Submissions July 7

8/4/2019 Submissions July 7

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Table of Contents

Part I Overview Page 1

Part II A Concise Statement of the Facts Page 2

A) Evidence that the replacing of Standard licences by Ambassador licenceshad the effect of excluding a disproportionate number of racialized taxidrivers from the benefits of Standard licences Page 6

A) Differential treatment of Standard licences and Ambassador licences Page 8

B) Promises made to Ambassador owners Page 11

Part III Issues and Argument Page 16

A) Which areas of discrimination are at issue?

Page 17

Services Page 17

Employment Page 18

Contract Page 20

B) Does the evidence establish constructive discrimination pursuant toSection 11 of the Human Rights Code? Page 20

C) What are the appropriate remedies?

Page 25

Eliminating the differences between Standard and Ambassador licences Page 26

Compensation for financial loss Page 28

Compensation for injury to dignity Page 29

Part IV Orders Requested Page 30



Part I Overview

1. The Complainant is one of the 1,400 owners of Ambassador taxicab licences issued

by the Respondent. There are approximately 3,455 taxicabs with Standard licences

that were issued by the Respondent. There are two primary differences between these

two kinds of taxicab licences. First, Standard licences can be sold on the open market

whereas Ambassador licences revert to the Respondent when the owners can no

longer use them. Second, Standard licences permit the licence owner to have the taxi

driven by any number of taxi drivers whereas Ambassador licences do not permit

anyone other than the licence owner to drive the taxicab. Thus Ambassador licences

generate less income and are much less valuable than Standard licences.

2. Most of the Standard licences were issued by the Respondent to people who were not

racialized. In 1998, the Respondent stopped issuing Standard licences and began

issuing Ambassador licences instead. At the time, the taxicab drivers who were

potential recipients of taxicab licences were overwhelmingly racialized. Thus the

Respondent’s decision to maintain the existing Standard licences but to issue only

Ambassador licences in the future created the present two-tier system in which a

disproportionate number of racialized people hold inferior licences. This action of the

Respondent resulted in constructive discrimination pursuant to the Human Rights

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Code, and the Complainant is a victim of that discrimination.

3. The Complainant requests an order that, within one year from the date of the order,

the Respondent be required to provide equal benefits to all taxicab licence owners by

eliminating the differences between Standard and Ambassador licences. The

Complainant further requests compensation in the amount of $160,000 for his loss

arising from the fact that he could not rent his taxicab to shift drivers for the eight

year period of his holding of an Ambassador licence. In addition, the Complainant

requests compensation in the amount of $50,000 for the injury to his dignity, feelings

and self-respect caused by the Respondent’s differential treatment of Standard

licences and Ambassador licences.

Part II A Concise Statement of the Facts

4. There are approximately 3,455 Standard licences and approximately 1,400

Ambassador taxicab licences in the City of Toronto.

Testimony of Bruce Robertson, Transcript of May 10, 2010, page 30, line 25;ibid., page 32, line 7.

5. The two essential differences between Standard and Ambassador taxicab licences are

that Standard licences can be transferred while Ambassador licences cannot, and that

Standard licence owners can have any number of drivers operating their taxicabs

while Ambassador taxis can only be driven by their owners.

Testimony of Richard Mucha, Transcript of June 7, 2011, page 114, line 24 to page 115, line 8.

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6. In the taxi industry, Standard licence holders are referred to as “owners” while the

derogatory term “permit holders” is often used to refer to Ambassador drivers.

Testimony of Asafo Addai, Transcript of May 12, 2010, page 19, line 9 to page 21,line 4.

7. The average sale price in 1993, 1998 and 2010 of a Standard taxicab licence was

approximately $50,000, $80,000 and $175,000, respectively.

Testimony of Bruce Robertson, Transcript of May 10, 2010, page 29, lines 11 to13; “ Average taxicab sale prices 1990 – Present ”, City’s Book of Documents,Volume 4, Tab 17.

8. In 1989, shift drivers paid $400 or $450 a week for the use of a taxicab for one 12

hour shift a day.

Testimony of Asafo Addai, Transcript of May 12, 2010, page 45, lines 14 to 21.

9. The Complainant, Asafo Addai, obtained an Ambassador licence in 2003 and has

operated an Ambassador taxicab since then.

Testimony of Asafo Addai, Transcript of May 12, 2010, page 28, line 1 to page 31,line 7.

10. The by-law changes of 1998, which introduced Ambassador licences, were based on

the conclusion that the best way to address the problems that had been identified in

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the taxi industry was to have owner-operated taxis. However, the changes only

addressed the problems partially: namely, they were addressed with respect to

Ambassador licences but not with respect to the Standard licences that were

grandfathered.

Testimony of Richard Mucha, Transcript of June 7, 2011, page 119, lines 3 to 19.

11. The Manager of Licensing Enforcement was unable to suggest any answer to the

question of why Ambassador licence holders should not be allowed to transfer their

licences to other owner-operators.

Testimony of Richard Mucha, Transcript of June 7, 2011, page 119, line 23 to page 128, line 7.

12. Prior to 1998, there were two waiting lists for new taxicab licences issued by the City;

there was an owner’s list and a driver’s list. The proportion of issues that were given

to owners and to drivers varied over the years.

Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 173, line 17 to page 174, line 11.

13. The requirements for a taxicab driver to place his name on the driver’s waiting list,

and to keep his name on the list, were the same after 1998, when the only licences

being issued were Ambassador licences, as they were before 1998, when Standard

licences were being issued.

Testimony of Glenn Steeves, Transcript of June 9, 2011, page 12, lines 11 to 19.

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14. The requirements for a taxicab driver to place his name on the driver’s waiting list

are: the driver must drive a taxicab on a full-time basis for three consecutive years

while having a taxicab driver’s licence and a provincial driver’s licence without a

lapse or suspension in that three-year period, the driver must not have been a taxicab

owner or partner or shareholder in a corporation in the preceding five years, the driver

must renew his taxicab licence on an annual basis and drive a taxicab on a full-time

basis.

Testimony of Glenn Steeves, Transcript of June 9, 2011, page 10, line 18 to page11, line 5.

15. The requirements for a taxicab driver to keep his name on the drivers’ list are: having

a taxicab driver’s licence in good standing, which includes having a provincial

driver’s licence, driving a taxicab on a full-time basis, and completing statutory

declaration forms that indicate who he works for, the income he earns, and verify that

he drives a taxicab on a full-time basis. Moreover, the driver must declare any other

income he earns from any source.

Testimony of Glenn Steeves, Transcript of June 9, 2011, page 11, lines 10 to 24.

16. The current annual renewal fee for Ambassador licences is “nine hundred dollars and

something” and the current annual renewal fee for Standard licences is $1200 or

$1300.


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17. There have not been any discussions at City staff level of whether something so

valuable as a Standard plate should require a higher renewal fee than the Ambassador

plate, which is of comparably much less value.

Testimony of Richard Mucha, Transcript of June 8, 2011, page 25, line 25 to page29, line 12.

Evidence that the replacing of Standard licences by Ambassador licences had the

effect of excluding a disproportionate number of racialized taxi drivers from the

benefits of Standard licences

18. John Duffy, the publisher of Taxi News, is an expert on Toronto’s taxi industry.

Testimony of Bruce Robertson, Transcript of May 10, 2010, page 65, lines 21 to25; Testimony of Richard Mucha, Transcript of June 8, 2011, page 57, lines 19 to25; Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 57, lines 20 to25.

19. Taxi ownership in Toronto reflects succeeding waves of immigration. In the 1940s

and 1950s many Jews drove taxicabs. In the 1950s, a large number of Hungarians and

other Eastern Europeans were issued plates. In the 1960s, a large number of Greeks

entered the taxi industry and were eventually issued plates. In the 1970s, people from

the Middle East began driving taxis. By the 1980s, there were large numbers of

drivers from various parts of India, Sikkim, and Pakistan. By the later 1990s, there

were many drivers from the Horn of Africa.

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“Immigration has always fueled taxi industry” by John Duffy, Taxi News, 7December 2009, Complainant’s Book of Documents, Volume 4, Tab Y.

20. Mr. Duffy’s description of the participation in the taxi industry of “waves of

immigration” is consistent with Sajid Mughal’s understanding.

Testimony of Sajid Mughal , Transcript of May 14, 2010, page 85, line 18 to page86, line 20.

21. From 1981 to the present time, more and more people of colour have been involved in

the taxi industry.

Testimony of Bruce Robertson, Transcript of May 10, 2010, pages 69 to 70;Testimony of Richard Mucha, Transcript of June 8, 2011, page 54, lines 12 to 22.

22. The last time that a Standard licence was issued by the City was in 1993.

Testimony of Bruce Roberston, Transcript of May 10, 2010, page 52, lines 5 to 24.

23. Very few Standard licences were issued by the City after 1982.

Testimony of Mark Dimuantes, Transcript of June 8, 2011, Page 144, Lines 4 to 8.

24. The holders of Ambassador licences are overwhelmingly racialized.

Pictures and names of Ambassador licence holders, Exhibit 12; Testimony of

Asafo Addai, Transcript of May 12, 2011, page 34, lines 4 to 7; Testimony of Sajid Mughal, Transcript of May 14, 2011, page 91, lines 10 to 14.

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25. The majority of Ambassador licence holders are from Pakistan, Somalia, Ghana,

Eritrea, Afghanistan, Iran, Lebanon, India, and Bangladesh.

Testimony of Sajid Mughal, Transcript of May 11, 2010, page 91, lines 15 to 25.

26. The Complainant, Asafo Addai, was born and raised in Ghana. Mr. Addai is a Black

man.

Testimony of Asafo Addai, Transcript of May 11, 2010, page 59, line 13; Ambassador licence holders picture of Asafo Addai, Exhibit 12; Vehicle Licence

Application Individual , Book of Documents of the City of Toronto, Volume 2,Tab 20.

27. The proportion of Ambassador licence holders who are racialized is significantly

greater than the proportion of Standard licence holders in 1998 who were racialized.

List of Standard plate holders 1998, List of Ambassador plate holders, Exhibit 12.

28. While the proportion of racialized people who owned Standard licences in 2010 is a

little higher then the proportion of racialized persons who owned Standard licences in

1998, it is still significantly less then the proportion of Ambassador licence holders

who are racialized. Moreover, those racialized people who obtained Standard licences

after 1998 had to buy them on the open market, as no new ones were issued by the

City after 1993.

List of Standard plate holders 2010, List of Ambassador plate holders, Exhibit 12.

B) Differential treatment of Standard licences and Ambassador licences

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29. When Ambassador owners have allowed their taxis to be driven by other drivers, they

have been charged in Provincial court.

Testimony of Bruce Roberston, Transcript of May 10, 2010, page 143, lines 3 to 7.

30. The by-laws require that a Standard plate owner “provide a motor vehicle” to any

person who leases the plate. The practice, however, is that the lessee purchases a

vehicle and puts it in the plate owner’s name. When it was put to the Manager of

Licensing Enforcement that “there is no reasonable interpretation of the word

‘provides’ that includes” this practice, he replied “I am not sure I concur with

‘reasonable interpretation’. You are asking me if the practice happens, and I have

confirmed it does.”

Testimony of Richard Mucha, Transcript of June 8, 2011, page 83, line 6 to page86, line 15.

31. With respect to this practice, the Director of Licensing Services in the Municipal

Licensing and Standards Division in the City of Toronto was asked by the presiding

Vice-Chair, “And if Mr. Rosenthal at some point suggested that that was sort of

playing fast and loose with the rules to benefit the Standard licence owners, what

would you say to that?” The witness replied, “I would say it is not the business of our

office to look into that.”

Testimony of Bruce Robertson, Transcript of May 10, 2010, page 100, lines 10 to16.

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32. There are taxis that are under contract to the TTC as part of the “WheelTrans

Contract”. The contract provides that the taxicabs must be owner-driven. In the fall of

2009 it came to light that a number of the taxis that are providing the service under

the contract are being driven by people other than the owners of the taxicabs. There

are even some Standard taxicabs owned by corporations that are doing this work. On

May 10th, 2010 this was still under investigation.

Testimony of Bruce Roberston, Transcript of May 10, 2010, page 137, line 7 to page 139, line 13; ibid., page 144, lines 11 to page 145, line 7.

33. On June 8th 2011, the Manager of Licensing Enforcement testified that he was aware

of the discovery in 2009 that there were a number of Standard licence holders that

were delivering the service through shift drivers and stated “We have an active

investigation which I am not prepared to comment on.”


34. Ambassador licencees must drive their taxicabs at least 36 hours per week. Standard

taxicab owners are not required to drive their taxicabs at all. Ambassador drivers can

be on the road up to a maximum of 12 hours per day. In 2003, the by-law was

changed to require that any new transfers of Standard plates had to be to licenced

taxicab drivers. However, even now there is no requirement that those who purchase

Standard licences must actually drive the taxicab at all.

Testimony of Richard Mucha, Transcript of June 7, 2011, page 72, lines 3 to 6; page 128, line 11 to page 130, line 15.

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35. There are about 1,000 corporations that own Standard licences. An Ambassador

licence cannot be owned by a corporation. The limited liability aspect of corporate

ownership could be an advantage as far as insurance. Getting insurance has been a

problem for Ambassador licence holders.

Testimony of Bruce Robertson, Transcript of May 10, 2010, page 162, line 8 to page 163, line 3.

36. Of the 3,455 Standard plates that were issued, only four of them are not in

commission. However, 70 of the 1,400 Ambassador plates that were issued have been

returned to the City.


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C) Promises made to Ambassador owners

37. At the meeting of City Council concerning the 1998 changes to the taxicab by-laws,

Mayor Mel Lastman stated, “What we are saying here is we wanna make sure the

driver, because the driver is only one driver; and this was a very important point with

me or within that we brought up and we discussed, was if the driver gets sick, what

happens to the car? What happens to his family? Ah, because there is no, there is

nobody to drive the car so we said they must have insurance that covers them so

they’re, while they’re sick, they are being paid. And we are trying, we are trying hard

to cover all aspects.”

Transcript of City Council meeting of November 26 and 27, 1998, pages 42 to 43.

38. The Complainant Asafo Addai attended the City Council meeting of November 26

and 27, 1998.


39. Mr. Addai took from the above statement by Mayor Lastman that there was going to

be a City funded program, or at least a City organized program, that would make sure

that drivers who were going to be Ambassadors would be provided for in the form of

a pension and a package.


40. Ambassador drivers cannot get their own insurance because it is not affordable.

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Testimony of Asafo Addai, Transcript of May 10, 2010, page 103, lines 8 to 16; Letter of February 12, 1999 to Wilma Walsh from Marlene O’Connor for

Sensible Insurance and Financial Services, Exhibit 6.

41. At the City Council meeting, Councilor Sandra Bussin asked, “Ok. My last question

is when I heard the Mayor’s remarks, there was a reference to the fact that there

would be a um disability coverage for a benefits package for the taxi drivers: but from

the reading of this actual motion, all that this is saying is that the ah Committee

looked at the possibility of that. I’d like to know ah whether in fact the um the

Commissioners had the opportunity to look at those costs because from what I can see

of that, it is a very costly endeavor. And the suggestion is that it’s a given. Is it a

given?” Mayor Lastman replied, “I don’t think it’s that costly. I don’t think it’s that

costly at all and I think it’s imperative. I think it’s really important because you’re

handing them a plate and you’re saying to them ‘no one else can drive that car:’ and

by saying no one else can drive that car, means that if they get sick, they have a heart

attack or something, there’s no income, and I think it’s very very important that the

family still be able to live and be able to get along. And you have to do it through

some type of insurance. I don’t know what the insurance cost. Ah, I don’t think it’s

that expensive for health insurance – particular, ah particularly if you’re in great

shape. And particularly if you live in Ontario and you have OHIP. Ah it covers most

of…well it doesn’t give you the….it covers your health, but it doesn’t cover your

income. And so this is just to cover your income, really.”

Transcript of City Council meeting of November 26 and 27, 1998, page 44.

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42. The Task Force that reviewed the taxi industry in 1998 recommended that the City

develop a driver-funded benefits package to include long term disability coverage and

spousal benefits. The City legal department subsequently determined that the City had

no authority to develop or administer such a program.

The City of Toronto Task Force to Review the Taxi Industry (1998),Recommended Reforms Status Reference Tables, Table A, Reference Number 34.5, Exhibit 1, Book of Documents of the City of Toronto, Volume 4, Tab 19.

43. The only alternative way of putting a benefits program into effect that was

investigated by City staff was that Ambassador licence holders be advised in the

training program that they were now independent businessmen and should be availing

themselves of employment insurance and other benefits.


44. City staff stopped investigating the possibility of benefits after Legal Services advised

(in 2002 or 2003) that it wasn’t within the City’s purview. The City of Toronto Act

was passed in 2006. It provided more powers to the City than the Municipal Act had.

City staff were asked by Committee to look at certain issues again due to those

powers.


45. There was no request for a report from staff regarding the issue of benefits for

Ambassador drivers after the passing of The City of Toronto Act .

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46. There was to be an annual review of the taxi industry after the introduction of

Ambassador plates. No such review has taken place from 1998 to the present day.

Testimony of Richard Mucha, Transcript of June 7, 2011, page 192, lines 9 to 13;Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 183, lines 6 to 13;The City of Toronto Task Force to Review the Taxi Industry (1998),Recommended Reforms Status Reference Tables, Table A, Reference Number 49.2, Exhibit 1, Book of Documents of the City of Toronto, Volume 4, Tab 19.

47. Those drivers who took Ambassador licences were expecting the City to review the

situation periodically from the point of view of seeing how they were faring in that

new kind of taxicab. Annual reviews might have increased the possibility of a re-

visitation of the question of eliminating the Standard plates after The City of Toronto

Act gave broader powers to the City.

Testimony of Bruce Roberston, Transcript of May 10, 2010, page 165, lines 6 to19.

48. Sajid Mughal has been driving a taxicab in Toronto since early 1992. He was elected

to the Taxicab Advisory Committee when it began in the year 2000. He was the

chairman of the Taxicab Advisory Committee for its last term.

Testimony of Sajid Mughal , Transcript of May 14, 2010, page 16, lines 13 to 16;ibid., page 49, lines 7 to 24; ibid., page 55, lines 6 to 17.

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49. There was a recommendation that an elected Taxicab Advisory Committee be

formed. A mandate was developed and elections were held in November 2000, but

the Taxicab Advisory Committee was disbanded in 2003.

The City of Toronto Task Force to Review the Taxi Industry (1998),Recommended Reforms Status Reference Tables, Table A, Reference Numbers18 to 23, Exhibit 1, Book of Documents of the City of Toronto, Volume 4, Tab19.

50. At the time it was introduced, Mr. Mughal liked and promoted the Ambassador

program. He found it very encouraging that a benefit package would be introduced.

Furthermore, it was indicated that one day the City would buy back the Standard

plates, making the industry a level playing field. Another very important

consideration was the indication that the City would make an arrangement that

Ambassador drivers could pick up fares from the airport.

Testimony of Sajid Mughal , Transcript of May 14, 2010, page 45, line 16 to page47, line 2.

51. Although there were discussions about the possibility of allowing Ambassador

taxicabs to pick up fares at the Lester B. Pearson International Airport, no access was

granted for Ambassador taxicabs.

The City of Toronto Task Force to Review the Taxi Industry (1998),Recommended Reforms Status Reference Tables, Table A, Reference Numbers13 (e) and 15 (2), Exhibit 1, Book of Documents of the City of Toronto, Volume4, Tab 19.

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Part III Issues and Argument

52. The Human Rights Code must be interpreted broadly so as to give effect to its

overarching purpose.

[In the preamble of the Code] we find enunciated the broad policy of the Codeand it is this policy which should have effect. It is not, in my view, a soundapproach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the wordsemployed. The accepted rules of construction are flexible enough to enable theCourt to recognize in the construction of a human rights code the special natureand purpose of the enactment…and give it an interpretation which will advanceits broad purposes. Legislation of this type is of a special nature, not quiteconstitutional but certainly more than the ordinary – and it is for the courts to seek

out its purpose and give it effect. The Code aims at the removal of discrimination.

Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 12.

53. There is a general requirement to construe human rights legislation expansively and

in a manner that advances the underlying purposes of the legislation.

Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 73.

A) Which areas of discrimination are at issue?

54. Mr. Addai’s claim of constructive discrimination is unusual because it falls within the

scope of each of three different social areas regulated by the Code: services,

employment and contract.

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55. While “services”, “employment” and “contract” are not defined in the Code, these

terms should be given a broad and liberal interpretation in a manner that gives effect

to the Code’s remedial purpose of removing discrimination.

Services

56. It has been held that “services” under the Code includes “something which is of

benefit that is provided by one person to another or to the public.”

Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 (CanLII) at para. 22.

57. In reaching that conclusion, the Tribunal noted the definition given to “service” in the

French Language Services Act, R.S.O. 1990, c. F.32, s.1, as follows:

“service” means any service or procedure that is provided to the public by agovernment agency or institution of the Legislature and includes allcommunications for the purpose.


58. The ability to own and operate a taxicab in Toronto is a benefit that the City grants to

taxicab licence owners. The City is authorized to regulate the taxicab industry in

Toronto and it does so by issuing licences under terms and conditions that it

determines and enforces. Without a valid licence from the City, no person can legally

own or operate a taxicab.

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59. Mr. Addai applied for and was issued an Ambassador taxicab licence in 2003. As

long as he meets certain ongoing requirements as determined by the City from time to

time, Mr. Addai is authorized to own and operate an Ambassador taxicab.

60. This service provided by the City to Mr. Addai gives him and other taxicab licence

holders the benefit of being able to own and operate an Ambassador taxicab.

Employment

61. Section 5 of the Code states that “every person has a right to equal treatment with

respect to employment”.

62. “[W]ith respect to employment” is carefully worded to include more than the

traditional employer and employee relationship. The Board confirmed this as follows:

Section 5(1) does not state that “no employer shall deny equal treatment to anemployee”. Indeed, there is no definition of “employment” in the Code. Rather,section 5(1) involves discrimination “with respect to employment”. “Equaltreatment with respect to employment without discrimination” includes morethan the traditional employer-employee relationship….An infringement of section 5(1) can occur between an employee and other persons who are not“employers” in the traditional sense.

Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON HRT) at page 9.

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63. It is submitted that an interpretation of the words “with respect to employment” in

Section 5 of the Code that includes all relationships where a person’s employment or

ability to work in a chosen profession is at stake would be consistent with the Code’s

purpose of ensuring that “each person feels a part of the community and able to

contribute fully to the development and well-being of the community and the

Province”.

Preamble of the Code.

64. Although taxicab licence owners and drivers are not technically employees of the

City, the City’s authority to regulate the taxicab industry gives the City some aspects

of control over the terms and conditions of employment of taxicab drivers and licence

owners that are similar to those that a traditional employer would have over the terms

and conditions of employment of its employees.

65. The City determines who can and cannot work in the taxicab industry as an owner or

a driver, and also largely determines the conditions of the work. As a result, any

failure by the City to administer the taxicab licensing system in a manner consistent

with the Code has far reaching consequences since the only recourse for victims of

discrimination would be to work outside Toronto or to change their profession.

Employment in the taxi industry in Toronto is entirely controlled by the City.

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Contract

66. Section 3 of the Code protects the right to contract on equal terms without

discrimination on protected grounds.

67. The City and Mr. Addai are in a contractual relationship whereby Mr. Addai gives

consideration in the form of money (i.e., application and renewal fees) and

compliance with applicable regulations (e.g. vehicle, training, etc.) in exchange for

the benefit of owning and operating a taxicab.

B) Does the evidence establish constructive discrimination pursuant to Section 11 of

the Human Rights Code?

68. Section 11 of the Code prohibits the “exclusion, restriction or preference of a group

of persons who are identified by a prohibited ground of discrimination” resulting

from a “requirement, qualification or factor.”

69. Canadian courts and tribunals have long recognized that an intention to discriminate

is not a necessary element in proving a claim of discrimination under human rights

legislation.

Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, at para. 13.

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70. The following passage is often quoted from the Abella Report:

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 opportunitiesgenerally available because of the attributed rather than actual characteristics. …

It is not a question of whether this discrimination is motivated by an intentionaldesire to obstruct someone’s potential, or whether it is the accidental by-productof innocently motivated practices or systems. If the barrier is affecting certaingroups in a disproportionately negative way, it is a signal that the practices thatlead to this adverse impact may be discriminatory.

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

71. Prior to 1999, all taxicab owner licences issued by the City were Standard taxicab

licences. The Respondent changed its by-laws in 1998 so that no additional Standard

licences would be issued after that date, existing Standard licences were

grandfathered, and the Ambasssador taxicab licence was created.

72. Standard taxicab licences are superior to Ambassador licences in many respects. The

primary advantages of Standard licences are that they are transferable for market

value and that they permit the taxicab to be driven by any number of drivers. In

particular, Standard taxicabs can be on the road 24 hours per day, 7 days per week.

Thus Standard taxicab licence owners obtain income by leasing or renting their

taxicabs to other people. In contrast, Ambassador taxicabs can be on the road up to a

maximum of 12 hours per day. When Ambassador taxicabs are not being driven by

their owners, no one else can drive them.

73. A Standard licence owner can be an “absentee” owner by having an agent, broker,

custodian or corporation maintain the requirements of the licence. This is not

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possible for Ambassador licence owners. Instead, Ambassador licence owners are

required to drive at least 36 hours per week.

74. The Standard licence is transferable and can be sold on the open market. Between

1993 and 1998, the market value of Standard licences increased approximately

$30,000 from $50,000 to $80,000. After the change in by-law in 1998 that prohibited

further issuances of Standard licences, the market value increased to approximately

$175,000 in 2010. In contrast, Ambassador licences have no underlying market value.

When an Ambasssador licence owner retires or dies, the licence is turned in to the

City.

75. The Task Force Report of 1998 shows that the City was aware of many problems

associated with the inferior qualities of the Ambassador class of licence and had plans

to mitigate the gap between licence owners of each class. However, many important

recommendations that would have improved the disadvantaged position of

Ambassador taxicab licence owners were not implemented.

76. The by-laws, policies and practices of the City have created a two-tier licensing

system that applies more restrictive and burdensome terms and conditions on

Ambassador licence owners.

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77. The proportion of Ambassador licences owned by racialized people in 2010 is

significantly greater than the proportion of Standard licences owned by racialized

people in either 1998 or 2010.

78. The higher proportion of racialized drivers in the Ambassador licence category shows

that the two-tier licensing system has made a distinction between racialized and non-

racialized people. The restrictive conditions and additional burdens faced by

Ambassador taxicab owners disproportionately impact racialized people.

79. Moreover, this distinction has added to the stigma experienced by racialized people.

In the taxi industry, Ambassador drivers are derogatorily referred to as “permit

holders” rather than owners.

80. The two-tier system effectively deprives racialized people of the opportunity to fully

participate in the taxi industry and compete on an equal basis with non-racialized

people.

81. The focus of human rights legislation is the achievement of substantive equality and

the claimant’s initial burden is met by showing a disadvantage (or adverse treatment)

based on a protected ground:

In the human rights context, in most instances, it will be evident that a prima faciecase of discrimination has been established based solely on the claimant’sevidence showing a distinction based on a prohibited ground that creates adisadvantage (in the sense of withholding a benefit available to others or imposinga burden not imposed on others). An inference of stereotyping or of perpetuatingdisadvantage or prejudice will generally arise based on that evidence alone.

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82. Discrimination in breach of human rights legislation has been found where a factor or

system of practices, rules and attitudes has disproportionately affected members of a

protected group. It was held that CNR had violated the Canadian Human Rights Act

by depriving equal employment opportunities to women, based on evidence showing

that the proportion of female blue collar workers at CN (0.7%) was less than the

proportion of female blue collar workers in Canada generally (13%).

C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at para. 10.

83. The use of rent/income ratios to deny rental housing to prospective tenants was found

to be constructive discrimination under the Code because it disproportionately

excluded protected groups. The elements of a prima facie case of constructive

discrimination pursuant to Section 11 of the Human Rights Code were held to be:

(a) Existence of the Factor….that the use of such a factor is a “requirement,qualification or factor” as those words appear in Section 11 of the Code.

(b) Effect of the Factor – that using the factor results in the “exclusion, restrictionor preference of a group of persons who are identified by a prohibited ground of discrimination.”

(c) Membership in the Protected Group – that the complainant…is a member of the group (or groups if applicable) referred to in clause (b) above.

Kearney v. Bramalea Ltd., [1998] O.H.R.B.I.D. No. 21, at para. 93

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84. In the present case, the factor is the Respondent’s creation of the two-tier system of

taxicab licences, the effect of the factor is that it results in the disproportionate

exclusion and restriction of racialized taxi drivers from the benefits of the ownership

of Standard licences, and the Complainant is a Black man who is a member of a

protected group and who has been so excluded.

85. To establish discrimination in a case where the Claimant makes a connection between

their identity and a prohibited ground and where the subject matter of the claim is

connected to the underlying purpose of the Code, it will be sufficient for the Claimant

to prove that they have been adversely affected on the basis of a prohibited ground by

an action of the Respondent.


86. In the present case, the Complainant is a racialized person who has been adversely

affected by being given an inferior licence as a result of the Respondent’s creation of

a two-tier taxicab licensing system that disproportionately disadvantages racialized

owners.

C) What are the appropriate remedies?

87. Upon a finding by the Tribunal that the Respondent has breached the Human Rights

Code, the Complainant seeks the following orders:

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a) An order that, within one year from the date of the order, the Respondent

be required to provide equal benefits to all taxicab licence owners by

eliminating the differences between Standard and Ambassador licences.

b) An order awarding compensation in the amount of $160,000 for his

financial loss arising from the fact that he could not rent his taxicab to

shift drivers for the eight year period of his holding an Ambassador

licence.

c) An order awarding compensation in the amount of $50,000 for the injury

to his dignity, feelings and self-respect caused by the Respondent’s

differential treatment of Standard licencees and Ambassador licencees

88. Section 45.2 of the Code gives this Tribunal wide discretion to make orders directing

parties to do anything that, in the opinion of the Tribunal, is required to promote

compliance with the Code in respect of the complaint and in respect of future

practices.

Eliminating the differences between Standard and Ambassador licences.

89. When an act that is found to be in breach of the Code is prescribed by legislation,

Section 47(2) of the Code provides the following:

Where a provision in an Act or regulation purports to require or authorize theconduct that is a contravention of Part I, this Act applies and prevails unless theAct or regulation specifically provides that it is to apply despite this Act.

90. The impugned City by-law does not provide that it applies despite the Code.

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91. Although the Tribunal cannot go so far as to strike down or invalidate legislation, this

does not mean that the Tribunal cannot make orders affecting the application of

legislation that is found to be in breach of the Code. If this were the case, Section

47(2) of the Code, which itself is an enactment of the Legislative Assembly of

Ontario, would be rendered meaningless.

92. The Tribunal has jurisdiction to order that an impugned provision be treated as

invalid for the purposes of the matter before the Tribunal. As was held with respect

to the application of the Canadian Charter of Rights and Freedoms to a matter before

a different administrative tribunal,

… a formal declaration of invalidity is not a remedy which is available to theBoard. Instead, the Board simply treats any impugned provision as invalid for the purposes of the matter before it.

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 at para17.

93. This issue was dealt with by the Human Rights Tribunal in a case in which it stated

that it would treat impugned provisions of the Coronor’s Act as invalid if it found that

such provisions were inconsistent with the Code. The Tribunal stated as follows:

What it can do, if it finds the legislation to be discriminatory, is to treat thechallenged provision as invalid for the purposes of the issue before it. This is thesame procedure that would be followed if the Tribunal concluded that a legislative provision before it was inconsistent with the Canadian Charter of Rights and

Freedoms. Specifically, it treats the challenged provision as invalid.


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94. This approach has been followed by this Tribunal in some recent cases.

Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 128 and Ball v. Ontario (Community and Social Services), 2010 HRTO 360at para. 172.

95. Until the City treats all taxicab licence owners equally, racialized persons will

continue to suffer from the economic disadvantage and social stigma that arise from

the distinctions created by the two-tier taxicab licensing system.

Compensation for financial loss.

96. Section 45.2(1) of the Code authorizes the Tribunal to order that a party who

infringed a right must make restitution to a party whose right was infringed.

97. If the Respondent had issued Mr. Addai a taxicab licence that was not inferior to the

Standard licences, Mr. Addai would have been able to drive his taxicab full-time and

also to generate additional income by renting his licence to shift drivers for periods

when he was not driving himself. There is evidence that shift drivers paid $400 to

$450 dollars per week in 1989 for the use of a Standard licence. Thus a very

conservative estimate of Mr. Addai’s direct financial loss is $160,000, which is

obtained by assuming lost income of $400 a week for 50 weeks per year (yielding

$20,000 per year) for the 8 years (thus totaling $160,000) during which Mr. Addai

held an Ambassador licence.

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98. The Complainant is not required to prove the loss with exact precision in order to

obtain damages. The Tribunal is required to do the best it can with the evidence.

Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at

para. 118.

Compensation for injury to dignity.

99. Pursuant to Section 45.2(1)1 of the Code, a party who infringes a right may be

ordered to pay compensation for injury to dignity, feelings and self-respect.

100. It has been held that compensation for injury to dignity is not a suitable remedy

for infringement of rights caused by legislation. Thus the Complainant is not entitled

to such compensation as a result of the two-tier system of taxicab licences.

Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at paras. 107 to 116.

101. However, the Complainant does submit that compensation for injury to dignity,

feelings and self-respect is an appropriate remedy for the Respondent’s differential

treatment of Ambassador owners. There is clear and convincing evidence that the

Respondent’s administration and enforcement of the by-laws gives benefits to

Standard owners, sometimes at the direct expense of Ambassador licence owners. In

particular, the requirement that WheelTrans services be provided by owner-driven

taxicabs would clearly benefit Ambassador owners. However, the evidence before the

Tribunal indicates that no action has been taken to stop Standard owners from

violating that requirement in the two and a half years that the Respondent has been

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aware of the violations. It is also clear that the Respondent does not enforce its own

by-laws with respect to the leasing of Standard of licences.

102. There is evidence of the Respondent’s failure to keep a number of promises and

commitments that were made to Ambassador owners, including the arrangement of a

benefits plan and an annual review of the taxi industry. It is submitted that the failures

to keep those promises have contributed to the injury to the dignity, feelings and self-

respect of the Complainant and other Ambassador owners.

103. Ambassador owners are derogatorily referred to as mere “permit holders” in the

taxi industry. It is submitted that the Respondent’s treatment of Ambassador owners

has contributed to the context that promotes such derogatory views.

104. It is therefore submitted that the Respondent’s actions other than the creation of

the two-tier system itself did injure the dignity, feelings and self-respect of the

Complainant and he therefore deserves monetary compensation for that injury.

Part IV Orders Requested

105. The Complainant respectfully requests the following orders:

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a) An order that, within one year from the date of the order, the Respondent

be required to provide equal benefits to all taxicab licence owners by

eliminating the differences between Standard and Ambassador licences;

b) An order awarding compensation in the amount of $160,000 for his

financial loss arising from the fact that he could not rent his taxicab to

shift drivers for the eight year period of his holding an Ambassador

licence;

c) An order awarding compensation in the amount of $50,000 for the injury

to his dignity, feelings and self-respect caused by the Respondent’s

differential treatment of Standard licencees and Ambassador licencees;

d) Pre- and post-judgment interest on the amounts awarded pursuant to sub-

paragraphs b) and c) above; and

e) Such further orders as this Tribunal may deem fit.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Dated at Toronto this 6th day of July, 2011.

Roach Schwartz & Associates688 St. Clair Avenue WestToronto, ON M6C 1B1

Peter Rosenthal (LSUC #33044O)

Reni Chang (LSUC #59476F)

Tel: (416) 657-1465Fax: (416) 657-1511

Solicitors for the Complainant

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