CITATION: Al-Turki v. R., 2022 ONSC 5771

DIVISIONAL COURT FILE NO.: 158/21

DATE: 2022/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, R. Charney and Nishikawa JJ.

BETWEEN:

SHYESH AL-TURKI

Applicant

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF TRANSPORTATION, THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, ONTARIO HUMAN RIGHTS COMMISSION

Respondents

Hassan Ahmad, for the Applicant

Ravi Amarnath and Elizabeth Guilbault, for the Respondent, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation

Jason Tam and Brian Blumenthal, for the Respondent the Human Rights Tribunal of Ontario

Reema Khawja and Sunil Gurmukh, for the Respondent, the Ontario Human Rights Commission HEARD at Toronto by videoconference: September 28, 2022

H. Sachs J.

Overview

[1] This is an application for judicial review of an interim decision of the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”). In that decision the HRTO decided that it did not have jurisdiction to hear the Applicant’s Charter challenge alleging that the Ministry of Transportation policy that required the Applicant to obtain authenticating documentation of his foreign driving experience from the Syrian government violated his right to equality under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”). In its decision the HRTO decided that it lacked jurisdiction because the Applicant’s Charter challenge had no connection to the Human Rights Code (the “Code”).

[2] The HRTO went on to hear the Applicant’s application that his rights under the Code to be free from discrimination had been violated. Prior to that hearing the Applicant received his driver’s licence. After hearing the matter on the merits, the Tribunal decided in favour of the Applicant and, as a result, the Ministry of Transportation issued a revised policy that did not contain the impugned requirement.

[3] The Respondents submit that the Applicant’s application is moot. The Applicant sought to introduce fresh evidence on the mootness issue. For the reasons noted below we refused to allow the Applicant’s fresh evidence motion. After hearing the argument on mootness, I agree that the Applicant’s application is moot and find that this court should not exercise its discretion to decide the application despite its mootness.

Fresh Evidence Motion

[4] The panel delivered oral reasons on the Applicant’s fresh evidence motion. Those reasons were as follows:

The Applicant brings a motion to introduce fresh evidence at this judicial review proceeding. The proposed evidence consists of two studies that the Applicant submits speak to the decline in final decisions that the HRTO has rendered annually. According to the Applicant, these studies are relevant to one of the subsidiary issues before us -namely, is the substantive issue before us evasive of review? The substantive issue before us is whether the HRTO has jurisdiction to hear stand-alone Charter claims. As the Applicant conceded, the two studies he seeks to have admitted do not deal with this issue. In view of this, we find that the proposed fresh evidence is irrelevant and should not be admitted. We do not accept that the fact that the HRTO may be making fewer final decisions annually has any bearing on the question of whether the substantive issue is evasive of review.

Mootness

Factual Background

[5] The Applicant, Shyesh Al-Turki, is originally from Aleppo, Syria. He came to Canada as a refugee on November 30, 2016. He obtained a G1 and then a G2 driver’s licence before being required to wait one year to be eligible to take his driving test to obtain a full G licence.

[6] Subsection 29(10) of Driver’s Licences, O. Reg. 340/94 (the “Regulation”), under the Highway Traffic Act, R.S.O. 1990, c. H.8 establishes an exemption from the one-year waiting period where the applicant provides evidence satisfactory to the Minister that he, she or they has held a driver’s licence in another jurisdiction for at least 24 months in the last three years.

[7] The Ministry of Transportation adopted a policy to implement this exemption (the “Policy”), which requires “written authentication of their foreign licenced driving experience from the originating licensing agency, or from the embassy, consulate or high commissioners’ offices representing the jurisdiction. The authentication letter must be on official letterhead and be written in either English or French.”

[8] On October 13, 2017, the Applicant filed an application with the Tribunal alleging that the Policy was discriminatory under the Code and under s. 15(1) of the Charter on the basis of place of origin, ethnic origin, and citizenship. He argued that as a Convention refugee, he could not return to his home country or approach Syrian officials in an embassy or consulate to obtain authenticated documents, as he feared persecution. Numerous institutions in Syria and Syrian embassies and consulates in Canada had been destroyed or closed, and official documents would be difficult or impossible to obtain. The Applicant was forced to wait the full year to be eligible to take the G2 exit test, which rendered him unable to secure stable employment as a driver.

[9] The Applicant filed a Notice of Constitutional Question, in which he sought a declaration that the Policy violated s. 15(1) of the Charter and an exemption from the one-year waiting period for himself and other refugees who can satisfy the licencing requirement without requiring the written authentication.

Interim Decision

[10] In an interim decision dated October 22, 2018, Adjudicator Josée Bouchard held that the Tribunal did not have jurisdiction to hear the challenge to the Policy under s. 15(1) of the Charter. The Adjudicator accepted the position of the Respondent Ontario that the Supreme Court’s decision in R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765 did not give the Tribunal jurisdiction to consider a Charter challenge that is not within its statutory jurisdiction.

[11] The Adjudicator noted that Conway gives tribunals “the authority to resolve constitutional questions that are linked to matters properly before them” (Adjudicator’s emphasis), and as the Divisional Court noted in Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404 (Div. Ct.), 332 OAC 304 at para. 112, “Conway did not depart from the need to establish a link between a tribunal’s statutory mandate – the “matters” assigned to it – and its jurisdiction to grant Charter remedies….”

[12] The Adjudicator observed that the Tribunal’s jurisprudence has consistently stated that the Tribunal does not have jurisdiction to hear a stand-alone constitutional challenge. The Tribunal only has the power to apply the Code and can only determine whether there is a violation of an applicant’s Charter rights where there is an allegation that the Code itself is unconstitutional.

[13] The Adjudicator dismissed the Applicant’s Notice of Constitutional Question, with only the Applicant’s Code claims proceeding.

Reconsideration Decision

[14] The Applicant requested reconsideration of the Interim Decision. On December 5, 2018, Adjudicator Bouchard dismissed the reconsideration request. The Adjudicator held that under Rule 26.1 of the Tribunal’s Rules of Procedure, a party may request reconsideration only of a final decision and the Interim Decision was not a final decision.

Applicant Obtains His Licence.

[15] The Applicant obtained his Class “G” driver’s licence in April of 2018.

Final Decision

[16] The Applicant’s Code claims proceeded to a hearing before the Tribunal. On May 7, 2020, Adjudicator Bouchard held that the Policy constructively discriminated against the Applicant because of place of origin, ethnic origin, and citizenship.

[17] The Adjudicator issued a declaration that the Policy discriminated against the Applicant contrary to the Code and directed the Respondent to cease requiring Convention refugees to comply with it. The Respondent was ordered to revise the Policy and until it was amended, exempt Convention refugees who met the driver’s licence requirement from the one-year waiting period.

Refusal to Consider Reconsideration Request

[18] On June 8, 2020, the Applicant filed another request to reconsider the Interim Decision. The Tribunal Registrar issued a letter dated June 17, 2020 on behalf of Vice-Chair Douglas Sanderson, who determined that the Tribunal would not consider the Applicant’s request for reconsideration because the Applicant had previously requested reconsideration of the decision, which was refused. Rule 26.7.1 of the Tribunal’s Rules of Procedure provides that “Where a request for reconsideration has been determined the Tribunal will not consider a subsequent Request for reconsideration of the same decision absent exceptional circumstances. The Tribunal need not give reasons for a decision not to consider a subsequent Request.”

The Ministry of Transportation Issues a Revised Policy

[19] The Ministry of Transportation issued a revised policy on July 7, 2020 that does not require Convention refugees or protected persons to provide a written authentication document issued by the licensing authority in the foreign jurisdiction to receive credit for more that 12 months’ foreign driving experience.

Judicial Review Application and Motion to Dismiss

[20] The Applicant filed an application for judicial review of the Interim Decision, Reconsideration Decision, and the refusal to consider his second reconsideration request. Ontario moved to dismiss the application as moot, as the Policy had been revised to address the Final Decision.

[21] On December 3, 2021, Corbett J. dismissed Ontario’s motion, holding that the issue of whether the court should exercise its discretion to hear the application despite its mootness should be left with the panel.

Applicable Legal Framework

[22] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 SCR 342 at 353 the Supreme Court of Canada confirmed that “the doctrine of mootness is an aspect of a general policy or practice that a court may decline to hear a case which raises merely a hypothetical or abstract question” the resolution of which does not or will not affect the rights of the parties. In this case the controversy between the parties that affected their rights has been resolved. The Applicant has the licence he was seeking and the Ministry has revised the impugned policy.

[23] If this is the case Borowski confirms that a court has a residual discretion to hear the case. It sets out the factors that a court should consider in deciding whether to exercise this discretion. It does so in the context of a discussion of the rationales that animate the court’s reluctance to hear moot cases. They are:

(1) “[A] court’s competence to resolve disputes is rooted in the adversary system” (p. 358). In certain cases, while the main dispute between the parties may have disappeared, the adversarial context still exists. Two examples of this that the Supreme Court gives are a case where there were collateral consequences to the parties that would be determined by the resolution of the issue before the court and a case where the dispute had been resolved between the applicant and the respondent, but there were intervenors who still had an interest in the outcome. Their presence was found the provide the necessary adversarial context.

(2) There is a need for judicial economy driven by the fact that judicial resources are scarce. This concern may be less where the court’s decision will still have some impact on the rights of the parties (as in a case where determining the validity of a by-law would determine the outstanding prosecutions against the appellant for violations of the by-law) or in a case where the case (although moot) is “of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly” (p. 360). The example given by the Court was a case where the issue was the validity of an interlocutory injunction prohibiting certain strike action. By the time the issue reached the Supreme Court the strike had been settled, which flowed from the temporary nature of such injunctions. Thus, as put by the Court, “If the point was ever to be tested, it almost had to be in a case that was moot.”

(3) The third “rather ill-defined basis” for a court to exercise its discretion to hear a moot case is a case “which raises[s] an issue of public importance of which a resolution is in the public interest.” In such cases “[t]he economics of judicial involvement are weighed against the social cost of continued uncertainty in the law.” (p. 361) Acting on this third rationale involves the court being sensitive to the law-making function it has to play within our constitutional framework.

Application of the Criteria to this Case

[24] In this case the Applicant submitted three arguments in support of his request that this Court exercise its discretion to hear a case that is moot.

[25] First, he argued that there were other “similarly situated parties” who, while not intervenors in this litigation, might come before the Tribunal in the future to argue that the Tribunal has jurisdiction to hear free-standing Charter claims. According to the Applicant, this reality is underlined by the fact that the Tribunal has issued a number of decisions on this issue.

[26] Second, he submitted that the fact that the Tribunal has issued a number of decisions on this issue and it had never been squarely addressed by the Divisional Court was illustrative of the fact that the issue was evasive of review.

[27] Third, he stated that pronouncing on this issue was part of this Court’s law-making function.

[28] In making his first argument the Applicant primarily relied on three cases – Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357; R. v. Mercure, 1988 107 (SCC), [1988] 1 S.C.R. 234 and Forget v. Quebec (A.G.), 1988 51 (SCC), [1988] 2 S.C.R. 90. Skapinker was one of the cases referred to in Borowski. In that case the Court exercised its discretion to hear the case because there was an intervenor whose rights would be affected by the decision and who would provide the necessary adversarial context. In Mercure, the issue was the right of people charged with provincial offences to have a trial in French in Saskatchewan. Prior to the matter being heard, the Appellant died. Again, the Court granted the intervenor associations the right to continue the appeal as principal parties. One of those intervenors was the Attorney General of Alberta, which, the Court noted, was in a similar situation as Saskatchewan. The decision in Forget concerned whether a provincial requirement for a knowledge of French appropriate to practise a profession in Quebec was unconstitutional. By the time the matter reached the Supreme Court, the impugned regulation had been amended, but not repealed. Because of that amendment and because of the way the individual respondent in that case had framed her claim, she could no longer obtain the remedy she was seeking. Five of the judges decided that the case should be heard anyway because it raised an important point of law and there were other professional candidates whose rights could be affected by the decision.

[29] In the case at bar, there are no intervenors who could provide the necessary adversarial context and whose rights would be affected by our making a decision on the substantive issue. Thus, this case is distinguishable from Skapinker and Mercure. There is no party whose rights will be affected by the decision in front of us to provide the necessary adversarial context. With respect to Forget, while the case at bar may raise an important point of law, it is a totally academic point of law, which may or may not affect the rights of similarly situated people. For example, the Applicant was able to obtain the remedy he needed by relying on the definition of discrimination in the Human Rights Code. We do not know and are not in a position to decide whether there is a case where the definition of discrimination in the Code would not cover an instance of discrimination and the Charter would. As the Court of Appeal noted in Tamil Cooperative Homes Inc. v. Arulappah, 2000 5726 (ON CA), [2000] 49 OR (3d) 566:

[13] Courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems.

[24] The importance of a legal issue raised in a proceeding is a relevant consideration in determining whether the court should hear a moot appeal. It is not, however, determinative. There are an almost infinite number of important legal issues lurking in the myriad of rules and regulations governing the citizenry upon which those interested in the issue would appreciate the opinion of an appellate court. If the importance of an issue is enough to overcome concerns associated with hearing moot appeals, the doctrine has little value. It means no more than that the court should not waste its time and resources deciding unimportant legal issues in cases where there is no longer a live dispute between the parties.

[30] The Applicant also submitted that this case is evasive of review. I do not accept that this is true. If the Applicant’s Code claim had failed, the question of his right to bring a stand- alone Charter challenge would not be moot. The Applicant argues that there have been a number of decisions where the HRTO has decided the question of its jurisdiction to hear stand-alone Charter challenges and yet there has never been a judicial review of those decisions. As Sopinka J. pointed out in Borowski at p. 361:

The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.

[31] This is not a situation that is analogous to a temporary injunction in a strike situation where the dispute will always have disappeared before it is resolved. As noted above, if an applicant’s Code claim is dismissed and the Tribunal has ruled against them on the right to bring a stand-alone Charter claim, that issue will not be moot and can be reviewed by this court.

[32] As Borowski points out at p. 362, in deciding whether to hear an otherwise moot application a court must be sensitive to “its role as the adjudicative branch in our political framework.” This involves demonstrating “some sensitivity to the effectiveness or efficacy of judicial intervention.” Deciding an abstract question risk intruding “on the right of the executive to order a reference…” and represents “a marked departure from the traditional role of the Court.”(p. 365)

[33] The onus is on the Applicant to persuade the court to exercise its discretion to hear an otherwise moot application (Tamil Cooperative Homes at para. 16). In view of the lack of adversarial context, the abstract and academic nature of the question at issue and the fact that the issue raised is not evasive of review, that onus has not been satisfied.

Conclusion

[34] For these reasons the application for judicial review is dismissed. The parties have agreed not to seek costs.

Sachs J.

I agree _______________________________

Charney J.

I agree _______________________________

Nishikawa J.

Released: October 13, 2022

CITATION: Al-Turki v. R., 2022 ONSC 5771

DIVISIONAL COURT FILE NO.: 158/21

DATE: 2022/10/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, R. Charney and Nishikawa JJ.

BETWEEN:

SHYESH AL-TURKI

Applicant

-and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF TRANSPORTATION, THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, ONTARIO HUMAN RIGHTS COMMISSION

Respondents

REASONS FOR JUDGMENT

Released: October 13, 2022