2012 hrto 2252 addai final 03-dec-2012

7/30/2019 2012 HRTO 2252 Addai Final 03-Dec-2012

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HUMAN RIGHTS TRIBUNAL OF ONTARIO

______________________________________________________________________

B E T W E E N:

Asafo Addai

Complaint

-and-

City of Toronto

Respondent

______________________________________________________________________

DECISION______________________________________________________________________

Adjudicator: Leslie Reaume

Date: December 3, 2012

File Number: HR-1715-08

Citation: 2012 HRTO 2252

Indexed as: Addai v. Toronto (City)______________________________________________________________________


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APPEARANCES

)Asafo Addai, Complainant )

)Peter Rosenthal and ReniChang, Counsel

)

)City of Toronto, Respondent )

)Antonella Ceddia and AmyMurakami, Counsel

)


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INTRODUCTION

[1] This Complaint was filed with the Ontario Human Rights Commission (the

Commission) under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the

Code), as it existed prior to the substantial amendments which came into force on

June 30, 2008. The Complaint was referred by the Commission to the Tribunal for a

hearing. Asafo Addai (the complainant) alleges discrimination with respect to

employment, services and contracts because of race, colour, ethnic origin and place of

origin pursuant to section 11 of the Code.

[2] The Commission was initially involved in the Complaint. The Commission

withdrew from this proceeding prior to the commencement of the hearing. Both the

respondent and the complainant were represented by counsel.

DECISION

[3] The Complaint is dismissed for the reasons that follow.

BACKGROUND

Basic Facts and Arguments

[4] The Complaint concerns taxi licences issued by the City of Toronto (the

respondent) to owners of taxi businesses. The respondent regulates the taxi industry

pursuant to its authority under the City of Toronto Act,2006, S.O. 2006, c. 11. A taxi

cannot be operated in the City of Toronto without a licence from the respondent. There

are three forms of licence, each with different attributes, which enable taxi owners to

operate their businesses: Accessible, Standard and Ambassador. At issue in this

Complaint are the differences between the Standard and Ambassador owner licences,

and the racial and ethnic composition of the groups who hold those licences.

[5] Prior to 1998, the respondent issued Standard taxi licences to individuals or

companies who applied to operate a taxi. While the Standard licence has a number of

attributes associated with it, the complainants allegations relate to the following two


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features: the ability to operate a taxi with multiple drivers and the ability to sell the

licence and equipment to another owner. The former attribute gives the licence owner

the opportunity to earn income while the taxi is being leased and/or driven by someone

else; the latter gives the licence a value in the open market, estimated by the

respondent to have increased from $50,000 in 1993 to $80,000 in 1998 to $175,000 at

the time of the hearing.

[6] Following a task force review of the taxi industry by the respondent in 1998, the

respondent stopped issuing new Standard licences and started issuing Ambassador

licences instead. In fact, as is discussed in more detail below, the respondent had

essentially stopped issuing Standard licences long before the first Ambassador licence

was issued in 1999. Ambassador licences are not transferrable nor can the licenceowner, who must be the driver of the taxi, hire a second driver at any time, including for

periods of vacation, illness or disability.

[7] As part of the reform, a decision was made that the existing Standard licences

would retain most of their pre-1998 attributes. While no person actually owns the

existing Standard licences, they can be sold and transferred with the respondents

approval. One of the changes that came about as a result of the 1998 reform is that the

Standard licence can no longer be transferred to a firm or corporation but must be

transferred to an individual. That individual is not required to drive, but must be licensed

to drive a taxi. Those changes were apparently directed at decreasing the number of

passive investors in the taxi industry and increasing the number of driver-owned taxi

businesses in Toronto.

[8] At the time of the hearing, the bylaw capped the number of Ambassador licences

at 1403 and the number of Standard licences at 3480. There were approximately 70Ambassador licences on the shelf that had been returned to the respondent or

belonged to taxi owners who were injured or on vacation, a situation which the

respondent was not able to fully explain. Approximately 1227 Standard licences are

held by corporations. A fair number of Standard licence owners incorporated before the

changes to the bylaw came into effect. There were also, at the time of the hearing,


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approximately 105 Accessible licences issued to taxi owners. Each owner licence has a

corresponding taxi associated with it. To become the owner of a taxi business in

Toronto, a person may purchase a Standard licence and equipment or wait on an

approved waiting list until a new Ambassador or Accessible licence is issued by the

respondent.

[9] Prior to the advent of the Ambassador program, a person who aspired to be a

taxi owner was required to purchase a Standard licence from another owner, or wait for

the respondent to issue a new Standard licence. The parties acknowledged that very

few Standard licences had been issued since the early 1980s and people could wait in

excess of ten years on the list before they were issued one. Abraham Mayne testified,

for example, that he arrived in Canada in 1970, started driving taxi in 1984 and puthimself on the waiting list for a Standard licence in 1987. He complied with all of the

requirements to stay on the list and still had not been issued one by the time of the

reform in 1998. Mr. Mayne was one of the first drivers to receive an Ambassador licence

in 1999.

[10] Therefore, between the early 1980s and 1998 when the Ambassador program

was introduced, the only real method for becoming a taxi owner in Toronto was to

purchase a Standard licence from a person or corporation willing to sell. In 1999 the

respondent began to issue Ambassador licences, opening up the possibility for taxi

ownership to 1400 individual drivers. The last Ambassador licence was issued in 2005.

Now the industry is not unlike it was in the early 1980s where taxi licences are few and

far between, a situation which has likely contributed to driving up the cost of those

licences that are available for purchase, namely the Standard licences.

[11] The question in this case is whether these circumstances can be linked todiscrimination.

[12] The complainant alleges that the Standard licences which are still in existence,

are superior to the Ambassador licences because they are transferable and permit the

hiring of multiple drivers. While a number of other differences between the two forms of


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owner licence were discussed at the hearing, these two distinctions were the focus of

the complainants allegations.

[13] The complainants own evidence, which is discussed in further detail below,

supports the view that the entire taxi industry is highly diverse with respect to ethnicity.

However, the complainant alleges that the Ambassador licence owners are

predominantly men like himself, with dark skin, whose ethnicity is derived from particular

parts of the world including the Middle East, India, Pakistan and Africa. The complainant

used the term racialized to describe himself and the majority of Ambassador licence

owners. The complainant alleges that while the individual Standard licence owners may

be ethnically diverse, there are a significant number of people who would not self-

identify as racialized. This group was referred to at times as Caucasian or people ofEuropean origin.

[14] The complainant acquired his Ambassador licence in 2003. He does not allege

that it is discriminatory for the respondent to make changes to the taxi licencing system

in general. He alleges that the discrimination lies in the introduction of a licence that is

not transferrable and does not permit the use of a second driver in a context where it is

predominantly racialized men who would be disadvantaged by those changes.

[15] The respondent denies the allegations of discrimination and alleges that the

Ambassador program was adopted in the good faith belief that it would address a

number of concerns about the taxi industry which had been raised by a variety of

stakeholder groups including members of the industry itself. The respondent alleges

that the issuing of licences has never been connected to a prohibited ground, intentional

or otherwise, and that the existing Standard licences were maintained in the good faith

belief that the owners of those licences were entitled to have their investmentsprotected.

[16] The respondent argues that there is only one factor that determines whether any

person was eligible to receive a Standard or an Ambassador licence: the timing of his or

her application. The respondent argues that anyone who applied for a licence after


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1998, regardless of their race, colour, ethnic origin or place of origin, would be subject

to the terms of the Ambassador licence. In addition, the respondent argues that any

person, including Mr. Addai, may acquire an existing Standard licence by purchasing

one in the open market.

[17] The complainant also takes the position that timing is a critical factor in the

analysis of his Complainant. He alleges that the Ambassador licences were introduced

at a time when the taxi drivers eligible to become taxi owners had, over time, developed

into a pool of predominantly racialized men.

[18] There are a number of legal issues which were raised by the parties. In my view,

the primary issue is whether the complainant can demonstrate that he can meet thelegal test to support a finding of discrimination. The complainant argues that his burden

is to prove that the Ambassador licence owners are overwhelmingly racialized and are

disadvantaged as compared to Standard licence owners.

[19] The respondent argues that the complainant is required to go one step further

and demonstrate that his race, colour, ethnic origin or place of origin is linked to any

disadvantage he has experienced as a result of the introduction of the Ambassador

licence. In other words, it is not enough to demonstrate that he is a member of a group

protected by the Codeand that some action on the part of the respondent has caused

the group a disadvantage. There must be evidence that one or more of the prohibited

grounds he has relied upon is a factor in the disadvantage he has experienced.

[20] The respondent disputes the complainants allegations of discrimination on a

number of bases apart from the lack of connection between the respondents actions

and the prohibited grounds alleged: the Ambassador licences have different attributes,but are not inferior to Standard licences; there is no credible evidence to support the

complainants perceptions about the racial composition of the two groups; the Complaint

does not engage a social area under the Code; Mr. Addai was never denied a Standard

licence and he has no standing to bring a public interest complaint; the Tribunal has no

jurisdiction to consider a challenge to a by-law or provide the relief requested by the


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complainant which is in effect to strike down the provisions of a by-law; and the

provisions of the by-law are reasonable and bona fide.

[21] In my view, it is not necessary to determine these issues, apart from the first two,

in light of my finding that the complainant is unable to establish a connection between

the prohibited grounds alleged and the respondents actions.

Additional Facts

[22] While I have set out most of the relevant facts in the previous section of this

Decision, there were others which were uncontested and helpful to me in arriving at my

conclusions.

Taxi Industry

[23] There were, by all accounts, a number of problems with the taxi industry in

Toronto which gave rise to the creation of a task force in 1998 to study the industry and

conduct stakeholder consultations. Because the Standard licences could be owned by

individuals or corporations, be sold or leased and driven by multiple drivers, complex

relationships evolved between owners, designated agents, brokers, lessees, garages

and drivers.

[24] The parties agreed that the Standard licence system gave rise to complaints by

members of the public about poor customer service. There were concerns about the

safety of the vehicles, the treatment of drivers and their inability to earn a fair wage, as

well as absentee and passive investors who were not involved in how the licence was

being used or otherwise making a positive contribution to the industry.

[25] The Task Force to Review the Taxicab Industry (the Task Force) was

established on April 16, 1998. A series of public meetings were held and numerous

deputations were received from stakeholders. Mr. Addai was actively involved in

attempts to reform the industry. A number of changes which were recommended by the

Task Force were ultimately adopted by the respondent at the City Council meetings in


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November, 1998. A number of recommendations were not adopted by Council. The

creation of the Ambassador licence was one part of the regulatory reform that Council

adopted along with measures directed at improving service to the public, safety and

condition of taxi cabs, training for owners and drivers, and enforcement.

[26] The purpose of the Ambassador program was to create a system of owner-

operated cabs which would permit one person to become the driver and business owner

and prevent corporations or passive investors from playing a role in the operation of the

taxi associated with that licence. As the complainant pointed out, while this was a

laudable goal, the Ambassador owners constitute a minority of taxi operators and an

even smaller proportion of the taxis in active service given the restriction on operating

more than twelve hours per day. In other words, not only are there more than twice asmany Standard licences in existence, a person with a Standard licence can have one

taxi operating twenty-four hours per day which is functionally the equivalent of two

Ambassador licences.

[27] There has been dissatisfaction from the outset that the Ambassador licence

cannot be transferred and does not permit a second driver even in times of disability.

Mr. Addai and others have raised with the respondent in a variety of forums the

importance of protecting Ambassador licence owners, particularly in times of illness.

There has been discussion over the years about the Task Force recommendation that

Ambassador licence owners participate in a benefit program offered by the respondent.

The complainant alleges that promises were made by various elected officials that there

would be a program funded or at least organized by the respondent that would provide

Ambassador owners with benefits and a pension. The respondent takes the position

that taxi owners should protect themselves, like other independent business owners, by

acquiring private disability and other medical benefits and saving for their own

retirements.

[28] Mr. Addai expressed significant disappointment that recommendations made by

members of the taxi industry, some of which were reflected in the Task Force

Recommendations, were not ultimately adopted by the respondent. There was


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discussion, for example, of the respondent buying back Standard licences after a

certain period of time and making efforts to open up Pearson International Airport to

Ambassador taxis.

[29] The respondent began issuing taxi licences in the 1950s. In the early 1960s,

limits were placed on the number of taxi licences and lists were created to manage the

demand. By 1998, the pace at which Standard licences were issued by the respondent

had significantly declined. In fact, very few new Standard licences were issued by the

respondent after 1982. According to the respondent, the last Standard licence was

issued in 1993 (the release of the licence was delayed until 1996). The last Ambassador

licence was issued in 2005, while the last Accessible licence was issued in 2008.

[30] There is no doubt that the attributes associated with the Standard and

Ambassador licences are different. The Standard licence owner can drive the taxi,

retain an agent to manage the taxi for them by hiring drivers, or enter into a lease

agreement with a driver. When a Standard owner dies, the licence can be transferred

into the estate and sold or transferred to a family member as long that person is

licenced to drive a taxi and the respondent approves the transfer.

[31] The benefit of the Ambassador licence is that it permits a driver the opportunity to

become an owner and thus avoid the complex fee arrangements associated with

leasing a taxi or driving for another owner. Ambassador owners can manage their own

hours within the parameters set by the bylaw. An aspiring owner must complete the

Ambassador Taxicab Training Course and wait for their turn on the list to be issued a

licence. While it is not my intention to diminish the concerns raised by Mr. Addai about

the inadequacies associated with the Ambassador licence, I must acknowledge the

respondents point that approximately 1400 individual drivers have been able to becometaxi owners since 1998 as a result of the Ambassador program. Without this program,

their only options would have been to purchase a Standard licence or work with a

Standard licence owner.


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Mr. Addai

[32] Mr. Addai self-identifies as a black man who was born and raised in Ghana. He

was licensed to drive a taxi on August 28, 1989. Prior to becoming an Ambassador

owner, Mr. Addai leased a taxi and also worked as a shift driver, both of which required

the payment of fees to other people. He described the taxi industry as a world of risk

and financial instability with secret transactions, a culture of silence and a variety of

middle men. Mr. Addai wanted to avoid these elements and manage his own

business. However, Mr. Addai testified that since becoming an owner he has been

insulted by others in the industry who refer to his Ambassador licence as a permit.

[33] Mr. Addai placed himself on the drivers list for an Ambassador licence on June

19, 2000. He was advised on July 22, 2003 that his name had come up on the waiting

list; he took the Ambassador Taxicab Training Course and was issued an Ambassador

Licence on December 17, 2003. In 2008, Mr. Addai applied for an endorsement

permitting him to drive an accessible cab. He spent approximately $65,000.00 to obtain

appropriate equipment. At an earlier stage, he had been offered an opportunity by the

respondent to obtain an Accessible owners licence which would have permitted him to

have multiple drivers. Mr. Addai declined because he was not, at the time, in a position

to make the investment necessary to modify his taxi and he was unsure about the

nature of the market.

[34] The parties agree that Mr. Addai has never been prohibited from acquiring a

Standard licence. Like anyone else, Mr. Addai could obtain a Standard licence by

purchasing from someone and applying to the respondent to approve the transfer.

However, he argues that the cost of obtaining a Standard Licence is prohibitive and it is

discriminatory that he should have to purchase a licence while others of European

descent were issued one prior to 1998 for a small fee.


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Determining Race, Colour, Ethnic Origin and Place of Origin

[35] I heard from Bruce Robertson, Director of Licensing Services in the Municipal

Licensing and Standards Division in the City of Toronto, who has worked for the

respondent in relation to the taxi industry since 1981. He testified that the taxi industry is

ethnically diverse and that since 1981 an increasing number of taxi owners self-identify

as people of colour from places in the Middle East, and various places in India and

Africa. Richard Mucha, Manager of Licensing Enforcement in the City of Toronto, has

worked for the respondent since 1993. He testified that he was aware that taxi cab

drivers have largely been immigrants to Canada and that different groups of people

have come to Canada at different times. He agreed that his observations were

consistent with Mr. Robertsons, that an increasing number of taxi cab drivers are

people of colour.

[36] During the course of the hearing I determined that the respondents records,

which contained the pictures and names of individual Standard and Ambassador licence

owners, were relevant to determining the racial and ethnic composition of the two

groups. I denied the complainants request for information about the race and ethnicity

of those Standard licence owners where the licence was held by a corporation. The

respondent produced the following materials:

1329 pictures and names of Ambassador licence owners from the year2010;

1762 pictures and names of Standard licence owners from 2010; and

1363 pictures and names of Standard licence owners from the year1998.

[37] The parties were unable to agree on one expert and as a result the complainantobtained his own experts to analyze the respondents records. The respondent retained

an expert to critique the methodology of the complainants experts. Concerns were

raised by the respondent, with which I agreed, about the necessity of the complainants

proposed expert witnesses. In the end, the complainant withdrew his experts in favour

of the Tribunal receiving the respondents evidence and drawing its own conclusions.


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The respondent agreed that the materials were relevant but raised concerns about the

appropriateness of the Tribunal analyzing the materials. No methodological approach

was proposed by the respondent.

[38] In reviewing the pictures and names of licence owners and considering the fact

that discrimination may be based as much on perception as on self-identification, I

found that it was possible to determine general patterns of race, colour, ethnic origin

and place of origin. In comparing the Ambassador licence owners with the Standard

Licence owners I made the following observations:

Both groups are ethnically diverse;

There are proportionally more people who appear to be of Europeandescent among Standard Licence owners than among the Ambassadorlicence owners;

While there are many people of colour among the Standard licenceowners, the Ambassador group is predominantly people of colour;

There is a much larger group of women, including women of colour,represented among the Standard licence owners than the Ambassadorlicence owners;

While the Ambassador owners are predominantly racialized men, thereis insufficient evidence to conclude that the Standard licence owners arepredominantly Caucasian or of European descent.

[39] I note that while it is possible to say that all of the Ambassador licence owners

were issued licences by the City after 1998, it is impossible to determine from the

pictures and names when or how the Standard licence owners came to possess their

licences. We do not know, for example, how many purchased licences and what they

paid for them.

[40] I also note that according to Bruce Robertson, as of May 4, 2010, there were

10,422 individuals licensed as taxicab drivers which is only slightly higher than the

10,149 licenced taxi drivers in 1998. I heard no evidence on the racial and ethnic

composition of the entire group from which the Ambassador licence owner group is


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derived. Therefore it is impossible to confirm that the pool of eligible Ambassador

owners reflects the racial and ethnic composition alleged by the complainant. All we

know is that those who were successful in receiving an Ambassador licence are

predominantly racialized.

[41] What I have concluded is that to the extent that there are people of European

descent in the two groups, they are predominantly found among the Standard owners.

While people of colour are represented in both groups, the Ambassador owners are

predominantly racialized men.

[42] Both parties argued that many different factors could account for the racial and

ethnic composition of the taxi industry at any given time, including shifting immigrationpatterns and changing economic conditions which affect employment opportunities in

the City of Toronto. The complainant relied on an article by John Duffy, dated December

7, 2009 which appeared in the Taxi News, for the following historical observations about

the industry in Toronto:

Taxi ownership in Toronto reflects succeeding waves of immigration. Inthe 1940s and 1950s many Jews drove taxicabs. In the 1950s, a largenumber of Hungarians and other Eastern Europeans were issued plates.

In the 1960s, a large number of Greeks entered the taxi industry and wereeventually issued plates. In the 1970s, people from the Middle East begandriving taxis. By the 1980s there were large numbers of drivers fromvarious parts of India, Sikkim and Pakistan. By the later 1990s there weremany drivers from the Horn of Africa.

[43] Although I did not accept this as an expert opinion, Mr. Duffy was regarded by

those who testified at the hearing as a person who has significant knowledge about the

history of the taxi industry in Toronto. More importantly, his observations were

consistent with my analysis of the respondents materials as well as the testimony ofBruce Robertson, who, having worked in the industry for many years, was in a position

to speak with some authority. Mr. Robertson testified that he considered Mr. Duffy an

expert on the history of the taxi industry. While there was no evidence presented on the

racial and ethnic composition of the more than 10,000 taxi drivers in the industry, this

evidence does suggest a trend toward more and more people of colour in that role.


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[44] Part of the complexity associated with the complainants position is that it is

framed as a comparator of two segments of an industry which is much broader in scope

than two classes of licence. I heard no evidence on the racial and ethnic composition of

those individual owners of Accessible licences, the third form of owners licence that

was available at approximately the same time as the Ambassador licence.

[45] However, in my view, it is not necessary for the complainant to establish a

comparator group. It is sufficient that he is able to establish that the Ambassador licence

owners are predominantly racialized men with shared ethnicities from particular places

in the world. It would make no difference to the analysis if the racial and ethnic

composition of the taxi industry was the same before and after 1998. In fact, the racial

and ethnic composition of the industry was exactly the same the day before and the dayafter the changes to the licencing scheme came into effect: the same people who

waited for years for the respondent to issue a new Standard licence or sought to

purchase one on the open market suddenly became eligible to become Ambassador

owners. What is at issue here is the effect on the group of people Mr. Addai represents

and the connection between that effect and their self-identification with the grounds of

race, colour, ethnic origin and place of origin.

ANALYSIS

General Legal Principles

[46] It is well established that human rights legislation is to be given a broad, liberal

and purposive interpretation. In addition to the specific provisions related to

discrimination, the Codecontains a preamble which reflects the kinds of experiences

the legislation is directed at remedying. It speaks not just to equality in relation to the

law, but also to the values of understanding, mutual respect and dignity and the

necessity to ensure that every citizen has the opportunity to contribute fully to the

community. The analysis of a claim of discrimination under the Codemust be animated

by these important principles.


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[47] The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 (CanLII),

[2008] 3 S.C.R. 41 (McDougall), confirmed that the balance of probabilities standard

of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be

sufficiently clear, convincing and cogent.

[48] This case was advanced under section 11 of the Codewhich states:

A right of a person under Part I is infringed where a requirement,qualification or factor exists that is not discrimination on a prohibitedground but that results in the exclusion, restriction or preference of agroup of persons who are identified by a prohibited ground ofdiscrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in

the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminatebecause of such ground is not an infringement of a right. (2) The Tribunalor a court shall not find that a requirement, qualification or factor isreasonable and bona fide in the circumstances unless it is satisfied thatthe needs of the group of which the person is a member cannot beaccommodated without undue hardship on the person responsible foraccommodating those needs, considering the cost, outside sources offunding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed bythe regulations for assessing what is undue hardship. The complainantdescribes section 11 as a provision which protects against thediscriminatory effects of an otherwise neutral factor.

[49] Discrimination is not defined in the Code, however, it has been consistently

defined by the Tribunal and the Courts to mean adverse treatment, or a distinction

which creates a disadvantage, on the basis of a prohibited ground (Ontario (Human

Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R.

536 (OMalley); Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.),

[1989] 1 S.C.R. 143 (Andrews);Moore v. British Columbia (Education), 2012 SCC 61.

[50] In Shaw v. Phipps, 2012 ONCA 155, the Court of Appeal re-stated the long-

standing principle from the decision of the Supreme Court of Canada in OMalley, that

the onus rests on the complainant to establish a prima faciecase of discrimination: one
http://www.canlii.org/en/ca/scc/doc/2012/2012scc61/2012scc61.htmlhttp://www.canlii.org/en/ca/scc/doc/2012/2012scc61/2012scc61.htmlhttp://www.canlii.org/en/ca/scc/doc/2012/2012scc61/2012scc61.html


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which covers the allegations made and which, if they are believed, is complete and

sufficient to justify a verdict in the complainants favour in the absence of answer from

the respondent.

[51] Section 11 defines the respondents burden as proof that the factor in issue is

reasonable and bona fide in the sense that the individual cannot be accommodated

short of undue hardship. If the respondent is unable or unwilling to establish such a

justification, the Tribunal will find a breach of the Code and order an appropriate

remedy.

[52] I have found that the complainant in this case has failed to demonstrate the

necessary elements for a finding of discrimination under section 11. As a result, thefocus of my reasons is on this aspect of the analysis and I have not found it necessary

to consider whether the respondent has proven that its actions were reasonable and

bona fide.

Discrimination

[53] A finding of discrimination requires proof of three elements: identification with a

prohibited ground; adverse treatment or disadvantage; and a connection between thedisadvantage and the ground alleged.

A Group of Persons Identified by a Prohibited Ground

[54] In most cases, Mr. Addais self-identification with the prohibited grounds he has

relied upon would be sufficient to establish the first stage of a discrimination analysis.

However, in this case, he relies upon section 11 which requires him to prove that he is a

member of a group of persons identified by a prohibited ground. The group identified by

Mr. Addai is racialized persons who are owners of Ambassador licences.

[55] Despite my finding that the Ambassador licence owners are predominantly

racialized, I do not believe that this leads directly to the conclusion that a group of


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racialized taxi owners constitutes a group of persons identified by a prohibited ground

for the purpose of section 11. I am required to read section 11 in a manner which is

consistent with the underlying purpose of the Code, namely, the elimination of those

distinctions and disadvantages which are connected to personal characteristics such as

race. The group affiliation in this case appears to be based on occupation rather than

race and ethnicity. I am aware of the potential for that to be considered a rather

specious distinction. For many years women lived with a similar assumption that the

deprivation of maternity benefits did not affect them as a group defined by gender

because the men in their workplaces were treated in exactly the same way.

[56] The difference here is demonstrated by the complainants own argument that the

racial and ethnic composition of taxi owners has changed with shifting immigrationpatterns over many years and the complainant seeks to compare himself to others who

were new immigrants at a different time. The complainant argues that snapshots of the

taxi industry, taken at different moments in time, reveal a different racial and ethnic

composition among those who own licences. To take that argument to its logical

conclusion, unlike the connection between women and pregnancy, the racial and ethnic

composition of the taxi industry has been shown to be constantly changing and

therefore there is no telling what the racial and ethnic composition of taxi owners will be

in the future.

[57] The argument advanced by Mr. Addai is unique: regardless of the shifting racial

and ethnic composition of the taxi industry, his reality is, that at the moment in time

when the Ambassador program was introduced, he was part of a group of taxi owners

who were predominantly racialized. To find against Mr. Addai at this stage may

constitute an unduly restrictive interpretation of the Code. In addition, what is really at

issue here is the lack of connection between the alleged disadvantages of the

Ambassador licences and the prohibited grounds Mr. Addai has relied upon. For those

reasons, I have determined that it is prudent to proceed with the analysis as if Mr. Addai

meets the first requirement of section 11, which is to prove that he is a member of a

group of persons identified by the prohibited grounds of race, colour and place of origin.


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Disadvantage

[58] With respect to the issue of disadvantage, the respondent disputed that the

Standard licences were superior to the Ambassador licence, pointing to the fact that

without the Ambassador program, most if not all of the approximately 1400 Ambassador

owners would never have had the opportunity to become owners of their business. They

are also in a position to dictate their own hours of operation without being tied to shifts

that are determined by the Standard owners from whom they once leased a taxi and to

whom they would have paid fees.

[59] I must raise yet another caution here about comparisons between Ambassador

and Standard licences. There have been other options for those who chose to becomeAmbassador licence owners. The Accessible licence owner must invest in equipment

which is specially designed to service disabled people, however, that licence permits

multiple drivers. Standard licences may be purchased by any individual taxi owner.

While Mr. Addai testified that the cost was prohibitive, there was no evidence from

which I could draw the inference that the group of racialized taxi owners that Mr. Addai

represents cannot, because of their race or ethnicity, afford to make the investment

required to purchase a Standard licence.

[60] However, I agree with the complainant that despite the benefits of ownership, on

balance, the Standard licence has benefits associated with it which make it more

lucrative, more flexible and contribute to a greater sense of security for taxi owners

particularly in times of illness and with respect to their ability to build an investment for

their retirement. I agree that on a strict comparison between the benefits of an

Ambassador licence and a Standard licence, it is a disadvantage not to be able to

transfer the Ambassador licence or hire a second driver.

Connecting the Prohibited Grounds to the Disadvantage

[61] The complainant denies that in the context of a section 11 complaint he is

required to demonstrate a connection between the disadvantage he is experiencing and


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the prohibited grounds alleged or that if such a link is required, it is implicit in these

circumstances. This connection is variously described by Courts and Tribunals using

words and phrases such as because of or link or nexus. The complainant contends

that under section 11, his burden is discharged by proof of some form of exclusion

which is being experienced by a group of predominantly racialized taxi owners.

[62] The complainant argues that support for this position may be found in the

decision in Hogan v. Ontario (Minister of Health and Long-Term Care), [2006]

O.H.R.T.D. No. 34 at paragraphs 97 and 98:

Section 11 is unique to Ontario. What the Legislature states in section 11is this: if one introduces a rule that is neutral on its face, as long as it has

an adverse impact on an individual or group who are identified by aprohibited ground and of whom the individual or group is a member, thereis an infringement of the corresponding right: constructive discrimination ifyou will. Thus to establish a prima facie case, the complainant need onlyshow that he or she falls within a prohibited ground, and sustainedadverse impact by the requirement. If the complainant does so, the burdenshifts to the respondent

Section 11 has two unique features, which are significant. First, and moresignificantly, it presumes that there is an abridgement of ones rightprotected under any ground under Part I of the Code, subject to specific

qualifications, where a requirement is neutral on its face, but has anadverse impact on an individual or group identified by a prohibited ground.Second, the effect is that it forgoes the traditional way to establishdiscrimination of any right protected under Part I.

[63] The complainant also relies on the decision in Kearney v. Bramalea Ltd., [1998]

34 C.H.R.R. D/1 Ont. Bd. Inq. (Kearney),for the same proposition.

[64] I disagree that either case supports the complainants argument. The findings in

relation to section 11 were made in both of those cases where the complainantsdemonstrated that the prohibited grounds they relied on explained in part why an

otherwise neutral rule created a disadvantage for them. In Kearney, for example, the

complainants were able to connect their sex, marital status, citizenship, place of origin,

family status, and age to the disadvantages they experienced when a rent-to-income

ratio was applied to deny them housing. The Board heard extensive evidence about the


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relationship between the prohibited grounds and the application of a rent-to-income

ratio. The Board found that women, single mothers, refugees, immigrants, and people

receiving social assistance were disproportionately represented among those with lower

incomes who are excluded from accommodation by the application of income criteria.

To apply the reasoning this case, Mr. Addai would need to prove that there is some

connection between the race and ethnicity of the taxi owners he represents and the

disadvantages associated with the Ambassador licences, or the inability of those

owners to purchase a Standard licence.

[65] The complainants interpretation of Hogan in particular, leads to the argument

that there is a different, arguably lower threshold, for a complainant in proving a case of

constructive rather than direct discrimination. I would reject that argument for a numberof reasons.

[66] First, such an interpretation is inconsistent with the decision of the Supreme

Court of Canada in British Columbia (Public Service Employee Relations Commission)

v. British Columbia Government Service Employees' Union, [1999] 3 S.C.R. 3, 1999

SCC 48 (Meiorin), where the Court eradicated the analytical distinctions between

direct and constructive discrimination.

[67] Second, it would be inconsistent with the decision of the Court of Appeal in

Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593

(Tranchemontagne), because it would shift the burden to the respondent to disprove

discrimination. That would be particularly problematic in this case since the explicit

wording of section 11 limits the burden on the respondent to proving that its actions

were bona fideand justified.

[68] Third, all three social areas alleged to be engaged by this complaint - services,

employment and contracts - protect the right to equal treatment without discrimination

because ofthe prohibited grounds of, race, colour, ethnic origin and place of origin.
http://www.canlii.org/en/ca/scc/doc/1999/1999scc48/1999scc48.htmlhttp://www.canlii.org/en/ca/scc/doc/1999/1999scc48/1999scc48.htmlhttp://www.canlii.org/en/on/onca/doc/2010/2010onca593/2010onca593.htmlhttp://www.canlii.org/en/on/onca/doc/2010/2010onca593/2010onca593.htmlhttp://www.canlii.org/en/on/onca/doc/2010/2010onca593/2010onca593.htmlhttp://www.canlii.org/en/ca/scc/doc/1999/1999scc48/1999scc48.htmlhttp://www.canlii.org/en/ca/scc/doc/1999/1999scc48/1999scc48.html


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[69] Fourth, the Codemust be interpreted in light of the interests that it was designed

to protect. I do not disagree with the complainant that his circumstances are compelling

and that historically one is likely to find discrimination where groups of people who

identify with a prohibited ground are experiencing some form of adversity. I note that the

complainant relies on the often quoted passage from the Abella Report (quoted in

C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at para. 34)

which makes reference to the connection between the disadvantage and the ground:

Discriminationmeans practices or attitudes that have, whether by designor impact, the effect of limiting an individuals or a groups right to theopportunities generally available because of the attributed rather thanactual characteristicsIt is not a question of whether this discrimination ismotivated by an intentional desire to obstruct someones potential, or

whether it is the accidental by-product of innocently motivated practices orsystems. If the barrier is affecting certain groups in a disproportionatelynegative way, it is a signal that the practices that lead to this adverseimpact may be discriminatory.

[70] In Andrews, McIntyre J. also addressed the issue of connection:

In simple terms, then, it may be said that a law which treats all identicallyand which provides equality of treatment between "A" and "B" might wellcause inequality for "C", depending on differences in personal

characteristics and situations. To approach the ideal of full equality beforeand under the law -- and in human affairs an approach is all that can beexpected -- the main consideration must be the impact of the law on theindividual or the group concerned. Recognizing that there will always bean infinite variety of personal characteristics, capacities, entitlements andmerits among those subject to a law, there must be accorded, as nearly asmay be possible, an equality of benefit and protection and no more of therestrictions, penalties or burdens imposed upon one than another. Inother words, the admittedly unattainable ideal should be that a lawexpressed to bind all should not because of irrelevant personal differenceshave a more burdensome or less beneficial impact on one than another.

[71] The key observation from that passage, in my view, is the phrase a law

expressed to bind all should not because ofirrelevant personal differences have a more

burdensome or less beneficial impact on one than another. In Andrews, the connection

is more obvious because the barrier is directly and explicitly connected to the irrelevant

personal characteristic of citizenship. Nevertheless, in my view, that connection must


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also exist in cases of constructive discrimination. In other words, the impact on Mr.

Addai and other racialized men in the taxi-industry has to be, at least in part, because of

irrelevant personal differences in race and ethnicity. It is not sufficient to demonstrate

that a group of racialized taxi drivers is experiencing adverse consequences as a result

of changes to the structure of the taxi industry without making that connection.

[72] I have considered Mr. Addais arguments and the issue of connection from a

number of different perspectives. For example, there are circumstances which are so

inextricably bound up with a prohibited ground that they made be said to be a proxy for

that ground. In pregnancy cases it is not a defence to an allegation of sex discrimination

that a woman was denied benefits on the basis of pregnancy. Pregnancy and sex are

so inextricably bound up together that denying a service to a woman because ofpregnancy is synonymous with denying a service on the basis of sex. In my view, the

complainant cannot make out the connection between the prohibited grounds alleged

and the disadvantage he experiences on this basis. His work as a taxi owner is not so

inextricably bound up with his race, colour, ethnic origin and place of origin that any

disadvantage he experiences as a taxi driver is synonymous with disadvantage on the

basis of those personal characteristics.

[73] Second, Mr. Addai places considerable emphasis on the fact that a

disproportionate number of taxi owners with Ambassador licences are racialized. If the

respondent continued to issue both Standard and Ambassador licences, and a

disproportionate number of racialized taxi drivers received the Ambassador licence as

compared to the Standard licence owner, it is possible that discrimination would be a

factor in those circumstances. This situation is, in my view, what was referred to in the

Abella Report as a signal that the practices that lead to this adverse impact may be

discriminatory. However, in this case, the respondent has stopped issuing Standard

licences all together which is another reason that comparison between the two groups is

problematic.

[74] Third, although I make no findings in relation to this issue and raise it only for the

purpose of demonstrating the lack of connection between the Ambassador licences and


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the grounds of race and colour, the prohibition against a second driver is a factor which

is arguably discriminatory on the basis of disability. In that case, a seemingly neutral

prohibition against a second driver may have adverse consequences for a person

because of their disability. A Tribunal would then be required to consider the

respondents evidence, including the fact that an exemption from driving due to illness

or vacation has existed since 2003. In this case, Mr. Addai is unable to make the kind of

connection to the prohibited grounds he has relied on that one might arguably make

with respect to disability.

[75] These findings should not be taken to preclude the possibility that a group of

people who are working in an occupation which is so notoriously tied to a prohibited

ground and questionable working conditions that the Tribunal would be compelled totake judicial notice of the connections between the ground, the occupation and the

disadvantages experienced by the complainants. Fundamentally, Mr. Addai argues that

he is a member of a group of racialized people who have been of deprived of the

benefits of a Standard licence by the respondent. However, he acknowledges that there

is no entitlement to the continuation of the pre-1998 taxi licence regime. There was

insufficient evidence from which I could draw the inference that the financial

circumstances of people who come from different countries and choose to become taxi

owners, are so notorious that I could take judicial notice of the fact that it is their

personal characteristics which render the Standard licences prohibitive.

[76] Mr. Addai is a person of colour from Ghana who chose to become a taxi driver in

1989 and to become an owner in 2003. In the intervening period between those two

events in his life, the respondent decided to change the taxi licence regime. The fact

that there were a significant number of racialized people seeking a taxi owners licence

after 1998 is not sufficient to demonstrate that they were denied the benefits of a

Standard licence because of race, colour, ethnic origin or place of origin.

[77] Even if I were to accept the complainants arguments about the historical

evolution of the taxi industry, what it establishes is that before 1998, there was no

barrier to racialized people receiving Standard licences. The only barrier to receiving a


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new Standard licence before 1998 was the declining rate at which they were being

issued, for which there is also no evidence of a connection to race, colour, ethnic origin

or place of origin. After 1998, the barrier to receiving a newly issued Standard licence

was imposed equally on anyone applying for a taxi owners licence. In order to establish

discrimination Mr. Addai and the group of racialized men he represents, must prove that

they are adversely affected by this seemingly neutral rule because of their race, colour,

ethnic origin or place of origin. They have not done so and as a result, I must find that

the decision to stop issuing Standard licences and begin issuing Ambassador licences

is not discriminatory.

[78] Taxi drivers like Mr. Addai voluntarily applied to become owner/operators under

the new Ambassador program. However, Mr. Addai testified that he is demoralized bywhat he described as an industry replete with unfair working conditions, including the

fact that he works side by side with people who hold licences with the potential for

income protection when they are ill and security in their retirement. Mr. Addai appeared

before this Tribunal with tremendous dignity and in good faith. However, I cannot find

that the disadvantages described by Mr. Addai can be remedied by this Tribunal.

[79] I wish to extend my thanks to counsel for both parties for their professionalism

throughout the hearing of this matter and to the participants who gave generously of

their time to assist me in these deliberations.

[80] The Complaint is dismissed.

Dated at Toronto, this 3rd day of December, 2012.

__________________________________Leslie ReaumeVice-chair

2012 hrto 2252 addai final 03-dec-2012

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