Court File #CV-15-00522520-0000
SUPERIOR COURT OF JUSTICE
B E T W E E N:
EUGENE D’ORAZIO et al
Plaintiff
- and -
ATTORNEY GENERAL OF ONTARIO
Defendant
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE K. WRIGHT
On May 15th, 2015 at TORONTO, Ontario
APPEARANCES:
C. Badenoch Counsel for the Crown
R E A S O N S F O R J U D G M E N T
D’Orazio v. the Attorney General of Ontario, 2015, ONSC 4213
WRIGHT, K. (Orally):
Introduction
The moving party, the Attorney General of Ontario, moves to strike this application on the basis that the applicants lack standing and that the application discloses no reasonable cause of action.
The applicants appear to be challenging the constitutional validity of a number of provisions of the Human Rights Code on the basis that they violate s.15 of the Charter, and are outside of Ontario’s legislative authority under s.92 of the Constitution Act.
Issues
There are two main issues on this motion.
Should the application be struck because the applicants lack standing to bring it?
Should the application be struck because the notice of application fails to raise a reasonable cause of action?
Analysis
I find after a thorough consideration of all the material, and oral submissions that the application should be struck with no leave to amend.
Here is why.
I will first turn to the issue of standing.
The starting point of my analysis comes from the Supreme Court of Canada in the Downtown Eastside Sex Workers United Against Violence case, where the court said:
“The courts have long recognized that limitations on standing are necessary. Not everyone who may want to litigate an issue regardless of whether it affects them or not should be entitled to do so.”
I find, whether privately or publicly, the applicants do not have standing.
The applicants’ materials lack any evidence that would support a finding that they have private standing. They have failed to demonstrate that they are directly affected, exceptionally prejudiced or especially interested.
In reaching this decision, I have taken into account that the applicants state in their own notice of application that they have no personal, proprietary or financial interest in the outcome of their application.
Moreover, the applicants in my view lack public interest standing. In coming to this conclusion, I have considered and weighed the three criteria as set out by the Supreme Court of Canada in the Downtown Eastside Sex Workers United Against Violence case.
Those factors are as follows.
Does the case raise a serious issue?
Do the applicants have a real stake or genuine interest in the outcome?
Are there are other reasonable and more effective means of raising the issue?
To constitute a serious issue, the question raised must be a substantial and important one. I find that the notice of application and the materials presented to me do not raise a serious issue. Alleging discrimination based on race is of course always a serious issue. But in order to be successful, the applicants must be able to demonstrate that the legislation or policy in issue create a distinction based on race. They have failed to do so. There is a complete lack of material or evidence in that regard, apart from the unsupported bald assertions of the applicants, which are of no value to me.
The applicants in their materials claim that the legislation is in violation of s.15 of the Canadian Charter of Rights and Freedoms. Yet they fail to mention any of the essential elements of such a claim. The applicants in their materials call into question and challenge the powers of the tribunal to make and apply its own rules and of the commission to prepare and approve policies under s.30 of the Code. Yet it is plain and obvious from a reading of the legislation that the commissioner’s policy-making powers and the tribunal rule-making powers are of intra vires Ontario.
Moving on to the second factor.
I find that the applicants do not have a real stake in the issues raised, certainly not beyond that of anyone else in Ontario. There is nothing in the material before me that persuades me that they have a special connection that would support a conclusion that they have a genuine interest in the issues raised—in fact, quite the opposite.
Again, the applicants’ admission that they have no personal, proprietary or financial interest in the outcome of their application is consistent with the lack of genuine interest in the issues. There is no doubt that the applicants are interested in the Human Rights Code and Human Rights Tribunal policies and procedures. However, their personal frustrations do not give rise to a finding of standing.
Finally, in consideration of the third factor, I find that the applicants do not have the ability, capacity or expertise to mount a Charter and Constitutional challenge of this nature. I agree with counsel for the Attorney General that the applicants’ presentation of the issues lacks a sufficient and concrete factual foundation and, moreover, it was completely unsupported by the evidence. The claim brought by the applicants is scattered, vague and abstract in nature. At points it is completely incomprehensible. They have failed to adduce any evidence to establish that the Code discriminates in any way against any identifiable person.
I find that the lack of personal stake in the issues, combined with an almost indecipherable presentation of the issues by the applicants favours a finding that another party would be far better situated to launch a challenge of this nature. For these reasons, I find that the applicants have no standing to proceed on this matter.
Given that I have found that the applicants have no standing, it is unnecessary for me to go and consider the second ground of this application. However, in the event that I did go on to consider it, whether or not there was a reasonable cause of action, I can say that I would most definitely, for the reasons cited above, find that there is not a reasonable cause of action.
In my view, this application amounts to nothing more than the applicants looking for a venue and opportunity to vent their personal frustrations and criticisms of the legislation. It is without merit and foundation, and has no place in our court system. As such the application will be dismissed.
Conclusion
Given the overwhelming defects and unsupported assertions made by the applicants, I find that leave to amend should not and will not be granted in this case.
Costs
Given that the Attorney General is the successful party, they are entitled to costs. I have considered the costs. The costs will be fixed in the amount of $2,500 payable to the Attorney General forthwith. That completes this matter, unless there’s anything to add.
MR. BADENOCH: The costs should be payable to the Minister of Finance.
THE COURT: Thank you. The costs will be fixed in the amount of $2,500 payable to the Minister of Finance. That completes this matter.