Brockie Case Factum

Court File No. 179/2000

DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE

BETWEEN:

ONTARIO HUMAN RIGHTS COMMISSION

Applicant (Respondent)

- and -

RAY BRILLINGER and
THE CANADIAN LESBIAN AND GAY ARCHIVES

Applicants (Respondents)

- and -

SCOTT BROCKIE and
IMAGING EXCELLENCE INC.

Respondents (Appellants)

- and -

THE CANADIAN CIVIL LIBERTIES ASSOCIATION and
CANADIAN RELIGIOUS FREEDOM ALLIANCE

Interveners

- and -

EQUALITY COALITION

Proposed Intervener

FACTUM OF THE PROPOSED INTERVENER

EQUALITY COALITION

(ON A MOTION SEEKING LEAVE TO INTERVENE)

PART 1 - The Nature of the Motion

1. This is a motion for intervention brought by the Equality Coalition, which seeks leave to intervene in this Appeal as a friend of the court pursuant to Rule 13.03. The Equality Coalition seeks leave to file a factum and to present oral submissions.

   PART 2 - The Facts

2. The issues to be addressed in this appeal encompass the interpretation and interaction of rights guaranteed by the Charter of Rights and Freedoms ("the Charter"), specifically freedom of religion, conscience, expression and association, and the right to be free from discrimination as provided for by the Ontario Human Rights Code ("the Code").

3. The appellants seek to create wide exceptions to the general protections afforded by the Code on the basis that their impugned activities are an exercise of Charter rights and freedoms and should be afforded protection by the law. In essence, the appellants seek to shelter what would otherwise be characterized as discriminatory actions under the protection of the Charter.

4. The Equality Coalition in this appeal is made up of the Canadian AIDS Society, the Canadian Association of Elizabeth Fry Societies, the Canadian Ethnocultural Council, the Coalition for Lesbian and Gay Rights in Ontario, the Council of Canadians with Disabilities, EGALE Canada Inc., Metropolitan Community Church of Toronto, the Minority Advocacy and Rights Council, the National Association of Women and the Law, the Toronto Chinese and Southeast Asian Legal Clinic, and the 2-Spirited People of the First Nations.

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 10

5. The Human Rights Code has been one of the most significant tools in moving toward equality for members of minority and historically disadvantaged groups. The members of the Equality Coalition are concerned that the wide exceptions for which the appellant advocates would lead to serious erosion in the equality rights that the Code gives members of all disadvantages communities and all Ontarians.

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, pages 10-11

6. Certain of the appellant's arguments could lead to the result that anyone could discriminate against groups that promote the rights and interests of individuals defined by protected grounds and the individuals who represent them.

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 11

7. The groups that have chosen to form the Equality Coalition determined that they had a common interest and stake in the outcome of this appeal. The Coalition seeks leave to appeal in order to share its knowledge and expertise and to seek to maintain the full protection of the Human Rights Code for members of equality communities and the groups that represent them.

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 11

8. EGALE was instrumental in developing a similar coalition, with substantially the same membership, which was granted intervener status in the Rosenberg case, heard by the Ontario Court of Appeal. The earlier coalition, also referred to as the "Equality Coalition", was able to provide assistance to the court in its deliberations on the issues in that case, namely the extension of surviving spouse pensions to the same-sex partners of gay and lesbian employees. EGALE functioned in a coordinating role in that earlier coalition, and would again function in that role in the current Equality Coalition.

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 11

9. Other significant cases in which members of the Equality Coalition have been involved include:

   Vriend v. Alberta, [1998] 1 S.C.R. 493

   Little Sisters Bookstore v. Canada, [2000] 2 S.C.R. 1120

   Re Ontario Human Rights Commission et al v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 56

   Andrews v. Law Society and British Columbia, [1989] 1 S.C.R. 143

   Rodriguez v. A.G. of Canada and A.G. B.C., [1993] 3 S.C.R. 519

   R. v. Latimer, [2001] 1 S.C.R. 3

   Terry Grismer v. British Columbia Council of Human Rights, [1999] 3 S.C.R. 868

   Robert Lovelace et al. v. the Queen, [2000] 1 S.C.R. 950

   Canada (A.G.) V. Mossop, [1993] 1 S.C.R. 554

   Egan and Nesbit v. Canada, [1995] 22 S.C.R. 513

   M. v. H. (1999), 43 O.R. (3d) 254 (S.C.C.)

   Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31

   Conway v. The Queen, [1993] 2 S.C.R. 872

   Schacter v. Her Majesty The Queen and Canada Employment and Immigration Commission et al. (1992), 93 D.L.R. (4th) 1

   Pitawanakwat v. Canada (Attorney General, Department of Secretary of State, Canadian Human Rights Commission) (1994), 43 F.T.R. 47

   R. v. Mankwe, [2000] C.S.C.R. no. 110

   Canada (Attorney General) v. Canada, [1993] S.C.R. 554

   Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

   New Brunswick (Minister of Health and Community Services) v. G.(J.), [1993] 3 S.C.R. 46

   Affidavit of John Fisher sworn September 14, 2001, Motion Record, pages 14, 21, 22, 23-24, 25, 26-28, and 33

10. Although the current Coalition represents a range of diverse communities, the member groups have a clear and consistent position to put before the Court, based upon the common interest of its members in providing the Court with an interpretative framework which will maintain the values underpinning the Human Rights Code and the Charter.

    Affidavit of John Fisher sworn September 14, 2001, Motion Record, pages 11-12

11. Each member of the Equality Coalition is a non-profit organization dedicated to the promotion of equality for members of disadvantaged groups, including gays and lesbians, persons living with AIDS, persons with disabilities, racial and religious minorities, women, and the poor.

    Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 12

12. Each member of the Equality Coalition has developed a special experience and unique perspective on discrimination and equality issues facing the communities that it represents. This includes expertise in the interpretation and application of sections 15 and 1 of the Charter and human rights legislation.

    Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 12

13. Many members of the Equality Coalition have conducted research and published papers on discrimination and remedies for discrimination in their communities. Many members have acted as advisors to government on these issues, and many have participated in litigation before a range of Courts and tribunals, including the Supreme Court of Canada, involving the Charter and other human rights instruments.

    Affidavit of John Fisher sworn September 14, 2001, Motion Record, page 12

14. The Equality Coalition seeks to intervene in the instant case in order to advance arguments in support of the Board of Inquiry decision and more specifically to advance arguments in support of the following propositions:

    1. The service provision sections of the Ontario Human Rights Code exist precisely to protect disadvantaged groups from being denied service because they are considered "detestable". If unpopular minorities could be denied service because the service-provider had a sincere objection to their race, religion, sexual orientation, disability, etc., the protections of the Human Rights Code would be meaningless.
       
       
    2. There is no meaningful distinction between denying service to members of a disadvantaged group and denying service to an organization representing members of a disadvantaged group. Individuals who have historically been disadvantaged have a right to freedom of association and will naturally seek to form organizations in community with others. Their ability to redress the very conditions of disadvantage which give rise to a need for legal protection under the Code will be substantially undermined if these groups can be targeted for discrimination.
       
       
    3. Similarly, there is no meaningful distinction between discriminating against members of a disadvantaged group based on their identity and discriminating against them based on conduct that flows from that identity. Accepting the Appellants' submissions on this point would be tantamount to according service-providers a licence to discriminate.
       
       
    4. If the Appellants' arguments in this case are accepted, denial of services to disadvantaged groups could become widespread, with a particularly deleterious effect on and in smaller communities in general and communities identified by prohibited grounds more specifically.
       
       
    5. A decision in favour of the Appellants would not enable a line to meaningfully be drawn in any context involving provision of services or facilities, and, arguably, accommodation and employment.
       
       
    6. The Human Rights Code does contain its own internal balancing mechanisms, and does permit service-providers to deny services in defined circumstances, where such a denial is consistent with the human rights values underpinning the Code or is necessary to protect group identity. When a service-provider provides services to the general public, however, it cannot start singling out protected groups for exclusion.
       
       
    7. Charter rights are generally subject to limitation once they begin to infringe on the rights and freedoms of others. The individual Appellant is free to exercise his religion in any way, both public and private, that does not limit the rights of others. Even within his own enterprise, however, his ability to exercise his religious freedoms is not unlimited.
       
       
    8. Running a general print-shop for the public at large is a commercial enterprise and is not a manifestation of religious beliefs.
       
       
    9. In delivering a service available to the general public, printers are required to comply with the laws of the land which cover matters such as copyright obscenity and hate literature. Thus a printer is entitled (and even required) to refuse to print material which infringes copyright, or violates Canada's obscenity or hate literature laws. Beyond that, however, freedom of expression is not enhanced by allowing printers to scrutinize the contents of materials and deny printing services to viewpoints they disagree with. This would lead to censorship and a stifling of freedom of expression.

    Affidavit of John Fisher sworn September 14, 2001, Motion Record, pages 37-40

    PART 3 - Issues and the Law

15. On a motion for intervener status the matters to be considered are:

    1. the nature of the case;
    2. the issues that arise; and
    3. the likelihood of the moving party being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

    Halpern v. Wong (200), 51 O.R. (3d) 742 (Div. Ct.)

    Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.)

    John Doe v. Ontario (Information and Privacy Commissioner) (1991), 7 C.P.C. (3d) 33 (Div. Ct.)

16. In a case involving constitutional issues, leave is more readily granted.

    Adler v. Ontario (1992) 8 O.R. (3d) 200 (Gen. Div.)

17. In a case such as this, where there are public interest issues, there is greater latitude for intervention.

    John Doe v. Ontario, supra

18. Where the proposed intervener can make a useful contribution to the proceedings, without causing injustice to the immediate parties, it is appropriate to grant intervener status.

    Halpern v. Wong, supra
    Adler v. Ontario, supra

19. The proposed intervener, the Equality Coalition, will take the record as it stands and will not seek to adduce further evidence. It will abide by the schedule set for the hearing of this matter, and proposes to provide its factum to the other parties on or before October 31, 2001. The Equality Coalition will also cooperate with the other parties to avoid duplication of arguments.

20. Further, the Equality Coalition brings both its own recognized expertise and experience, and that of its constituent members in matters of Charter and human rights interpretation. This expertise and experience will be of assistance to the Court in adjudicating the issues raised in this appeal. The Equality Coalition has made submissions to the Ontario Court of Appeal previously, and its constituent members have made submissions to that honourable court and to the Supreme Court of Canada on numerous occasions on constitutional, Charter of Rights and human rights issues.

21. Additionally, the constituent members of the Equality Coalition have been recognized at both the provincial and federal levels of government as significant and necessary voices in the discussion of human rights and Charter rights.

22. The Equality Coalition will make submissions that are useful and different from those of other parties. In particular, the Equality Coalition stands in a unique position to address the broader constitutional and human rights implications for a variety of communities which traditionally look to human rights law for protection against discrimination in Ontario. The focus of the submissions of the Equality Coalition will thereby differ from those of the parties and the other groups intervening in this appeal.

23. The Equality Coalition, because of its unique structure, can bring a position on the issues before this honourable Court which represents a consensus of opinion from communities which cross boundaries of race, ethnic origin, religion, gender, ability and sexual orientation.

24. The communities represented in the Equality Coalition have a direct and substantial interest in the subject matter of the appeal, being the availability of protection against discrimination in those spheres of activity addressed by the Ontario Human Rights Code, namely service, accommodation and employment.

    PART 4 - Relief Requested

25. The Equality Coalition respectfully requests leave

    1. to intervene as a friend of the court in these proceedings;
    2. to file a factum in these proceedings; and
    3. to make oral submissions as set out herein.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

September 20, 2001