-law violates the Code. Lee v Toronto (City), 2012 HRTO 412 at para. 7; Freitag v Penetanguishene (Municipality), 2009 HRTO 1712 at para. 17.

8However, this Application cannot be said to involve a “bare question” of whether the by-law in question violates the Code. The applicant in this case, a street performer licensed by the respondent, alleges that she is prevented from performing her solo “circle show” because of the impact that the respondent’s by-law has on her as a woman. In my view, the Application thus raises an issue that is within the Tribunal’s jurisdiction to decide. There is no question that the Code confers jurisdiction on the Tribunal to determine whether a particular legislative provision or bylaw has a discriminatory effect on an applicant in one of the social areas covered by the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14; Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482; Ball v. Ontario (Community and Social Services), 2010 HRTO 360; XY v. Ontario (Government and Consumer Services), 2012 HRTO 726); and Lee, above at para. 10 and 12.

9During the summary hearing, the respondent also argued that the Application ought to be dismissed at this stage because the applicant has not alleged discrimination in one of the social areas covered by the Code. In particular, the respondent argues that, even if the applicant were able to establish that the by-law had a disadvantageous impact on her as a woman, she cannot establish that such disadvantageous impact was “with respect to services” within the meaning of s.1 of the Code. In my view, this is not a basis to dismiss the Application at this stage. The applicant clearly alleges that the respondent’s by-law created a disadvantage for her with respect to services because of her sex. Whether or not she is able to prove that is a matter to be determined by the Tribunal at a merits hearing, based on the evidence.

10On this point, I note that, during the summary hearing, I asked the applicant how she intended to prove one of the key facts upon which her Application is based, namely that men are better able to project their voices than women. The applicant explained that she intends to retain an expert and to present his or her evidence at the hearing to establish this and ultimately to show that female street performers are disadvantaged, as compared to their male counterparts, by the respondent’s rule against voice amplification.

11The respondent submitted that, if the Application were permitted to proceed, this would be an appropriate case in which to require the applicant to produce the expert evidence upon which she intends to rely to prove her discrimination claim ahead of the Tribunal’s usual deadline for the pre-hearing disclosure of expert evidence (i.e. 45 days before the hearing). I agree.

12The Tribunal’s Rules of Procedure generally require the parties to exchange their arguably relevant documents with one another 21 days after the Notice of Confirmation of Hearing. In the circumstances of this case, given that the applicant’s discrimination claim would appear to rely heavily on the expert evidence she proposes to obtain, I find it fair, just and expeditious to require the applicant to provide the respondent with her expert evidence at the same time as her other arguably relevant documents. Further directions in this regard are below.

13Finally, I wish to address the respondent’s argument that the Application should be dismissed because the Tribunal does not have jurisdiction to grant the remedy that the applicant is seeking in this case. In my view, this is not a basis upon which to dismiss the Application. As stated in Dream Team v. Toronto (City), 2012 HRTO 25, at para. 8-13, in the event that liability under the Code is established, the Tribunal has broad remedial authority pursuant to s. 45.2 of the Code, and is not bound by the remedial requests made by the parties. Any argument about the appropriate remedy to be granted, in the event the applicant succeeds in her claim, may be addressed to the adjudicator assigned to hear the case on its merits.

DIRECTIONS

14The Application will continue in the Tribunal’s process.

15The Respondent is directed to file its Response to the Application within 28 days of the date of this Interim Decision.

16Within 21 days after the Notice of Confirmation of Hearing, the applicant is directed to provide the respondent with (1) the name of the expert witness that she intends to call at the hearing of the Application, (2) his or her curriculum vitae, and (3) a copy of the expert’s written report or a full summary of the expert’s proposed evidence.

17The applicant is reminded that a Notice of Confirmation of Hearing will be issued by the Tribunal after all of the pleadings have been filed (i.e. Application, Response, and Reply); or if the parties agree to mediation, after mediation has been held and has not resulted in a settlement of the Application.

18I am not seized of this case.