D'Orazio v. Ontario Human Rights Commission, 2014 HRTO 111

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene D’Orazio

Applicant

-and-

Ontario Human Rights Commission

Respondent

A N D B E T W E E N:

Carlo Cardile

Applicant

-and-

Ontario Human Rights Commission

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: January 27, 2014

Citation: 2014 HRTO 111

Indexed as: D’Orazio v. Ontario Human Rights Commission

WRITTEN SUBMISSIONS

Eugene D’Orazio and Carlo Cardile, Applicants

Self-represented

1The applicants have filed identical Applications against the Ontario Human Rights Commission (the “Commission”). The applicants are certified teachers in Ontario and self identify as white Ontarians. They allege the Commission’s Policy and Guidelines on Racism and Racial Discrimination (the “Policy”) discriminates against them on the basis of their race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In the narrative of the Applications, the applicants complain that the Policy does not treat the white Ontarian population as equal to the visible minority population. They state the Policy accuses white Ontarians of racial discrimination and portrays them as the controllers of visible minorities, placing them on the lowest rungs of life in Ontario. They assert further that the section in the Policy on education offends them professionally and racially. The applicants have provided no explanation as to how they have been disadvantaged or negatively impacted by the Policy.

3On December 3, 2013, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) on the basis that the allegations in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide) on the following basis:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Human Rights Code allegedly committed by the respondent.

your completed Application does not appear to raise an issue the HRTO has the jurisdiction (power) to resolve since it appears that your Application does not raise a social area covered by the Code.

4The applicants filed written submissions in response to the NOID on January 16, 2014. They assert they have public interest standing to bring this complaint in order to challenge the provisions of the Code that permit the Commission to approve and publish policies on the interpretation of the Code and the Tribunal’s reliance on such policies.

5Rule 13 of the Tribunal’s Rules of Procedures permits the Tribunal to dismiss an application at a preliminary stage if it is plain and obvious that the application is outside of the Tribunal’s jurisdiction.

ANALYSIS

6A person can file an application under section 34(1) if he or she believes that any of his or her rights under Part I have been infringed. If the Tribunal finds a person’s right to be free from discrimination under the Code has been infringed, the Tribunal can make the following orders against the party who infringed the person’s right:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. (emphasis added)

7It is clear from these statutory provisions that a person who files an application with the Tribunal must assert that his or her rights under the Code have been infringed.

8In this case, the Tribunal has no jurisdiction over the Applications because there is no assertion by the applicants that they have been disadvantaged or negatively impacted by the Policy. In the absence of any assertion of concrete disadvantage on these applicants, the Tribunal does not have jurisdiction to hear these Applications.

9The Tribunal dealt with a similar issue in Oliphant v. Ontario (Attorney General), 2009 HRTO 1902. In that case, an applicant challenged a policy issued by the Attorney General regarding the prosecution of domestic violence cases. The Tribunal held the applicant had no standing to challenge a policy that did not affect him. The Tribunal stated, at para 24:

The Code is framed to require the applicant to claim and establish that a right of his has been infringed. It does not permit an applicant to assert that a policy is discriminatory where the policy does not affect him...

10The applicants assert that they are challenging the Policy as public interest litigants. They have no standing to do so. It is clear from the statutory language under section 34(1) of the Code that an individual whose rights under the Code have not been infringed cannot bring an application to the Tribunal concerning a matter which she or he believes is in the public interest. The only exception to this rule is s.34(5) of the Code, wherein an individual who is able to identify a third person whose rights may have been infringed, and who is able to obtain the consent of that person, may bring an application on his or her behalf. That is not the situation here. See Carasco v. University of Windsor, 2012 HRTO 195 at paras. 7 and 8.

11Given that the applicants have failed to claim that they have been disadvantaged or negatively impacted by the Policy on the basis of their race, colour and ethnic origin, the Tribunal has no jurisdiction over these Applications. Accordingly, the Applications are dismissed.