Citation: Jenkins v. HRC & ors. Date: PESCTD 34 Docket: S-1-GS Registry: Charlottetown

Transcription

1 Citation: Jenkins v. HRC & ors. Date: PESCTD 34 Docket: S-1-GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISL IN THE SUPREME COURT - TRIAL DIVISION BETWEEN Ronald Jenkins The City of Charlottetown Mayor George MacDonald Applicant Before: Her Ladyship Madam Justice Jacqueline R. Matheson Appearances Ronald Jenkins, applicant on his own behalf Paul Michael, QC, respondent, Human Rights Commission Pamela J. Williams, respondents, City of Charlottetown & Mayor George MacDonald Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island March 28, 2003 Charlottetown, Prince Edward Island April 4, 2003

2 Citation: Jenkins v. HRC & ors. Date: PESCTD 34 Docket: S-1-GS19359 PROVINCE OF PRINCE EDWARD ISL IN THE SUPREME COURT - TRIAL DIVISION BETWEEN Ronald Jenkins The City of Charlottetown Mayor George MacDonald Applicant Supreme Court of Prince Edward Island - Trial Division Matheson J. Date of Hearing: March 28, 2003 Date of Judgment: April 4, 2003 (3 pages) Cases referred to: Ayangma v. Prince Edward Island Human Rights Commission, [2002] P.E.I.J. No. 20; Magill v. Prince Edward Island ( Minister of Community Affairs), [1999] P.E.I.J. No. 78 (Quicklaw version) Statutes Referred to: Judicial Review Act, R.S.P.E.I. 1988, cap H-12; Human Rights Act, R.S.P.E.I. 1988, cap. J-3 Appearances: Applicant on his own behalf Paul Michael QC, respondent Human Rights Commission Pamela J. Williams, respondents, City of Charlottetown and Mayor George MacDonald

3 Matheson J.: [1] This is an application for judicial review of a decision of the Chair of the Human Rights Commission, who endorsed the Executive Director s decision which dismissed the applicant s complaint. On July 26, 2002, the applicant complained that he was discriminated against in a matter of publication, broadcasting and advertising on the basis of religion. The essence of his complaint was that in July, 2001, the City of Charlottetown raised the rainbow flag over the City for Gay Pride Week and they intend to do it again in July, He stated: I do not want to be under this flag since it is contrary to what the Bible teaches. This represents a small percentage of the population and does not represent Christian values and is offensive. Yes they have their rights, but this imposes their rights over Christian rights in a public display. The parade and festivities are localized, but flying the flag makes it city wide and province wide. You serve under the flag. This is not a right. [2] On July 9, 2002, Greg Howard, Executive Director of the Prince Edward Island Human Rights Commission, dismissed the applicant s complaint on the following grounds. The flying of a flag on pubic property may be a service as that term is used in the Prince Edward Island Human Rights Act. The provision of a service for the benefit of one group does not, without further evidence, discriminate against other groups. Therefore, I dismiss the complaint as being without merit pursuant to section 22(4)(a) of the Human Rights Act. [3] Following receipt of the dismissal of his complaint by Mr. Howard, the applicant requested a review of this decision by the Chair of the Human Rights Commission. On the 29 th of August, 2002, George S. Kells, Chair of the Human Rights Commission dismissed the appeal stating: Although it is evident that Mr. Jenkins disagrees vehemently with the concept of gay rights, he has provided no evidence that he has been discriminated against. Furthermore, the free expression of his opinions on the subject have not been infringed upon - on the contrary he has been provided with wide media coverage for his views. I endorse the findings of the Executive Director and of his dismissal of the complaint as being without merit. This Commission will take no further action regarding this matter. [4] The applicant now seeks to have the Court overturn the dismissal of his appeal by the Chair of the Human Rights Commission. In a written statement presented to the Court on the judicial review applicant, the applicant stated: My rights are trampled on because I do not wish to honour or obey the gay agenda because of my religious beliefs. Flying the flag over city hall mocks my religious beliefs and challenges my loyalty to the city. In conclusion, if

4 the city refuses to fly any flag other than our country, province or city I will consider my complaint satisfied. 2 [5] On the judicial review, counsel for the respondent, City of Charlottetown and Mayor George MacDonald, advised the Court that the City did not have any bylaw nor did it have any policy with regard to the type of flags which could be flown on the City Hall flag pole. [6] In Ayangma v. Prince Edward Island Human Rights Commission, [2002] P.E.I.J. No. 20, the Appeal Division of this court adopted the definition of discrimination set out in the Supreme Court of Canada decision of Andrews v. Law Society of British Columbia, at paragraph 34, which read as follows:... discrimination may be described as the distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual s merits and capacities will rarely be so classed. [7] The respondent, City of Charlottetown, submits that the dismissal of the applicant s complaint by the Executive Director and dismissal of his appeal of the Executive Director s decision by the Chair were reasonable, based on the above referred to definition of discrimination, because the applicant did not show that he was in fact discriminated against. [8] Subsection 1(b) of the Judicial Review Act, R.S.P.E.I. 1988, cap. H-12, defines an application for judicial review as:...an application to determine whether or not authority conferred on a tribunal by an applicant has been exercised in accordance with the enactment in respect to a decision of the tribunal in relation to the legal rights, powers, privileges, immunities, duties or liabilities of a person or the eligibility of a person to receive, or to continue to receive a benefit or licence. [9] Reviewing at the actions of the Executive Director and the Chair of the Human Rights Commission, it is clear that they acted pursuant to their legislative powers under the Human Rights Act, R.S.P.E.I. 1988, cap. J-3. [10] What the applicant is really challenging is the correctness of their findings of

5 3 fact. In Magill v. Prince Edward Island (Minister of Community Affairs), 1999 [P.E.I.J. No. 78 (Quicklaw Version) with regard to questions of fact, the Court stated at para. 9: [9] On questions of fact, involving the Board s assessment of the evidence and findings of fact, and mixed questions of fact and law involving the Board s application of the legal tests to the evidence, the standard of review which I consider to be applicable in the present case is reasonableness. This standard is defined as reasonableness simpliciter in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pp The reasonableness standard is substantially less stringent than the correctness standard and closer on the spectrum to most deferential standard of not patently unreasonable. [11] On this standard the applicant must establish that the dismissal of his complaint was not reasonable. [12] Looking at his complaint and the definition of discrimination adopted by the Appeal Division of this court in Ayangma, supra, I find the applicant has not established that the dismissal of his complaint was not reasonable, as he has not presented any evidence to the Human Rights Commission, upon which it could make a finding of discrimination as it is defined in Andrews, supra. [13] Accordingly, this application is dismissed. April 4, 2003 Matheson J.