Boston v. Ontario (Attorney General), 2013 HRTO 1765

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Boston

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General, Superior Court of Justice Family Court Branch and Howard Hurwitz

Respondents

DECISION

Adjudicator: Brian Cook

Date: October 18, 2013

Citation: 2013 HRTO 1765

Indexed as: Boston v. Ontario (Attorney General)

APPEARANCES

Jason Boston, Applicant

Self-represented

Howard Hurwitz, Respondent

Amanda Smallwood, Counsel

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

Fatema Dada, 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 goods and services because of race, ethnic origin, disability, family status and marital status.

2A hearing by telephone conference call was held on October 8, 2013 to consider whether the Application should be dismissed in whole or in part.

BACKGROUND

3The Application arises out of a family law dispute involving the applicant and his former spouse. The applicant and his former spouse were both initially represented by counsel in the proceeding. The personal respondent, a registered social worker, was retained/appointed to prepare a Custody and Access Assessment Report. Counsel jointly selected the personal respondent as the assessor. By the time the report was prepared the applicant was no longer represented by counsel. By the time the case went to trial his former spouse was not represented either.

4Following a number of interviews with the parties, observation meetings, and interviews with third parties, the personal respondent prepared a report dated May 11, 2011. A copy of his report was shared with the parties after it was prepared.

5The applicant alleges that the report is discriminatory. He alleges that it contains racial stereotypes about him. The applicant self-identifies as a Black Canadian man. His former spouse is a White woman. The applicant also alleges the personal respondent failed to properly investigate many factual disputes and that his investigation favoured his former spouse, which he alleges shows discrimination against him related to family and marital status.

6The applicant attempted to raise concerns about the report with the personal respondent. This led to conversations between the applicant and the personal respondent in May and June 2011. The applicant asked to be allowed to record one of these conversations to accommodate a learning disability. He alleges that the personal respondent refused to consent to the recording. The personal respondent did suggest that the applicant could have someone take notes of the conversation but the applicant did not feel that this was an adequate accommodation and he alleges discrimination because of disability in respect to this issue.

7After the personal respondent prepared his report, the family law dispute continued to be managed by the family law court system. This included a number of proceedings before different judges. The proceedings included at least one settlement conference, at least one trial case management conference and the trial itself, which was held January 30 to February 3 and February 6 to 8, 2012.

8The applicant alleges that he tried to bring up his concerns about the personal respondent’s report at various times during these proceedings. He says that at a pre-trial settlement meeting, the presiding judge told him that the court system could not address his allegations that the report was discriminatory.

9The personal respondent was present as a witness at the trial and was qualified as an expert witness. The applicant alleges that he raised concerns about the report with the trial judge. The applicant said that he felt he had to be circumspect about the way he raised his concerns during the trial because he did not want to be seen to “raise the race card” because of the risk that if he did he might be accused of doing so only for tactical advantage in the trial. However, he says that he did raise his concerns. During the Tribunal hearing he said that he told the judge that he felt that the report was discriminatory and that the areas of discrimination included race. He says that the judge told him that he could cross-examine the personal respondent and he did so. He was also permitted to make submissions about the report and other evidence presented at trial.

10The Court released its judgement on May 17, 2012. An Addendum was issued on June 23, 2012. The judgement was amended on April 1, 2013 as a result of further proceedings, which are discussed below.

11This Application was filed on February 11, 2013. It named the personal respondent and the Family Court as respondents.

12On March 4, 2013, the Tribunal issued a Notice of Intent to Dismiss (NOID) to the applicant. The Tribunal noted that it appeared that the Application had not been filed within one year of the last incident of alleged discrimination as required by section 34(1) of the Code. The Tribunal also noted that the doctrine of judicial immunity might apply to preclude the Application as against the Court. The applicant was invited to make submissions on these issues.

13The applicant’s submissions were reviewed by the Tribunal. A Case Assessment Direction (CAD) was issued on June 4, 2013 directing a telephone conference call hearing be scheduled to deal with the issues raised in the NOID. In addition, the CAD identified the doctrine of immunity regarding an expert witness in a judicial proceeding as possibly applying to the allegations against the personal respondent. Finally, the CAD directed that the parties address whether there is a reasonable prospect that the Application could succeed if it were allowed to proceed to a full hearing.

14With respect to the issue of whether there is a reasonable prospect of success, Rule 19A of the Tribunal’s Rules of Procedure and the Tribunal’s Practice Direction on Summary Hearings provide that the Tribunal may dismiss an application in whole or in part because there is no reasonable prospect that the applicant can prove that discrimination contrary to the Code occurred.

15The October 8, 2013 hearing dealt with all these issues.

THE APPLICATION AGAINST MR. HURWITZ

16I find that the Application as against the personal respondent cannot succeed because of timeliness and the doctrine of immunity.

17Section 34 of the Code provides as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

18The Application was filed on February 11, 2013. It is clear that the allegations of discrimination with respect to the personal respondent relate primarily to the report itself, which was provided to the applicant in May 2011, which was more than one year before the Application was filed. The applicant suggests that the report was the first in a series of events involving the personal respondent and that the last of these occurred within one year of the filing of the Application. The alleged series of events includes the allegation of a failure to accommodate disability in regards to the applicant’s request to record a conversation. That relates to events in May and June 2011. After that, the applicant had no involvement with the personal respondent until the trial in early 2012.

19The personal respondent’s testimony at the trial could be seen as an “event” tied to the earlier alleged discriminatory events. However, even if this were the case, he testified in court on February 4, 2012, which was more than one year before the Application was filed on February 11, 2013. Even if the testimony was given within one year of the filing of the report, the law is clear that the testimony of the personal respondent, who was qualified in court as an expert witness, is protected by the doctrine of immunity with respect to his testimony in court. See Bajouco v. McMaster, 2011 HRTO 569, and the cases relied on in that decision. Prior to the telephone conference call hearing, the applicant filed submissions confirming that he was no longer pursuing allegations of discrimination on the part of the personal respondent in regard to his testimony at trial because the applicant understands that the testimony at trial is protected by the doctrine of immunity of expert witness testimony.

20In my view, an allegation of discrimination that cannot be brought as part of an Application because of the doctrine of immunity cannot be an allegation that forms part of a “series of events” for the purpose of section 34(1) of the Code.

21I therefore find that the Application as against the personal respondent was not filed in accordance with section 34(1).

22As noted earlier, although the Application was not filed in time in accordance with section 34(1), the Application could nevertheless be brought under section 34(2) of the Code if the applicant could show a good faith explanation for the delay and if the delay would not result in substantial prejudice to the respondents.

23The applicant’s explanation for the delay is that he was involved in a court process that was leading to the trial. He understood that the court process was an appropriate place to raise his concerns about the report. As noted, he was also worried that if he raised allegations of discrimination about the report during the process there could be negative consequences for his case before the courts.

24In my view, this explanation does not constitute a good faith explanation for the delay in this case.

25The applicant’s allegations that the personal respondent’s report was discriminatory were, according to the applicant, matters that he raised with the judges who were managing the case and were clearly raised to the trial judge. The trial judge had full authority and jurisdiction to deal with the allegations that the report was discriminatory and he appears to have exercised that authority by allowing the applicant to cross examine the personal respondent and make submissions about the report.

26In general terms, the Tribunal has found that waiting for the conclusion of one proceeding does not provide a good faith explanation for delay in filing an application. In this case, it seems to me that waiting for the unsuccessful conclusion of a court case in which there is a full opportunity to raise the Code-related allegations does not provide a good faith explanation for filing an Application in February 2013 about a May 2011 report.

27During the hearing, I raised the question of whether section 34(11) might operate to prevent the applicant from bringing the Application regarding the personal respondent. In light of my findings on delay, it is not necessary to determine this.

ALLEGATIONS ABOUT THE COURT PROCESS

28At the hearing the applicant indicated that he understood that any allegations about decisions of any of the judges involved in the case would be protected by the doctrine of judicial immunity. He said that in any event, he is not alleging that the judges themselves discriminated against him. Rather, he said that his allegations about the Court are related to process. He alleges that failures in process influenced the judicial decisions that were eventually made in his case.

29He alleges that the Court discriminated against him by failing to provide an appropriate assessment of the personal respondent’s report and a forum to allow him to challenge the report.

30This allegation seems to relate to the comments allegedly made by the judge who presided over the settlement conference. The applicant agrees that the trial judge allowed him to cross examine the personal respondent and to make submissions about the report itself.

31Even if the applicant could establish that there was somehow a failure on the part of the Court to provide an adequate forum to dispute the personal respondent’s report, I do not see how he could show that this happened as a result of discrimination on the basis of a Code-protected ground. Even if he could show this, ultimately, any problems with the court process must be raised before the presiding judge (and in this case, were raised with the presiding trial judge) and this Tribunal has no jurisdiction to second guess the decision making process of a judge.

32The same reasoning applies to the other complaints the applicant has about the way the case was managed throughout the process. These include an allegation that the personal respondent did not follow the rules respecting expert witnesses in regards to the way his report was filed with the Court and that the Court office failed to enforce the rules, and an allegation that a judge without expertise in family law was assigned to one of the proceedings.

33Even if these allegations did relate to any allegations of infringement of the applicant's Code-protected rights, the solution for the applicant was to raise them with the appropriate presiding judges.

34In summary, I do not see how the applicant could successfully show that the court process resulted in discrimination against him on any Code-protected ground on any basis that this Tribunal would have jurisdiction to deal with.

FURTHER ALLEGATIONS ABOUT THE COURT PROCESS SINCE THE APPLICATION WAS FILED

35The applicant has further complaints about the processing of various court proceedings that have happened since the Application was filed. He said that he would like to be permitted to amend the Application to include these allegations.

36The only potentially Code-related allegation about events after the Application was filed is that a Court official sided with his former spouse and allowed her to file documents in a way that was allegedly advantageous to her and disadvantageous to him. The applicant alleges that this was discrimination on the basis of family status or marital status or possibly sex. The Court has not filed any response to these allegations because it has not been required to do so.

37The fact that these allegations arise out of the continuing Court managed litigation between the applicant and his spouse would argue in favour of permitting the applicant to amend the Application to include these allegations.

38However, since the original Application has now been dismissed in its entirety, I find that it is not appropriate to allow the applicant to amend the Application to include allegations about events that have occurred since the original Application was filed. In making this conclusion, I have also considered the fact that the Tribunal would necessarily have to consider deferring consideration of these allegations because they are clearly related to ongoing proceedings before the Court which are not yet concluded.

39If the applicant wishes to pursue allegations about events that have occurred since the original Application was filed, he must file a new Application.

DECISION

40The Application as against the personal respondent is dismissed on the grounds that the Application was not filed within one year of the last allegedly discriminatory event over which the Tribunal would have jurisdiction to decide and there is no good faith explanation for the delay.

41The Application as against the Family Court is dismissed because there is no reasonable prospect that the applicant could successfully prove that there was any infringement of his Code-protected rights with respect to any allegation which this Tribunal would have jurisdiction to decide.