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Focus: The Availability of Charter Remedies at the Human Rights Tribunal of Ontario

Although not widely available, there are specific instances when applicants at the Human Rights Tribunal of Ontario (HRTO) may raise challenges and seek remedies pursuant to the Charter of Rights and Freedoms (Charter). In particular, Rule 4.1 of the HRTO Rules of Procedure allows for applicants to raise a constitutional question “[w]here a party intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter, in relation to an act or omission of the Government of Canada or the Government of Ontario.”

Charter remedies generally are set out in section 24(1) and section 52(1) of the Constitution Act, 1982. Section 24(1) permits remedies for unconstitutional government acts; while s. 52(1) applies to strike down legislative provisions that are contrary to the Charter.

The Supreme Court of Canada has established that administrative tribunals have the jurisdiction to decide questions of law related to the decisions within their mandate and to grant Charter remedies in relation to issues arising in the course of making decisions. However, despite the Supreme Court’s decisions and the expansive language in Rule 4.1, the availability of Charter remedies at the HRTO is limited. The HRTO has held that it is not a body of general jurisdiction (see, for example, Wilson v Toronto Catholic School Board]  (“Wilson”) and Kostiuk v Toronto Community Housing Corporation) and, therefore, it does not have the jurisdiction to hear stand-alone Charter challenges.

In Wilson, the HRTO clarified that it considers questions of law arising from an interpretation of the Code itself and those questions “arising from the interpretation of other laws that are relevant to a determination under the Code” (para 19). This language suggests that there may be room for challenging impugned provisions of other legislation that are incidental to a determination under the Code. However, to date, as demonstrated by the case law, the HRTO’s jurisdiction is limited to only where the applicant alleges that provisions of the Code are in violation of the Charter.

Further, the HRTO does not have the general power to strike impugned provisions invalid. Rather, where the HRTO does find that it has the jurisdiction to award Charter remedies, those remedies are specific to the case before it in that instance and non-binding on future decision-makers.  To illustrate this, it is useful to compare two recent HRTO decisions that engage with this issue, namely, Talos v Grand Erie District School Board (“Talos”) and Barnard v Metrolinx (“Barnard”).

Talos v Grande Erie District School Board

Mr. Talos’ employer, Grand Erie District School Board (the “Board”), terminated his extended health, dental and life insurance benefits when he reached 65 years of age. Mr. Talos filed an application at the HRTO alleging this provision violated s. 15(1) of the Charter on the basis of age. The Board relied on s. 25(2.1) of the Code read together with s. 44 of the Employment Standards Act and regulations, which permits employers to discriminate on the basis of age in providing health benefits to their employees. Mr. Talos filed a Notice of Constitutional Question to challenge the Board’s reliance on that provision as a full defence to his allegations.

Relying on Wilson, the HRTO found that it had the jurisdiction to consider whether the impugned provision was in violation of the Charter because it was a challenge to a provision of its “constitutive statute” (para 8). The HRTO held that the provision was unconstitutional because it violated s. 15(1) of the Charter on the basis of age.

The HRTO recognized that it could not issue a general declaration of invalidity but that it could “refrain from applying the impugned section of the Code”if it offends the Charter (para 9). Therefore, the HRTO found that the impugned provision was “not available to the respondent as a defence of this proceeding.” The HRTO ordered the parties to consider mediation and where mediation was undesirable, to schedule a two-day hearing on the substantive merits of the matter (whether the Board discriminated against Mr. Talos) and appropriate remedial order. To date, there have been no further decisions released by the HRTO on this case.

Barnard v Metrolinx

Mr. Barnard brought an application to the HRTO alleging that the respondent, Metrolinx, discriminated against him when it asked him to provide verification that his dog was a service animal, among other allegations. Metrolinx argued that it has a right to ask passengers to verify whether animals are service animals pursuant to its Accessibility Policy made in accordance with the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) and regulations. Specifically, the AODA Integrated Accessibility Standards define “service animal” as follows:

For the purposes of this part, an animal is a service animal for a person with a disability,

  • If the animal can be readily identified as one that is being used for reasons relating to the person’s disability, as a result of visual indicators such as the vest or harness worn by the animal; or
  • The person provides documentation from one of the following regulated health professionals confirming that the person requires the animal for reasons relating to the disability.

Mr. Barnard argued that the policy and the AODA regulations were in violation of the Charter and that the impugned provisions should be found invalid for the purposes of this proceeding. He argued that if the HRTO failed to engage with the Charter issue it would unfairly deny him the opportunity to seek meaningful remedies. He filed a “Notice of Constitutional Question” challenging the validity of the policy and the regulations. The HRTO provided the Attorney General of Ontario an opportunity to participate in the proceeding.

Both Metrolinx and the Attorney General of Ontario argued that a challenge to the AODA policy and regulations do not fall strictly under the Code and that the HRTO does not have the jurisdiction to hear stand-alone Charter challenges. They further argued that, in any event, the Code has paramountcy over the AODA policy and regulations, meaning that the constitutionality of the AODA policy and regulations “need not be addressed in order to resolve the applicant’s claim of discrimination based on disability” (para 24). They argued that the legitimacy of Metrolinx request for verification can be appropriately challenged under the Code, without having to determine the constitutional validity.

In an interim decision, the HRTO agreed with Metrolinx and Attorney General and found that it did not have the jurisdiction to hear a Charter challenge about the AODA policy and regulations. In dismissing Mr. Barnard’s Notice of Constitutional Question, the HRTO held that if Mr. Barnard wanted to challenge the constitutionality of the AODA policy and regulations, then he must do so before the Courts. The HRTO ordered the remaining issues to be scheduled for mediation.

Conclusion

It is clear that the jurisdiction of the HRTO to hear Charter challenges is limited to those that challenge provisions of the Code. As demonstrated in Talos, the Charter can be a strategic and effective tool at the HRTO where provisions of the Code are in conflict with the Charter. For most cases, however, while it may be an interesting academic exercise to consider how various pieces of legislation may be in violation of the Charter, applicants at the HRTO would be wise to be strategic about when to allege Charter violations at the HRTO. In particular, it is worth bearing in mind that the HRTO has broad remedial powers and may order effective and creative remedies that may fully address the applicant’s complaints relying on the provisions of the Code.

Special thanks to Jerico Espinas, DLI student, for his research and assistance in drafting this blog post.




February 15, 2019

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