Cooper v. Pinkofskys, 2008 HRTO 390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Cooper Applicant

-and-

Pinkofskys and David Bayliss Respondents

DECISION

Adjudicator: Alan Whyte Date: December 11, 2008 Citation Number: 2008 HRTO 390 Indexed As: Cooper v. Pinkofskys

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2A3 Phone 416-326-1312 / 1-866-598-0322 / Fax 416-326-2199 / Toll Free1-866-355-6099 TTY 416- 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Andrew Cooper, Applicant ) On his own behalf Pinkofskys and David Bayliss, Respondents ) Paul Cavalluzzo, Counsel

BACKGROUND

1This is an Application alleging discrimination on the basis of ancestry, place of origin and ethnic origin. The allegations arise out of a murder trial in which the applicant police officer was a witness for the Crown. The individual respondent David Bayliss ("Bayliss") is a lawyer with the law firm Pinkofskys who represented one of the accused and in the course of doing so, cross-examined the applicant. The applicant alleges that some of the questions during cross-examination and comments made in final argument were discriminatory.

2In particular, the applicant alleges that Bayliss' conduct constituted discrimination in the area of "goods, services and facilities" and specifically in the areas of "government" and "legal aid services".

3In its interim decision, Cooper v. Pinkofskys, 2008 HRTO 131, the Tribunal directed the parties to provide submissions on whether the allegations, even if accepted as true, properly fall within the social area of "goods, services and facilities" as set out in section 1 of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the "Code"). Those submissions have now been received.

POSITIONS OF THE PARTIES

4The applicant argues that the term "services" is not limited in any way and that the term and the Code itself must be given a liberal and expansive interpretation. He relies on Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, rev'd on other grounds Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON S.C.D.C.) in which a Coroner's inquest was found to be a "service", and Hogan v. Ontario (Health and Long-Term Care), 2005 HRTO 49, 2006 HRTO 32. In Hogan, the Tribunal found that the Code does not define services but rather identifies a list of items that do not constitute services. As the list of exclusions is exhaustive, services that are not part of the list are deemed services for the purposes of the Code.

5The respondents submit that the jurisdiction of the Tribunal is limited to dealing with disputes that properly fall under the Code. They argue that the term "services" is not fully defined in the Code and has been left to be developed in the case law. They cite various decisions of this Tribunal as well as cases from British Columbia to support the proposition that there must be a "services" relationship between the applicant and the respondent. They submit that the interaction between a prosecution witness and defence counsel at a criminal trial is by no means such a relationship, and in fact, is the antithesis to such a relationship.

DECISION

6It is clear from a number of cases including the decision in Braithwaite, supra, that the provisions of the Code must be given a large, liberal and purposive interpretation.

7However, the Tribunal does not have the power to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall within one of the five social areas of the Code.

8As noted in Hogan, supra, beyond excluding certain items from the scope of the definition of "services" in section 10, what does constitute a service is not defined in the Code.

9In articulating the meaning of "services", the Tribunal has had reference to dictionary definitions of the term. In Braithwaite, supra, the Tribunal and the Divisional Court found that "service" must mean something which is of benefit that is provided by one person to another or to the public. In Huang v. 1233065 Ontario Inc. (Ottawa Senior Chinese Cultural Association), 2006 HRTO 1, the Tribunal referred to the definition found in the Concise Oxford Dictionary ("The action or process of serving. An act of assistance."), as well as the definition found in Webster's Encyclopedic Unabridged Dictionary (" ...the performance of any duties or work for another; helpful or professional activity...").

10These definitions, and the various contexts in which the Tribunal has found the area of "services" to be engaged, suggest the necessity for some sort of service relationship, as opposed to a mere interaction, between the parties. In Hogan, supra, there was a direct relationship between the complainants, who had received medical services from the respondent, Ministry of Health and Long-Term Care and were arguing that the delisting of those services was discriminatory. In Braithwaite, supra, a Coroner's inquest was found to be a service benefiting both the broader public in Ontario and the family of the deceased.

11Applying the above principles to this Application, unlike the situation in Hogan and Braithwaite, the cases cited by the applicant in support of his argument, defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel's client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the "services" provided by the defence counsel of benefit or of assistance to the prosecution witness.

12Given my conclusion, I do not find it necessary to rely on British Columbia v. Crockford, [2005] B.C.J. No. 1724, rev'd on other grounds (2006), 2006 BCCA 360, 271 D.L.R. (4th) 445, 57 C.H.R.R. D/383 (B.C.C.A.) which involved a gender discrimination complaint by a male accused person against a Crown attorney as a result of a prosecutorial decision to proceed with assault charges arising out of a domestic dispute. There are differences between the definition of services in the B.C. and Ontario Codes and ultimately, that case was decided on the basis of prosecutorial immunity.

13The applicant submits that the legal profession does not merit or require immunity from discriminatory conduct in relation to persons other than their clients. However, the Tribunal finds that the Application raises matters that the Tribunal does not have the power to decide.

14The Application is therefore dismissed as being outside the Tribunal's jurisdiction.