Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 69

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Christianson

Applicant

-and-

Information and Privacy Commissioner/Ontario

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: January 27, 2009

Citation: 2009 HRTO 69

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 applicant also filed a Request to Expedite Proceedings (Form 14), pursuant to Rule 21 of the Tribunal's Rules of Procedure for applications under Part IV of the Code (the "Rules"). In a previous Interim Decision, 2008 HRTO 234, the Tribunal decided not to expedite these proceedings.

2This Interim Decision addresses two issues. First, the applicant has filed a Request for Interim Remedy seeking removal of the respondent's counsel. Secondly, the respondent has raised in its Response an objection to the Tribunal accepting jurisdiction over this Application. I will deal with the jurisdiction issue first, and then consider the applicant's Request for Interim Remedy.

JURISDICTION

3This Application arises from the applicant's exercise of his right of appeal to the respondent, the Information and Privacy Commissioner (IPC), in relation to the refusal of the University of Windsor to produce a record of personal information to the applicant. The IPC adjudicator refused the applicant's request in those proceedings. 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 the adjudicator's decision.

4In its Response, filed on November 26, 2008, the respondent raises a jurisdictional objection to the Application. In particular, the Response asserts that:

I. The substance of the Information and Privacy Commissioner's (IPC) decision-making process is privileged and beyond the jurisdiction of the Code;

II. The appropriate avenue for challenging Adjudicator Hale's decision is by way of judicial review;

III. The applicant has failed to plead facts supporting an allegation of disability-related discrimination or the denial of disability-related accommodation.

5The applicant was to file a Reply, if any, by December 17, 2008, but failed to do so.

6The jurisdiction of the Tribunal is based on the provisions of the Code. The Tribunal does not have a general power to enquire into claims of unfairness, bias or poor decision-making that are outside of the Tribunal's jurisdiction. The Tribunal likewise does not have the authority to hear appeals from the decisions of other boards or agencies. Where an application is beyond the jurisdiction of the Tribunal, it will be dismissed pursuant to Rule 13.1.

7Because the respondent's preliminary objection is raised for the first time in the Response, it is appropriate to give the applicant an opportunity to make submissions. Such submissions should provide an account of the Tribunal's authority to address the issues raised in the Application, and its jurisdiction to grant the remedies the applicant seeks.

INTERIM REMEDY

8On November 20, 2008, the applicant filed a Request for Interim Remedy, pursuant to Rule 23 of the Tribunal's Rules, which provides, in part:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

23.3 A Request for an Interim Remedy must include:

a) a detailed description of the order sought;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and

c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances, in accordance with the Rule 23.2.

9The applicant's Request relates to an alleged conflict of interest involving counsel for the respondent.

10In deciding whether to grant an interim remedy, the first question to be asked, pursuant to Rule 23.2, is whether the Application appears to have merit. In the light of the outstanding jurisdiction issue, it would be premature to consider the merit of the Application at this point in time. It is therefore appropriate to hold off deciding the applicant's Request for Interim Remedy until the jurisdiction question is settled.

ORDER

11Accordingly, the parties are directed as follows:

a. Within 10 days following the date of this decision, the applicant shall deliver to the respondent, and file with the Tribunal, submissions, including documents and case law if any, on the question of the Tribunal's jurisdiction to hear this Application;

b. Within 5 days of the receipt of the applicant's submission, the respondent shall file its reply, if any;

c. While both parties have agreed to mediation, the Tribunal will not schedule mediation until the jurisdiction issue is resolved.

12I am not seized of this matter.