1. This is the Complainants reply to the final submissions of the Respondent dated August 2, 2011.

It is organized corresponding to the issues as stated by the Respondent.

Issue 1: Complaint not within a social area protected by the Code

2. The parties are ad idem (see the Complainants submissions at paragraphs 52 and 53 and Respondents submissions at paragraph 86) that human rights legislation must be given a broad, liberal and purpose interpretation to ensure that its purposes are met. It is also agreed that statutes are to be interpreted in a manner that does not create absurd results.

3. The submissions of the Respondent to the effect that the complaint is not within any social area protected by the Code appear to lead to an obviously absurd result. The consequences of such an interpretation would be that the Respondent could explicitly discriminate on the basis of race with respect to issuing taxicab licences and still not fall within the purview of the Code. For example, the following method of assigning taxicab licences would, pursuant to the Respondents reasoning, not contravene the Code. Suppose that the City continued to issue both Ambassador and Standard licences and required applicants to state their race on the application form. If the applicant stated Caucasian, the application would be considered to be for a Standard licence but if the application contained any other 1

response, the application would be considered to be for an Ambassador licence. The Respondents reasoning would lead to the absurd result that a non-Caucasian who suffered from that discrimination would not be protected by the Code.

4. With respect to the Respondents assertion that the right to contract on equal terms is not engaged, the Complainant agrees, of course, with the Respondents submission (paragraph 89) that a by-law is not a contract. However, the Complainant is not alleging that the by-law itself constitutes a contract. The Complainant submits that the licence is a contract. The by-law merely stipulates the nature of the contract between the Complainant and the Respondent.

5. The Respondent relies on a case that held that a building permit is not a contract. But a building permit is very different from a licence to operate an Ambassador taxicab. The latter creates continuing reciprocal obligations on the parties: Mr. Addai must operate his taxicab in accordance with the by-law and other regulations and the City must enforce reasonable regulation of taxicabs and permit Mr. Addai to continue to operate as long as he fulfills his obligations.

6. The Respondent asserts (paragraph 91) that the Complainant agrees that the Citys taxicab business licensing by-law does not create an employment relationship between him and the Respondent. The Respondent claims that this follows from paragraph 64 of the Complainants submissions. What paragraph 64 of the Complainants submissions actually states is:

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 traditional employer would have over the terms and conditions of employment of its employees.

7. Thus the Complainants position is that the proper interpretation of the words with respect to employment in Section 5 of the Code encompasses more than a standard employer-employee relationship and, in particular, that it applies to the Respondents discrimination in the present case (as discussed in paragraphs 61 to 65 of the Complainants submissions).

8. The Respondent asserts (in paragraph 104) that a by-law is not a service. This is, of course, correct. This particular by-law describes the nature of the service provided to the Complainant. The discriminatory nature of that service is the basis of this complaint.

9. The Respondent asserts (in paragraph 107) that Mr. Addai approaches a licensing scheme as if it were a benefits-conferring scheme in the nature of the social assistance benefits . The actual position of the Complainant is expressed in paragraphs 56 through 60 of his submissions.

10. The Respondent submits (in paragraph 108) that no service has been denied to Mr. Addai. The Complainants submission is that the service provided to Mr. Addai, that of an Ambassador licence, is inferior to the service provided to 3

Standard licencees.

11. In the course of his testimony, Mr. Addai explained the personal difficulties he faced in getting his name on the drivers waiting list before 2000. The requirements for getting on and staying on the waiting list were the same when it was a list for Ambassador licences as they had been previously for Standard licences. However, by the time Mr. Addai successfully placed his name on the waiting list, Standard licences were no longer being made available.

12. In paragraph 109 of its submissions, the Respondent states that Mr. Addai could purchase a Standard licence on the open market. However, it is discriminatory to require him to pay a high purchase price when others were issued Standard licences for a small licensing fee.

Issue 2: No Jurisdiction to Rule on Bare Question of Whether Legislation Breaches The Code

13.

The Complainant is not asking the Tribunal to rule on such a bare

question. The Complainant is asking the Tribunal to find that his rights have been breached pursuant to the Code.

Issue 3: Has Mr. Addai made out a prima facie case of constructive discrimination?

14. The parties appear to agree that the Complainant has identified the two-tier system of taxicab licences as the neutral requirement, qualification or factor (see paragraph 128 of the Respondents submissions).

15. It is submitted that the Respondents submissions do not refute the Complainants claim with respect to constructive discrimination as stated in paragraph 84 of the Complainants submissions.

16.

Indeed, the Respondents submissions do not deal with constructive

discrimination as defined by the Code and as interpreted by the cases.

17. Of course, Ambassadors and Standards are not a prohibited ground (see paragraph 132 and 133 of Respondents submission). The prohibited ground is race.

18.

Of course, the date on which one begins a business is not a personal

characteristic for the purposes of Section 15 of the Charter (see paragraph 137 of the Respondents submissions); race is the personal characteristic at issue in the present case. Moreover, this complaint must be evaluated pursuant to the meaning of constructive discrimination under the Code rather than under Section 15 of the Charter.

19. The Respondents submissions (in paragraphs 136 and 146 through 158) assert that the Complainant has not identified a neutral requirement, qualification or

factor in the by-law, or the by-laws amendments, that has a discriminatory effect. The complaint is that the two-tier taxicab licensing system maintained by the Respondent, through its by-laws, as they have been amended from time to time, has a discriminatory effect on racialized people. The Complainant is not challenging any single provision in the by-law; it is the two-tier system that is being challenged, and the prime remedy being sought is its elimination.

20.

With respect to paragraph 142 of the Respondents submissions, it is true

that the Complainant must show a disproportionate impact on racialized persons. It is submitted that the evidence clearly shows such an impact. The Respondent further maintains that it must be shown that the disproportionate impact is because of their colour. It is submitted that there is no such requirement with respect to a claim of constructive discrimination pursuant to the Code. It may appear that the British Columbia Superior Court authority referenced by the Respondent offers some support for the Respondents proposition in the context of a claim under Section 15 of the Charter. It should be noted that Section 15 of the Charter has been subject to various interpretations by the Supreme Court of Canada. The case relied upon was at an earlier point in Charter jurisprudence, and there do not appear any other Charter cases that can be read as supporting this proposition. In any event, the proposition is not compatible with the definition of constructive discrimination under the Code.

21.

As other cases demonstrate, constructive discrimination under the Code

does not require that the complainant show that the discrimination is because of the prohibited ground. For example, 97. Section 11 is unique to Ontario. What the Legislature states in section 11 is this: if one introduces a rule that is neutral on its face, as long as it has an adverse impact on an individual or group who are identified by a prohibited ground and of whom the individual or group is a member, there is an infringement of the corresponding right: constructive discrimination if you will. Thus to establish a prima facie case, the complainant need only show that he or she falls within a prohibited ground, and sustained adverse impact by the requirement. If the complainant does so, the burden shifts to the respondent. 98. Section 11 has two unique features, which are significant. First, and more significantly, it presumes that there is an abridgement of ones right protected under any ground under Part I of the Code, subject to specific qualifications, where a requirement is neutral on its face, but has an adverse impact on an individual or group identified by a prohibited ground. Second, the effect is that it forgoes the traditional way to establish discrimination of any right protected under Part I. Hogan v Ontario (Minister of Health and Long-Term Care), [2006] O.H.R.T.D No. 34 at paragraphs 97 and 98.

22.

It is submitted that Kearney provides the most relevant and persuasive

analysis of constructive discrimination pursuant to the Code. The use of rent/income ratios to screen rental applications was held to constitute constructive discrimination because the ratios had a disproportional impact on the two protected groups consisting of recipients of social assistance and of youth. The discrimination was not suffered because of youth or being on social assistance; it was suffered because the protected groups were disproportionately impacted by the criterion of a rent/income ratio. Similarly, in the present case, racialized licence owners are disproportionately impacted by the two-tier licensing system. 23. With respect to paragraphs 109, 130 and 149 of the Respondents submissions, 7

the Respondent states that Mr. Addai could purchase a Standard licence on the open market. However, it is discrimination to require him to pay a high purchase price when others were issued Standard licences for a small licensing fee.

24. With respect to paragraphs 132 to 135, the prohibited ground is race, not Ambassadors or Standards, and the discrimination is that racialized people disproportionately hold inferior licences.

25.

With respect to paragraph 143 of the Respondents submissions,

legislation or other acts that disproportionately affect racialized persons may create constructive discrimination even if they have adverse effects on some white persons. The use of rent/income ratios in Kearney had the same effect on many housing applicants who were not members of protected groups, but the fact that it disproportionately affected applicants who were members of protective groups led to the finding of constructive discrimination. The requirement of a high school diploma in Griggs affected many white people, but the fact that it disproportionately affected Black persons made it discriminatory.

26. A neutral qualification or factor is one that appears, on its face, to have the same effect on individuals whether or not they are members of protected groups. Constructive discrimination results when such a factor disproportionately limits protected groups.

Issue: City Council is Under No Obligation to Keep Issuing Standards Forever

27.

With respect to paragraph 156 of the Respondents submissions, of course

the City need not keep issuing Standard licences and does have a right to change legislation. What the Code prohibits is the Citys creating and maintaining a twotier system that discriminates against racialized persons.

Issue: Tribunal Determines Whether Discrimination Has Occurred Contrary to the Code (at paragraph 161 of Respondents submissions)

28. With respect to paragraph 161 of the Respondents submissions, it is correct that the essence of the complaint as pleaded does not rely on the evidence with respect to Wheel-Trans or leasing, or whether the City has reviewed its by-law. The essence of the complaint is the two-tier licensing system. However, the unequal enforcement of regulations concerning Ambassador and Standard licences that emerged form the evidence at the hearing demonstrates bad faith on the part of the Respondent and exacerbates the inequities caused by the two-tier system.

29.

With respect to paragraph 162 of the Respondents submissions, of course

the Tribunals jurisdiction is restricted to determining whether discrimination has occurred contrary to the Code. The reasonableness of City Councils decisions must, however, be considered in determining whether or not the discriminatory impact of the two-tier system is permissible pursuant to Section 11(1)(a) of the

Code.

Issue 4: If Yes, Are the By-law Requirements Reasonable and Bona Fide?

30. In paragraphs 161 through 179 of its submissions, the Respondent asserts its position on the reasons underlying its decision to create the Ambassador class of taxicab licences. In paragraph 170, the Respondent states that the industry structure that resulted from absentee owners and passive investors was the source of the main problems; they were a detrimental link in the chain of participants.

31. However, in spite of the 1998 amendment to the by-law that was purportedly intended to address these problems, all of the approximately 3400 Standard licences that existed in 1998 remain in operation today. The 1400 Ambassador taxicabs that were subsequently created constitute less than a third of the taxicabs on the street. Every one of the absentee owners and passive investors in the taxi industry is a Standard licence holder.

32.

It is submitted that the Respondents failure to significantly address the

detrimental link, the Standard licences, demonstrates that the so-called reforms were neither reasonable nor bona fide.

33.

The two main differences between the Ambassador and Standard licences

are the limitation on Ambassador licences that there be no drivers other than the

10

licence-holder and that the licence cannot be transferred. It is true that the problem of absentee owners and passive investors is eliminated with respect to Ambassador licences. Moreover, the requirement that all drivers be owners might well have the positive effects that the City claims. However, it is not reasonable or bona fide to impose a requirement that does not allow an Ambassador licencee to employ another driver when he/she is ill, sleeping or on holiday without requiring it of at least most taxicabs. It is not reasonable to deal with a general problem in the industry by restricting less than one third of the taxicabs.

34. The restriction on the transferability of Ambassador licences is not rationally related to any of the objectives outlined in the Task Forces report or in the Respondents submissions. In paragraph 42 of the Respondents submission, the rationale provided for this distinction between Ambassador and Standard licences is said to be to ensure that only those who successfully complete the advanced driver training program are permitted to provide this service to the public. However, this objective could be met by simply requiring that a transfer of Ambassador licence could only be made to a person who had completed the advanced driver training course. Moreover, Standard licence owners are not required to complete the advanced driver training course. As a result of the difference concerning transferability, Standard licences are each worth approximately $175,000 (2010) on the open market while Ambassador licences are worth nothing.

11

Issue 5: Does the Tribunal have jurisdiction to Order the Remedy Sought?

35.

With respect to paragraph 182 of the Respondents submissions, the

Complainant has requested a general order requiring the Respondent to bring its taxi licensing scheme into compliance with the Code. In Ball and Hendershott, similar orders were made to remedy the breaches identified and to promote compliance with the Code in the future. Section 45(1)3 of the Code.

36. With respect to paragraphs 183 through 186 of the Respondents submissions, the Complainants bad faith emerged during the course of the hearing. It became apparent that the Respondents enforcement efforts were unequal; the Respondent turned a blind eye to violations of City by-laws by Standard licence owners while strictly enforcing such by-laws against Ambassador licence owners. It also became evident that the Respondent failed to fulfill promises that were made to Ambassador licence owners concerning the gradual elimination of Standard licences and the provision of benefits to Ambassador licencees. This evidence demonstrates bad faith in making the 1998 reforms and shows that the Respondents administration and enforcement of the by-laws has been discriminatory. This discrimination requires compensation for injury to dignity, feelings and self-respect in addition to remedying the two-tier system.

37.

With respect to compensation for direct loss arising out of the

12

infringement, the Respondent tries to distinguish Hendershott, saying (in paragraph 187) that that was a case of compensation where an infringement of the Code had deprived an individual of benefits that they otherwise would have been entitled to receive. (Respondents underlining.) It is submitted that the present case is virtually identical in that respect. The Complainant seeks damages for the loss of income he would have received had the Code not been infringed by providing him with an inferior licence. As in Hendershott, compensation for lost benefits is available pursuant to Section 45.2(1) of the Code. Moreover, contrary to the Respondents submissions (in paragraph 183), there is evidence that provides a sufficient basis for the Tribunal to estimate the Complainants financial loss see paragraph 97 of the Complainants submissions for an explanation of the amount of compensation sought based on evidence presented at the hearing.

38.

The Respondent asserts (in paragraph 188) that the Complainant is asking

the Tribunal to strike down legislation and re-write the by-law. The Complainant seeks an order requiring the Respondent to treat taxicab licence owners equally, as required by the Code. The Tribunal may allow the Respondent to determine an appropriate means for achieving that objective and/or may give the Respondent whatever direction it determines to be necessary. Pursuant to Section 45.2(1)3 of the Code, the Tribunal may make an order requiring the Respondent to do anything that the Tribunal determines ought to be done to promote compliance with the Code. It should be noted that, in Ball, the Tribunal did specifically order that certain health conditions be added to the special diet scheme.

13

39.

With respect to the Respondents paragraphs 194 and 195, Section 47(2)

of the Code gives primacy to the Code and evidences the legislatures intention to make all other laws subject to the Code. If the Code were to be interpreted in a manner that gives the Tribunal no remedial powers with respect to legislation, Section 47(2) would be meaningless. As acknowledged in the Respondents submissions (in paragraph 197), the Tribunal may treat challenged provisions as invalid for the purposes of the issue before it. The Tribunal did this in Hendershott, Ball and Hogan.

40.

The Respondent attempts (in paragraph 198) to distinguish Ball and

Hendershott by asserting that those cases concern benefits while this case concerns regulatory legislation. There is no basis for interpreting the reasoning in either Ball or Hendershott as restricted to benefits. In any event, the provision of a taxicab licence by the City to a driver on a waiting list should be construed as a benefit.

41. The Respondent describes the requested remedy as a wholesale change in the bylaw. The by-law regulating taxicabs is very extensive. The Complainant simply seeks a change that would eliminate the two-tier licencing system and thereby remedy the discrimination.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 26th Day of August, 2011.

14

ROACH, SCHWARTZ AND ASSOCIATES 688 St. Clair Ave. W. Toronto, ON M6C 1B1

Peter Rosenthal (LSUC# 33044O)

Reni Chang (LSUC # 59476F) Tel. 416 657 1465 Fax 416 657 1511 Solicitors for the Complainant

15