Sweezey v. Ontario (Attorney General), 2009 HRTO 1296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stacy Sweezey

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of the Attorney General, the Office of the Children’s Lawyer, John Harding and Lousanne Rode

Respondents

DECISION

Adjudicator: Mark Hart

Date: August 21, 2009

Citation: 2009 HRTO 1296

Indexed as: Sweezey v. Ontario (Attorney General)

WRITTEN SUBMISSIONS BY

Stacy Sweezey, ) On his own behalf

Applicant )

Her Majesty the Queen in right of )

Ontario as represented by the ) Leslie McIntosh and

Minister of the Attorney General, ) Fateh Salim, Counsel

the Office of the Children’s Lawyer, )

John Harding and Lousanne Rode, )

Respondents )

1This is an Application dated June 9, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Decision is to address the preliminary issues raised by the respondents that this Application should be dismissed as being outside the jurisdiction of the Tribunal or as having been appropriately dealt with in another proceeding.

3The applicant is a father who was involved in a family law proceeding before the Superior Court of Justice. As part of that proceeding, Justice Robertson made an order dated September 19, 2006 referring the matter to the Office of the Children’s Lawyer (“OCL”) to provide such services as it may deem appropriate for the minor children of the applicant and his former spouse. If the OCL determined to provide legal representation under s. 89(3.1) of the Courts of Justice Act, the OCL was granted the power to act for the children as though they were parties to the family law proceeding including certain rights as specified in the order. The order also granted certain rights to the OCL if it determined to provide an investigation under s. 112 of the Courts of Justice Act, which provides the OCL with authority to undertake an investigation and make recommendations to the court on matters relating to custody and access.

4The OCL did determine to provide legal representation to the minor children in this matter and undertook an investigation and provided a report to the parties and the court. The applicant takes issue with the report provided by the OCL in this matter, alleging that it demonstrates bias against him on the basis of his male gender, and accordingly filed a lengthy and detailed dispute with the Superior Court in the context of the family law proceeding which raises the allegation of gender bias. Upon the filing of such a dispute, s. 112(4) of the Courts of Justice Act requires the OCL investigator to appear in court as a witness for questioning by the parties.

5Ultimately, following the filing of the applicant’s complaint with the Ontario Human Rights Commission in 2007, the family law proceeding was settled by the applicant and his former spouse.

6The first issue raised by the respondents is whether this matter is within the Tribunal’s jurisdiction. The applicant alleges that he experienced discrimination in the provision of goods and services contrary to s. 1 of the Code, which provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

7The OCL is an office of the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children with respect to personal and property rights. In custody and access matters, the OCL may provide legal representation for the child or provide an investigation and report by an investigator. In exercising these duties, the OCL is acting on behalf of minor children. Specifically in this case, the court’s order is for the OCL to determine whether it would provide services under the Courts of Justice Act for the minor children of the applicant and his former spouse, which the OCL decided to do.

8The point is that the services provided by the OCL were provided to and for the minor children of the applicant, and not to or for the applicant himself. This is the statutory role and responsibility of the OCL conferred upon it under the Courts of Justice Act. While I can appreciate that the applicant feels aggrieved by the findings of the OCL in its report and by other actions or omissions by the OCL, the simple fact of the matter is that it was not providing a service to him. Rather, the OCL was acting as a party litigant to the family law proceeding in what it deemed to be the best interests of the applicant’s minor children, pursuant to its statutory mandate. The applicant can no more claim that the OCL was providing a service to him than he could claim that his former spouse’s lawyers were providing a service to him: see Succi v. Ontario (Attorney General), 2009 HRTO 399 at para. 4.

9The family law proceeding provided a venue for the applicant, as a party litigant to that proceeding, to raise his objections to the report filed by the OCL, which was another party litigant to that proceeding. The applicant took initial steps to do so, but ultimately did not pursue his allegations in that forum because he chose to settle the matter. But at no time was the OCL providing a service to him.

10Accordingly, as the OCL was not providing a service to the applicant, this Tribunal is without jurisdiction to proceed with this Application and the Application is dismissed.

11In light of this determination, it is not necessary for me to deal with the respondents’ position that this matter already was appropriately dealt with in another proceeding.