HUMAN RIGHTS TRIBUNAL OF ONTARIO

______________________________________________________________________ B E T W E E N: Asafo Addai Complaint -andCity of Toronto Respondent ______________________________________________________________________

DECISION
______________________________________________________________________ Adjudicator: Date: File Number: Citation: Leslie Reaume December 3, 2012 HR-1715-08 2012 HRTO 2252

Indexed as: Addai v. Toronto (City) ______________________________________________________________________

APPEARANCES ) ) ) ) ) ) ) )

Asafo Addai, Complainant

Peter Rosenthal and Reni Chang, Counsel

City of Toronto, Respondent

Antonella Ceddia and Amy Murakami, 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 complainant’s allegations relate to the following two 3

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 licence owner, 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 respondent’s 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 70 Ambassador 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, 4

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 1980’s 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 put himself 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 1980’s 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 1980’s 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 to

discrimination. [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 5

owner licence were discussed at the hearing, these two distinctions were the focus of the complainant’s allegations. [13] The complainant’s 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 selfidentify as racialized. This group was referred to at times as Caucasian or people of European 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 investments protected. [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 6

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 the legal 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 Code and 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 complainant’s allegations of discrimination on a

number of bases apart from the lack of connection between the respondent’s 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 complainant’s 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 7

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 respondent’s 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 8

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 as many 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 9

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 1950’s. In the early 1960’s,

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 respondent’s point that approximately 1400 individual drivers have been able to become taxi 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 driver’s 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 owner’s 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. Robertson’s, that an increasing number of taxi cab drivers are people of colour. [36] During the course of the hearing I determined that the respondent’s 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 complainant’s 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 year 2010; • 1762 pictures and names of Standard licence owners from 2010; and

• 1363 pictures and names of Standard licence owners from the year 1998. [37] The parties were unable to agree on one expert and as a result the complainant

obtained his own experts to analyze the respondent’s records. The respondent retained an expert to critique the methodology of the complainant’s experts. Concerns were raised by the respondent, with which I agreed, about the necessity of the complainant’s proposed expert witnesses. In the end, the complainant withdrew his experts in favour of the Tribunal receiving the respondent’s evidence and drawing its own conclusions. 12

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 European descent among Standard Licence owners than among the Ambassador licence owners; • While there are many people of colour among the Standard licence owners, 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 Ambassador licence owners; • While the Ambassador owners are predominantly racialized men, there is insufficient evidence to conclude that the Standard licence owners are predominantly 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 immigration patterns 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. In the 1940’s and 1950’s many Jews drove taxicabs. In the 1950’s, a large number of Hungarians and other Eastern Europeans were issued plates. In the 1960’s, a large number of Greeks entered the taxi industry and were eventually issued plates. In the 1970’s, people from the Middle East began driving taxis. By the 1980’s there were large numbers of drivers from various parts of India, Sikkim and Pakistan. By the later 1990’s there were many 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 respondent’s materials as well as the testimony of Bruce 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. 14

[44]

Part of the complexity associated with the complainant’s 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 owner’s 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 day after 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 Code contains 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 Code must 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 Code which states: A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination 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 discriminate because of such ground is not an infringement of a right. (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. (3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. The complainant describes section 11 as a provision which protects against the discriminatory 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 (“O’Malley”); 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 O’Malley, that the onus rests on the complainant to establish a prima facie case of discrimination: “one 16

which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of answer from the respondent.” [51] Section 11 defines the respondent’s 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, the focus 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 the disadvantage and the ground alleged. A Group of Persons Identified by a Prohibited Ground [54] In most cases, Mr. Addai’s 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 complainant’s own argument that the

racial and ethnic composition of taxi owners has changed with shifting immigration patterns 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 become Ambassador 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 11 is 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 a prohibited ground and of whom the individual or group is a member, there is an infringement of the corresponding right: constructive discrimination if you will. Thus to establish a prima facie case, the complainant need only show that he or she falls within a prohibited ground, and sustained adverse impact by the requirement. If the complainant does so, the burden shifts to the respondent… Section 11 has two unique features, which are significant. First, and more significantly, it presumes that there is an abridgement of one’s right protected under any ground under Part I of the Code, subject to specific qualifications, where a requirement is neutral on its face, but has an adverse impact on an individual or group identified by a prohibited ground. Second, the effect is that it forgoes the traditional way to establish discrimination 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 complainant’s argument. The findings in

relation to section 11 were made in both of those cases where the complainants demonstrated 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 20

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 complainant’s 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 number of 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 fide and 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 of the prohibited grounds of, race, colour, ethnic origin and place of origin.

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[69]

Fourth, the Code must 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: Discrimination…means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a groups right to the opportunities generally available because of the attributed rather than actual characteristics…It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact 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 identically and which provides equality of treatment between "A" and "B" might well cause inequality for "C", depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law -- and in human affairs an approach is all that can be expected -- the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have 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 of irrelevant 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. Addai’s 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 of pregnancy 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 23

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 respondent’s 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 to take 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 owner’s 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 complainant’s 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 24

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 owner’s 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 by what 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 Reaume Vice-chair

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