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 Attorney General
Respondent
DECISION
Adjudicator: Eric Whist Date: August, 2010 Citation: 2010 HRTO 1650 Indexed as: Christianson v. Ontario (Attorney General)
1This is an Application filed on April 15, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges that he was discriminated against in respect of goods, services and facilities on the basis of ethnic origin, disability, age and reprisal or the threat of reprisal. The Tribunal has not yet delivered the Application to the respondent. Rule 13.2 of the Tribunal's Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intent to Dismiss the Application ("NOID") to the applicant.
2The Tribunal sent a NOID dated May 31, 2010 to the applicant. The NOID stated, in part, that the applicant had provided an incomplete Application which he had to complete and that the applicant's Request to Expedite his proceeding would be determined if his Application was found to be within the Tribunal's jurisdiction. The NOID also stated:
Based on the information in your Application, it appears the Application is outside the Tribunal's jurisdiction because
The issues raised relate to the conduct of a lawyer representing a party in another legal proceeding. The Tribunal has stated that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.
3The Tribunal requested that the applicant provide written submissions responding to the issues identified in the NOID within 30 days. On June 28, 2010 the Tribunal received the applicant's submissions and a completed Application.
4The applicant alleges in his Application that during his hearing before the Tribunal on April 15, 2009 to consider two previously filed Applications (2008-00179-I and 2008-00336-I) counsel for the respondent lied on two occasions. The applicant alleges that counsel for the respondent lied when she suggested that the Crown could only be sued for malicious prosecution and lied as to when the Ministry of the Attorney General received notice of the matters complained of in his two Applications before the Tribunal. The applicant contends that except for this dishonesty, his Applications would have succeeded and he would have prevailed before the Tribunal.
5The applicant submits in his written submissions filed on June 28, 2010 that the Tribunal had acted in a biased manner when it issued its NOID because it raised arguments on behalf of the respondent as to why the current Application should not proceed. The applicant also submits that his Application is distinguishable from the cases cited by the Tribunal in its NOID. The applicant includes with his submissions a decision from the New Brunswick Court of Queen's Bench, R. v. Monteith, 1991 CanLII 2652 (NB Q.B.) to show that there are instances in which the Crown can be sued for more than malicious prosecution.
Analysis and Decision
6An application will only be dismissed at a preliminary stage, before it is delivered to the respondent, if it is "plain and obvious" on the face of the Application that it does not fall within the Tribunal's jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381. Having considered the information contained in the Application and the applicant's further submissions I find that it is plain and obvious that the Application is outside the Tribunal's jurisdiction and it is accordingly dismissed.
7In Cooper v. Pinkofskys, 2008 HRTO 390, ("Cooper") the applicant was alleging that he was treated in a discriminatory manner by a defence lawyer, the named respondent, during a cross-examination in a legal proceeding and that such an examination constituted a service under the Code. However, in Cooper the Tribunal concluded that the conduct of the counsel did not constitute a service under the Code, stating in part at para. 11:
defence counsel is neither providing services to a larger public of which the applicant is a member nor is there a direct service relationship between defence counsel and a Crown witness. Rather, the role of defence counsel at a criminal trial puts that counsel into an adversarial position with all prosecution witnesses called by the Crown in order to secure a conviction of that counsel's client. Even applying a large, liberal and purposive interpretation of the Code, it cannot be said that defence counsel is providing services to or is in a service relationship with an adverse witness, given the duty of that counsel to fully and fearlessly advance the interests of his client. In no way are the "services" provided by the defence counsel of benefit or of assistance to the prosecution witness.
8I agree with the reasoning in Cooper and find it applicable to the matter before me. I do not find that the respondent was providing a service or in a service relationship with the applicant on April 15, 2010 during the hearing before the Tribunal (assuming the applicant's allegations of discrimination would otherwise engage the Code). Counsel for the respondent was in an adversarial role advancing the interests of her client.
9The applicant argues the present case is distinguishable from Cooper. In Cooper the respondent was a defense counsel (and the legal proceeding was a criminal trial). In the present case the respondent is the Ministry of the Attorney General (and the proceeding was a Tribunal hearing). The applicant submits that unlike a defense counsel, the Ministry of the Attorney General has a special obligation to serve the larger public of which the applicant is a member. While it is true the Ministry of the Attorney general does have a public responsibility, that does not mean that in advancing the interests of the Ministry in an adversarial process, such as a hearing before the Tribunal, counsel was in a service relationship with the applicant which engages the protection of the Code.
10The issue of whether the specific information counsel for the Ministry of the Attorney General provided during the Tribunal hearing was accurate or not is irrelevant to my decision as to whether the Tribunal has jurisdiction in this matter.
11I note the applicant's further concern that the Tribunal's role in issuing the NOID is biased in that it favours a respondent's interests. The reason the Tribunal issues a NOID is to clarify whether the Tribunal has jurisdiction under the Code. The reference to selected case law is to assist an applicant in understanding the issues he or she must address. It is just and fair and serves all parties interests to clarify whether the Tribunal has jurisdiction in a timely fashion.
Dated at Toronto this 6th day of August, 2010.
"signed by"
Eric Whist Vice-chair