O'Connor v. Children's Aid Society of Toronto, 2015 HRTO 1166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen O’Connor

Applicant

-and-

Children’s Aid Society of Toronto, Ontario Superior Court of Justice, Law Society of Upper Canada, Ontario Judicial Council, Child and Family Services Review Board and Ryan James

Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: September 2, 2015 Citation: 2015 HRTO 1166 Indexed as: O’Connor v. Children’s Aid Society of Toronto

WRITTEN SUBMISSIONS

Karen O’Connor, Applicant

Self-represented

Introduction

1This Application stems from a custody dispute between the applicant and her common-law partner and allegedly inappropriate child protection proceedings. The applicant alleged that the respondents discriminated against her on the basis of family status and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant claims that she was discriminated and reprised against because her former spouse commenced a “staged custody dispute” against her. She claims that the Children’s Aid Society of Toronto conducted an inappropriate investigation and that all of the other respondents breached the Code by failing to follow proper procedures or by failing to appropriately process her complaints. As a remedy, she sought, among other things, to have her shared custody arrangement restored.

2On July 27, 2015, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application as outside the Tribunal’s jurisdiction under the Code. Specifically, the NOID indicated as follows:

a. The Application as against Ryan James, the applicant’s common spouse, appeared to be outside the Tribunal’s jurisdiction since the relationship between spouses and former spouses is not covered by the Code.

b. The Application as against the Child and Family Review Board (“CFSRB”) and the Ontario Superior Court of Justice appeared to be outside the Tribunals’ jurisdiction due to the doctrine of adjudicative immunity and also because the narrative of the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by these respondents.

c. The Application as against the Law Society of Upper Canada, the Children’s Aid Society of Toronto, and the Ontario Judicial Council appeared to be outside the Tribunals’ jurisdiction because the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by these respondents.

3In the NOID, the Tribunal directed the applicant to provide written submissions regarding these jurisdictional issues. The applicant responded by e-mail stating that the Tribunal should not dismiss the Application. She stated that staged legal proceedings and child abuse are obvious violations of her constitutional and universal human rights which the Tribunal must uphold. She stated that, if the Tribunal dismissed her Application, it would be “permitting corrupt networking and clientelism around a woman and her child in provincial bureaucracies in Canada and... interfering with social justice processes abroad”.

ANALYSIS AND DECISION

4At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. I find that it is plain and obvious that the applicant’s Application against all respondents falls outside the Tribunal’s jurisdiction for the reasons detailed below.

5It is common for individuals to think of human rights in a broad sense as encompassing all of the rights and freedoms contained in international human rights instruments as well as those contained in the Canadian Charter of Rights and Freedoms. Likely due in part to her human rights experience abroad, this is the conception of human rights advanced by the applicant in her Application. However, this Tribunal does not have jurisdiction over all human rights in this general sense. The Tribunal’s jurisdiction is limited to the rights set out in its governing statute, the Human Rights Code. The Code provides the right to be free from discrimination in certain social areas (services, employment, housing, etc.) on the basis of certain protected grounds. It also provides a right to be free from reprisal for claiming and enforcing rights under the Code or for instating and participating in proceedings under the Code.

Application against Ryan James

6The Application as against Ryan James falls outside the Tribunal’s jurisdiction because it does not fall within one of the social areas covered by the Code. In other words, the applicant is not in a service, employment, or housing relationship with Mr. James, nor any other relationship covered by the Code. She is in a personal relationship with Mr. James and Code does not apply to such a relationship: see Belso v. York Region Police, 2009 HRTO 757.

7For these reasons, the Application against Mr. James is dismissed.

Applications Against CFSRB and the Ontario Superior Court of Justice

8The Application as against the CFSRB and the Ontario Superior Court of Justice fall outside the Tribunal’s jurisdiction due to the doctrine of judicial/adjudicative immunity.

9The doctrine of judicial/ adjudicative immunity prohibits legal proceedings against judicial and quasi-judicial actors that are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial and quasi-judicial actors are free to execute their decision-making duties with independence and without fear of consequences. See Taucar v. University of Western Ontario, 2013 HRTO 597; Hazel v. Ainsworth Engineered, 2009 HRTO 2180; and Cartier v. Nairn, 2009 HRTO 2208.

10The CFSRB is a quasi-judicial decision-maker to which the doctrine of adjudicative immunity applies. The applicant’s allegations against the CFSRB are that it scheduled a hearing in her case based on allegedly false testimony from the Children’s Aid Society of Toronto. The scheduling and holding of hearings is a core adjudicative function to which the doctrine of adjudicative immunity applies.

11The Superior Court of Justice is a judicial decision-maker to which the doctrine of adjudicative immunity also applies. The applicant’s allegation against the Court is that it failed to enforce proper ethics and procedure in the courtroom in her custody case. The procedure adopted in a hearing is also a core adjudicative function to which the doctrine of adjudicative immunity applies. See for example Morier and Boiley v. Rivard, [1985] 2 S.C.R. 7.

12For these reasons, the Application is dismissed as against the CFSRB and the Ontario Superior Court of Justice.

Applications Against Law Society of Upper Canada, the Children’s Aid Society of Toronto and the Ontario Judicial Council

13The Applications against the Law Society of Upper Canada, the Children’s Aid Society of Toronto and the Ontario Judicial Council are dismissed because they fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by these respondents.

14The Tribunal does not have jurisdiction over general allegations of unfairness, corruption or incompetence that are unconnected to the grounds protected under the Code. As noted above, it also does not have jurisdiction over human rights in a general sense. Instead, its jurisdiction is limited to the specific rights to non-discrimination contained in the Code.

15The applicant’s allegations against the Law Society of Upper Canada and the Ontario Judicial Council are that they failed to properly process her complaints relating to the handling of her custody dispute by the Superior Court of Justice. The narrative in the Application does not allege that these respondents failed to properly process her complaints because of her family status or because of any other ground protected under the Code. At most, the applicant’s allegations are claims that these respondents treated her unfairly or should have done more in responding to her complaints, and that their inaction has had an impact on her custody over her daughter. This is not an allegation that falls under the Tribunal’s jurisdiction under the Code.

16The applicant is clearly not satisfied with the interactions she has had with the Children’s Aid Society of Toronto. Her allegations against this respondent are that it conducted an inappropriate investigation, compiled false testimony and failed to process her complaints appropriately. The applicant claims that the failure of the Children’s Aid Society of Toronto to properly address her complaint and its “staged investigation based on obviously false testimony” arose either due to corruption or incompetence on their part. The narrative in the Application does not allege that the Children’s Aid Society of Toronto took any actions against the applicant because of her family status or because any other ground protected under the Code. At most, the applicant’s allegations are claims that the Children’s Aid Society of Toronto acted inappropriately in relation to her case and that this has had an impact on her custody over daughter. This is not an allegation that falls under the Tribunal’s jurisdiction under the Code.

Order

17For the reasons set out above, the Application is dismissed as falling outside the Tribunals’ jurisdiction under the Code.