Hodgson v. Fort Erie (Town), 2014 HRTO 1073

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruce Ward Hodgson

Applicant

-and-

The Corporation of the Town of Fort Erie

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: July 22, 2014

Citation: 2014 HRTO 1073

Indexed as: Hodgson v. Fort Erie (Town)

APPEARANCES

Bruce Hodgson, Applicant

Angela L. Browne, Representative

The Town of Fort Erie, Respondent

Woodward B. McKaig, Counsel

Kap Chul Lee and Sun Hew Lee, C.O.B. In Partnership as Bertie Convenience, Respondents

John Teal, Counsel

Introduction

1A summary hearing was held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it would succeed. In a Case Assessment Direction dated January 20, 2014, the Tribunal advised that it would hold a summary hearing to address the issue of whether the applicant would be unable to prove discrimination.

decision and Analysis

2This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that the respondents are responsible for the fact that parking is permitted on both sides of the street on which he resides, which makes it dangerous for him, as a person with a profound hearing loss, to exit his driveway in his vehicle. The applicant has, over the years, requested that the Town of Fort Erie (“Fort Erie”) prohibit and/or limit parking on the street, but alleges that no, or at least insufficient measures, have been taken to address the problem.

Bertie Convenience

3The two named individual respondents, Kap Chul Lee and Sun Hew Lee are partners, who own and run Bertie Convenience, the convenience store across the road from the applicant’s house. In his Application and subsequent written and oral submissions, the applicant alleges these respondents have actively resisted any changes to the parking situation and have refused to make arrangements for customer parking and deliveries other than on the street. He goes so far as to suggest that they may have encouraged customers to harass him, presumably because of the stand he takes on the parking situation.

4The difficulty with the applicant’s position is that there is no social area engaged by the fact situation he alleges. That is, the applicant is not suggesting that he is in a service relationship with the individual respondents or Bertie Convenience with respect to these difficulties. Moreover, he cannot allege in these factual circumstances that he has been denied equal treatment with respect to services by these respondents. Indeed, in the situation alleged to exist, Bertie Convenience is no different – in the eyes of the Code – from the applicant’s other neighbours, some of whom have apparently signed a petition in favour of continued on-street parking.

5In the absence of any allegations within the Tribunal’s jurisdiction, the Application against Kap Chul Lee and Sun Hew Lee, c.o.b. in partnership as Bertie Convenience, must be dismissed and the style of cause amended.

The Town of Fort Erie

6The respondent Fort Erie argues that the Application has no reasonable prospect of success because it concerns its parking by-law, which is legislation. It relies on the decision in Lee v. Toronto (City), 2012 HRTO 412 (“Lee”) in support of the propositions that, “a challenge to the mere existence of a by-law of this nature” and “a challenge to the by-law based on the political process that led to its passage” are not within the Tribunal’s jurisdiction.

7However, it is not clear in this case that the applicant is merely challenging the existence of the by-law (in the absence of a social area). Certainly, he is not challenging the political process that led to its passage. More recently, the Tribunal has refused to dismiss an Application at the summary hearing stage that it found was not simply about the “bare question” about whether a noise by-law violates the provisions of the Code: Wheaton v. Ottawa (City), 2013 HRTO 1597.

8Moreover, the Tribunal was clear in the Lee decision to state that it was making no finding concerning municipal zoning by-laws. Since the release of Lee, the Tribunal has refused to dismiss an Application at the summary hearing stage which involved a challenge to a zoning by-law: Dream Team v. Toronto (City) 2012 HRTO 25.

9Fort Erie also argued that the applicant will be unable to establish that the zoning by-law has an adverse impact on him based on his disability/disabilities. The applicant has stated that he intends to call evidence from the Canadian Hearing Society about why he, as a person with profound hearing loss, is in greater danger backing out of his driveway where there are cars blocking his sight lines, thereby proving that the parking by-law has an adverse impact on him. It would be improper for me to attempt to weigh or otherwise comment on this evidence at this point in the proceedings.

10However, I would note that the applicant’s voluminous materials make reference to a number of issues that appear to be outside the Tribunal’s jurisdiction. For example, the applicant alleges that the parking situation allowed by the by-law lowers the value of his property. I cannot see how this is relevant to a finding of discrimination under the Code. The parties should be mindful to only raise, and respond to, those issues that deal with (a) whether discrimination took place and, if so, (b) the damages that flow from the violation.

Order

11The Application against Kap Chul Lee and Sun Hew Lee, c.o.b. in partnership as Bertie Convenience, is dismissed and the style of cause amended. The Application against the Town of Fort Erie will continue.

12I am not seized.