Marsden v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1933

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

DECISION

Adjudicator: Judith Keene Date: October 11, 2012 Citation: 2012 HRTO 1933 Indexed as: Marsden v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Anne Marsden, Applicant Self-represented

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 Christopher Diana and Jordana Joseph, Counsel

Introduction

1This is a Decision in respect of an Application filed on February 4, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of age and disability.

2This matter arose in the course of the applicant’s efforts to have the respondent hold an inquest into the death of her mother. The parties have been dealing with each other since 2006 in regard to the original facts giving rise to this Application. There have been several related legal proceedings. Correspondence copied to the Tribunal in this file is voluminous, with much of it relating solely to various Divisional Court proceedings, as well as to allegations by the applicant of professional misconduct and criminal conduct by persons concerned with her mother's medical care, and with the applicant's original request for an inquest.

3Arranging the hearing into the merits of this matter has taken some time. In part this has been because of accommodation of the applicant’s disability-related needs, which is a routine part of the Tribunal’s operations. However, there has also been a great deal of time taken up with procedural wrangling between the parties. In respect of this Application, there have been a number of Case Assessment Directions (“CADs”) and Interim Decisions. The original Application has been amended. A hearing into the merits, commenced in 2009, has continued with one day of hearing on February 23, 2012. The evidence of the applicant has been heard, and she is partway through the examination of one witness.

4At this point, the issue is whether the Application should be dismissed, without concluding the hearing on the merits, as an abuse of process. I have determined that the Application should be dismissed.

FACTS AND ARGUMENT

5The respondent submitted a Request for an Order During Proceedings, filed on June 19, 2012, requesting that the Application be dismissed as an abuse of process or, in the alternative, that the Tribunal compel the applicant to refrain from using inappropriate, abusive or defamatory language in her interaction with the respondent, its counsel and the Tribunal, as well as an order to regularize the applicant’s approach to receipt and delivery of communications via electronic mail (i.e. that the applicant either permit respondent counsel to use the e-mail address identified previously for the purposes of this Application or alternatively that the applicant be prohibited from using that e-mail address for the purposes of this Application).

6In addition to the behaviour of the applicant in the course of these proceedings, there is an issue concerning the scope of the hearing. Pursuant to Interim Decisions 2011 HRTO 30 and 2012 HRTO 643, the legal issues in this Application are confined to two aspects of services provided by the Coroner’s Office:

a) First, the refusal by the Coroner to convene an inquest into the death of the applicant’s mother. The applicant alleges that, in making a final decision not to grant an inquest into her mother's death, 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; and

b) Second, the respondent’s dealings with the applicant in regard to her inquiries relating to that refusal. The applicant alleges that, in making a final decision not to grant an inquest into her mother's death, the respondent took into account the applicant’s disabilities or perceived disabilities, and failed to accommodate her disabilities, in a way that amounted to discrimination under the Code.

7The applicant has to date indicated an unwillingness to accept the Tribunal’s order about the scope of the hearing as set out in the above-noted Interim Decisions. During the course of these proceedings, the applicant has repeatedly raised her view that a number of actions on the part of persons employed by the Office of the Coroner were effected without jurisdiction. By this, she means jurisdiction under the Coroners Act, R.S.O. 1990, c. C.37 (the “Coroner’s Act”). Prior to the most recent date of hearing, February 23, 2012, the applicant had filed a Request for an Order During Proceedings (“Request”) asking that the respondent’s Response to the amended Application be struck from the record because, in her view, they are “based on the false premise that the OCCO had jurisdiction to make a Section 26(2) Coroner’s Act decision”. (I orally denied that Request at the hearing.) Further, most of the applicant’s own evidence on February 23, 2012, was concerned with the propriety of various decisions taken by medical personnel at the hospital where her mother was treated during the last days of her life. The applicant's questions of her witness were largely directed to the jurisdiction of various individuals to make decisions under the Coroners Act.

8In an Interim Decision issued after the February 23 hearing day (2012 HRTO 643, issued on March 29, 2012), I explained my ruling on the applicant’s Request as follows:

…While I understand that this is the applicant’s position, the purpose of this hearing is to deal with whether the respondent breached the Code. This is a separate issue from jurisdiction under the Coroner’s Act. If the applicant were to establish on the evidence that a prima facie case of a breach of the Code has occurred, the respondent could not establish a defence simply by claiming that its employees acted within their jurisdiction under the Coroner’s Act. Similarly, if the applicant were to establish that an employee of the Coroner’s Office acted without jurisdiction, that alone would not establish a breach of the Code. (at para. 8)

9I had occasion to reiterate instructions about the scope of the hearing in CADs issued on April 6, 2011, June 28, 2011, and March 14, 2012. However, in many of her written submissions and e-mails to the Tribunal the applicant has continued to indicate her disagreement with my ruling on the issues relevant to the Code in this Application. In an e-mail to the Registrar dated June 12, 2012, the applicant insisted that “the hearing has to recommence on the next date of hearing, not continue”. On that date, the applicant also attempted to reopen a matter concerned with accommodation that had also been dealt with in the March 14 2012 CAD, without any new information concerning her disability-related needs.

10On June 18, 2012, I issued a CAD directing that the applicant must clearly indicate to the Tribunal that she was prepared to abide by the terms of the March 14 CAD in continuing with the hearing of the Application. The applicant’s response to the June 18 CAD was somewhat ambiguous. An e-mail from the applicant to the Registrar dated June 25, 2012, contained the statement “I agree to any conditions you have set out in the March 14, 2012 and June 18, 2012 CAD for these hearings to be scheduled as that is the only way the hearing is to go forward”. However, the June 25 e-mail also indicated the applicant’s continued disagreement as to the issues arising under the Code in this Application. Further, in the June 25 e-mail, the application opined that the Tribunal had lost jurisdiction by “refusing to insure accommodations were in place that they agreed are necessary for a fair hearing”.

11In a CAD dated July 5, 2012, I advised the parties that I was willing to infer from the applicant’s email that she is prepared to abide by the terms of the CAD issued on March 14, 2012, in continuing with the hearing of the Application, “subject to any further communication or behaviour that indicates otherwise” (at para. 11), and gave directions concerning scheduling.

12The applicant had requested and had been given an extension of time to respond to the respondent’s Request for dismissal on the basis of abuse of process. In a CAD dated August 3, 2012, I declined to deal with the respondent’s Request that the Application be dismissed as an abuse of process, despite my concerns about the applicant’s behaviour, in view of the fact that there appeared to be little or no need for the parties to correspond in relation to the Application before the next hearing date. The August 3, 2012 CAD noted, however, that if the applicant did not abide by the terms of the CAD issued on March 14, 2012, or failed to maintain a demeanour of courtesy and respect toward the respondent and the Tribunal during the hearing, the respondent would be allowed to reopen the Request at that point.

13On August 10, 2012, the applicant filed a Request that her Application be amended. Her proposed amendment would restate her 2009 claim of breach of the Code to add a ground of discrimination (disability) to her claim in respect of the Coroner’s decision as it concerned her mother, and to add a claim that the Coroner’s decision discriminated against her on the ground of her own disability or perceived disability. In addition, the applicant’s Request returns to her previous attempts to expand the scope of the Application to matters of jurisdiction under the Coroners Act. Specifically, the applicant requests that the Application encompass the issues of whether any other coroner than Dr. Cairns had the authority to deal with her mother’s case, and whether Dr. McCallum had “promoted a false return to the death investigation process”. Finally, the applicant proposed that the Application deal with the correctness of the medical findings concerning contributing factors to the death of the applicant’s mother.

14By CAD dated August 14, 2012, I directed that the respondent need not respond to the Request, and that the applicant write to the Tribunal, copying the respondent, to explain why her Application should not be dismissed as an abuse of the Tribunal’s process.

15The applicant filed a written response as directed. Her response does not discuss abuse of process, but focuses on her allegation that “the abuse and deaths of those who are diagnosed with mental health illnesses” are not properly investigated “in accordance with the statutory processes set out in the legislation”, which she identifies as the Coroners Act.

16The respondent also filed a written response in addition to its previous Request for dismissal. The respondent asserts that the applicant clearly does not wish to proceed with the Application as it exists, and refuses to accept the Tribunal’s characterization as to the proper scope of the Application. The respondent opposes any attempt to amend the Application or to start a new Application to be argued on the evidence already before the Tribunal.

Abuse of Process

17Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), states that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

18There are two issues of concern in this fact situation. The first is the behaviour of the applicant toward both the respondent and the Tribunal. In these proceedings, the applicant has clearly characterized normal aspects of litigation as personal attacks, and attempted to retaliate against the persons involved in the litigation. The respondent is correct that the applicant has demonstrated an extremely aggressive and often discourteous approach, both to the respondent and to the Tribunal. In her correspondence and submissions, she has repeatedly given exaggerated, and often inaccurate, accounts of events in the course of the dealing with this Application if she disapproved of positions taken by the respondent or of rulings of the Tribunal. As I noted in the August 3, 2012 CAD, there is no doubt that the applicant has displayed behaviour that is very close to the kind of behaviour that has led to the dismissal of Applications by this Tribunal. (See discussion in Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667.) However, the applicant’s behaviour alone has not in the circumstances amounted to abuse of process.

19The more important issue is that the applicant persists in attempting to force the Tribunal to decide essentially the same issues as those she raised in her application for judicial review against the respondent. Among the materials submitted with the respondent’s request to dismiss is an endorsement by the Superior Court of Justice dated July 13, 2012, dismissing that application. The endorsement dealt with a recent application by the applicant to amend her 2009 Notice of Application for Judicial Review. The endorsement states that:

… Almost 3 years after the judicial review application was issued and more than six years after the death of the applicant's mother, the applicant seeks to completely recast her judicial review application with no satisfactory explanation as to why the application was not so drafted in the first instance. (at para. 5)

The Court concluded that the applicant was abusing the court’s process.

20The applicant has persistently refused to accept direction about what issues are of relevance to an Application under the Code and what matters are within the jurisdiction of this Tribunal.

21In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, (“Toronto (City) v. C.U.P.E”) the Supreme Court of Canada provided considerable guidance concerning the application of the doctrine of abuse of process, which may be applicable in a variety of contexts. Toronto (City) v. C.U.P.E dealt with an attempt at the relitigation of an issue. The Court noted with approval that “Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (at para. 37).

22In this case, my concern is with both judicial economy and the integrity of the administration of justice. The applicant is unrepresented; it is appropriate that she be given, and she has been given, considerable leeway in relation to her conduct of her case. It is of course open to any party to disagree with decisions and rulings of the Tribunal, and to make strongly-worded arguments. However, at this point the applicant has made it clear that she will not confine herself to issues that are within the jurisdiction of this tribunal, and that she will continue to take steps that direct the resources of both the respondent and the Tribunal to allegations and arguments that are not relevant to the Code. Efforts to prevent her from doing so have been unsuccessful. Dismissal for failure to follow directions is not undertaken lightly by the Tribunal, but, where such refusal is persistent, and seriously interferes with the Tribunal’s ability to deal with the issues that are in fact within jurisdiction, it can result in dismissal on the basis of abuse of process: see E.E. v. Conseil des écoles catholiques de langue française du Centre-Est, 2011 HRTO 2132.

23Sections 40 and 41 of the Code refer to the duty of the Tribunal to direct itself to the “fair, just and expeditious resolution of the merits” of Applications. The applicant’s continuing failure to accept rulings and to follow directions have effectively thwarted efforts to deal with the merits.

DECISION

24For the above-noted reasons, the Application is dismissed, and the scheduled hearing days are cancelled.