M.H. v. Office of the Children’s Lawyer, 2012 HRTO 2365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.H.

Applicant

-and-

Office of the Children’s Lawyer, Nancy Webb, Tracy Griffiths and Lucy McSweeney

Respondents

DECISION

Adjudicator: Mary Truemner

Date: December 18, 2012

Citation: 2012 HRTO 2365

Indexed as: M.H. v. Office of the Children’s Lawyer

APPEARANCES

M.H., Applicant

Self-represented

Office of the Children’s Lawyer, Nancy Webb, Tracy Griffiths and Lucy McSweeney, Respondents

Anita Lyon, Counsel

Introduction

1This is an Application filed on February 1, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of age and sex. A Summary Hearing was held by way of teleconference on December 14, 2012 to deal with whether the Application has any reasonable prospect of success and also to deal with the respondents’ request that the Application be dismissed on the basis that, amongst other reasons, the Tribunal has no jurisdiction because of absolute privilege.

BACKGROUND

2The applicant has been involved in a dispute involving the custody of his daughter. He sought joint custody before the Ontario Court of Justice. He consented to the judge’s request that the Office of the Children’s Lawyer (“OCL”) conduct an investigation and make a report and recommendations concerning custody under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. 43.

3The OCL appointed Tracy Griffiths to investigate and to prepare a report and recommendations. She did so, and made recommendations that the mother of the applicant’s daughter be granted full legal and sole custody of the daughter, and that the applicant’s visitation and access be reduced by 50%.

4The report was signed by a manager of the OCL, Nancy Webb, and an affidavit with the report attached was filed with the court by the OCL’s counsel, Lucy McSweeney, pursuant to s. 112(3) of the Courts of Justice Act.

5The applicant believes that the findings and recommendations in the report that prefer the mother of the applicant’s daughter over him were unfounded and therefore discriminatory.

ABSOLUTE PRIVILEGE

6In an Interim Decision dated November 21, 2012, the Tribunal directed the parties to be prepared to address at the commencement of the Summary Hearing the issue of whether the Application should be dismissed because of absolute privilege. At the Summary Hearing, the respondents argued that their role in preparing and filing the report was in anticipation of Tracy Griffiths being a witness in the custody dispute before the court. They argued that while Ms. Griffiths did not testify because the dispute was settled, absolute privilege is triggered in the preparation of documents to be used in litigation.

7In his Response to a Request for an Order which opposed the respondents’ request for dismissal, the applicant wrote that the Tribunal would not have accepted the Application if it did not believe it had jurisdiction. At the Summary Hearing, the applicant stated that he did not think it was fair that the Application might be dismissed because of a legal technicality. He did not address the case law provided by the respondents.

ANALYSIS

8Section 112 of the Courts of Justice Act, describes the involvement of the OCL in the context of custody disputes:

112. (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education.

(2) The Children’s Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person.

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.

(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness.

9I agree with the respondents that the common law doctrine of absolute privilege prevents the applicant from pursuing the Application. As stated in G.A. v. York Region District School Board, 2012 HRTO 1787 at paras. 17-19:

Absolute privilege is a common law doctrine, the purpose of which is to ensure that judges, advocates, litigants and witnesses are free to fulfill their roles in the justice system without the threat of lawsuits based on their doing so.

It is well-established that statements made during the course of judicial or quasi-judicial proceedings and in legal pleadings are made on an occasion of absolute privilege and may not be used as the basis for civil proceedings, including Applications under the Code. Dingwall v. Lax, reflex, (1988), 1988 CanLII 4716 (ON HCJ), 63 O.R. (2d) 336; 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727, at para. 33-46; Ornelas v. Casamici Restaurant, 2010 HRTO 1078, (reconsidered, 2011 HRTO 1531).

In Ontario, absolute privilege also applies to preparatory steps taken towards litigation: Dingwall, supra, at para. 16; Stewart, supra, at para. 39.

10The applicant names the respondents because of their role in creating and filing the report with the court. It is clear that the report is the entire basis for the Application. It is also clear that the report was created and the recommendations were made in the course of judicial proceedings. Therefore, the applicant cannot rely on the report or the actions of the respondents in creating and filing the report as a basis to make a claim under the Code.

11The Application is dismissed on the basis that the Tribunal has no jurisdiction to deal with it because of absolute privilege. There is no need to deal with the respondents’ other arguments as to why the Application should be dismissed.