HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edmund Rockburne
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Rockburne v. Ontario (Transportation)
WRITTEN SUBMISSIONS
Edmund Rockburne, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, Respondent
David Milner, Counsel
background
1This Interim Decision deals with a request by the respondent to dismiss an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on the grounds that the Application is barred by s. 53(8) of the Code. For the reasons set out below the request is denied. However, it appears that the Tribunal may not have jurisdiction in this matter, and thus the applicant will be provided an opportunity to make submissions in writing on whether the Tribunal has the authority to deal with his Application.
2The Application alleges discrimination with respect to the provision of services on the ground of age. The applicant is over the age of 80 and he alleges that O. Reg. 340/94 (Driver's Licences), made pursuant to the Highway Traffic Act, R.S.O. 1990 c.H.8, is discriminatory because it requires drivers aged 80 and over to be tested periodically in order to retain a licence to drive.
3In filing its Response the respondent argues that the Application should be dismissed pursuant to s.53(8) of the Code, which reads:
No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
4The respondent does not maintain that this applicant has ever filed a complaint with the Commission. Rather, the respondent appears to interpret this subsection of the Code to mean that the Tribunal can dismiss an Application if a complainant other than the applicant had filed a complaint with the Commission, and the subject matter of that complaint was the same as the subject matter of the Application before the Tribunal. In support of this position the respondent cites Catherine v Ontario, 2009 HRTO 140.
5The respondent’s argument seems to be that because the Tribunal in Catherine made a decision on the relationship between the Code and the Highway Traffic Act regulation relating to periodic testing of drivers aged 80 and over, and because Catherine was a transitional case, the Application brought by this applicant is barred.
6This is an incorrect interpretation of how s.53(8) is to be applied. The subsection needs to be read in the context of the Code’s Transitional Provisions as a whole. Part VI of the Code established a comprehensive mechanism for effecting an orderly transition to a direct access system of human rights adjudication by dealing with complaints that were pending before the Commission as the Tribunal assumed its current functions. The provisions are aimed at ensuring that persons with pending complaints could access justice in the period while the Commission was winding down its complaint resolution functions. To ensure that this would not be a protracted exercise the Commission’s powers did not continue beyond a six month period (s.53(2)).
7As part of this transition, and in order to avoid the possibility of the Tribunal having to deal with complaints that the Commission had earlier disposed of, s.53(8) was enacted. It serves as a bar to stop past complaints to the Commission being revived and relitigated in the guise of new Applications before the Tribunal. However, this subsection does not extend to barring Applications brought by persons who had never filed a complaint with the Commission. To interpret the subsection as the respondent does would have the effect of establishing – through Transitional Provisions – a defence to certain new Applications that are not otherwise caught by the Transitional Provisions.
8While s.53(8) does not expressly state that the bar to repetitive litigation is restricted to the same person (if that person made the same or substantially the same complaint to the Commission), this limitation is implied. The Tribunal’s decisions on s.53(8) involve cases where the same applicant seeks to relitigate a Commission-resolved complaint by bringing a new Application. For example, this is evident in the reasoning in Freitag v. Penetanguishene (Town), 2013 HRTO 554 at para.130:
Pursuant to s.53(8) of the Code, a person cannot file a new Application if the subject-matter is the same or substantially the same as a prior complaint filed with the Commission.(emphasis added)
9I am of the view that this interpretation is consistent with the fundamental principle of statutory interpretation set out by Driedger and approved by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26:
In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
10The respondent has not made any argument as to why s.53(8) should be interpreted so broadly as to create a defence to certain new Applications. Moreover, there is no indication in the language of the Transitional Provisions that the Legislature intended s.53(8) to have an impact on Applications where the applicant had never previously made a complaint to the Commission. In the absence of clear and unambiguous language to support the respondent’s interpretation I conclude that s.53(8) and the Tribunal’s decision in Catherine do not act as a bar to this applicant bringing an Application. The respondent’s request to dismiss the Application pursuant to s.53(8) is denied.
11Notwithstanding this finding, the respondent has raised the issue of whether the Tribunal has any jurisdiction to deal with the issues raised in this Application. It has set out its position in its Response and relies on Catherine, as well as the Tribunal’s decisions in Gordon v. Ontario, 2010 HRTO 1025; Daoust v. Ontario, 2010 HRTO 1725 and Morrison v. Ontario, 2012 HRTO 2247.
12The applicant is not represented by counsel and so it may not have been evident to him that the question of jurisdiction was also raised when the respondent raised the issue of s.53(8). For this reason I think it is appropriate to give the applicant an opportunity to make written submissions on the issue of jurisdiction.
13When the Tribunal deals with a jurisdictional issue it does not need to hold an oral hearing, which is why this question will be dealt with in writing (see s.43(2) of the Code). The applicant’s submissions should address the question of whether the Tribunal has any legal authority to decide his Application, because s.19 of Ontario Regulation 340/94 (Driver's Licences) reads, in part, as follows:
The examinations and qualifications required of an applicant for a holder of a driver's licence by section 16, clauses 17 (1) 0) and (k), subsections 17 (4) and 18 (1), clause 18 (2) (a) and sections 21.1 and 21.2 apply despite the Human Rights Code.(emphasis added)
14In preparing his submissions the applicant may wish to review the Tribunal decisions referred to above. They are available electronically at http://canlii.org/en/on/onhrt/index.html.
order
15The respondent’s request to dismiss the Application pursuant to s.53(8) of the Code is denied.
16The applicant will have ten days from the date of this Interim Decision to provide written submissions to the respondent and the Tribunal on the issue of jurisdiction. The respondent will have three days from the date of receipt of the applicant’s submissions to provide the applicant and the Tribunal with any submissions in reply.
Dated at Toronto, this 4th day of June, 2013.
“signed by”
Paul Aterman
Vice-chair