Marsden v. Ontario (Community Safety and Correctional Services), 2011 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Office of the Chief Coroner)

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: January 5, 2011

Citation: 2011 HRTO 30

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

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on February 4, 2009, alleging discrimination in respect of goods, services and facilities on the ground of age.

2This matter arose in the course of the applicant’s efforts to have the respondent hold an inquest into the death of her mother. It appears that the parties have been dealing with each other in regard to the facts giving rise to this Application since 2006. There has been more than one legal proceeding. Correspondence copied to the Tribunal in this file is voluminous.

3In respect of this Application, the parties have raised several preliminary issues, largely by Request for an Order During Proceedings (Request). There have been three Case Assessment Directions (CADs) issued in an attempt to assist the parties to deal with the issues and one Interim Decision, 2009 HRTO 1795, also dealing with preliminary issues in this matter. Despite attempts to expeditiously deal with any necessary procedural issues, only one procedural issue identified by the parties has been dealt with to date.

4At this point, for the reasons noted below, I am satisfied that a proposed amendment to this Application should be allowed, and the merits of this Application should be dealt with. As there seems to be some confusion in some of the submissions as to the substantive reach of the Code and scope of the Tribunal’s substantive jurisdiction to deal with facts alleged by the applicant, this Interim Decision will define and narrow the issues relevant to the Application. This Interim Decision will also set out requirements for both parties so that the Tribunal can deal with the merits of the Application.

Chronology of events

5Having reviewed the Application, Response and other material in the file, I issued a Case Assessment Direction (CAD) on September 3, 2009, noting that I required clearer information from the parties before I could address their procedural issues, and proposing that necessary outstanding procedural requests be dealt with in person on September 30, 2009, “following which any orders needed to achieve a fair, just and expeditious hearing on the merits [would] be made”. I directed that the order of proceedings would be as follows:

A. The Tribunal will ask both parties to identify any outstanding procedural issues, and the Tribunal will determine which must be determined as preliminary matters

B. Subject to any ruling made in respect of procedural issues:

1. the respondent will be asked to lead evidence as to why an inquest in respect of the applicant’s mother was refused;

2. the applicant will be allowed to cross-examine;

3. the applicant will be asked to lead evidence pertaining to her allegation that the refusal of the inquest breaches the Code;

4. the respondent will be allowed to cross-examine.

6After the September 3 CAD was issued, the respondent filed a Request dated September 9, 2009, that certain witness summonses issued by the applicant be quashed and that only preliminary issues be dealt with on September 30, and a Request dated September 16, 2009, that the Application be dismissed because the subject matter of the Application should not be considered a “service” for the purposes of s.1 of the Code and because the Application constituted an abuse of process. Each of these Requests was accompanied by written submissions. The applicant filed a Response to each Request and also made certain accommodation requests.

7I issued another CAD on September 17, 2009, granting specific accommodation requests made after September 3 by the applicant, declining to quash the summonses, and ruling that the summonsed witnesses need not attend the hearing on September 30, as it was not at that point clear from the materials filed by the applicant what relevance their evidence might have to the alleged breach of s. 1 of the Code. I noted that, “[i]f in the course of the hearing it becomes clear that the evidence of any of these witnesses is relevant to the issues that must be decided by the Tribunal, further hearing time can be set aside and some or all of these witnesses will be heard”.

8At the hearing on September 30, 2009 I heard briefly from both applicant and respondent, but the hearing was adjourned in order to accommodate needs arising from the applicant’s disabilities. There was no ruling as to which of the parties’ asserted preliminary issues would be dealt with as preliminary matters, and no ruling on any preliminary matter.

9A further Request filed by the applicant on September 28, 2009 had not reached me by the morning of September 30, 2009. This was a Request to the Tribunal that the Tribunal declare the respondent in contempt and provide “relief as deemed appropriate”. The applicant stated that she had received disclosure of documents from the Health Professions Appeals and Review Board (“HPARB”) in respect of other proceedings related to the death of her mother. Among those documents, the applicant identified several that she submitted are arguably relevant to this Application, but had not been disclosed by the respondent.

10In its Response, the respondent denied the allegation that it was in contempt, and submitted that the Tribunal does not have the jurisdiction to hear contempt proceedings. It also argued that the documents referred to are not “arguably relevant” to this Application.

11Having reviewed the documents, I ruled in the above-noted Interim Decision that, while the HRTO has the jurisdiction to state a case for contempt to the Divisional Court this is not a case where the Tribunal would exercise its discretion to state a case for contempt. I also found that some, though not all of the documents were arguably relevant to the issues in the Application and should have been produced in this proceeding.

12Among the documents that were not relevant to the Application as filed was one e-mail in which an official of the respondent refers to someone as a “head case”. From the context of the associated emails, it appears that the person he referred to in this way is the applicant. This document was not relevant to this Application, as the grounds of discrimination listed in the Application did not include disability, as defined under the Code at s. 10. I noted in the Interim Decision that, if the applicant wished to amend the Application to include this ground of discrimination, she might make a motion to do so, and I would hear from both parties on this issue.

13On November 16, 2009, the applicant filed a Request to amend the Application to add the ground of disability. The applicant further requested that the Request be dealt with in writing. The respondent filed a Response with written submissions, arguing that the applicant has “improperly relied on” a document produced for a complaint before the HPARB, that the amendment amounts to a fresh Application and applicant is beyond time limit set out in the Code, that the request to amend is a “collateral attack on the preliminary motions already before the HRTO” and that allowing the amendment would cause prejudice and frustration of the mandate of the Tribunal.

14In the course of setting up a teleconference in early January 2010 to continue to deal with the Application, there was a further request from the applicant by email that the Tribunal delay its proceedings pending another Request that she intended to file dealing with the alleged contempt on the part of the respondent, and an application to the Divisional Court to deal with the respondent's alleged contempt. The applicant also communicated further with the Tribunal in regard to concerns related to her disability-related accommodation needs, including her request for a copy of her file.

15At this point, neither party has contacted the Tribunal to propose that the Application be proceeded with. The applicant has evidently chosen to proceed to the Divisional Court on her own motion seeking this relief. However, I see no reason why this should further delay dealing with this Application.

16Sections 40 and 41 of the Code provide as follows:

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

41. This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

17The Tribunal’s Rules of Procedure contemplate waiving or varying procedural requirements if appropriate. In particular, Rules 1.5 to 1.7 allow the Tribunal to “determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined” and “define and narrow the issues in order to decide an Application”.

18On September 21, 2010, I issued a CAD, summarizing the preliminary issues and proposing that I deal with them on the basis of the parties’ written submissions as follows:

4The following are the preliminary issues raised by the parties:

a) respondent’s Request for Order asking that Application 2009-01170-I be dismissed for lack of jurisdiction or as an abuse of process;

b) applicant’s Request for Order asking that the Application be amended to add disability as a ground of discrimination, and that the parties be given additional time to file any necessary documents and revised witness lists;

c) respondent’s Request for Order During Proceedings asking the Tribunal to quash summonses served by the applicant on Drs. Grant Lawford, Karen Acheson, Michael Pollanen, David Evans, McLellan, Cairns and Porter, on the basis, among other stated reasons, that the evidence that can be given by these individuals is not relevant to the issues to be adjudicated by the Tribunal.

5The Tribunal has received written submissions from both parties concerning all three of the above matters. The Tribunal proposes to decide these issues at this time based on the parties’ written submissions.

6If the parties have an alternative proposal for dealing with the above-noted preliminary issues, they must submit the proposal by October 29, 2010.

19No further submissions from either party have been received to date.

Analysis and Decision in Respect of Preliminary Issues

20At this point, the respondent’s position is that the merits of the Application should not be dealt with at all, for the reasons briefly noted above. The applicant opposes the dismissal, but her materials appear to contemplate that the merits of the Application encompass issues that are not within the jurisdiction of the Tribunal to decide. In the materials filed in the course of this Application, the applicant has referred, among other things, to medical malpractice, incompetence and possible criminality in respect of various individuals and institutions who played a part in the care of her mother prior to her death. These are serious issues, but none of them are within the jurisdiction of this Tribunal. There is one central allegation in the Application that is relevant to a claim of discrimination under section 1 of the Code against the respondents. The applicant alleges that, in making a final decision that an inquest into her mother's death would not be granted, the respondent took into account her mother's age at the time of her death in a way that amounted to discrimination under the Code.

The Respondent’s Request to Dismiss

21In arguing that the Application does not implicate “services” for the purposes of the Code, the respondent does not address the Supreme Court of Canada jurisprudence on the principles of statutory interpretation appropriate to human rights legislation recently reviewed in Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056.

22The respondent does acknowledge the decision of the Ontario Divisional Court in Braithwaite v. Ontario (Attorney General), 2007 CanLII 56481 (Div. Ct.). The Hon. Peter Cory, sitting as a member of this Tribunal in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 found that a Coroner’s decision on whether to grant an inquest was a “service”. Mr. Cory defined “services” as follows at para. 22:

…“service” must mean something which is of benefit that is provided by one person to another or to the public. The Human Rights Code of Ontario is certainly remedial in its purpose and must therefore have the least restrictive definition applied to it.

The Divisional Court confirmed that definition (paras 33-42).

23The respondent asserts that the Braithwaite decision is distinguishable because the applicants in that case sought “an order that section 10 of the Coroners Act violated section 1 of the Code” and were therefore challenging “the operation of the legislative scheme”. The respondent asserts that, by contrast, the applicant in this case claims that the decision to deny an inquest in a particular case was discriminatory. The respondent does not explain why this distinction is meaningful in relation to the jurisdiction of the Tribunal. Further, it is abundantly clear that the decision or action which gave rise to the hearing by the Tribunal and the appeal to the Divisional Court in Braithwaite, which was unsuccessful on this point, was the refusal of a coroner's inquest.

24Following the Supreme Court decisions referred to in Dopelhamer concerning the interpretation of the Code, and the Divisional Court’s decision in Braithwaite, I conclude that the decision to hold or not to hold a Coroner’s inquest is clearly a “service” for the purposes of section 1 of the Code.

25In its abuse of process argument, the respondent asserts that the Application has no chance of success, and that for this reason it should be considered vexatious. The respondent also argues that the Application is an attempt to re-litigate complaints filed by the applicant with the College of Physicians and Surgeons, but neither indicates the dates of these complaints nor states what Code issues might have been raised. The respondent also takes issue with the comparator chosen by the applicant; a girl who died at the age of ten.

26In respect of the argument that the Application is vexatious, s. 4.6(1)(a) of the SPPA does allow tribunals to dismiss applications on the basis that they are frivolous, vexatious or have been commenced in bad faith, but only if the tribunal has made a rule to that effect pursuant to section 25.1 of the SPPA. The Tribunal has not made such a rule. Accordingly, I find that the Tribunal does not currently have the power to dismiss an Application as “frivolous, vexatious or [as having been] commenced in bad faith” pursuant to s. 4.6(1)(a) of the SPPA.

27In Toronto (City) v. C.U.P.E., Local 79 2003 SCC 63, [2003] 3 S.C.R. 77 (CUPE) at para. 37, the Supreme Court of Canada stated that the doctrine of abuse of process is appropriately used to preclude re-litigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. In CUPE, the issue was the re-litigation of a criminal conviction in an arbitration proceeding. The Supreme Court’s comments have since been applied in the human rights context; see for example Christianson v. College of Physicians and Surgeons of Ontario, 2010 HRTO 72.

28In regard to abuse of process, the respondent argues that the Application is an attempt to re-litigate complaints filed by the applicant with the College of Physicians and Surgeons, but neither indicates the dates of these complaints nor states what Code issues might have been raised. My review of such documents from those proceedings as have been filed does not indicate that the College or the HPARB dealt with any claim of discrimination. As in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, it appears that there is no decision to which the respondent can point wherein another tribunal squarely addresses a Code argument.

29In the light of the above, the respondent’s Request to dismiss is denied

The Applicant’s Request to Amend

30The applicant has requested that the Application be amended to add the ground of disability. She has submitted considerable written material in support of this Request. It appears from the material that the disability in question is the disability or perceived disability of the applicant herself, rather than that of her mother. The effect of adding the ground of disability to the Application would be that the applicant would be allowed to submit evidence and argument that, in making a final decision that an inquest into her mother's death would not be granted, the respondent took into account the applicant’s disability or perceived disability in a way that amounted to discrimination under the Code.

31In opposing the amendment, the respondent essentially argues that the amendment amounts to a fresh Application beyond the time limit set out in the Code, that the applicant has “improperly relied on” a document produced for a complaint before the HPARB and that the request to amend is a “collateral attack on the preliminary motions already before the HRTO and that allowing the amendment would cause prejudice and frustration of the mandate of the Tribunal.

32In Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, the Tribunal reviewed Tribunal jurisprudence relevant to amending Applications, and laid out some of the factors considered when determining whether to allow an applicant to amend an application or add additional allegations:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

33In regard to the first two of the Boldt-Macpherson factors noted above, the Request to amend is to add a ground of discrimination to the existing Application. The Request refers to the parties' dealings with each other during the internal process that led up to the decision by the respondent that the applicant alleges offends s.1 of the Code. The applicant's materials refer to two incidents, one in which the respondent allegedly did not meet its duty to accommodate the applicant's disabilities, and one in which, in an email, an employee of the respondent appears to refer to the applicant as “a head case.”

34In regard to the second two factors, the allegation of failure to accommodate a disability-related need was within the applicant’s knowledge and could have been raised in the original Application. It appears that the existence of the email was not and could not have been within the applicant’s knowledge at the time she filed the Application, although this is not completely clear; neither party has indicated the date at which the email was disclosed to the applicant. However, it is clear that both of the incidents on which the applicant bases her Request occurred prior to the final decision of the respondent that is the subject of this Application.

35In regard to the possibility of actual prejudice to the respondent arising from the amendment, the respondent has not cited any facts that would lead to the conclusion that allowing the amendment would cause actual harm to the respondent’s ability to defend against the allegations. I also note that the interactions between the applicant and the respondent are very well documented. I can see no difficulty for the respondent that could not be addressed by affording it an opportunity to amend its submissions.

36In its Response to the request the respondent argues that the applicant should not be allowed to amend the Application because the above noted email is not admissible as evidence before the Tribunal. The respondent cites section 36(3) of the Regulated Heath Professions Act 1991, S.O. 1991, c. 18 (RHPA), which provides as follows:

No record of a proceeding under this Act, a health profession act, or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession act or the Drug and Pharmacies Regulation Act or a proceeding related to an order under s. 11.1 or 11.2 of the Ontario Drug Benefit Act.

37The email in question is part of a string of emails dated between January 25 and 30, 2007. They appear to deal with the setting up of a meeting between the applicant and the respondent in the course of the applicant’s attempt to persuade the Coroner’s Office to hold an inquest into the death of her mother. Apparently, they were disclosed to the applicant in the course of her RHPA proceeding.

38I have some difficulty with an argument that implies that an amendment to add a ground of discrimination should not be allowed because it would be difficult to prove. In any event, it is not clear to me that the email at issue is properly understood as a “thing prepared for” a proceeding under the RHPA. The decisions cited by the respondent in support of its argument that the Request to amend should be refused focus on documents created for or in the course of RHPA proceedings: the recantation at issue in F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (ON C.A.), the “discipline documents” prepared for a discipline proceeding at issue in Task Specific Rehabilitation Inc. v. Steinecke, 2004 CanLII 4853 (ON C.A.) and the letter to the College of Physicians and Surgeons considered in WSIAT Decision No. 167/06R2, 2008 ONWSIAT 1943. The only exception is the allegations in a statement of claim concerning investigative proceedings initiated by the College of Physicians and Surgeons considered by the court in Lipsitz v. Ontario, 2009 CanLII 56299 (ON S.C.), and, as with the above-noted examples, these appear to me to have a very close connection to the RHPA proceedings at issue in that case.

39There is considerable jurisprudence from this Tribunal that deals with amendments. Early on, the Tribunal and its predecessor Board of Inquiry rejected any analogy between the initiating documents in a human rights proceeding and an information or indictment in a criminal case, and early decisions also stressed that the Tribunal’s jurisdiction to amend is rooted in the Code (see for example Wight v. Ontario (No. 1) (1994), 1994 CanLII 18432 (ON HRT), 25 C.H.R.R. D/169 (Ont. Bd.Inq.), which in turn addresses situations in which reasons for impugned actions or omissions may not be stated. In Wong v. Ottawa Board of Education (No. 2) (1993), 1993 CanLII 16434 (ON HRT), 23 C.H.R.R. D/37 (Ont. Bd.Inq.), the Board of Inquiry quoted with approval the unreported decision in Bremer v. Board of School Trustees, School District No. 62, in which

it was not until the evidence of two witnesses was heard that the possibility that age was a factor in the respondent's allegedly unlawfully discriminatory decision surfaced. In denying the submission that it would be exceeding its jurisdiction if it permitted the complaint to be amended to include age as a ground the Board stated (at p. 33) that:

[I]t is apparent at the outset that such a restriction is entirely inconsistent with the principles upon which the onus may shift to the respondent in human rights proceedings. To confine a complaint in this manner would be to place upon the complainant the burden of establishing the cause for the impugned conduct, the very burden from which the complainant is relieved by establishing a prima facie case. Second, if complaints under the Code could be narrowed in this fashion, the result would be that an allegation of race discrimination could be successfully defended by proof that it was in reality sex discrimination.

Wong (above) at para. 13.

40Rules 1.5 and 1.7 of the Tribunal’s Rules of Procedure reflect the Tribunal’s duty to adopt the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

41The applicant’s Request to amend the Application to add the ground of disability is granted.

Code Issues Relevant to the Application

42As noted above, the allegation in the Application materials that is relevant to a claim of discrimination under section 1 of the Code against the respondent is that, in making a final decision that an inquest into her mother's death would not be granted, the respondent took into account her mother's age at the time of her death in a way that amounted to discrimination under the Code. To this, by virtue of the amendment, is added a claim that, in making a final decision that an inquest into her mother's death would not be granted, the respondent took into account the applicant’s own disability or perceived disability, in a way that amounted to discrimination under the Code.

Direction in Respect of a Hearing on the Merits of the Application

43Because of fatigue and other difficulties arising from her disabilities, the applicant has requested that preliminary and procedural matters be dealt with by teleconference. I understand that she has however expressed willingness to arrange the assistance that she needs to attend a hearing on the merits in person. The applicant is directed to submit in writing to the Registrar, by January 28, 2011, a proposal that will balance the requirements of holding a hearing on the merits in a fair and efficient manner with her disability-related needs. The applicant should identify in her letter to the Registrar any specific disability-related accommodation she requires for attending in person the hearing on the merits. The applicant is not required to copy the respondents with the proposal and accommodation request unless directed to do so by the Tribunal.

44If the applicant is unable to provide the above-noted proposal to the Registrar by January 28, 2011, she may write to the Registrar, copied to counsel for the respondent, requesting additional time to file the proposal and accommodation request

45I am aware that there is an outstanding Request from the respondent to quash witnesses summonses. The applicant will be filing revised lists of witnesses and revised statements of witnesses’ expected evidence. I will deal with any issues that arise in respect of these after these materials have been filed.