Pytka v. Ontario (Attorney General), 2013 HRTO 1235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marilyn Pytka

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General of Ontario

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: July 16, 2013

Citation: 2013 HRTO 1235

Indexed as: Pytka v. Ontario (Attorney General)

APPEARANCES

Marilyn Pytka, Applicant

Yavar Hameed, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Attorney General of Ontario, Respondent

Darrell Kloeze, Counsel

Introduction

1This is an Application filed 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 disability, sex, gender identity and family status.

2The Tribunal issued a Notice of Intent to Dismiss dated November 22, 2012 on the basis that the Application appears to be outside the Tribunal’s jurisdiction. The Notice indicated that the Application appeared to relate to the applicant’s experiences as a litigant in the Ontario court system including allegations about the conduct of one or more judges. The applicant filed written submissions in response to the Notice. The Application and Notice were not served on the respondent.

3On February 28, 2013, I issued a Case Assessment Direction seeking submissions from the respondent on the jurisdictional issue. I indicated that unless otherwise requested, I would deal with the jurisdictional issue in writing.

4The respondent filed written submissions and the applicant filed written submissions in reply.

5The applicant alleges that she was “denied access to justice and appropriate treatment by the Ontario Courts contrary to the request to accommodate my Code protected characteristics as a family/informal caregiver.”

6In the narrative of the Application the applicant explains that she is a woman living with multiple disabilities who acted as her mother’s primary caregiver for over 20 years before her mother’s death in 2004. The applicant describes herself as having been forced into litigation by her brother who was the executor of her mother’s estate. The applicant signed a consent agreement which was made an order of the Ontario Superior Court of Justice which she alleges she was coerced and intimidated into signing. She then attempted to have the agreement set aside through various applications and appeals to the Ontario Superior Court of Justice, Divisional Court, and Ontario Court of Appeal.

7The applicant filed submissions in response to the Notice of Intent to Dismiss arguing that judicial immunity does not apply in the circumstances of her case. The applicant argues that the Application is in respect of access to the justice system and is not directed at a specific judicial decision or individual judge.

8The respondent argues that the allegations of discrimination relate entirely to the applicant’s interactions with judges in her civil court cases over the enforceability of the consent agreement.

9The allegations are not directed at one specific judicial decision or any one judge, but rather a series of decisions arising from interactions with a number of judges. The applicant’s allegations relate to either procedural or substantive decisions made by the various judges to whom the applicant appealed seeking relief from the consent agreement. While the applicant argues that her Application relates more generally to the administration of Court services in Ontario, what she has described as the facts supporting her allegations are her interactions with judges in the exercise of their procedural and substantive decision-making power. The remedy requested by the applicant to “remit” the matter back to the Ontario Court of Appeal and provide sensitivity training for members of the judiciary, reinforces this interpretation of her allegations.

10The respondent argues, and I agree, that this Tribunal has determined that the content, reasons and result contained in a decision of a statutory decision-maker do not constitute a service under the Code. See Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 at para 12:

The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment “with respect to services, goods and facilities”. While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal’s jurisdiction.

11I also agree with the respondent that judicial immunity applies in these circumstances. The applicant does not have recourse to this Tribunal where her allegations relate to judges and other decision-makers in the execution of their duties. See Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 and Cartier v. Nairn, 2009 HRTO 2208. Fundamentally, the applicant is seeking to have the consent agreement set aside so that she can pursue a different judicial outcome to the unfortunate circumstances she describes in her Application arising from the death of her mother. This Tribunal has no jurisdiction to determine those allegations.

12I have carefully considered the applicant’s argument that her vulnerabilities were such that the respondent was required to provide appropriate accommodation to ensure real access to justice. However, what the applicant describes as a failure of justice is in large part based on the refusal by various judges to set aside the consent agreement. Other allegations regarding access relate to procedural decisions which the applicant alleges affected her ability to participate effectively in the proceedings. This Tribunal has no jurisdiction to consider whether those procedural and substantive decisions violate the Code.

13Accordingly, the Application is dismissed.