Moot 2

Moot 2 – Against All Discrimination Inc. v. Her Majesty the Queen in Right of Kingston

COURT OF APPEAL FOR KINGSTON

Against All Discrimination Inc.
Appellant

Her Majesty the Queen in Right of Kingston
Respondent

File No.: K25466

July 24, 2008

Present: Palusky, Jawani and Kwayane JJ.A.

ON APPEAL FROM THE KINGSTON SUPERIOR COURT OF JUSTICE

PALUSKY J.A. –

[1] Up until 2007, the Province of Kingston never had a human rights code. In 2007, in a bold stroke, it passed its first human rights code.

[2] In this appeal, the Appellant says it is constitutionally underinclusive and, as noted below, seek far-reaching constitutional remedies to address this. For the reasons set out below, the appeal is dismissed.

[3] The background to this appeal is as follows:

● All other provincial jurisdictions had in place a human rights code as of 2007;

● A Royal Commission on Human Rights, chaired by the Honourable Steven McWilliams, released a report on June 4, 2005. It recommended (recommendation 4 at p. 45) that “due to the controversial nature of human rights legislation” in Kingston which had never enacted one before and “due to the need to encourage maximum acceptability and compliance with any human rights legislation,” certain grounds of discrimination be excluded from any legislation for a period of six years.

● The Royal Commission recommended (at pp. 70-81) that the following grounds of discrimination should be excluded from any new legislation for six years, until proper review of the new legislation’s effects had been done:

- Age. The Royal Commission expressed concern (at p. 71) that the inclusion of age might affect the funding of private pension and benefits plans and so more study was necessary.

- Physical and mental disability. The Royal Commision (at p. 72) expressed concern that the inclusion of these grounds might necessitate considerable investment by businesses and the Government of Kingston to improve access to buildings. The Royal Commission also expressed concern that mental disability was a “broad concept, largely undefined, with potential to create indeterminate liability across broad business and governmental sectors.”

- Religion. The Royal Commission expressed the view that there were no issues of discrimination in the area of religion. It added (at p. 79) that 55% of the population of Kingston was Christian, with 32% professing “no strong religious affiliation or atheist affiliation,” and no other religious faith claiming more than 3% affiliation, so for the overwhelming majority of the population, “religion was not an issue.”

● A great deal of public debate followed.

● In reaction to this, in 2006, a Referendum in Kingston was held. The question permitted voters to choose from a number of options:

Option (A) A human rights code, known as the Rights Protection Act, covering all of the grounds of discrimination set out in Ontario’s Human Rights Code.

Option (B) A human rights code, known as the Rights Protection Act, covering all of the grounds of discrimination set out in Ontario’s Human Rights Code except for age, physicial and mental disability and religion, with the situation to be reviewed in six years from the date of the coming into force of the Rights Protection Act.

Option (C) No human rights code at all.

The referendum enjoyed 57.6% turnout and the results were as follows:

Option (A) – 27.1%

Option (B) – 35.7%

Option (C) – 27.2%

[4] The Government of Kingston passed the Rights Protection Act and it came into force on March 24, 2007. It followed Option (B) and excluded age, religion and physical and mental disability from the list of prohibited grounds of discrimination in the Act.

[5] The Minister of Culture, Karen Grenneville, rose in the Legislature on First Reading and explained the Government’s purpose as follows:

This is a bold, new day in Kingston, as we introduce Kingston’s first human rights legislation. Boldness, however, does not replace the need for caution. Given the public’s consensus in the Referendum and the wise words of the McWilliams Commission, which we fully accept, we think it right to follow its recommendations very closely. Action must not out-pace wise study, and public consensus. Accordingly, as we embark on this new experiment, we wish to proceed slowly.

Will other grounds of discrimination be included? We’ll see. We will watch and study developments closely. There will be a review in six years.

[6] Interestingly, the Legislation does not contain any provision about a review in six years. The relevant provisions of the Legislation are as follows:

Rights Protection Act, S.K. 2007, c. 2:

Preamble

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all persons is the foundation of democracy in the world; and

WHEREAS it is recognized in Kingston as a fundamental principle and as a matter of public policy that all persons are equal in dignity and rights without regard to race, colour, gender, ancestry or place of origin; and

WHEREAS it is fitting that this principle be affirmed by the Legislature of Kingston in an enactment whereby those rights of the individual may be protected . . . .

2(1) No person shall publish or display before the public or cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or class of persons for any purpose because of the race, colour, gender, sexual orientation, ancestry or place of origin of that person or class of persons.

3 No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall

(a) deny to any person or class of persons any accommodation, services or facilities customarily available to the public, or

(b) discriminate against any person or class of persons with respect to any accommodation, services or facilities customarily available to the public,

because of the race, colour, gender, sexual orientation, ancestry or place of origin of that person or class of persons or of any other person or class of persons.

4 No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall

(a) deny to any person or class of persons the right to occupy as a tenant any commercial unit or self‑contained dwelling unit that is advertised or otherwise in any way represented as being available for occupancy by a tenant, or

(b) discriminate against any person or class of persons with respect to any term or condition of the tenancy of any commercial unit or self‑contained dwelling units,

because of the race, colour, gender, sexual orientation, ancestry or place of origin of that person or class of persons or of any other person or class of persons.

7(1) No employer or person acting on behalf of an employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition of employment,

because of the race, colour, gender, sexual orientation, marital status, ancestry or place of origin of that person or of any other person.

(2) Subsection (1) as it relates to marital status does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan.

(3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

8(1) No person shall use or circulate any form of application for employment or publish any advertisement in connection with employment or prospective employment or make any written or oral inquiry of an applicant

(a) that expresses either directly or indirectly any limitation, specification or preference indicating discrimination on the basis of the race, colour, gender, marital status, sexual orientation, ancestry or place of origin of any person, or

(b) that requires an applicant to furnish any information concerning race, colour, gender, sexual orientation, marital status, ancestry or place of origin.

(2) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

10 No trade union, employers’ organization or occupational association shall

(a) exclude any person from membership in it,

(b) expel or suspend any member of it, or

because of the race, colour, gender, sexual orientation, marital status, ancestry or place of origin of that person or member.

11.1 A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.

16(1) It is the function of the Commission

(a) to forward the principle that every person is equal in dignity and rights without regard to race, colour, gender, ancestry or place of origin,

(b) to promote an understanding of, acceptance of and compliance with this Act,

(c) to research, develop and conduct educational programs designed to eliminate discriminatory practices related to race, colour, gender, sexual orientation, ancestry or place of origin, and

(d) to encourage and co‑ordinate both public and private human rights programs and activities.

[7] The Appellant brought an application under Rule 14 on February 28, 2007 challenging the failure of the government to include age, religion and physical and mental disability in the Act. The basis of the application is s. 15 of the Charter. Remarkably, the Appellant also asked the court below and this court to write these grounds right into the legislation under s. 24(1) of the Charter and to maintain jurisdiction to supervise the implementation of the order, to ensure that adequate staffing and budgets were allocated to public education, investigation and enforcement of these prohibited grounds of discrimination.

[8] I do not need to deal with these submissions, as this appeal fails on other grounds, the same grounds that Walsh J. relied upon in her decision.

[9] Like the applications judge, Walsh J., I reject the application on a summary basis and adopt her reasons fully. In her reasons dated December 21, 2007, she noted that the Applicant is an organization that does not possess standing to pursue the application. It is a corporation and does not have an age or a religion or any physical or mental disability. It also brought the application too early, before the Act came into force.

[10] Walsh J. fully reviewed the facts (at para. 24). The Appellant is a corporation incorporated under the Kingston Business Corporations Act. It was incorporated in 2006 and the evidence in the Affidavit of Hugh Riert (President and director of the corporation), filed for the corporation, shows that the corporation filed before the Royal Commission a written submission in support of what was to become Option (A). Its Board consists of three Kingston residents, Riert, James Drew and Phyllis Renzoni. On cross-examination on the affdiavit, it became clear that the corporation sells memberships and has 1,236 members, which is a very significant portion of the population of Kingston. It is very well-funded, with a bank balance (as of January 3, 2007) of $124,320.45. Its counsel is acting pro bono.

[11] Walsh J. found as a fact (at para. 27) that the Appellant has a dedicated interest in this subject-matter, but found that others were better placed to launch claims against the Act. For example, she noted as a fact (at para. 28) that a Kingston resident, suffering age discrimination, can launch a claim alleging that the Act is underinclusive for not including age as a ground of discrimination. And then, some other resident, suffering physical disability, can launch a claim against that alleged underinclusion. “Slowly, but surely,” held Walsh J. (at para. 33), “the alleged underinclusion of the Act in all its respects will fall for consideration.” I adopt this holding of Walsh J.

[12] This Honourable Court should not deal with issues that other affected people are better placed to raise. In this Court, the Appellant submitted, relying upon para. 5 of the Riert Affdiavit, that it has “an interest itself (not just an interest of others) in ensuring that discrimination violative of human dignity in all its forms is addressed.” It refers to that (in para. 7) as “its raison d’être” and that (in para. 8) if its proceeding is dismissed, it will wind itself up, as its raison d’être will be spent. In my view, this is not a sufficient interest to establish the sort of personal interest to maintain a lawsuit in a constitutional matter.

[13] Were I to go further than Walsh J., I would add that the government intends to review the situation after six years. The Appellant made much of a newspaper article (Kingston Whig Standard, February 2, 2007, p. 4) in which the Minister of Culture was quoted as saying, “Alot of things can happen in six years, and I cannot guarantee, or even predict, that any review will ever happen.” On this record, sparse as it is, Walsh J. found as follows (at para. 45): “I do not find that the review will not happen.” I see no reason to disturb that factual finding.

[14] Before concluding, I wish to note, as Walsh J. did (in para. 42), the court’s displeasure with the evidentiary record filed by the Respondent. In response to the Appellant’s Record (which disturbingly consisted only of the Legislative Debates, the Royal Commission Report, and an affidavit that set out the law of other federal and provincial jurisdictions and the information about the Appellant, set out above), the Respondent filed absolutely nothing. This is not appropriate when a constitutional claim is filed against the Government.

[15] Appeal dismissed. Costs to the Respondent.

Jawani J.A. – I agree.

Kwayane J.A. – I agree.