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Human Rights (Ont) - Standing. Lisikh v. HRTO
In Lisikh v. HRTO (Div Court, 2024) the Divisional Court considered, in a motion to extend time to file a JR under s.5 of the JRPA, a HRTO standing issue where a parent would not complete an HRTO form to "confirm the application was on behalf of a minor":[2] Mr. Lisikh’s application to the Tribunal was related to a summer education program provided at several Ontario school boards. Mr. Lisikh’s son was interested in the program. The program was described as providing opportunities to Canadian youth of Black and African-Canadian heritage. Mr. Lisikh’s son did not fall within this group. Mr. Lisikh alleged that the program was discriminatory because it was available to Black youth only.
[3] After receiving Mr. Lisikh’s application, the Tribunal sent a letter to Mr. Lisikh asking him to file a particular form to confirm the application was on behalf of a minor. Mr. Lisikh responded that he was not applying on behalf of his child.
[4] The Tribunal then sent a Notice of Intent to Dismiss letter to Mr. Lisikh explaining that the application did not identify any acts of discrimination within the meaning of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code). He was given a deadline to identify the alleged breaches and/or file a form to confirm he was applying on behalf of his child. In his response to this form, Mr. Lisikh identified the act of discrimination as offering the program to a particular race and not to other races. He again stated that the application was not on behalf of his child.
[5] The Tribunal dismissed the application without a hearing on two bases:(1) Mr. Lisikh did not have standing to bring the application. The Tribunal reasoned that Mr. Lisikh had confirmed in writing that he was not bringing the application on behalf of his child. He had not faced any form of discrimination himself and had no standing to bring an application as a public interest complaint.
(2) The summer program met the criteria of a special program under the Code and therefore was not discriminatory. ....
[9] With respect to standing, the Tribunal reasoned, pursuant to Carasco v. University of Windsor, 2012 HRTO 195, that there is no public interest standing under the Code. Applications must be brought by an individual alleging discrimination, by an individual on behalf of another person, or by the Ontario Human Rights Commission under s. 35 of the Code where it believes it to be in the public interest to do so. Mr. Lisikh confirmed he was not bringing the application on behalf of his son and the other options did not apply to him. The Tribunal’s reasoning on this point was transparent, intelligible, and justified: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 15. . Imperial Oil Limited v. Haseeb
In Imperial Oil Limited v. Haseeb (Ont CA, 2023) the Court of Appeal considered an HRC applicant's appeal (from a JR) where Imperial Oil challenged whether the HRC applicant (who won the case, but was not a citizen when they commenced it) had standing to file the HRTOapplication:[79] The tribunal noted the breadth of the right of standing codified in s. 34(1) of the Code. Section 34(1) of the Code provides: “If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2” (either within one year after the incident if it is a single incident, or within one year after the last incident, if it is a series of incidents).
[80] The substance of the tribunal’s holding on standing was as follows:The HRTO has repeatedly ruled that to have standing to bring an application under section 34(1) of the Code, an applicant need only allege that her or his Code rights have been infringed. It is clear on the face of the Application that the applicant has alleged that his right to be free from discrimination with respect to employment was engaged in his interactions with IO. The applicant is not a “public interest” applicant but is indeed a person whose interest was directly at stake and who alleged that he experienced discrimination on the basis of citizenship. [Emphasis in original.] [81] The tribunal referred to prior authority of the tribunal in support of assessing the appellant’s standing based on whether he had a direct interest at stake in the subject matter of the proceeding: Carasco v. University of Windsor, 2012 HRTO 195. The tribunal also noted that it is settled law in Ontario that job applicants enjoy the protection of the Code before they are formally employed because the wording in s. 5(1) “with respect to employment” has been interpreted to include pre-employment scenarios – that is, it covers discrimination in the job search process.
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(d) The tribunal’s decision on the appellant’s standing was reasonable
[87] I agree with the appellant that the tribunal’s analysis and conclusion regarding his standing were reasonable. The principles relied on by the tribunal to assess the appellant’s standing are consistent with the broad language of s. 34(1) of the Code, with prior jurisprudence of the tribunal on standing, and with the approach to direct interest standing (private standing) in the courts. The factual conclusions reached by the tribunal are well-grounded in the evidentiary record and are reasonable.
[88] As the tribunal noted, s. 34(1) of the Code provides for a broad grant of standing. Any person who “believes that any of his or her rights under Part I have been infringed” has standing to apply to the tribunal for a remedy. One could imagine scenarios where there is no factual basis for a person’s belief that their rights have been infringed, and on that basis the assertion of standing would be speculative. But that is not the case here.
[89] As noted above, the tribunal referred to its prior decision in Carasco regarding the principles governing standing under the Code. Carasco considered the three types of standing available under the Code. I will only address the type of standing under s. 34(1), as that is what is at issue in this case. Carasco held, in accordance with the wording of s. 34(1), that standing to bring an application under the Code is available to a person who believes that any of their rights under Part I have been infringed. Carasco notes that s. 45.2, which is referred to in s. 34(1), makes the tribunal’s authority (following a hearing) to award a remedy conditional on the tribunal finding an infringement of the rights of the party bringing the application. Thus, in order for an applicant to have standing to bring an application under s. 34(1), the application must assert a breach of the applicant’s rights under the Code, and seek a remedy for the breach of the rights. The analysis in Carasco focused on the importance of the claim being for the breach of the applicant’s own rights, as opposed to a claim in the nature of public interest standing (which under s. 35(1) of the Code, may only be brought by the Ontario Human Rights Commission).
[90] The “direct interest” analysis applied by the tribunal in this case is consistent with the approach in Carasco. The tribunal considered whether the applicant had a viable claim that his rights under the Code had been infringed by Imperial and sought a remedy for the alleged breach.
[91] The analysis of standing under the Code need not be identical to the approach taken by the courts in civil matters, particularly given the broad grant of standing in s. 34(1) of the Code. That said, the tribunal’s approach to standing in this case is consistent with established principles regarding direct interest standing in the courts.
[92] The test applied by the courts for private interest standing requires that the applicant or plaintiff have a personal and direct interest in the issue raised in the proceeding. The interest must not be too indirect, remote, or speculative. Various formulations of this requirement are used in the jurisprudence, including that the person is “specifically affected by the issue”, has a “personal legal interest”, or has a “personal and direct interest” in the outcome of the proceeding. This type of standing is often referred to as “direct interest” or “private” standing to distinguish it from public interest standing (the latter having different requirements): Canada (Minister of Finance) v. Finlay, 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at pp. 617-18; Bedford v. Canada, 2010 ONSC 4264, 102 O.R. (3d) 321, at paras. 44-47, aff’d on this point, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 50, rev’d in part on other grounds, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, 153 O.R. (3d) 385, at para. 33; Thomas A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986), at p. 5.
[93] The ultimate concern behind rules for private standing (as distinct from public interest standing) is that the party bringing the proceeding have a real legal interest in the proceeding that they are seeking to vindicate, rather than just a “sense of grievance”: Carroll, at para. 33; Landau v. Ontario (Attorney General), 2013 ONSC 6152, at paras. 16 and 21; Cromwell, at pp. 9-10.
[94] The tribunal reasonably found that the appellant had a real legal interest in the claim he made. The tribunal applied the direct interest test reasonably to the record before it. The tribunal considered the legal and factual issues raised by the application, asked whether the appellant had a direct interest in them, and found that he did. The evidence before the tribunal supported its findings that the appellant was a genuine job seeker; that upon graduation he would be entitled to a PGWP which would entitle him to work full-time, anywhere in Canada, for any employer, for up to three years; that he was anticipated to graduate in January 2015 (and in the event did); and that the expectation of both the appellant and Imperial was that he would commence work after he graduated (i.e., once he was permitted to work without restriction under the PGWP program). These findings support the conclusion that the appellant had a direct interest in the hiring policy of Imperial limiting prospective employees to Canadian citizens and permanent residents. The tribunal’s conclusion that the appellant had satisfied the requirements for standing under s. 34(1) of the Code is reasonable.
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