HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hilaire Duguay

Applicant

-and-

Hockey Canada

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: November 7, 2014

Citation: 2014 HRTO 1638

Indexed as: Duguay v. Hockey Canada

APPEARANCES

Hilaire Duguay, Applicant ) Harry Kopyto, Representative

Hockey Canada, Respondent ) John Lloyd, Counsel

INTRODUCTION

[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against the applicant because of age with respect to goods, services and facilities, contrary to s.1 of the Code.

[2] The respondent, Hockey Canada, is a non-governmental association that administers local minor hockey associations (i.e. for players ages 4 to 18 years) across Canada, including in Ontario.

[3] This Application relates to the annual flat rate insurance fee or premium of $16.15 that the respondent requires all minor hockey players (i.e. 4 to 18 years old) in Canada to pay in order to be a member of the respondent and to play hockey in a minor hockey association administered by the respondent.

[4] The flat-rate insurance fee is used to cover the costs of commercial general liability insurance for the respondent organization, players, coaches, referees and certain others; accidental death and dismemberment insurance; major medical and dental insurance; and risk management administration.

[5] The applicant, who was allegedly a member of the respondent and played in a minor hockey league in Ontario for two years in the mid-2000’s (when he was approximately 10 to 12 years old), contends that, by requiring him to pay the flat-rate insurance fee of $16.15 per year in order to play minor hockey, the respondent discriminated against him because of his age. In particular, the applicant contends that the flat-rate insurance fee, which is not based on risk of injury, disadvantages younger minor hockey players, because of their age, and is therefore discriminatory.

[6] The applicant’s discrimination claim rests on the premise that younger minor hockey players are less likely to be injured than older minor hockey players, and consequently less likely than older players to need to make insurance claims for personal injury through the respondent’s insurance program. Against that backdrop, the applicant alleges that, by requiring all minor hockey players to pay the same flat-rate fee, regardless of their age and age-related risk of injury, the respondent is effectively requiring younger minor hockey players to subsidize older minor hockey players. The applicant contends that the flat-rate insurance fee thereby has an adverse effect on younger minor hockey players, because of their age, and is discriminatory. The applicant argues that the respondent’s insurance fee for minor hockey players should be based on age and calculated based on a risk assessment. Indeed, the applicant asserts that any insurance program that does not differentiate fees and/or premiums based on risk “cannot be justified” and is discriminatory.

[7] By Case Assessment Direction dated April 11, 2014, the Tribunal directed that a summary hearing would be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the 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. The hearing was also to address whether the Application should be dismissed because of delay, pursuant to s.34(1) and (2) of the Code.

[8] The Case Assessment Direction drew the parties’ attention to the following passage from the Tribunal’s decision in [Dabic v. Windsor Police Service, 2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994) at paras. [8 and 9](https://www.minicounsel.ca/hrto/2010/1994), which explains the nature of a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

[9] The summary hearing was convened by teleconference on August 11, 2014. During the summary hearing, the applicant was given an opportunity to explain why the Application should not be dismissed because of delay and/or because it has no reasonable prospect of success.

[10] For the reasons that follow, I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.

ANALYSIS AND DECISION

[11] The respondent submits that the Application has no reasonable prospect of success because it alleges discrimination against the applicant because of his age, at a time when the applicant was less than 18 years old. The respondent points out that “age” is defined in s. 10 of the Code to mean “an age that is 18 years or more”. Accordingly, even if the applicant were able to establish that the respondent’s insurance fee disadvantaged him because of his young age, the respondent submits that there is no statutory basis upon which the Tribunal could find that the respondent’s actions were contrary to the Code.

[12] In response to this, the applicant indicates that he intends to argue that the definition of “age” in the Code is “constitutionally inapplicable” insofar as there is “no policy or public interest justification for permitting [the applicant] to be discriminated against” because of his age in the circumstances of this case. During the summary hearing, I advised the applicant that, if he had intended to argue that the Code definition of “age” was constitutionally invalid, he ought to have filed a Notice of Constitutional Question with the Attorney Generals of Ontario and Canada, pursuant to Rule 4 of the Tribunal’s Rules of Procedure. The applicant replied that he intended to file such Notice if his Application were permitted to proceed. However, he indicated that he thought it would have been premature for him to file such a Notice while it remained unclear whether the Application would be dismissed because of delay and/or on the basis that it has no reasonable prospect of success.

[13] The respondent also argues that the Application ought to be dismissed because of delay. The respondent submits that its records reveal that the last time the applicant was a member of the respondent organization and subject to the allegedly discriminatory insurance fee was in 2005/06 when the applicant played minor hockey in Waterloo, Ontario. As noted above, the applicant submits that the last time he played minor hockey was actually in 2006/07, when he was 12 years old. Either way, the respondent submits that the February 2014 Application, filed as it was seven or eight years after the last time the applicant played hockey as a member of the respondent organization and was required to pay the allegedly discriminatory insurance fee, is untimely. The respondent submits that the Application should be dismissed for delay pursuant to s.34(1) and (2) of the Code, which require Applications to be filed within one year of the last discriminatory incident to which the Application relates, unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to anyone affected by the delay. The respondent submits that the applicant has failed to provide any good faith explanation for waiting seven or eight years to file a human rights Application in respect of the insurance fee.

[14] For his part, the applicant denies that there has been any delay in filing his Application. The applicant alleges that he stopped playing minor hockey after the 2006/07 season precisely because he was no longer willing to pay the discriminatory insurance fee that he was required to pay in order to play minor hockey as a member of the respondent. Moreover, the applicant alleges that the reason he did not play minor hockey with the respondent from 2007 onwards to the date of his 18^th birthday (i.e. the date on which the applicant was no longer eligible to play minor hockey) was because he was unwilling to submit to what he regarded as a discriminatory insurance fee. In this way, the applicant alleges that he has been subject to continuing discrimination as a result of the respondent’s flat-rate insurance fee up to and including the date of his 18^th birthday. Since the Application was filed within one year of the applicant’s 18^th birthday (in March 2014), the applicant contends that his Application about the respondent’s insurance fee was filed within one year of the last incident of discrimination to which the Application relates and is timely.

[15] The respondent replies that, on the applicant’s own theory of the case, as the applicant approached his 18^th birthday, he would have stopped subsidizing older minor hockey players by paying the flat-rate insurance fee and become a beneficiary of the alleged subsidy. Accordingly, the respondent disputes that the applicant can establish, even on his own theory of the case, that he was disadvantaged by the flat-rate insurance fee right up to the date of his 18^th birthday, such that the Application, filed approximately 11 months after the applicant turned 18, could be regarded as timely.

[16] In the circumstances of this case, it is not necessary for me to determine the above-noted issues regarding delay or the Code definition of “age”. This is because, for the reasons that follow, I find that the applicant has no reasonable prospect of proving that, by charging a flat-rate insurance fee, the respondent discriminated against the applicant because of his age.

[17] During the summary hearing, I asked the applicant to explain how he could prove that the respondent’s requirement that all minor hockey players pay a flat fee for insurance disadvantaged younger players because of their age. In response, the applicant explained that he intends to rely on studies that show that there is a greater risk of injury among minor hockey players when body-checking is permitted. The applicant also contends that there is a greater risk of injury among minor hockey players who play on “rep” teams as opposed to “house league” teams. The applicant submits that this is because “rep” teams are elite teams that practice more often, play more games, and travel more for tournaments than house league players and also because “rep” teams, unlike house league teams, engage in body-checking. There is no allegation that the distinction between “rep” players and house league players is age-based. Indeed, during the summary hearing, the applicant submitted that he himself played on a “rep” team in Alberta when he was either four or six years old. (During the summary hearing, the applicant initially stated that he played on a “rep” team when he was four years old. However, at a later point, he suggested that he was six years old when he played on a “rep” team.)

[18] In my view, the applicant’s proposed evidence would not establish that the flat-rate insurance fee charged by the respondent disadvantaged the applicant “because of” his age. During the summary hearing, the applicant argued that body-checking, frequency of games and amount of travel are all factors that influence the number of injuries among minor hockey players. That may be. The applicant’s proposed evidence might show a link between increased risk of injury and level of play (i.e. “rep” versus house league). Certainly, it might also establish that there is a higher incidence of injuries when body-checking is permitted. The applicant’s proposed evidence might also establish that the risk of injury increases with the frequency of play and/or practice. In my view, however, the applicant’s proposed evidence would not assist the applicant in showing that younger players are less likely to be injured “because of” their age. For this reason alone, I find that the Application has no reasonable prospect of success and ought to be dismissed.

[19] There is another fundamental problem with the applicant’s case. The applicant advances the very general proposition that “younger” minor hockey players incur fewer physical injuries than “older” minor hockey players, and are therefore “subsidizing” older players when they pay the same flat-rate insurance fee. However, during the summary hearing, the applicant was unable to identify the point at which younger players allegedly stop subsidizing the older players and start themselves being subsidized by younger players. Nor was the applicant able to point to any evidence he might present in this regard. This is a problem for the applicant because this case is not about whether charging a flat-rate insurance fee could conceivably disadvantage some children because of their age (although the applicant has not pointed to any evidence that it does). It is about whether the applicant himself was disadvantaged, because of his age, by the flat-rate insurance fee he was required to pay in order to play minor hockey in Ontario from 2005/06 onwards. In the absence of any evidence that the applicant was at a decreased risk of injury because of his age during the relevant time frame, the applicant has no reasonable prospect of proving that he suffered any age-related disadvantage as a result of the flat-rate insurance fee. For this reason, as well, I find that the Application has no reasonable prospect of success.

[20] Finally, I do not agree with the applicant that the Supreme Court of Canada’s decision in [Zurich Insurance Co. v. Ontario (Human Rights Commission)](https://www.minicounsel.ca/scc/1992/67) (“Zurich”), [1992 CanLII 67 (SCC)](https://www.minicounsel.ca/scc/1992/67), [1992] 2 SCR 321, applied by the Tribunal in [Olorenshaw v. Western Assurance Company](https://www.minicounsel.ca/hrto/2013/280) (“Olorenshaw”), [2013 HRTO 280](https://www.minicounsel.ca/hrto/2013/280) and [2012 HRTO 616](https://www.minicounsel.ca/hrto/2012/616), stands for the proposition that insurance fees that are not based on a risk assessment are discriminatory. In Zurich, the Supreme Court held that charging different insurance premiums based on age and certain other prohibited grounds is contrary the Code, unless the respondent can prove that the distinction in premiums is “reasonable and bona fide” within the meaning of then s.21 (now s.22) of the Code. In other words, Zurich speaks to what a respondent must do to prove that the prima facie discriminatory practice of charging differing insurance premiums based on age (or certain other prohibited grounds) is justified. It does not stand for the proposition that an insurer must charge differing insurance premiums based on age or age-related risk. Neither Zurich nor Olorenshaw supports the applicant’s argument that flat-rate insurance fees that do not differentiate based on age are discriminatory.

[21] For the reasons outlined above, I find that the Application has no reasonable prospect of success. It is dismissed accordingly.

Dated at Toronto, this 7^th day of November, 2014.

“Signed by”

Sheri D. Price

Vice-chair