Toronto challenges Ontario Human Rights Tribunal’s authority over city bylaws
The City of Toronto is trying to stop the province’s Human Rights Tribunal from hearing a discrimination case brought by mental health advocates over a group homes bylaw. (original story here: http://www.thestar.com/news/gta/2012/06/28/toronto_challenges_ontario_human_rights_tribunals_authority_over_city_bylaws.html#)
In what’s being billed as a landmark case, the City of Toronto is out to prove the province’s human rights body has no authority over municipal bylaws.
Its lawyers are in Divisional Court this week to argue the Human Rights Tribunal of Ontario doesn’t have the jurisdiction to hear a complaint about a bylaw brought by theDream Team, a group of mental health advocates who argue the city’s requirement that group homes be a minimum distance of 250 metres from each other is discriminatory.
What’s at stake is not only whether the human rights hearing can go ahead, potentially paving the way for more group homes in communities.
If the court sides with the Dream Team, it would also open the door to other complaints of discrimination involving bylaws being heard in future.
“We think it’s a very important issue. We think it won’t be hard to show the discriminatory impact that (the bylaw) has,” says Barbara Hall, chief commissioner of the Ontario Human Rights Commission, explaining why the quasi-judicial body has chosen to take this fight on.
The Dream Team, a group of 22 mental health advocates, launched the challenge against group home separation distances in 2010 in Toronto, as well as Kitchener, Sarnia and Smiths Falls.
“For people who’ve experienced poverty, group homes are the only place they can live,” says 61-year-old Phillip Durfresne, a Toronto resident who launched the challenge along with seven other members. “The distancing requirement means less group homes and less options open for housing people. And we believe that creates more discrimination,” he said.
None of the cases has gone to the tribunal. Sarnia agreed to strike its bylaw as soon as the challenge was launched. After mediation, Kitchener announced this month it would scrap a bylaw stipulating group homes had to be 400 metres apart and rewrite it to say group homes were allowed throughout the city. The new bylaw has yet to be approved by council.
Toronto has fought the tribunal hearing every step of the way.
The city’s legal department argues the challenge is outside the scope of the tribunal because, unlike many typical complaints, a bylaw isn’t a service or housing provider who is discriminating against an individual. In fact, it says, no individuals have been affected in this case at all.
And they responded by email that the tribunal doesn’t have the “statutory authority” to hear a challenge to legislation.
“This is a landmark case,” said Hall. “Human rights arguments are being used in a way that they haven’t been in the past.”
But she says bylaws are not outside the scope of the Ontario Human Rights Code. “It’s not unusual in the area of human rights to have people say, ‘we’ve always done things this way. Why are you challenging us now?’”
City officials originally filed a motion to stop the case, but in January the tribunal ruled it should go ahead and the question of jurisdiction sorted out later. The tribunal denied a second motion by the city to re-argue jurisdiction a month later.
Now, city officials are asking Divisional Court to quash those rulings and dismiss the Dream Team’s human rights complaint altogether.
Toby Young, a lawyer representing the mental health advocates, agrees the case isn’t typical.
“It’s not the normal kind of case at all. This is a systemic challenge as opposed to an individual case for compensation,” Young said. “Both the Code and the tribunal contemplate the garden variety discrimination claims and those that are broader and more systemic.”
If the human rights hearing goes ahead it will open the door to more challenges by the Human Rights Commission, which has already signalled that it intends to go this route.
“It will mean the opportunity to have a fulsome hearing with all the evidence put out about the impact of these kinds of conditions in zoning bylaws — the impact on real vulnerable people,” said Hall.
The commission recently sent a letter to Tillsonburg Mayor John Lessif to say a bylaw that attempts to limit any new methadone clinics for a year — as opposed to other clinics such as pharmacies — may look more like discrimination against addicts than legitimate town planning.
“We’re raising this issue in a number of jurisdictions,” added Hall. “And we are communicating with municipalities when we see that they’re doing things that we believe are discriminatory.”