Barth v. City of Ottawa and Jim Watson, 2016 HRTO 740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorne Barth

Applicant

-and-

City of Ottawa and Jim Watson

Respondents

DECISION

Adjudicator: Sheri Price

Date: May 30, 2016

Citation: 2016 HRTO 740

Indexed as: Barth v. Ottawa (City)

APPEARANCES

Lorne Barth, Applicant

Kevin Hall, Representative

City of Ottawa and Jim Watson, Respondents

David Patacairk, Counsel

Introduction

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

2The applicant, who lives in Ottawa, has a licence to use medical marijuana for one or more disabilities.

3The applicant alleges that on April 29, 2015, while expressing his views to media on the opening of a marijuana vapour lounge in Ottawa, the personal respondent, the Mayor of Ottawa, Jim Watson, made the following statement that was reported in the Ottawa Citizen:

If someone has a medical licence for marijuana, then please go and use that product on your property in your own house, but please don’t bring it in an establishment where other people can be affected by the second-hand smoke.

4The applicant contends that when the personal respondent made the above-noted statement, the respondents discriminated against the applicant because of his disability. In particular, the applicant alleges that, in making the above-noted statement, the personal respondent effectively told medical marijuana users, including the applicant, that they were “not welcome in Ottawa”, and that they should stay at home and not to participate in public activities, such as work, education, shopping and socializing. The applicant further alleges that the personal respondent’s statement contributed to the stigma against medical marijuana users and influenced others to think that it is acceptable to discriminate against medical marijuana users because of their disabilities. The applicant submits that the personal respondent’s comments had a significant negative impact on his health.

5For their part, the respondents submit that the expression of opinions – even ones that some might find offensive – is not regulated by the Code. The respondents submit that any disadvantage the applicant claims to have experienced as a result of the personal respondent’s comment was not “with respect to services” within the meaning of s.1 of the Code and therefore does not raise an issue within the Tribunal’s jurisdiction.

6In addition, the respondents point out that the Tribunal has found that it is permissible to restrict individuals with medical marijuana licenses from smoking in areas where others might be exposed to second-hand smoke, because of the serious risks associated with such exposure: Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714. The respondents submit that, by appealing to medical marijuana users to refrain from exposing others to second-hand smoke, the personal respondent was merely describing the current state of the law surrounding medical marijuana use. The respondents deny that this could be construed as a violation of the Code.

7Pursuant to a Case Assessment Direction dated November 3, 2015, the Tribunal granted the respondents’ Request for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The purpose of the summary hearing was to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success.

8The summary hearing was held by teleconference on March 1, 2016. The applicant himself did not attend the hearing, but was represented by Kevin Hall as an unpaid friend who indicates that he is not in the business of providing legal services, and who acts as a representative in no more than three legal matters in a year. (See the Tribunal’s Practice Direction on Representation before Social Justice Tribunals Ontario). The respondents attended the summary hearing and were represented by counsel. During the summary hearing, the applicant was given an opportunity to explain how he could establish that the respondents infringed his rights under the Code, if the Application were to proceed.

Analysis and decision

9Having considered the parties’ submissions, I find that the Application has no reasonable prospect of success. It is not clear that the Application relates to a social area covered by the Code. However, assuming without finding that it does, I find that there is no reasonable prospect that the applicant will be able to establish that the personal respondent’s comments were discriminatory. My reasons follow.

10The Code does not regulate all areas of life. Rather, the Code provides for the right to be free from discrimination with respect to certain social areas, namely, goods, services and facilities; housing; contracts; employment; and membership in a vocational association.

11In this case, the applicant argues that by making the above-noted comments about medical marijuana users, the personal respondent infringed his right to be free from discrimination with respect to both services and facilities.

12The applicant’s argument that the personal respondent’s comments constituted discrimination with respect to facilities is readily addressed. The applicant contends that, by making the above-noted comments, the personal respondent was telling medical marijuana licensees to “stay home”. However, there is no allegation that the respondents prevented or restricted the applicant from accessing or using a facility. Accordingly, the social area of “facilities” is not engaged on the facts of the case at hand.

13In my view, the real question is whether the personal respondent’s comments to the media, which were later reported in an online newspaper article, could constitute a “service” within the meaning of s.1 of the Code.

14The applicant argues that, when speaking to the media in his capacity as a publicly elected official, the personal respondent was clearly engaged in the provision of “services” to the public. However, there is considerable doubt about this proposition.

15In a number of cases, the Tribunal has found that the expression of an opinion or belief does not constitute a “service” within the meaning of s.1 of the Code. For example, in Whiteley v. Osprey Media, 2010 HRTO 2152, and Hamalengwa v. National Post, 2016 HRTO 417, the Tribunal found that content of a newspaper is not a “service” within the meaning of the Code. I note that, in Whiteley, at para. 17, the Tribunal stated, “As publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society, any ambiguity should be resolved in favour of the exclusion of such matters from the Code.” In a similar vein, in McKenzie v. Isla, 2012 HRTO 1908, and Marceau v. Brock University, 2013 HRTO 569, the Tribunal found that academic papers, presentations and teachings did not fall within the definition of “services” in s.1 of the Code. In addition, the Tribunal has found that the expression of religious beliefs or teachings is not a “service” within the meaning of the Code: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639, Tesseris v. Greek Orthodox Church of Canada, 2011 HRTO 775. In Dubé v. Campeau, 2014 HRTO 377, the Tribunal found that an applicant who complained that the respondents’ views that the name of a particular sports team was discriminatory was effectively attempting to complain about an expression of an opinion or belief and therefore not a “service” under the Code.

16I note that the line of reasoning in the above-noted cases is consistent with s.13(2) of the Code, which expressly provides that the Code’s prohibition against publishing notices indicating an intention to discriminate “shall not interfere with freedom of expression of opinion.” (See also Bystrov v. Algonquin College of Applied Arts and Technology, 2011 HRTO 2276.)

17In view of the above, it is far from clear that the applicant’s complaint about political opinions expressed by the personal respondent to the media could be characterized as a complaint “with respect to services” within the meaning of s.1 of the Code. However, it is not necessary for me to determine this issue in the case at hand. This is because, assuming without finding that the Application does relate to the social area of “services”, and therefore raises an issue within the Tribunal’s jurisdiction to decide, I would nonetheless dismiss the Application because, in my view, there is no reasonable prospect that the applicant would be able to establish that the personal respondent’s comments were discriminatory.

18The applicant attempts to characterize the personal respondent’s comments as stigmatizing medical marijuana users and attempting to isolate them and prevent them from participating in society. However, on a plain reading of the personal respondent’s comments, I find that this is not a fair or accurate portrayal of what was communicated. The personal respondent did not make any negative comments about medical marijuana licensees. He merely appealed to them not to expose others to second-hand smoke. As the respondents point out, in Ivancicevic, above, the Tribunal found that preventing individuals from using medical marijuana in circumstances where it might expose others to second-hand smoke was justified, given the “serious risks” that may accompany such exposure. Against that backdrop, I do not see how what was effectively a request for medical marijuana licensees to refrain from exposing others to second-hand smoke could be found to violate the Code.

19In coming to this conclusion, I am mindful of the fact that the applicant himself indicates that he does not smoke marijuana; he uses a vapourizer. Although the Tribunal has found that there are serious risks associated with exposure to second-hand marijuana smoke, the applicant claims that there is no health or safety risk as a result of passive exposure to vapour. The applicant further submits that the personal respondent’s reference to “second-hand smoke” shows a lack of understanding on the part of the personal respondent insofar as subject of the interview was a vapour lounge, not a smoking lounge. In my view, however, this does not assist the applicant in his discrimination claim. Even if the personal respondent’s reference to “second-hand smoke” may have been somewhat off point, as the applicant contends, that does not make his comments discriminatory.

20There is another fundamental problem with the applicant’s discrimination claim. It is well established that in order to make out a claim of discrimination under the Code, the applicant bears the onus of establishing that he was disadvantaged by the respondents’ actions in the sense that a burden was imposed on him that was not imposed on others or a benefit was withheld from him that was available to others: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 73-79.

21To the extent that the applicant contends that the personal’s respondents comments to the media created a disadvantage for him, in and of themselves, I find that this claim has no reasonable prospect of success. As noted above, the personal respondent did not make any negative comments about medical marijuana licensees; he merely appealed to them to use their medical marijuana in a way that would not expose others to second-hand smoke. In my view, the applicant has no reasonable prospect of establishing that the respondents created a disadvantage for him when the personal respondent made such comments to the media.

22The applicant alleges that he was disadvantaged by the personal respondent’s comments because they encouraged police to arrest law-abiding medical marijuana users like himself. The applicant submits that the current law permits medical marijuana users to smoke or “vape” marijuana anywhere tobacco smoking is permitted and that he complies with the law. However, the applicant alleges that, since the personal respondent’s April 2015 comments, he has become fearful of leaving the house in anticipation of being improperly detained by the police. In this way, the applicant alleges that the personal respondent’s comment has interfered with his ability to use medical marijuana in public places where smoking is permitted in Ottawa, despite the fact that he is legally permitted to do so.

23With respect, I do not find this allegation to have any reasonable prospect of success. First, the allegation that police officers are more likely to arrest law-abiding medical marijuana users because of the personal respondent’s comments are in the nature of a bald assertion. There are no alleged facts in the applicant’s possession or reasonably available to him to support this assertion. In particular, there is no allegation that the applicant himself had any interactions with police following the personal respondent’s comments and/or as a result of them. In addition, the respondents pointed out during the summary hearing that, in the very Ottawa Citizen article that is the subject of the Application, the personal respondent expressed his expectation that police officers would enforce the law. He did not make any comments that could be construed as an invitation for police officers to start arresting people who were complying with the law. Perhaps most importantly, the personal respondent stated that politicians such as himself did not direct the police and clarified that they are under the direction of the police chief. In my view, this further undermines the applicant’s assertion that police officers would have interpreted the personal respondent’s comments as an invitation to change their approach to policing. Insofar as the applicant has no reasonable prospect of establishing that the respondents disadvantaged him, he has no reasonable prospect of establishing that they discriminated against him, contrary to the Code.

24Finally, I note that during the summary hearing, the applicant relied upon what appears to be a 2002 publication of the federal government entitled “Patient’s Bill of Rights – a Comparative Overview.” In particular, the applicant points to a reference in that document to a private member’s bill that appears to have been introduced in 2001. The applicant argues that the respondents violated his right to “considerate, compassionate and respectful public health services” under the “Patient Bill of Rights” and that this supports his discrimination claim. The applicant submits that, because the “Patient Bill of Rights” is a government bill, it extends to civil servants and holds them to the same standard as physicians.

25As I explained during the summary hearing, the Tribunal has jurisdiction to interpret and apply the Code. The Tribunal has no jurisdiction to address the applicant’s claim that the respondents infringed his alleged rights under what appears to be a private member’s bill, even if such bill had been passed into law. This argument also has no reasonable prospect of success. Nor does the document relied upon assist the applicant in his claim that his right not to be discriminated against because of his disabilities were infringed by the respondents.

26For all of the above reasons, I find that the applicant has no reasonable prospect of establishing that the respondents discriminated against him because of his disabilities. The Application is dismissed accordingly.