Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 203

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Information and Privacy Commissioner/Ontario

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: February 26, 2009

Citation: 2009 HRTO 203

Indexed as: Christianson v. Ontario (Information and Privacy Commissioner)

1The applicant filed an Application on October 16, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging discrimination in the area of goods, services and facilities on the basis of disability. The respondent filed its Response on November 26, 2008, in which it raised jurisdictional objections.

2In a previous Interim Decision, 2009 HRTO 69, the Tribunal noted the applicant had failed to file a Reply. This was not correct and I confirm a timely Reply was filed. In any event, the parties both made additional submissions in relation to the respondent’s request for dismissal and I have now reviewed the applicant’s Reply.

3For the reasons below, the Tribunal finds that it does not have the power to order the remedies the applicant seeks and therefore dismisses the Application for lack of jurisdiction.

JURISDICTIONAL ISSUE

4This Application arises out of the adjudicative process of the Information and Privacy Commissioner (IPC). The applicant alleges that the IPC discriminated against him on the basis of his disability, resulting in a denial of service. He also makes allegations about bias and unfairness in the IPC process, and challenges the merit of its adjudicator’s decision.

POSITION OF THE PARTIES

5In its Response, the respondent argues that the decision-making process of the IPC is privileged and beyond the jurisdiction of the Code; that any challenge to a final decision of the IPC is by way of judicial review; and that the applicant in this case has failed to plead sufficient facts to support his allegations of Code breaches.

6In submissions dated January 29, 2009, the applicant repeats his requests for remedies contained in his Application and requests an interim remedy removing counsel for the respondent. With respect to the jurisdictional issue, the applicant argues that the Tribunal accepted jurisdiction when it received and delivered the Application to the respondent. He notes that the Tribunal only inquired into the question of jurisdiction after it was raised by the respondent.

7The respondent did not make any additional submissions on the jurisdiction issue.

DECISION

8The jurisdiction of the Tribunal is based on the provisions of the Code. Where an application is beyond the jurisdiction of the Tribunal, it will be dismissed pursuant to Rule 13.1.

9Rule 13 of the Tribunal’s Rules contemplates early dismissal on either the Tribunal’s own initiative or at the request of a respondent. Pursuant to Rule 13.5, a decision by the Tribunal to continue to deal with an application at the preliminary stage is not a final decision regarding the Tribunal’s jurisdiction in respect of the application. In other words, the fact that a jurisdictional review is not triggered at the very beginning of the process does not prevent the Tribunal from considering the issue later, upon the request of the respondent.

10The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. The Tribunal does not have the authority to hear appeals from the decisions of other statutory tribunals. This does not mean that statutory tribunals are not subject to the Code. For example, in Braithwaite v. Ontario (Attorney General) (2005), 2005 HRTO 31, 54 C.H.R.R. 116, rev’d on other grounds Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 (S.C.J.), the Tribunal held that a Coroner’s inquest is a “service” within the meaning of the Code.

11It is also clear that there are elements of a statutory tribunal’s process that are not encompassed by the Code’s meaning of “service”. Substantive review of another tribunal’s final decision is certainly one example: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99, at para. 13.

12In order to establish a jurisdictional anchor when complaining against a statutory tribunal, sufficient facts and proper legal foundation must be provided in the Application. The present Application fails to plead facts that, if proven, would necessarily give rise to remedies the Tribunal has the power to order. The applicant has been given ample opportunity to particularize his claims and to link alleged facts with alleged breaches. He was invited to explain how his Application raises matters which the Tribunal has the power to decide. His failure to do so leads to the conclusion that the remedies he seeks are beyond the Tribunal’s jurisdiction.

13The Tribunal acknowledges that the applicant argued that his Request for Interim Remedy removing respondent counsel be determined prior to deciding the jurisdictional issue. This would not be consistent with the powers and procedures of the Tribunal. For any interim order to be enforceable, the Tribunal must have the jurisdiction to make the order in the first place.

14The Application is dismissed.