Barry Noble-Gresty v. Ontario (Community and Social Services), 2016 HRTO 496

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Noble-Gresty

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (Family Responsibility Office) and the Minister of Transportation (Registrar of Motor Vehicles), Durham Regional Police Services and Const. David Duerdon

Respondents

DECISION

Adjudicator: Bruce Best

Date: April 15, 2016

Citation: 2016 HRTO 496

Indexed as: Noble-Gresty v. Ontario (Community and Social Services)

APPEARANCES

Barry Noble-Gresty, Applicant

Self-represented

Minister of Community and Social Services (Family Responsibility Office), Respondent

Sharlene Ziniuk, Counsel

Ministry of Transportation (Registrar of Motor Vehicles), Respondent

Chris Badenoch, Counsel

Durham Regional Police Service and David Duerdin, Respondents

Angela Khoury, Counsel

Introduction

1This Application alleges discrimination with respect to services because of marital status contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2By Interim Decision 2015 HRTO 822, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, that the substance of the Application has been appropriately dealt with in another proceeding, and/or that the Application is an abuse of process. That Interim Decision also dismissed the Application as against the Attorney General for Ontario and the Provincial Prosecutor/Crown Attorney’s office, who were originally named in the Application, on the basis of prosecutorial immunity.

Background

3The facts in this case are generally not in dispute. The Director of the Family Responsibility Office (“Director”) required the Registrar of Motor Vehicles (“Registrar”) to suspend the applicant’s driver’s licence because he was in arrears of support payments. The Director’s power to do so comes under Part V of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996 c.31 (“FRSAEA”). The applicant was subsequently stopped by the individual respondent, Const. Duerdin, of the Durham Regional Police, and charged with driving while his licence was suspended. At trial, the applicant pleaded guilty to driving without a licence.

4The applicant takes the position that FRSAEA Part V is discriminatory in that it only applies to individuals who are members of a specific Code protected group. He argues that the only people who could be subject to the FRSAEA licence suspension provisions are individuals who are separated or divorced, as they are the only ones who may be required to pay support. He argues that this is discriminatory because individuals who are not separated or divorced could only be subject to a licence suspension if they, for example, had unpaid fines or accumulated too many demerit points.

5He further takes the position that as the legislation is discriminatory, the entire chain of events from the Director’s decision to suspend his licence, to his being stopped and charged by the police, to his prosecution and guilty plea, are further incidents of discrimination. The applicant is, however, not alleging that the actual conduct of any of the individuals involved was discriminatory beyond the fact that they were enforcing what he considers to be a discriminatory law.

Analysis and decision

6The test in a summary hearing, as set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at para 8, is whether the applicant’s allegations may reasonably be considered to amount to a violation of the Code. In a case such as this where the allegation is that a particular legislative provision is discriminatory, the question is whether there is any reasonable prospect that the legal arguments put forward by the applicant will be successful.

7If this matter proceeds to a hearing on the merits, the test the Tribunal would apply is that set out by the Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (“Tranchemontagne”) at paras 86-91, which adopted the two-part test in R. v. Kapp, 2008 SCC 41 (“Kapp”). See XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 at para 92. The Kapp test states:

1. Does the law create a distinction based on a prohibited ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

8In my view, what the applicant is alleging cannot reasonably be considered to amount to a Code violation, as the applicant has not been able to put forward any arguments that would meet the first part of the Kapp test. The fact that the FRSAEA creates a penalty which can only apply to a person who fails to meet their child or spousal support obligation does not create a distinction based on a prohibited ground. Rather, the only distinction drawn in the legislation is between those individuals who meet their support obligations and those that do not.

9The fact that this penalty arises under legislation which may only affect individuals who are separated or divorced does not make that penalty discriminatory. There has to be a nexus between the Code ground of marital status and the reason for the penalty. Again, Part V of the FRSAEA does not sanction people for being separated or divorced; it sanctions them for not meeting their support obligations.

10As I have determined that the Application should be dismissed under Rule 19A, I do not need to address the questions of whether the substance of the Application was dealt with in another proceeding, or whether the Application constitutes an abuse of process.

ORDER

11For the above reasons, the Application is dismissed as having no reasonable prospect of success.