HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Sprague
Applicant
-and-
Rogers Blue Jays Baseball Partnership dba Toronto Blue Jays Baseball Club
and Ticketmaster Canada LP
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Sprague v. Rogers Blue Jays Baseball Partnership
APPEARANCES
Andrew Sprague, Applicant
Self-represented
Rogers Blue Jays Baseball Partnership dba Toronto Blue Jays Baseball Club, Respondent
Arlen Sternberg, Counsel
Ticketmaster Canada LP, Respondent
Stuart Svonkin, Counsel
1These Applications allege discrimination in respect of services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). In particular the applicant alleges that for a period of time in 2016, people seeking to buy accessible seats for Toronto Blue Jay baseball games at the Rogers Centre were not able to buy them online and that this was discriminatory as people seeking to buy seats other than accessible seats could buy tickets online.
2After the applicant filed the Applications, the respondents changed the policy regarding purchase of accessible seating to allow an online purchase.
3The respondents filed Requests for Order During Proceedings asking that the Applications be dismissed because it is now moot. The applicant does not agree that the Applications are moot.
4The Applications were scheduled to be heard on October 2, 2017. In a Case Assessment Direction dated September 26, 2017, I directed that the mootness argument could be raised as a preliminary matter on October 2, 2017. After hearing submissions from the parties on this issue, the hearing was adjourned for me to make a decision on the mootness argument.
THE APPLICATIONS
5The first Application concerned tickets that went on sale on September 29, 2016. The tickets were for a game to be played if necessary at the Rogers Centre. Whether or not the game was necessary was subject to the relative fortunes of teams including the Blue Jays who were competing for a birth in the post-season. The game was necessary and it was played on October 3, 2016. The Blue Jays won the game and went on to play in the post-season.
6The Blue Jays have some number of seats in the Rogers Centre that are accessible for people with disabilities. The applicant is a person with a disability. He has a service dog, named Flicka and seeks accessible seating to accommodate Flicka although he has also purchased regular seats. General tickets for Blue Jay games are sold through Ticketmaster.
7There is no dispute that if a person wanted accessible seating for the October 3, 2016 game, it was not possible to purchase them online and that instead the person had to phone Ticketmaster or the Blue Jays organization to obtain accessible seating.
8The applicant filed an Application alleging that there was discriminatory treatment of people seeking accessible seating for the October 3, 2016 game and the other 2016 post-season games held at the Rogers Centre, because they could not purchase tickets online.
9On January 18, 2017, the applicant filed the second Application. It raised the same issue with regard to the purchase of accessible tickets for the regular 2016 season (e.g. April to September).
10The respondents agree that for the regular and post-season games at the Rogers Centre in 2016, it was not possible to purchase accessible tickets online.
11There is no dispute that for at least the 2015 post-season it was possible to buy accessible tickets online.
12There is also no dispute that as of June 2, 2017, the policy was changed and it has been possible to buy accessible seating on line since that time.
REMEDIES
13In the first Application, the applicant indicated that he was seeking remedies for the alleged infringement of his rights under the Code. First, he sought monetary compensation in the amount of $1. According to the Application, “the monetary compensation is calculated to compensate the Applicant for the insult and injury to his dignity, his feelings and his self-respect.”
14Second, the applicant stated: “The Applicant would like the HRTO to issue a public decision that finds that the Toronto Blue Jays Baseball Club and/or Ticketmaster Canada have contravened the Ontario Human Rights Code.”
15Finally, the applicant sought public interest remedies which he characterized in the following terms:
The Applicant requests that the HRTO issue an Order which requires the Toronto Blue Jays Baseball Club and Ticketmaster Canada to hire one or more independent third party experts to help the Toronto Blue Jays Baseball Club and Ticketmaster Canada develop and implement appropriate human rights and accessibility policies within ninety (90) days of the Order.
The Applicant further requests that the HRTO issue an Order which requires the Toronto Blue Jays Baseball Club and Ticketmaster Canada to train and educate, on an on-going basis, all of their respective employees, staff, contractors, sub-contractors, interns, and volunteers on the appropriate human rights and accessibility policies that have been developed and implemented with the assistance of one or more independent third party experts within one hundred and eighty (180) days of the Order.
The Applicant further requests that the HRTO issue an Order which requires the Toronto Blue Jays Baseball Club and Ticketmaster Canada to hire, within one hundred and twenty (120) days of the Order, an independent third party expert to oversee and audit the on-going education and training by the Toronto Blue Jays Baseball Club and Ticketmaster Canada of their respective employees, staff, contractors, sub-contractors, interns, and volunteers on the appropriate human rights and accessibility policies that have been developed and implemented with the assistance of one or more independent third party experts.
16The second Application asked for the same remedies.
17The respondents assert that, with the exception of a public decision declaring that the respondents contravened the Code, all of the requested remedies have already happened. The respondents assert that the allegedly discriminatory practice of not selling accessible tickets online has ceased as of June 2, 2017. The respondents assert that they retained a third party consultant to review human rights policies and that this led to some improvements to their policies.
18The respondents further assert that they sent the applicant a cheque in the amount of $2 on the understanding that this was the full monetary amount sought by the applicant. The applicant did not accept the payment and returned the cheque.
19The respondents submit that since the applicant has obtained the remedies he was seeking, there is no longer any live issue to be litigated and the Applications should be dismissed as moot.
20The applicant submits that there is a live issue to be litigated, which is whether he experienced an infringement of his rights under the Code when he was not able to buy accessible seating online. The applicant notes that the fact that the respondents have since changed the policy and that he has been able to buy accessible seating online since June 2017 does not alter what happened in 2016.
21The applicant further notes that the cheque for $2 was sent to him on a “without prejudice” basis, meaning that the money was not issued because of any agreement that the applicant's rights had been infringed. Moreover, he did not accept the payment and so has not in fact received the monetary compensation he sought in the Applications.
LEGAL PRINCIPLES
22The parties agree that the basic principles regarding mootness are set out in Borowski v. Canada (Attorney general), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”), at paragraph 15, where the Supreme Court of Canada states:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.
23The parties also agree that even when a case is moot, there is a residual discretion to hear the case, and that the guiding principles were expressed in Pennington v. Peterborogh (City), 2012 HRTO 1851 (“Pennington”), at paragraph 44:
The Supreme Court set out the factors that militate in favour of hearing a case, even though it is moot, as follows:
(a) where there are collateral consequences to the outcome such that the rights of the parties or an intevenor may nonetheless be affected;
(b) where there is a need to resolve a legal question that is both persistent and evasive of review;
(c) where the social cost of continued uncertainty outweighs the interest of judicial economy.
Does the change in policy make the Application moot?
24The respondents assert that because the impugned policy has been changed the applicant has achieved his purpose in filing the Applications.
25In my view, this argument is answered by the reasoning in Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1604, at paragraph 26:
In my view, the doctrine of mootness is a difficult concept to apply in the human rights context where complaints are always made about past conduct or past controversies. The human rights system does not require that the controversy between the parties be ongoing. The Tribunal will remedy discrimination, if found, based on what happened in the past. As stated by the Tribunal in D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 1332 (“D.L.T.”) at para. 10, “Litigation about the legal consequences of and potential liability for events that happened in the past does not mean that a matter is moot”.
26Mootness does not arise only because there has been a change in the impugned practice. This is because a change in policy does not generally change what happened in the past. It may remove the basis for allegations of discrimination going forward but does not address allegations of discrimination that pre-date the change. In this case, the applicant agrees that since the change in policy he has been able to purchase accessibly seating online. However, this does not alter the fact that he was not able to do so in 2016.
27Cases where a change in a policy or legislative provision makes the case moot arise when the entire foundation of the case no longer exists. Thus in Borowski, Mr. Borowski’s constitutional challenge to provisions of the Criminal Code was moot because the impugned sections had been struck down.
28In Fagan v. Toronto Transit Commission, 2017 HRTO 514, changes to Wheeltrans policies made most of the allegations in the Application moot because, as a result of the changes, the allegations amounted to speculation about what might happen as a result of the changes. In that case, the only remedies sought by the applicant were public interest remedies that were no longer relevant because of the change in policy. A historical allegation about what happened in an interview about eligibility was not dismissed because it involved a specific allegation that was not tied to the issues involved in the policy change.
29In other cases, mootness has been found because there is nothing left to decide based on the applicant’s circumstances. In Pennington, quoted above, the applicant filed the Application because he was going to have surgery and would require dentures after the surgery. He believed that the respondent might not cover the cost of the dentures. However, by the time the Application came to hearing, the applicant had already had the surgery and had received the dentures which were covered by the respondent. The Tribunal Vice-chair determined that the rights of the parties would not be practically affected by the Tribunal’s consideration of the Application and that all that was left was speculation by the applicant that there might be a problem in the future. A hypothetical possible future infringement of a person’s rights is not generally an allegation that the Tribunal can entertain.
30In Ilha v. Ontario (Health and Long-Term Care), 2016 HRTO 1411, the Application was moot because, “a repeal of the impugned regulation in 2015, after a settlement on the compensatory matters between the parties, effectively extinguished the “live issue” that was pleaded in the 2009 Application.” The issues that the applicants wished to pursue about the new policy were about new matters that were not the subject of the 2009 Application. The applicants did not have standing to pursue new issues about the new policy until such time that they were personally affected by them.
Has the applicant received the remedies he sought in the Applications?
31The respondents argue that the applicant has received the full remedies that he identified in the Applications and suggest that since the alleged discrimination has been fully remedied, the Application is moot.
32The first problem with this argument is that the applicant has not in fact received the remedies that he identified in the Applications. While the respondents have reviewed applicable policies and made changes, the applicant's requested public interest remedies were broader than a policy review and included extensive training and monitoring.
33I appreciate that the respondents may believe that the full public interest remedies identified in the Applications are overly comprehensive considering the relatively narrow and specific allegations of discrimination. The respondents may well believe therefore that the actions they have taken significantly exceed any public interest remedy the Tribunal may order assuming that the Application proceeds to a hearing on the merits. However, even if the respondents’ belief about these matters is correct, this does make the Application moot.
34The applicant has also not received the monetary compensation remedy he identified in the Applications.
35It is true that he was sent a cheque for the $2 identified. However, the applicant did not accept the payment. The respondents submit that the fact that the applicant did not accept payment does not change the fact that they sent the applicant the amount that he identified in the Application that would make him whole in regard to any injury to dignity, feelings, and self-respect.
36In my view, this argument would be somewhat stronger if the cheque had not been sent on a “without prejudice” basis. The meaning of that is that it was provided with no admission of liability or concession that the practice of not selling accessible seats online caused the applicant to believe that his rights under the Code had been infringed.
37A payment on a without prejudice basis or with no admission of liability is a common feature of a settlement of an application in mediation. In my experience in mediation of applications at the Tribunal, it would be very unusual for an applicant to value a monetary amount paid with no admission of liability the same as a monetary amount paid with an acknowledgement that the applicant experienced the discrimination alleged in the Application. Similarly, there is a value to respondents in settling with no admission of liability.
38By sending the applicant the amount he identified as compensation for injury to dignity, feelings, and self-respect but on a without prejudice, the respondents were in effect trying to achieve a settlement but in a situation where the applicant did not want to settle. It seems to me that at best, sending the cheque to the applicant was part of an offer to settle. The applicant obviously was not required to agree to the settlement.
39I asked the applicant to explain why he asked for only $2 in monetary compensation. He explained that in a previous Application where discrimination was found and he was awarded monetary compensation, he was “excoriated in the media” because of some perception that the monetary compensation was not warranted based on the circumstances. He explained that the practice of asking for only $1 in an Application is because he does not want to be perceived as trying to extort money from respondents when the Application is based on a principle.
40As the applicant further points out, a determination of what remedies are appropriate, including the amount of monetary compensation is a separate adjudicative decision that the Tribunal makes only after there has been a finding of an infringement of the applicant’s rights under the Code. At that stage, the remedies requested by the applicant are certainly an important consideration but are not necessarily determinative. The amount awarded for monetary compensation is usually less than the amount requested but it can be more (for example, Lepofsky v. TTC, 2007 HRTO 41). The Tribunal can also direct public interest remedies when none have been requested: section 45.2(2) of the Code.
CONCLUSIONS
41For the above reasons, I find that the Application is not moot.
42The parties suggested that if the Application were not dismissed, it would be appropriate to convene a case management hearing to determine next steps in the processing of the Application. I agree and the Registrar will schedule a half-day case management telephone conference call.
43It appears to me that the issues that can be usefully discussed at this case management hearing include:
Clarification of the scope of the Application.
Is Ticketmaster a proper respondent to the Application?
Can the parties agree to a Statement of Facts?
What witnesses need to be heard from and in what order?
How long will the hearing take?
44The parties are invited to write to the Registrar and each other if there are specific things they would like to add to this agenda.
Dated at Toronto, this 11th day of October, 2017.
“Signed by”
Brian Cook
Vice-chair