HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dominic Marrocco
Applicant
-and-
Ottawa-Carlton District School Board and Marilyn Engelbert
Respondents
DecisION
Adjudicator: David Muir
Indexed as: Marrocco v. Ottawa-Carlton District School Board
APPEARANCES
Dominic Marrocco, Applicant
Franco Marrocco, Representative
Ottawa-Carlton District School Board and Marilyn Engelbert, Respondents
Roger Mills, Counsel
1This is an Application filed pursuant to section 34 of Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services because of age.
2In a Case Assessment Direction issued on July 17, 2014 the Tribunal directed, on its own initiative, that a summary/preliminary hearing will be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application could succeed.
3At the time of the alleged discrimination the applicant was 17 years of age and accordingly the issue is whether or not the Tribunal had jurisdiction to deal with this case because of section 10(1) of the Code which defines age as follows:
“age” means an age that is 18 years or more.
4The parties were referred to the Tribunal’s decision in D.F. v. University of Ottawa, 2011 HRTO 1318 which raised a similar issue.
5A summary hearing was held by telephone conference call on October 29, 2014. All parties participated. Prior to the hearing I had reviewed the Application and Response filed by the parties.
6Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
7At the hearing the applicant argued that if the Code defined age in the manner set out in the CAD then it was unfair and discriminatory. The applicant also argued that the respondent had a responsibility to educate and it should not be looking for ways to skirt around that responsibility.
8The Application is dismissed. The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. The difficulty here is that the applicant who was seeking to enroll in one of the respondent’s schools was 17 at the time of the material events. His claim is that the alleged denial of admission was discriminatory on the basis of age. In light of the definition of age in the Code and in the absence of any challenge that the definition of age in the Code is unconstitutional, the Tribunal cannot deal with the Application as framed. On this point I adopt the reasons I gave in D.F. v. University of Ottawa, above, to which the parties were referred prior to the heaing.
9The Application is dismissed because the Tribunal does not have jurisdiction to hear it.
Dated at Toronto, this 5th day of November, 2014.
“Signed by”
David Muir
Vice-chair