Boston v. Ontario (Attorney General), 2015 HRTO 128

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 Ministry of the Attorney General of Ontario (Superior Court of Justice Family Court Branch)

Respondent

DECISION

Adjudicator: David Muir

Date: January 28, 2014

Citation: 2015 HRTO 128

Indexed as: Boston v. Ontario (Attorney General)

APPEARANCES

Jason Boston, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General of Ontario (Superior Court of Justice Family Court Branch), Respondent

Fatema Dada, Counsel

1In this Application, the applicant alleges discrimination with respect to services because of his race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In his Application the applicant complains generally of the treatment of him as a black man and father who was involved in family law dispute with his former spouse, a white woman. The applicant believes that because of negative stereotypes about black men as husbands and fathers he was treated differently in the court process than his former spouse and that she appears to have been favoured.

3In particular the applicant alleges that the court assigned to his case, which was described as "highly conflictual", judges who had little or no experience in family law. He also alleges that the court treated him differently than his spouse in the finalizing of the Order of the trial judge. The applicant alleges that while his former spouse was allowed to make changes to a final Order of the court, he was not allowed to do so, but rather was told that he was required to bring a motion. The applicant also alleges that while the respondent's staff accepted motion materials filed by his former spouse when the file could not be located, he was denied the same privilege and was advised that he should "walk" his responding materials into court on the day of the Motion. The applicant alleges that he was not informed in a timely way of an adjournment of a motion in the proceeding and that communication in relation to this incident suggested a degree of familiarity between the applicant and the respondent's staff which was suspicious.

4In a Case Assessment Direction issued on June 16, 2014, the Tribunal directed that a summary hearing be held to determine whether all or part of this Application should be dismissed because all or part of it has no reasonable prospect of success.

5A summary hearing was held by telephone conference call on December 8, 2014. All parties participated. Prior to the hearing I had reviewed the Application, Response and Reply of the applicant as well as documents and submissions provided by both the applicant and the respondent just prior to the conference call. In addition the applicant provided post-hearing submissions after the hearing on January 13, 2015. These have been reviewed as well.

6For the reasons that follow the Application is dismissed because there is no evidence to which the applicant can point which would tend to establish a link between the alleged actions of the respondent and the applicant's race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, and/or marital status.

7Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

9As has been noted on many occasions, the Tribunal does not have the power to deal with allegations of general unfairness. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, discrimination on the basis of a Code ground. To establish discrimination, an applicant must be able to prove that there is a link between a respondent's alleged actions and a Code ground.

10At the summary hearing stage the Tribunal has taken the approach that the allegations of an applicant are capable or proof – that is, unless they are on their face incapable of belief, an applicant's allegations with respect to the actions of a respondent will be taken as true for purposes of the summary hearing.

11In this case the alleged actions and inactions of the respondent as outlined above are obviously capable of proof and on their face not unbelievable. For purposes of this summary hearing I accept them as true. However I also find that there is no evidence to which the applicant can point which would tend to establish that the actions of the respondent were informed by any of the Code grounds cited despite his apparent sincere belief that this was the case.

12The respondent relied to some degree on a prior determination of the Tribunal in an Application he filed alleging discrimination by the same organizational respondent in relation to same family law dispute between the applicant and his former spouse. The prior Application was dismissed for a number or reasons including that it was found to have had no reasonable prospect of success in Boston v. Ontario (Attorney General), 2013 HRTO 1765 ("Boston").

13The respondent argued that this Application should be similarly dismissed because it was previously dealt with in Boston. The applicant argued that this was not the case because these particular allegations were not before the Tribunal. On this point I agree with the applicant in part and note in particular that the Tribunal expressly declined to allow the applicant to raise one or more of the allegations made here in the context of that summary hearing process.

14However in Boston, the Tribunal did deal with an allegation that a judge lacking expertise in family law was appointed to deal with aspects of the family law dispute. This allegations was dismissed because it had no reasonable prospect of success. I come to the same conclusion because, leaving aside the respondent's argument that the appointment is a quasi-judicial act involving a supervising Justice, the applicant has no evidence to support the conclusion he argues for.

15Although not directly determinative of the issues before I also agree with the Tribunal's view expressed in Boston that the allegations of alleged discriminatory management of the proceeding before the court are matters that are inextricably linked to the judicial process and should have been raised before the presiding judges. I also agree that given the nature of the allegations made by the applicant they are likely covered by the doctrine of judicial immunity because they are inextricably linked for the most part to the judicial process.

16I also find that there is no evidence to which the applicant can point which would establish a link between the alleged actions and the grounds claimed. I have already dealt with the main allegation of the applicant that some unnamed person or persons deliberately selected judges with limited experience in family law matters for his case. Similarly the applicant alleges that the judge's Order was modified by the applicant's former spouse and when he tried to do the same thing he was told that he was required to bring a motion. Assuming that the facts alleged by the applicant are true, which is not conceded by the respondent, this incident might have been unfair but there is no evidence to which the applicant can point which would tend to support the inference that the decisions of the respondent's staff were informed by racial stereotypes about black men or men in family disputes with their spouses.

17In respect of all of the applicant's allegations, they amount to a bald assertion that he experienced a negative consequence of some action by the court and because he is a Black man involved in a dispute with a White woman the inference must be that the court's actions were informed in whole in part by his Code-protected personal characteristics. In his submissions the applicant prefaced several of his assertions with the statement that these were mere beliefs or speculation because he did not know why. I also note that as frustrating and distressing as these events might have been at the time, the allegations taken together are not so numerous or on their face so egregious as might lead to an inference that a factor in the applicant's treatment were any of the Code grounds claimed.

18Despite the applicant's oft stated belief that this was the case, more is required even at this stage of the proceeding. The Tribunal has noted on many occasions that more than mere assertion is required - there must be some reason to believe that the applicant can point to evidence or that it is reasonable to believe that there is evidence which the applicant can obtain that would establish some basis to make the required link. Having reviewed the material described above and the applicant's submissions, I find that there is nothing beyond the applicant's belief.

19For all of these reasons I find that this Application must be dismissed because there is no reasonable prospect that it can succeed.