Marsden v. Ontario (Community Safety and Correctional Services), 2009 HRTO 1795

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Office of the Chief Coroner)

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: October 27, 2009

Citation: 2009 HRTO 1795

Indexed as: Marsden v. Ontario (Community Safety and Correctional Services)

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on February 4, 2009, alleging discrimination in respect of goods, services and facilities on the ground of age. At issue is a refusal by the Coroner to convene an inquest into the death of the applicant’s mother.

2This Interim Decision deals with a Request for Order During Proceedings (RFOP) filed by the applicant on September 28, 2009, and with procedural issues in the hearing of this matter to date.

Applicant’s Request for an Order During Proceedings

3In a Case Assessment Direction issued on September 3, 2009, I noted that disclosure of arguably relevant documents by the respondent had been piecemeal, and not in accordance with the timelines set out in the Tribunal’s Rules of Procedure. The respondent was ordered to write to the Tribunal by September 9, 2009, copying the applicant, to indicate whether it had disclosed all arguably relevant documents. If the respondent had not yet released any remaining arguably relevant documents, it was ordered to do so by September 10, 2009.

4The respondent advised the Tribunal and the applicant by letter dated September 8, 2009 that all arguably relevant documents in respect of this Application had been released.

5In her RFOP the applicant states that she received disclosure of documents from the Health Professions Review Appeal Board in respect of other proceedings related to the death of her mother. Among those documents, the applicant has identified several that she submits are arguably relevant to this Application. They are:

a) E-mails from Dr Evans beginning January 25, 2007;

b) Notes from a meeting with Mr and Mrs Marsden February 20, 2007;

c) E-mails to and from Dr Evans and Betty Chow February 20, 2007;

d) E-mail from Anne Marsden;

e) Letter to Officer Spoelstra and others.

6The applicant indicates that she has not reviewed all 4000 pages in the above-noted documents, but believes that there might be other arguably relevant materials undisclosed. She requests that the Tribunal declare the respondent in contempt and provide “relief as deemed appropriate”.

7In its Response, the respondent denies the allegation that it is in contempt, and submits that the Tribunal does not have the jurisdiction to hear contempt proceedings. It also argues that the documents referred to are not “arguably relevant” to this Application.

8The HRTO has the jurisdiction to state a case for contempt to the Divisional Court but, as the respondent correctly notes, does not have the authority to make a finding of contempt. Only the Court has that power.

9The decision to state a case for contempt to the Divisional Court is one which is exercised by adjudicative tribunals in only the rarest of cases and where there are no other options available to appropriately respond to the actions of a party. The HRTO has never taken this step in its history. This is a dispute over disclosure and, while the issues are very important to these parties, this is not a case where the Tribunal would exercise its discretion to state a case for contempt. The applicant’s Request is denied. The applicant may, if she chooses, proceed to the Divisional Court on her own motion seeking this relief.

10I have reviewed the documents identified by the applicant. I am not satisfied the February 20, 2007 meeting notes, emails from Dr. Evans, email from Anne Marsden or the letter to Officer Spoelstra and others are arguably relevant to whether Drs Lauwers and McCallum, in refusing to call an inquest, breached s. 1 of the Code on the basis of age. I am satisfied the February 20, 2007 emails to and from Dr. Evans and Betty Chow are arguably relevant to the issues in the Application and should be produced in this proceeding.

11The “E-mails from Dr Evans beginning January 25 2007” include one, dated January 26, 2007, in which the apparent sender (Dr Evans) refers to someone as a “head case”. From the context of the associated e-mails, it appears that the person he refers to in this way is the applicant. This document is not relevant to this Application. It would be so only if the grounds of discrimination listed in the Application included disability, as defined under the Code at s. 10. If the applicant wishes to amend the Application to include this ground of discrimination, she may make a motion to do so, and I will hear from both parties on this issue.

12I confirm the process for the resumption of this hearing remains as set out in my Case Assessment Direction issued on September 17, 2009.

13At this point, there has been half a day of hearing into outstanding procedural issues. The Registrar will set a date for the continuation of the hearing into preliminary matters. As an accommodation to the applicant, the hearing will be continued by teleconference.