Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto, 2009 HRTO 314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Balaranjan Thavarajasoorier

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

The Incorporated Synod of the Diocese of Toronto and Theodore Bartlett

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: March 18, 2009

Citation: 2009 HRTO 314

Indexed as: Thavarajasoorier v. Incorporated Synod of the Diocese of Toronto

written submissions by

Ontario Human Rights Commission ) Anthony D. Griffin, Counsel

The Incorporated Synod of the ) Diocese of Toronto and ) Christopher G. Riggs, Counsel Theodore S. Bartlett, Respondents )

1This Interim Decision addresses the question, on a preliminary basis, whether the relationship between the complainant and the respondent Diocese, during the complainant’s period of postulancy, comes within the definition of “services” under section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Code. The complainant alleges the respondents infringed his right to equal treatment in the provision of services without discrimination on the basis of race and ethnic origin.

2Following referral to Tribunal by the Commission, the respondents commenced an application for judicial review seeking to quash the Commission’s referral. The Divisional Court dismissed the application and found that the question of whether the relationship between the Diocese and a postulant comes within the definition of “services” within section 1 of the Code is within the expertise of the Tribunal to decide at first instance: Incorporated Synod of the Diocese of Toronto v. Ontario (Human Rights Commission), [2008] O.J. No. 1692 (Div. Ct.).

3The complainant self-identifies as a person of Sri Lankan ethnic origin. In his original complaint to the Commission the complainant states that in or around 2001, he enrolled in the postulancy process to become an Anglican Priest. The complaint relates to that period of postulancy which was described by the Divisional Court as a two-year period of training and preparation for ministry which precedes selection for ordination. The complainant alleges that he was questioned during this period about his comfort in dealing with an “all white” congregation. The respondent denies that it engaged in any discriminatory conduct. Although the complainant was chosen as a postulant, the Diocese ultimately chose not to accept the complainant for ordination. The complaint does not extend to the ordination decision nor does the Commission intend to pursue that part of the original complaint which alleges discrimination on the basis of employment.

4The parties filed written submissions as well as the cross-examination of Bishop Colin R. Johnson. The evidence of Bishop Johnson, which addresses the nature of the relationship between the Diocese and those it accepts as postulants, was also before the Divisional Court. The parties agree that this evidence provides a satisfactory evidentiary foundation for the determination of this issue on preliminary basis.

5I agree with the Commission that in order for the Tribunal to dismiss this complaint for lack of jurisdiction at this early stage in the proceeding, it must be plain and obvious that the complainant is certain to fail: Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 at para. 13.

6In Cooper v. Pinkofskys, 2008 HRTO 390, the Tribunal reviewed a number of cases where the scope of the term “services” under section 1 of the Code had been considered. In that decision, the Tribunal concluded that the area of services would be engaged where there is evidence of a “service relationship”, which requires something more than mere interaction between the parties. In Braithwaite, both the Tribunal and the Divisional Court found that the area of “services” encompasses those activities which provide a benefit from one person to another or to the public: Braithwaite, supra, and Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON S.C.D.C.). In Ontario, the definition of services under the Code is not restricted to benefits which are generally available to the public.

7The respondent’s position is that the area of “services” contemplates a transaction between the complainant and the service provider and that none of the functions performed by the Diocese in connection with ordination can be brought within the meaning of services under the Code. The respondent argues that the connection between postulant and Diocese during the period of postulancy is one of relationship and not transaction.

8The respondent’s position contemplates a relatively narrow range of transactions which would engage the area of services. In my view, this position is not consistent with the large, liberal, purposive approach which is required in the interpretation of quasi-constitutional human rights legislation. The Tribunal in Braithwaite affirmed the remedial nature of the Code and the necessity to apply the least restrictive definition when determining whether the subject matter of a complaint falls within the area of “services”: Braithwaite, supra at para 22.

9I am satisfied that the evidence of Bishop Johnson is sufficient to establish on a preliminary basis that the two-year period of postulancy, which is required and in some aspects supervised by the Diocese, involves the formation of various relationships and the exchange of experiences and information which are directed at assisting candidates to prepare for ministry. The period of postulancy appears to assist both the candidate in the process of discerning whether in fact they have a calling and the Diocese in the process of selection for ordination. The evidence is sufficient to establish on a preliminary basis, that the interactions between the parties provide a benefit, in this case to them both, and it is therefore not plain and obvious that the complaint must fail.

10This is not a final decision. The matter will proceed to a hearing on the merits. The Registrar will set dates for the parties to exchange disclosure and file material in preparation for the hearing in accordance with the Rules, using the date of this Interim Decision as the commencement of the timeline.