CITATION: Al-Turki v. Ontario (Min. Transportation), 2021 ONSC 7976

DIVISIONAL COURT FILE NO.: 158/21

DATE: 20211203

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Shyesh al-turki v. ontario (min. of transportation)

BEFORE: D.L. Corbett J.

COUNSEL: Ravi Amarnath and Daniel Huffaker for the Respondent/Moving Party

Hassan Ahmad for the Applicant / Responding Party

The HRTO not taking a position on the motion – are lawyers being added? To be determined

HEARD: September 24, 2021

ENDORSEMENT

[1] Ontario moves to dismiss this application for mootness. The applicant acknowledges that the tangible and concrete dispute between the parties has disappeared but argues that this court should exercise its discretion to hear the application pursuant to the principles set out in Borowski.[^1] In my view not only has the concrete dispute disappeared, but the policy that gave rise to the dispute has been revised to address the HRTO’s final decision in favour of the applicant. However, I am satisfied that it is arguable that the important issue on this application has proven evasive of review. I would not decide the mootness issue on a final basis – it is an issue worthy of the panel’s consideration. Therefore, for the reasons that follow, the motion is dismissed, without prejudice to Ontario arguing mootness in its defence of the application before the panel that decides the application on the merits

[2] Mr Al-Turki came to Canada as a refugee from Syria in November 2016. He obtained a G1 driver’s license on January 30, 2017 and a G2 license on March 21, 2017.

[3] Under Ontario’s policy at the time, Mr Al-Turki had to provide evidence from his original licensing agency or from diplomatic officials from that jurisdiction respecting his foreign licensed driving experience to obtain exemption from a mandatory one-year waiting period to obtain a full G-class driver’s license in Ontario.

[4] Mr Al-Turki could not obtain the required evidence because the institutions in his home country had been destroyed in civil war and he feared persecution if he approached Syrian officials.

[5] Mr Al-Turki commenced proceedings at the Human Rights Tribunal of Ontario alleging discrimination on various protected grounds. Mr Al-Turki subsequently filed a Notice of Constitutional Question seeking a declaration that Ontario’s policy infringed s.15 of the Charter.

[6] The HRTO issued an interim decision on October 22, 2018 finding that the HRTO does not have jurisdiction to decide the standalone Charter issue raised in the Notice of Constitutional Question.

[7] Mr Al-Turki sought reconsideration of the HRTO’s interim ruling, but this was denied on the basis that reconsideration is available only in respect to final orders and the impugned order was an interim order.

[8] On May 7, 2020, the HRTO released its final decision in which it found for Mr Al-Turki in respect to his complaints under the Human Rights Code.

[9] Ontario has subsequently amended the impugned policy to take account of the HRTO ruling.

[10] Thus, there is no subsisting issue respecting whether Mr Al-Turki was discriminated against, and the discriminatory policy has been changed to address the HRTO ruling.

[11] The point of law that Mr Al-Turki says should be decided by this court concerns the jurisdiction of the HRTO to decide a standalone Charter issue raised on the basis of the same facts giving rise to a human rights complaint. As Ontario concedes, this is an issue that does arise regularly in HRTO proceedings. It is important. And there is a tenable argument based on the Supreme Court of Canada’s reasoning in R. v. Conway[^2] that the HRTO’s interim ruling may be unsound.

[12] As Mr Ahmad argued forcefully, the point is not inconsequential. If the Tribunal ruling is sound, then a claimant would have to commence separate proceedings in the Superior Court and before the HRTO to pursue Charter and human rights remedies arising from the same events. On the other hand, if the Tribunal ruling should not prevail, then it can be expected that a great many future claims before the HRTO brought against the Province will include Charter claims almost as a matter of course.

[13] Ontario argued that the issue is not evasive of appellate review. I accept that there are many fact situations that arise before the HRTO in which a party could also seek to assert a Charter claim. In that sense the issue is not “evasive of appellate review” – and Ontario reinforced its position on this issue by pointing to a “long line” of HRTO decisions to the same effect on this point. It is an established principle in HRTO jurisprudence. But is it right? And why has the issue not been raised and decided in this court, if it arises so often before the HRTO?

[14] Based on the history of this case, it can be expected that any Charter claim added to a human rights claim will be struck by way of an interim ruling. A party could seek judicial review of the decision at that stage but would be met with a prematurity objection in this court (an analogous basis to the review decision below). Only if “exceptional circumstances” arose would this court agree to hear a review of an interim order – circumstances that could be analogous to the exceptional circumstances described in Borowski.

[15] That does not end the analysis. Assuming there are other cases where the issue is raised and disposed of on an interim basis, presumably some of those cases will be won and some of them will be lost before the HRTO. In the cases that are won, the Charter issue will be as moot on review in this court as they are in this case. It likely would be a case where the claimant has lost his human rights claim under the Human Rights Code where the Charter issue could be pursued in this court without facing a mootness objection. What might happen then?

[16] If the claimant has lost on the facts of his human rights complaint, there is every chance that, on the facts found by the HRTO, the Charter claim could not succeed in any event. I appreciate that the nature of the claims are not co-extensive, but it would be an unusual case where the Code claim could not be made out on the facts, but the previously dismissed Charter claim might succeed. If the appeal can be disposed of without deciding the Charter issue, ordinary principles of judicial restraint would usually lead this court not to decide the Charter issue unless there were exceptional circumstances – such as those described in Borowski.

[17] Finally, I am fortified in my conclusion that the issue may, in fact, be practically evasive of appellate review on the basis of the state of the law. Conway was decided in 2010. This is an important point of principle at the HRTO. And yet it has not been brought before this court in the past decade.

[18] This court decides applications sitting as a panel of three judges. Only in a clear case will this court dispose of an application sitting as a single judge. This case is not clear.

[19] The motion is dismissed. The parties shall provide the court by December 17, 2021 with an agreed schedule for the application and shall also remind the court of what was agreed in respect to costs during the hearing of the motion.

D.L. Corbett

December 3, 2021

[^1]: R. v. Borowski, 1989 123 (SCC), [1989] 1 SCR 342. [^2]: 2010 SCC 22.