Ontario Superior Court of Justice to Hear Challenge against the Ontario Human Rights Commission use of section 34 of the Code on the Basis that it exercise of its discretion has a Racial discriminatory effect

5. its cost of this application.

6. such further and other relief as the applicant may advise and this Honourable Court may deems just;

2. THE GROUNDS OF THE APPLICATION ARE:

a. The Commission were and are completely without jurisdiction to act and decide as they did pursuant to the Ontario Human Rights Code;

b. The Commission failed to observe a principle of natural justice, procedural fairness or other procedure which it is required by law to observe which would require it to allow the complainant to know the case being raised against him in defence, in full, and to provide an opportunity to make full answer to it.

c. The complainant was further denied access to documentary evidence which the Commission relied upon in dismissing his complaint, and was not afforded an opportunity to make full answer and response to that evidence;

d. The Commission based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the totality of the evidence before it, and by making findings of fact that were so patently unreasonable as to constitute a reviewable error in determining that the Applicant's complaint could be more appropriately dealt with under the Ombudsman Act;

e. The Commission further erred in law and in fact in deciding not to process and deal with the Applicant's human rights Complaints; f. The Commission's investigator and the Commission erred in law in failing to have regard to basic principles of evidence, and in failing to apply the substantive theory of equality as enunciated in O' Malley v. Simpson-Sears, [1985] 2 S.C.R. 536, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 and CN v. Canada (Human Rights Commission), (1987), 40 D.L.R. (4th) 193;

g. The Commission erroneously concluded that the provisions of the Ombudsperson Act could have more appropriately dealt with the issues raised in the complaint;

h. The Commission failed to address the Applicant's submission that the Commission exercise of its discretion under section 34(1)(a) of the Ontario Human Rights Code violates his right to equality before and under the law and equal protection and benefit of the law.;

i. The Commission acted in any other way that was contrary to law;

j. By these errors, the Commission acted in a patently unreasonable manner in refusing to deal with the Applicant's complaint;

k. The Commission erred in failing to deal with the complainant's complaint about the Commission's legal rule, principle, doctrine, policy or practice which discriminates against racial minorities, particular those who are black, contrary to section 7 and 15(1) of the Charter;

l. With respect to the Charter issues raised in the within application, the application is based on the following grounds:

m. The requirements of the Ontario Human Rights Code with respect to the filing, investigation and determination of whether a hearing will be held into the complaint are a violation of the complainant's rights to equality under section 15 of the Charter;

n. These requirements effectively bar access to a hearing into a violation of a legal right, except according to the discretionary determination of the Commission, and they bar access to a hearing solely on the basis of the complainant's identity, which can be described on the basis of an enumerated ground: race;

o. These requirements deprive the complainant of the right to have his case determined by a court or tribunal of competent jurisdiction;

p. Given the fundamental nature of the human rights sought to be protected under the Human Rights Code, these requirements provide inadequate and incomplete protection to the complainant in respect of his legal rights afforded under the Ontario Human Rights Code;

q. The high frequency of the Commission's differential application of section 34(1)(a) of the Code in "race" cases which are dismissed by the Commission more often, under section 34(1)(a) of the Ontario Human Rights Code, than other types of complaints, shows that the administration of the Commission's legal rule, principle, doctrine, policy or practice discriminates against racial minorities, particular those who are black, is contrary to section 15(1) of the Charter.

r. The continuation of the requirement that the Commission must approve any complaint under section 36 of the Ontario Human Rights Code before it goes to a hearing perpetuates discriminatory attitudes about the persons whose rights are to be protected under this legislation by depriving them of the right to direct their own litigation, which right is granted to any other individual claiming a violation of a legal right.

s. The barring of access to a court or tribunal of competent jurisdiction by the requirements of the Ontario Human Rights Code is an infringement of the right to liberty and security of the person, as guaranteed under section 7 of the Charter.

t. The discretion granted to the Commission to withhold access to a tribunal of competent jurisdiction is a violation of the principles of fundamental justice which are required to be observed under section 7 of the Charter.

u. There is no section 1 justification under the Ontario Human Rights Code for this unconstitutional violation of the complainant's Charter rights.

v. the applicant rely on the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, as amended, the Human Rights Code, R.S.O. 1990, c H. 19, as amended, the Statutory Powers Procedure Act, 1990, c. S. 22, as amended, the Charter and Rules 38 and 68 of the Rules of Civil Procedure;

w. Such further and other grounds as the Applicant may submit and this Honourable Court may allow.

Legal Arguments on this Application will take place at a Friday March 24, 2000, at 10:00 a.m. at Osgoode Hall, 130 Queen Street West, Toronto, Ontario

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