Marsden v. Ontario (Community Safety and Correctional Services), 2012 HRTO 643

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: March 29, 2012 Citation: 2012 HRTO 643 Indexed as: Marsden v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS by

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 Jordanna Joseph, Counsel

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.

3In respect of this Application, the parties have raised many preliminary issues, largely by Requests for an Order During Proceedings (“Requests”). 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.

4On February 23, as a preliminary issue, I ruled orally upon the Applicant’s most recent Request for an Order During Proceedings. The applicant had requested (via a Request dated January 16, 2012) that the respondent’s Response to the amended Application be struck from the record. The Applicant asked that the submissions of the respondent be struck 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 denied that request, giving brief reasons, and indicated that I would give written reasons at a later date.

5On March 26, 2012, the Applicant e-mailed the registrar, copying the respondent, requesting an oral hearing to deal with both her January 16 Request, and with her stated view that the Tribunal has “lost jurisdiction” of her Application for various reasons specified in the e-mail. All of the applicant’s reasons have been raised previously in these proceedings, and most have been dealt with by way of Interim Decisions and CADs.

6The applicant has not submitted her views about loss of jurisdiction by way of a Request for Order. However, in the interests of proceeding with the merits of this matter, and acknowledging that the applicant is not represented by counsel, I will deal with this issue here. The applicant has not included in her e-mail any reasons that would lead me to conclude that the Tribunal has lost jurisdiction over the Application.

7To clear up any uncertainty about the Applicant’s Request dated January 16, 2012, the following are my reasons for refusing it.

8The 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”). 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.

9Rule 1.7 (h) of the Tribunal’s Rules of Procedure provides that, among other powers, the Tribunal may “define and narrow the issues in order to decide an Application”. I have done so in this case in the Interim Order of January 5, 2011, 2011 HRTO 30. I provided further clarification in response to a letter from the respondent, in a Case Assessment Direction issued on April 6, 2011, and again in a CAD issued on June 28, 2011.

10As previously noted, two aspects of service-provision by the Coroner’s Office arise in the amended Application:

a) a refusal by the respondent to convene an inquest into the death of the applicant’s mother: 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, and

b) 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 that an inquest into her mother's death would not be granted, the respondent took into account her disabilities or perceived disability, and failed to accommodate her disabilities, in a way that amounted to discrimination under the Code.

11The refusal to hold an inquest was conveyed to the applicant in several letters. In the course of her dealings with the respondent, the applicant has also received copies of numerous reports. There has never been a suggestion in this process that, in writing the letters and reports, the authors were not engaged in their work for the respondent; nor is it disputed that the reports and letters are the responsibility of the respondent. There is also no dispute that the persons involved with the respondent in dealing with her request for an inquest were acting on behalf of the respondent. Because alleged actions or omissions of the respondent are at issue, the jurisdiction of any individual employee involved with the subject matter of the Application is not relevant to the question of whether the respondent has breached the Code. Lack of jurisdiction, even if established, is not in these circumstances a reason to disregard the respondent’s Response.

12For the above reasons, the applicant’s request that the respondent’s Response be struck was refused.

Direction

13As directed in a CAD issued on March 15, 2012, the Tribunal will schedule three further hearing dates. Pursuant to the e-mail from the applicant of February 29, 2012 concerning her disability-related restrictions, these will be a minimum of one week apart.

14On the first of the above-noted hearing dates, the Tribunal will continue to hear the evidence of Dr. Evans to its conclusion. The respondent is directed to ensure that at least one of its two proposed witnesses will be available on that day to give evidence.