Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community Safety and Correctional Services

Respondent

decision

Adjudicator: Michael Gottheil

Date: June 4, 2009

Citation: 2009 HRTO 752

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

Appearances

Michael Christianson ) on his own behalf

Lorenzo D. Policelli ) On behalf of the Respondent

Introduction

1This is an Application filed 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 and reprisal. A hearing in this matter was held on May 7, 2009 in Windsor. This Decision finally disposes of the Application.

2The Application arises from a decision by the Ontario Civilian Commission on Police Services (OCCPS) which dismissed a complaint filed by the applicant against the Windsor Police Service. The complaint to OCCPS involved a claim that the Windsor Police failed to properly investigate certain claims made by the applicant, including claims of perjury and professional misconduct by members of the Windsor Police Service. The applicant alleges, in this human rights Application, that in dismissing his complaint against the Windsor Police, OCCPS denied him a proper police investigation, which the applicant argues is a "service" within the meaning of the Code. He also alleges that by dismissing the complaint against the police, he was denied equal access to the services provided by OCCPS. In each case, the applicant alleges that both the police and OCCPS denied him services on the basis that they perceived him to have a mental illness, and as a reprisal for having filed previously claims to enforce his human rights.

3This case again raises the issue of the extent to which the Tribunal has jurisdiction to deal with a claim that an adjudicative body failed to provide its "services" in a non-discriminatory way. The issue has been addressed in a number of recent cases. See for example: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Christianson v. (Ontario)Information and Privacy Commissioner, 2009 HRTO 203; Dann v. Wallace, 2009 HRTO 392; Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 463.

4In view of the nature of the claim being advanced, the respondent filed a Request for Order During Proceeding, seeking to have the Application dismissed as being outside the Tribunal's jurisdiction. The respondent also argued that the Application was an abuse of process because, amongst other reasons, it constituted a collateral attack on the OCCPS decision.

5In a Case Assessment Direction dated April 23, 2009, I determined that it was appropriate to deal with the respondent's request as a preliminary matter.

Decision

6After considering the materials filed by the parties, and their oral submissions, I find that the Tribunal does not have the jurisdiction to deal with this Application. The applicant's claim of discrimination by OCCPS relates entirely to its adjudicative function.

7In Baird, at paragraph 12, the Tribunal held:

The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the "service" a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal's jurisdiction.

8It is true that within the Tribunal's jurisprudence, the scope of what may constitute a service within the meaning of the Code, as it pertains to the activities of adjudicative bodies is not yet fully developed. For example, in Dann v. Wallace (2009 HRTO 392) the Tribunal held that an adjudicator's comments at a hearing, about her findings, are an element of the decision making process that is not a "service" under the Code. However, in Lindberg, the Tribunal suggested the possibility that some actions of an adjudicative body might be subject to the Code:

9The Tribunal has ruled that the services offered by statutory tribunals do not extend to their final adjudicative decisions: Baird v. Workplace Safety and Appeals Tribunal, 2009 HRTO 99 at para. 13. This does not mean, however, that statutory tribunals enjoy blanket immunity from complaints grounded in the Code. In providing their services to the public, it is possible that statutory tribunals could run afoul of the Code.

10In the present case, the applicant has failed to allege incidents or actions that involve the services of the OCCPS, within the meaning of the Code. Rather, the allegations all fall squarely within the adjudicative function of the OCCPS and specifically to its interpretation and application of its enabling legislation.

11Whatever aspects of a tribunal's functions may fall within the scope of the Code, I am satisfied that in this case, the Application relates to the adjudicative functions of OCCPS.

12The Application takes issue with OCCPS decision, and the fact that by dismissing the complaint, OCCPS is denying the applicant the right to a full and proper investigation by the police of the various allegations of perjury and misconduct. The applicant has not alleged any facts which suggest that OCCPS, as an agency, in the exercise of its administrative functions, denied him services based on a prohibited ground of discrimination. Neither is there anything in the Application which alleges that the adjudicative process was exercised in a discriminatory way, or posed barriers to him because of a disability, even assuming that such a claim would fall within the scope of the Tribunal's jurisdiction.

13The Application is therefore dismissed.