HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenneth MacLennan
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation
Respondent
DECISION
Adjudicator: David A. Wright
Indexed as: MacLennan v. Ontario (Transportation)
APPEARANCES
Kenneth MacLennan, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, Respondent
Matthew Horner and David Milner, Counsel
Introduction
1Section 47 of the Human Rights Code, RSO. 1990 c. H.19, as amended, (the “Code”) provides that the Code binds the Crown and every agency of the Crown. It also states that the Code applies and prevails over any other Act or regulation that is contrary to the Code, “unless the Act or regulation specifically provides that it is to apply despite this Act”. This means that legislation or regulations may be exempted from the Code, removing this Tribunal’s jurisdiction to hear an application alleging that they are discriminatory. The issue in this case is whether the general possibility of exemptions from the Code in s. 47(2), combined with the exemption in O. Reg. 340/94, s. 19 (the “regulation”) dealing with drivers’ licenses, is unconstitutional.
2The applicant, who is 84 years old, wants to use the Code to challenge the requirement that drivers over the age of 80 pass an examination every two years (regulation, s. 16(a)). As written, the Code and the regulation provide that this age-based distinction, like other distinctions on the grounds of age and disability in the regulation, applies despite the Code, ousting the Tribunal’s jurisdiction. The applicant argues that excluding the Code violates his right to equality without discrimination based on age contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms and is therefore invalid. This Decision determines whether the combination of s. 47(2) of the Code and s. 19 of the regulation violates the Charter.
3The Tribunal held a hearing on October 22, 2012 to hear evidence and argument about the constitutionality of s. 47(2) of the Code and s. 19 of the regulation. During a previous case management conference, I ruled that I did not have jurisdiction to consider, as a stand-alone question, whether s. 16(a) of the regulation violates the Charter. I have included my reasons for this determination in this Decision.
RELEVANT PROVISIONS
4The following are the relevant provisions of the Code, the regulation, and the Constitution:
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, gender identity, gender expression, age, marital status, family status or disability.
(1) This Act binds the Crown and every agency of the Crown.
(2) 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.
Drivers’ Licenses Regulation
- (1) An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
- The Minister may require that,
(a) any holder of a Class G or M driver’s licence who has reached the age of 80 complete successfully the applicable examinations prescribed in section 15 every two years and demonstrate every two years that he or she continues to meet the qualifications prescribed in section 14;
(b) any holder of a driver’s licence who has reached the age of 70 and is involved in an accident complete successfully the applicable examinations prescribed in section 15 and demonstrate that he or she continues to meet the qualifications prescribed in section 14;
(c) any holder of a Class A, B, C, D, E or F driver’s licence who has reached the age of 65 but has not yet reached the age of 80 and is involved in an accident or accumulates more than two demerit points complete successfully the applicable examinations prescribed in section 15 and demonstrate that he or she continues to meet the qualifications prescribed in section 14;
(d) any holder of a Class A, B, C, E or F driver’s licence who is under the age of 46 complete successfully the examination prescribed in clause 15 (1) (a) every five years and demonstrate every five years that he or she continues to meet the qualifications prescribed in section 14;
(e) any holder of a Class A, B, C, E or F driver’s licence who has reached the age of 46 but has not yet reached the age of 65 complete successfully the examination prescribed in clause 15 (1) (a) every five years and demonstrate every three years that he or she continues to meet the qualifications prescribed in section 14;
(f) any holder of a Class A, B, C, E or F driver’s licence who has reached the age of 65 but has not yet reached the age of 80 complete successfully the examination prescribed in clause 15 (1) (a) every five years and demonstrate every year that he or she continues to meet the qualifications prescribed in section 14;
(g) any holder of a Class D driver’s licence who has reached the age of 65 but has not yet reached the age of 80 complete successfully the examination prescribed in clause 15 (1) (a) every five years and demonstrate every five years that he or she continues to meet the qualifications prescribed in subsection 18 (3);
(h) any holder of a Class A, B, C, D, E or F driver’s licence who has reached the age of 80 complete successfully the applicable examinations prescribed in section 15 every year and demonstrate every year that he or she continues to meet the qualifications prescribed in section 14; and
(i) any holder of a driver’s licence with an air brake endorsement complete successfully the examinations prescribed in clauses 15 (1) (c) and (d),
(i) at any time that he or she is required under any of clauses (a) to (h) to take an examination prescribed in clause 15 (1) (a) or (b), or
(ii) every five years.
An applicant for or a holder of a Class B, C, E or F driver’s licence whose hearing in one ear is better than in the other must be able to perceive in the better ear, with or without a hearing aid, a forced whisper at a distance of 1.5 metres or, if an audiometer is used to test the person’s hearing, must not have a loss in the better ear of more than 40 decibels at 500, 1,000 and 2,000 hertz.
(1) An applicant for or a holder of a Class M, M1 or M2 driver’s licence must have,
(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50, with both eyes open and examined together with or without the aid of corrective lenses; and
(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together.
(2) An applicant for or a holder of a Class G, G1 or G2 driver’s licence must have,
(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50 with both eyes open and examined together with or without the aid of corrective lenses; and
(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together.
(3) An applicant for or a holder of a Class A, B, C, D, E or F driver’s licence must have,
(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/30 with both eyes open and examined together and not poorer than 20/100 in the weaker eye, with or without the aid of corrective lenses; and
(b) a horizontal visual field of at least 150 continuous degrees along the horizontal meridian and at least 20 continuous degrees above and below fixation, with both eyes open and examined together.
- The examinations and qualifications required of an applicant for or a holder of a driver’s licence by sections 14, 16 and 17, subsection 18 (1), clause 18 (2) (a), subsection 18 (3) and sections 21.1 and 21.2 apply despite the Human Rights Code.
21.1 If the Minister waived under this section a qualification set out in clause 17 (1) (j) or (k), as this section and as those clauses read before January 1, 2011, for an applicant for or a holder of a Class A or D driver’s licence, the Minister may renew the waiver of the qualification set out in clause 18 (3) (a) or (b), as applicable, for the holder requesting a renewal of his or her licence if,
(a) the holder can safely drive motor vehicles in the class authorized to be driven by the class of licence for which a renewal is requested;
(b) there is no worsening of the condition that would have disqualified the holder had the prior waiver not been granted;
(c) the holder provides evidence that he or she has successfully completed the tests, procedures and examinations that the Minister may require to demonstrate that the conditions in clauses (a) and (b) are satisfied; and
(d) the holder does not have a medical condition or disability that requires a Ministerial waiver from the qualifications for obtaining any class of driver’s licence prescribed in the Act or the regulations other than the waiver under this section.
21.2 (1) The Minister may waive the qualification set out in clause 18 (2) (b) for an applicant for or a holder of a Class G, G1 or G2 driver’s licence if,
(a) the applicant or holder provides evidence that he or she has successfully completed the tests, procedures and examinations that the Minister may require; and
(b) the applicant or holder,
(i) meets all of the other qualifications set out in this Regulation for the applicable class of driver’s licence,
(ii) has not been able to meet the qualification set out in clause 18 (2) (b) for a period of at least three months immediately before the application,
(iii) does not have a medical or visual condition or disability that, alone or combined with a reduced horizontal visual field, may significantly impair his or her ability to drive, including,
(A) a neurological deficit or disorder, including epilepsy,
(B) diabetes that requires insulin for control,
(C) hypotension, or
(D) an impairment resulting from dementia, stroke, brain tumour, brain surgery, head trauma or arthritis,
(iv) does not have accumulated more than six demerit points on his or her driving record,
(v) did not have his or her driver’s licence under suspension at any time within the preceding five years pursuant to section 53, subsection 128 (15) or section 130, 172, 200 or 216 of the Act or as a result of a conviction under the Criminal Code (Canada) for an offence committed by means of a motor vehicle or while driving or having the care, charge or control of a motor vehicle, and
(vi) has not, within the preceding five years and within the period of time he or she has been unable to meet the requirements of clause 18 (2) (b), been involved in a collision the circumstances of which also gave rise to a conviction for contravening or failing to comply with section 128, 136, 138, 140, 141, 147, 148, 154, 156, 158 or 172 or subsection 175 (11) of the Act.
(2) The Minister may revoke a waiver given under subsection (1) at any time if the holder no longer meets the requirements of subclause (1) (b) (i), (iii), (iv), (v) or (vi).
(3) If the applicant’s or holder’s horizontal visual field is so fragmented or incomplete that the size, shape, nature or relative position of the defects in it or along the horizontal meridian or above or below fixation may significantly impair his or her ability to drive, then the Minister shall not grant the waiver under this section.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
Part I – Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Part VII -- General
- (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
THE CONTEXT: WHAT IS BEING CHALLENGED
5I begin with a general contextual point that is important to the analysis of all of the issues. There is no dispute that the applicant can file an application in the Superior Court of Justice arguing that the age-based distinction in the regulation is unconstitutional because it violates his Charter equality rights. The Charter applies to laws and regulations and the Superior Court is a court of general jurisdiction that can apply the Charter to determine whether they are invalid and strike them down. What is at issue in this case is whether the applicant has the constitutional right to bring this matter forward under the Code, and before this Tribunal.
6Through s. 47(2) of the Code and s. 19 of the regulation, the Legislature has made a clear choice; it has decided that in some cases legislation will not be subject to the Code. In other words, it has enacted a type of “notwithstanding” clause in the Code. This case involves the question of whether the Legislature is entitled, under the Constitution, to enact that clause and invoke it as it has in the regulation, shielding various distinctions in the granting of drivers’ licenses from the Code.
7In my view, it is important to keep analytically distinct two questions: whether the exclusions violate the Charter, and whether the age-based distinction between drivers over and under the age of 80 is discriminatory. This concern runs throughout my reasons, and stems from the importance of respecting the intent of the Legislature unless the choices it has made are unconstitutional. The Legislature made a clear choice; some types of government action are not subject to challenge within the statutory framework of the Code. The regulation invokes the Code’s notwithstanding clause, which it is entitled to do pursuant to s. 47(2). It provides that the examinations and qualifications referred to in s. 19 of the regulation apply notwithstanding the Code; however, they remain subject to the Charter. This choice must be given meaning in considering the Tribunal’s jurisdiction and in evaluating the effect of the exclusion in the particular circumstances of this case.
JURISDICTION
8The applicant argues that the Tribunal has the power to determine not only whether the exclusions in s. 47(2) of the Code and s. 19 of the regulation violate the Charter but also whether s. 16(a) of the regulation is itself unconstitutional. He argues that the Tribunal can decide whether the age-based testing violates s. 15(1) of the Charter, even if the government is entitled to exclude the application of the Code to it. In other words, he argues that the Tribunal has the stand-alone authority to consider whether s. 16(a) is unconstitutional.
9The Tribunal’s power to consider this issue was initially conceded by the respondent. In a Case Assessment Direction, I raised my concern that the Tribunal may not have jurisdiction to determine this issue and sought submissions from both parties. I noted that a concession could not give the Tribunal jurisdiction it did not have. The respondent subsequently withdrew its concession and took the position that the Tribunal does not have the power to determine whether s. 16(a) is unconstitutional.
10At a Case Management Conference, I ruled that the Tribunal has no power to decide whether s. 16(a) violates s. 15 of the Charter. This accords with prior jurisprudence; the Tribunal has held in a series of cases that it does not have the authority to decide a stand-alone constitutional issue not necessary to a Code decision. See Barber v. South East Community Care Access Centre, 2010 HRTO 581, at para. 7; Wilson v. Toronto Catholic District School Board, 2011 HRTO 1040, at para. 19; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at para. 8; and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388, at para. 18.
11This conclusion flows directly from the Supreme Court of Canada’s jurisprudence on the issue of tribunals’ authority to apply the Charter. A tribunal with power to decide questions of law has the power to decide the constitutional validity of provisions that are relevant to decisions it must make (Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at para. 36) and to “grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate” (R. v. Conway, 2010 SCC 22 at para. 22).
12The analysis therefore begins with the scope of the Tribunal’s authority under the Code. The Code provides that this Tribunal has the power to determine whether a right in Part I of the Code has been violated and to make a remedial order (s. 34). It has the jurisdiction to exercise the powers under the Code and to decide any questions of law or fact that arise in an application before it (s. 39).
13The Tribunal has the power to apply s. 1 of the Code which prohibits discrimination in services and therefore to decide whether ss. 47(2) and 19, which narrow s. 1 of the Code, are unconstitutional. If they are unconstitutional, I can go on to apply s. 1 without reference to the exclusion of the Tribunal’s jurisdiction. However, if ss. 47(2) and 19 are constitutional, I have no jurisdiction. To go on and decide whether the age-based restrictions themselves violate the Charter would be to go beyond the statutory mandate of the Tribunal. Section 47 of the Code and s. 19 of the regulation expressly place s. 16(a) outside the reach of the Code. If these exclusions are valid, the Tribunal’s work is done, since the question of whether s. 16(a) is unconstitutional has nothing to do with the Code and the Tribunal’s statutory mandate.
14To accept the applicant’s argument would be to go against the clear intention of the Legislature in putting s. 47(2) in the Code. Through s. 47, the Legislature has decided that other statutes and regulations can be placed outside the Code, and therefore beyond the Tribunal’s jurisdiction. The regulation provides that s. 16(a) and other drivers’ license provisions apply despite the Code. To interpret the Code to give the Tribunal the power to decide whether such provisions are discriminatory under s. 15 of the Charter, assuming the exclusion from the Code is valid, would be to expressly defeat that intention. The applicant may still challenge the constitutionality of the regulation but must do so before the courts, rather than the Tribunal.
DOES THE EXCLUSION VIOLATE THE CHARTER?
15There is no need in this case to engage in a detailed discussion of s. 15 of the Charter. I will set out some basic principles. The Charter applies to government action. Section 15 protects against substantive discrimination on the grounds enumerated in s. 15, including age, and those that are analogous to them. For there to be a violation of s. 15, “the claimant must show that the government has made a distinction based on an enumerated or analogous ground and that the distinction’s impact on the individual or group perpetuates disadvantage”: Quebec (Attorney General) v. A., 2013 SCC 5 at para. 332. This involves “a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group”: A. at para. 331. There is no rigid template of factors; each case must be considered in its own circumstances. It is essential to focus on the nature of the conduct, not the underlying attitude or motive: A. at para. 327.
16Thus, under s. 15(1), it is irrelevant what the government’s objective was in excluding the application of the Code to these distinctions in the drivers’ licensing regime. It is irrelevant whether the government’s goal was to promote road safety; A. instructs us that is a matter to be considered under s. 1 of the Charter. It is relevant under s. 15, however, to consider the nature of the provision in its statutory context to determine whether it perpetuates disadvantage based on age.
17Cases that have addressed whether exclusion or underinclusion in statutory human rights instruments like the Code is unconstitutional are helpful in deciding this issue. These cases found that in particular circumstances, exclusions from human rights legislation or the failure to protect a certain group were discriminatory under s. 15 of the Charter.
18The first is Re Blainey and Ontario Hockey Association (1986), 1986 CanLII 145 (ON CA), 54 OR (2d) 513 (CA). In that case, the Court found unconstitutional a provision that excluded the application of the Code when membership in an athletic association or participation in athletic activities was restricted to persons of the same sex. The Court held that this provision denied the equal protection and benefit of the law to the applicant on the basis of sex, reasoning as follows:
Thus, but for s. 19(2), Justine Blainey would have been entitled to the protection of the Human Rights Code and the benefit of the complaint and enforcement procedures therein provided. But s. 19(2) denies her that protection and benefit. It permits membership in an athletic organization or participation in an athletic activity to be denied solely on the basis of sex without regard to any other factors. Individuals who may in all respects be equal in terms of qualifications for membership in an athletic organization or participation in an athletic activity can be treated differently for no reason other than their sex. With respect to athletic activity in the province, the protection of the Human Rights Code is still available to all others who complain of discrimination on other grounds, such as race, colour and ethnic origin. Only sexual discrimination is permitted. This renders s. 19(2) clearly discriminatory.
19In McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 SCR 229, which dealt with the constitutionality of mandatory retirement, the Supreme Court held that the denial of age-based Code protection to individuals over the age of 65 was discriminatory contrary to s. 15, although it was justified under s. 1 of the Charter.
20In Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, the Supreme Court found that it was discriminatory under s. 15 of the Charter for Alberta to leave out protection on the basis of sexual orientation from its statutory human rights legislation. At para. 81, the Court held that this created a distinction between homosexuals and other disadvantaged groups protected under the legislation. At paras. 82-86, the Court also found that a distinction was created between gay men and lesbians and heterosexuals, since gay men and lesbians are those who have faced discrimination on the basis of their sexual orientation. Leaving them out of the legislation that otherwise provided comprehensive protection against discrimination on the basis of personal characteristics that had led to prejudice, the Court found, had the effect of contributing to more discrimination against gays and lesbians. It sent a message to all Albertans that it was acceptable, and even permissible, to discriminate against gays and lesbians, and contributed to a legitimate fear of discrimination in their lives.
21In Vriend at para. 106, the Court made it clear that s. 15 of the Charter does not require provincial human rights legislation to “mirror” the protections in s. 15. It made it clear that each provision must be considered in its particular circumstances, “taking into account the nature of the exclusion, the type of legislation, and the context in which it was enacted”.
22Finally, in Arzem v. Ontario (Community and Social Services), 2006 HRTO 17, this Tribunal held that denying children under the age of 18 Code protection because of age was discriminatory under s. 15, and was not justified under s. 1 of the Charter.
23There are two important differences between this case and the above cases that lead me to the conclusion that the exclusion is not discriminatory contrary to s. 15. First, in each of the above cases the equal protection of the law was denied to a specific group or on a specific ground. In Blainey, protection was given under the Code except on the basis on sex in athletics. In Vriend, gays and lesbians were specifically targeted to be denied protection. In McKinney and Arzem, those over the age of 65 and those under 18 were specifically left out of the legislation.
24Section 19 of the regulation does not target one group or ground as occurred in Vriend, adding to prejudice in society on that ground. It excludes from the Code a variety of age and disability-based distinctions that relate to the granting of drivers’ licenses. These distinctions apply at different ages and to different disabilities. Section 19 applies to distinctions that affect a variety of different ages and persons with disabilities including medical conditions that may interfere with the ability to drive a vehicle (s. 14), hearing standards (s. 17), and visual acuity standards (s. 18). A contextual view of s. 19 in its regulatory context shows that it is a decision by the government that driver’s license distinctions will not be subject to the Code, and does not, in effect, exclude older adults or individuals on the basis of age. It does not send a message that an otherwise comprehensive statute does not give protection to a particular group.
25Second, in each of the cases cited above, the effect of the exclusion from the Code was to permit discrimination in the private sector; it did not apply merely to government. In this case, the exclusion applies only to government action. The importance of this distinction is that s. 15 of the Charter provides protection against discrimination by government. Every provision excluded from the Code by s. 19 of the regulation, including the distinction between drivers over the age of 80 and those under that age, can be challenged as discriminatory under the Charter. The effect of s. 19 of the regulation, unlike the other exclusions or underinclusive human rights provisions discussed above, is not to legitimate or condone discrimination in society but rather to provide that the Charter, rather than the Code, is the mechanism to contest any discrimination. While that does affect the forum in which the applicant can proceed, it is fundamentally different from leaving individuals with no protection from discrimination, which was the effect in each of the cases cited above.
26In this regard, an analogy can be drawn to the Supreme Court’s jurisprudence under s. 2(d) of the Charter, which protects the right to freedom of association. In Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (SCC), [1999] 2 SCR 989, the majority of the Court found that excluding RCMP members from a statutory scheme providing unfair labour practice protection was not a violation of the Charter, among other reasons because the employees had the right to raise the same issues directly under the Charter since their employer was part of government: see para. 32, Bastarache J., and paras. 3 and 7, L’Heureux-Dubé J. The distinction between government and non-government employees was emphasized in Dunmore v. Ontario (Attorney General), 2001 SCC 94, where the Court found that a similar exclusion of agricultural workers, who did not have the ability to make claims directly under the Charter, did violate s. 2(d).
27Given this context, the applicant has not shown that the exclusion of the various drivers’ license qualifications from the Code creates substantive discrimination. The exclusion from the Code applies to a related group of restrictions on drivers’ licenses that affect people of various ages and disabilities. Section 19 relates to a decision about how distinctions in motor vehicle licensing can be challenged. Given this, I am not convinced that s. 19, in combination with s. 47(2), can be said to be an adverse distinction on the ground of age, but assuming it is, it does not promote prejudice against older adults. The exclusion does not permit discrimination as did other exclusions from human rights legislation found unconstitutional; it merely requires any challenge to the various distinctions in the regulation to take place under the Charter and not the Code. In my view, this does not perpetuate the disadvantage of older adults or amount to substantive discrimination.
28The applicant’s s. 15 argument is primarily based on the distinction in s. 16(a) of the regulation between those over and under the age of 80: those over the age of 80 with Class G or M licenses must take biannual examinations while those under the age of 80 do not have to do so. Whether this provision is discriminatory, however, is not the question before me, and to make it the question before me would be to run counter to the Legislature’s intent and the point that human rights codes need not mirror the Charter in every way. The issue is whether the exclusion of the application of the Code through s. 47 and s. 19 of the regulation leads to substantive discrimination. The applicant has not shown that it does.
29Therefore, I find that the applicant has not established a violation of s. 15(1) and that the Tribunal has no jurisdiction over this Application. Section 47 of the Code and s. 19 of the regulation preclude the application of the Code, and they do not violate s. 15(1) of the Charter.
ORDER
30The Application is dismissed.
Dated at Toronto, this 29th day of April, 2013.
“signed by”
David A. Wright
Associate Chair