CITATION: City of Toronto v. The Dream Team, 2012 ONSC 3904
DIVISIONAL COURT FILE NO.: 95/12
DATE: 20120810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL and CORBETT JJ.
B E T W E E N:
CITY OF TORONTO
Applicant
- and -
THE DREAM TEAM on behalf of KEN MACLEOD, HEATHER CUNNINGHAM, NEIL MCQUAID, LINDA CHAMBERLAIN, DENNIS MORENCY, PETER LYE, PHILLIP DUFRESNE AND ESTHER MWANGI
Respondents
- and –
ONTARIO HUMAN RIGHTS COMMISSION
Intervenor
Antonella Ceddia and Tim Carre, for the Applicant
M. Kate Stephenson and Toby Young, for the Respondents
Margaret Leighton and Brian Blumenthal, for the Human Rights Tribunal of Ontario
Sunil Gurmukh for the Intervenor, the Ontario Human Rights Commission
HEARD at TORONTO: June 28, 2012
Swinton J.:
Overview
[1] The City of Toronto (“the City”) seeks judicial review of two interim decisions of the Human Rights Tribunal of Ontario (“the Tribunal”) dated January 5, 2012 and February 23, 2012. In each decision, the Tribunal rejected the City’s request for early dismissal of the respondents’ application under the Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
[2] For the reasons that follow, I would dismiss the application for judicial review.
Background
[3] The Dream Team, an organization of individuals living with mental disabilities, engages in advocacy related to supportive housing. In the present application before the Tribunal, the Dream Team represents eight of its individual members (“the respondents”), who have authorized it to bring an application on their behalf pursuant to s. 34(5) of the Code.
[4] The application challenges a number of municipal zoning by-law provisions that impose minimum separation distances on premises that are dedicated for use as a group living arrangement for people with mental or physical disabilities. The application claims that the respondents have experienced discrimination on the basis of disability both in relation to services (s. 1 of the Code) and to occupancy of accommodation (s. 2). They argue that the restrictions on the number and location of group living facilities caused by the zoning by-laws limit their housing options and have a negative impact on their dignity, treatment and ability to participate in the community. Initially, the respondents sought a remedy ordering the removal of the mandatory separation distances from the by-laws.
[5] The City brought a request for early dismissal of the application on a number of grounds, including the Tribunal’s lack of jurisdiction to grant the remedy sought and the respondents’ failure to state a prima facie case. The respondents then brought a motion to amend their application to add a request for other remedies.
The Tribunal’s Decision on the Motion to Dismiss
[6] Before the Tribunal, the City argued that the issue of jurisdiction was a clear question of law that could be determined without any factual context. As the respondents were attacking by-laws enacted by a municipality, the City submitted that the Tribunal could not grant the remedies sought. Moreover, the by-laws could not be characterized as a service for purposes of s. 1 of the Code.
[7] The Tribunal granted the respondents’ motion to amend the application, which now includes a request for a declaration that the Code has been violated and seeks orders that would require the City to “refrain from enforcing or applying” the offending provisions of the by-laws or to take steps to bring the by-laws into compliance with the Code.
[8] With respect to the City’s motion to dismiss, the Tribunal concluded that it was premature to consider and determine the challenge to its jurisdiction to award remedies in the absence of a proper evidentiary foundation and full legal argument. The Tribunal also queried whether municipal zoning by-laws were legislation. In any event, it concluded that any argument about the appropriate remedy should occur at the end of the hearing.
[9] In addition, the Tribunal rejected arguments that the application should better be heard by the Ontario Municipal Board (“the OMB”), noting that there was no proceeding currently before the OMB to challenge these by-laws, and the Tribunal has no authority under the Code to dismiss an application on the basis that it could have been brought elsewhere.
[10] Finally, the Tribunal rejected the argument that the application was vague and lacking in particulars and did not disclose a prima facie case of discrimination under the Code. Again, the Tribunal stated that it would be premature to determine the challenges raised by the City without a proper evidentiary foundation and full legal argument (Reasons, para. 22). The Tribunal concluded that it was not plain and obvious that the application was outside the scope of the Code, as the application identified “a ground of discrimination, a social area, and a nexus between the actions (or policies) of the [City] and differential treatment, resulting in a negative impact related to a prohibited ground” (Reasons, para. 25). The Tribunal also described the issues in the application as “novel”, best decided with a proper evidentiary foundation.
[11] After further particulars were provided by the respondents, in accordance with the Tribunal’s directions, the City again requested that the application be dismissed for lack of jurisdiction. The Tribunal again held that the request was premature, referring to its reasons of January 5, 2012.
[12] On March 6, 2012, the City issued this application for judicial review. The hearing before the Tribunal has been stayed pending the outcome of this application.
The Application for Judicial Review
[13] The City argues that the Tribunal erred in failing to deal with the jurisdictional issue at the preliminary stage. It also argues that the standard of review on this application for judicial review is correctness, because the issue before the Tribunal was a true question of jurisdiction. However, in the alternative, the City submits that the decision was unreasonable. The City also asks that this Court make the decision on jurisdiction that the Tribunal failed to make and declare that the Tribunal is without jurisdiction to proceed with the respondents’ application.
[14] The respondents, the Ontario Human Rights Commission (“the Commission”) and the Tribunal submit that the standard of review is reasonableness. The Tribunal takes no position on the merits of the application for judicial review. The respondents and the Commission submit that the Tribunal’s decision to proceed was reasonable, and, in any event, this application for judicial review of interim decisions should be dismissed on grounds of prematurity.
The Standard of Review
[15] The City has tried to characterize the Tribunal’s decision as a jurisdictional determination, and, for that reason, it argues that the standard of review is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 59). However, the Tribunal did not decide a jurisdictional question, as it made no decision about the merits of the City’s argument. Instead, the Tribunal exercised its discretion as to how the respondents’ application should be adjudicated. In the interests of fairness, it decided to defer ruling on the issues described by the City as “jurisdictional” until there was an evidentiary foundation and full legal argument (Reasons, para. 29).
[16] In reaching its decision, the Tribunal was interpreting the Code and determining the appropriate procedure for the disposition of the respondents’ application. Pursuant to s. 40 of the Code, the Tribunal is to dispose of applications by adopting procedures and practices provided in its rules or otherwise available to it which, “in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications”.
[17] The Tribunal has adopted rules pursuant to s. 43(1) of the Code, which allows it to make rules governing its practice and procedure. Subsection 43(3)(b)(ii) specifically provides that the Tribunal may make rules through which it may determine the order in which the issues and evidence will be presented in a proceeding. Rule 1.7(g) permits the Tribunal to determine and direct the order in which issues in a proceeding will be considered and determined, including issues that a party considers to be preliminary.
[18] In addition, the Tribunal had to determine whether the facts pleaded in the respondents’ application came within s. 34(1) of the Code. This is a question of statutory interpretation involving the Tribunal’s home statute.
[19] The Court of Appeal has already determined that the standard of review to be applied to the decisions of the Tribunal interpreting and applying the Code is reasonableness (Shaw v. Phipps, 2012 ONCA 155 at para. 10; Code, s. 45.8). This approach is consistent with the recent decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, where the Court held that the standard of reasonableness should be presumed to apply when a tribunal interprets its home statute (at paras. 34 and 39). I note that the City has not referred to this decision, nor has it tried to rebut that presumption in the current application for judicial review.
[20] Given the task of the Tribunal, the procedural nature of the question decided, and the expertise of the Tribunal in matters of human rights, I am satisfied that the standard of review is reasonableness.
Were the Tribunal’s Decisions Reasonable?
[21] The Tribunal rejected the City’s argument that its motion raised a pure question of law that should be determined at the outset of the hearing. Instead, the Tribunal concluded that the respondents’ application raised allegations that the rights of the named individuals have been violated in the sense required by s. 34(1) of the Code. It also concluded that the issue of jurisdiction to provide the remedies sought would best be determined with the benefit of evidence and full argument. Thus, it left open the issue whether a zoning by-law could be characterized as a “service” within s. 1 of the Code and whether the zoning by-laws, by restricting the location of group homes, cause indirect discrimination on the basis of disability contrary to s. 9 of the Code.
[22] Courts generally respect the decisions of administrative tribunals respecting their procedures, provided that the requirements of procedural fairness are respected. Moreover, the Code provides significant discretion to the Tribunal with respect to the applicable procedure. I have already referred to ss. 40 and 43 above, which give the Tribunal the power to make rules of procedure, as well as Rule 1.7(g). Given that Rule 1.7(g) specifically authorizes the Tribunal to determine the order in which issues will be presented and decided, it was not unreasonable for the Tribunal to reach the decision it did when the City challenged its jurisdiction.
[23] The City relies on Malkowski v. Ontario (Human Rights Commission), 2006 43415 (ON SCDC), [2006] O.J. No. 5140 (Div. Ct.) for the proposition that the Code cannot be used to challenge legislation. In that case, the Commission had refused to refer a complaint to a board of inquiry alleging discrimination in the Ontario Building Code, a provincial law, because the law did not require the installation of certain assistive hearing devices in movie theatres. The decision was upheld on judicial review.
[24] However, this is not a case like Malkowski, where the Divisional Court described the complaint as a challenge to the legislation which sought, as a remedy, that words be read into the provincial statute. The Court noted that the case before it was not one asserting that s. 47(2) of the Code gave the Code primacy because of a conflict between a legislative provision and the Code. That section provides that where a provision in a statute or regulation purports to require or authorize conduct that is a contravention of Part I, the Code applies and prevails, unless the statute or regulation specifically provides that it is to apply despite the Code. However, in Malkowski, the complainant sought to read in provisions to the legislation, an authority not available under the Code (at para. 38). In contrast, in the present case, the respondents allege a violation of the Code because of the operation of the by-laws and assert that the by-laws cannot apply because of the primacy of the Code.
[25] The City also relies on the decision of the Tribunal in Lee v. City of Toronto, 2012 HRTO 412, which dismissed a complaint that a by-law prohibiting the sale of shark fins discriminated on the basis of ethnic origin. While the Tribunal in that case stated that the by-law was not a service, the Tribunal member expressly left open the issue whether zoning by-laws might be different.
[26] The Tribunal gave clear reasons to explain why it rejected the City’s motion to dismiss the application at this stage of the proceedings. It reasonably determined that it was not plain and obvious that the application would fail and that the merits of the respondents’ application required a full evidentiary basis and full legal argument. Therefore, I would dismiss this application for judicial review on the merits.
Should the Application for Judicial Review be Dismissed because of Prematurity?
[27] In the alternative, I would dismiss the application for judicial review on the grounds of prematurity. This Court has said on many occasions that judicial review of an interim decision of an administrative tribunal will occur only in exceptional cases, as the Court is reluctant to fragment and delay administrative proceedings. Examples of exceptional circumstances include cases where a tribunal clearly lacks jurisdiction to proceed or where proceeding would result in an unfair hearing or a breach of natural justice (Ackerman v. Ontario Provincial Police, 2010 ONSC 910 (Div. Ct.) at para. 19).
[28] There are no exceptional circumstances here which warrant intervention by the Court at this time. As the Tribunal reasonably concluded, it is not plain and obvious that the Tribunal is without jurisdiction to determine the respondents’ application, given the facts alleged in the application. In any event, the Tribunal has not yet made a decision about the jurisdictional issue raised by the City. Therefore, the Tribunal should be given the opportunity to consider the merits of the application, including the jurisdictional issue raised by the City.
[29] Moreover, there is no prospect of procedural unfairness here if a hearing is held, as the City will have a full opportunity to know the case to be met and to respond to it.
[30] This is not a case like Trozzi v. College of Nurses of Ontario, 2011 ONSC 4614 (Div. Ct.). The Divisional Court in that case was reviewing a decision of the Tribunal applying s. 45.1 of the Code, which draws a jurisdictional line between the Tribunal and other decision-making bodies. It allows the Tribunal to dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has “appropriately dealt with the substance of the application”. The Court granted judicial review after the Tribunal ruled that it had jurisdiction to hear an application, even though the human rights issues before it had already been considered and determined by the Health Professions Appeal and Review Board.
[31] The present case is more analogous to Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, where the Supreme Court of Canada emphasized the importance of deference to a preliminary decision of the Nova Scotia Human Rights Commission referring an issue of jurisdiction to a board of inquiry (at paras. 36 and 37).
[32] Moreover, the Code itself suggests the need for caution when an interim decision on procedure has been reached. Subsection 43(8) of the Code deals with the failure of the Tribunal to comply with the practices and procedures prescribed by its rules or the exercise of discretion under the rules in a particular manner. The provision states that such a decision is not to be set aside on an application for judicial review “unless the failure or the exercise of discretion caused a substantial wrong which affected the final disposition of the matter.” Thus, interim decisions applying the Tribunal’s rules should generally be reviewed in the context of their effect on the final decision.
[33] Given the lack of exceptional circumstances, it is premature for the Court to engage in judicial review of the Tribunal’s interim decisions.
Conclusion
[34] For these reasons, the application is dismissed, both on the grounds that the decisions are reasonable and the application for judicial review is premature.
[35] No party seeks costs, and none are awarded.
Swinton J.
Wilton-Siegel J.
Corbett J.
Released: August 10, 2012
CITATION: City of Toronto v. The Dream Team, 2012 ONSC 3904
DIVISIONAL COURT FILE NO.: 95/12
DATE: 20120810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
swinton, wilton-siegel and corbett JJ.
B E T W E E N:
CITY OF TORONTO
Applicant
- and -
THE DREAM TEAM on behalf of KEN MACLEOD, HEATHER CUNNINGHAM, NEIL MCQUAID, LINDA CHAMBERLAIN, DENNIS MORENCY, PETER LYE, PHILLIP DUFRESNE AND ESTHER MWANGI
Respondents
- and –
ONTARIO HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR JUDGMENT
Swinton J.
Released: August 10, 2012