Table of Contents Part I Overview Part II A Concise Statement of the Facts Page 1 Page 2

A) 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 Page 6 A) Differential treatment of Standard licences and Ambassador licences B) Promises made to Ambassador owners Part III Issues and Argument A) Which areas of discrimination are at issue? Page 8 Page 11 Page 16

Page 17 Services Employment Contract Page 17 Page 18 Page 20

B) Does the evidence establish constructive discrimination pursuant to Section 11 of the Human Rights Code? Page 20 C) What are the appropriate remedies?

Page 25 Eliminating the differences between Standard and Ambassador licences Compensation for financial loss Compensation for injury to dignity Part IV Orders Requested Page 26 Page 28 Page 29 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 Respondents 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

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 Respondents 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.

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 to 13; Average taxicab sale prices 1990 Present, Citys 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

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 owners list and a drivers 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 drivers 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.

14. The requirements for a taxicab driver to place his name on the drivers waiting list are: the driver must drive a taxicab on a full-time basis for three consecutive years while having a taxicab drivers licence and a provincial drivers 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 page 11, line 5.

15. The requirements for a taxicab driver to keep his name on the drivers list are: having a taxicab drivers licence in good standing, which includes having a provincial drivers 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. Testimony of Richard Mucha, Transcript of June 8, 2011, page 25, lines 9 to 24.

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 page 29, 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 Torontos taxi industry. Testimony of Bruce Robertson, Transcript of May 10, 2010, page 65, lines 21 to 25; Testimony of Richard Mucha, Transcript of June 8, 2011, page 57, lines 19 to 25; Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 57, lines 20 to 25.

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.

Immigration has always fueled taxi industry by John Duffy, Taxi News, 7 December 2009, Complainants Book of Documents, Volume 4, Tab Y.

20. Mr. Duffys description of the participation in the taxi industry of waves of

immigration is consistent with Sajid Mughals understanding. Testimony of Sajid Mughal, Transcript of May 14, 2010, page 85, line 18 to page 86, 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.

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

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 owners 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 page 86, 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 to 16.

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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. Testimony of Richard Mucha, Transcript of June 8, 2011, page 97, lines 6 to 24.

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. Testimony of Asafo Addai, Transcript of May 12, 2010, page 27, lines 2 to 11.

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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 theyre, while theyre 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. Testimony of Asafo Addai, Transcript of May 11, 2010, page 97, lines 16 to 19.

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. Testimony of Asafo Addai, Transcript of May 10, 2010, page 101, lines 16 to 23.

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 OConnor 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 Mayors 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. Id 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 its a given. Is it a given? Mayor Lastman replied, I dont think its that costly. I dont think its that costly at all and I think its imperative. I think its really important because youre handing them a plate and youre 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, theres no income, and I think its 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 dont know what the insurance cost. Ah, I dont think its that expensive for health insurance particular, ah particularly if youre in great shape. And particularly if you live in Ontario and you have OHIP. Ah it covers most ofwell it doesnt give you the.it covers your health, but it doesnt 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. Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 162, line 18 to page 163, line 2.

44. City staff stopped investigating the possibility of benefits after Legal Services advised (in 2002 or 2003) that it wasnt within the Citys 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. Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 164, line 1 to page 165, line 2.

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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Testimony of Mark Dimuantes, Transcript of June 8, 2011, page 170, line 1 to page 171, line 5.

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 revisitation 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 to 19.

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 Numbers 18 to 23, Exhibit 1, Book of Documents of the City of Toronto, Volume 4, Tab 19.

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 page 47, 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 Numbers 13 (e) and 15 (2), Exhibit 1, Book of Documents of the City of Toronto, Volume 4, 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 Code and it is this policy which should have effect. It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactmentand give it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional 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. Addais 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 Codes 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 a government agency or institution of the Legislature and includes all communications for the purpose. Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 (CanLII) at para. 20.

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 an employee. Indeed, there is no definition of employment in the Code. Rather, section 5(1) involves discrimination with respect to employment. Equal treatment with respect to employment without discrimination includes more than 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 persons employment or ability to work in a chosen profession is at stake would be consistent with the Codes 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 Citys 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: Discriminationmeans practices or attitudes that have, whether by design or impact, the effect of limiting an individuals 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 someones 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. 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 nonracialized 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 claimants 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 facie case of discrimination has been established based solely on the claimants evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone.

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Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 39.

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, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination. (c) Membership in the Protected Group that the complainantis 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 Respondents 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. Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 45.

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 Respondents 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 Respondents 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 the conduct that is a contravention of Part I, this Act applies and prevails unless the Act 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 the Board. 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 para 17.

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 Coronors 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 the challenged provision as invalid for the purposes of the issue before it. This is the same 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. Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 (CanLII) at para. 30.

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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 360 at 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. Addais 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 Respondents differential treatment of Ambassador owners. There is clear and convincing evidence that the Respondents 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 Respondents 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 selfrespect 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 Respondents treatment of Ambassador owners has contributed to the context that promotes such derogatory views.

104.

It is therefore submitted that the Respondents 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 Respondents differential treatment of Standard licencees and Ambassador licencees; d) Pre- and post-judgment interest on the amounts awarded pursuant to subparagraphs 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 & Associates 688 St. Clair Avenue West Toronto, ON M6C 1B1 Peter Rosenthal (LSUC #33044O) Reni Chang (LSUC #59476F) Tel: (416) 657-1465 Fax: (416) 657-1511 Solicitors for the Complainant

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