HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barry Noble-Gresty Applicant
-and-
The Crown in Right of Ontario as represented by the Ministers of Community and Social Services (Family Responsibility Office) and the Minister of Transportation and the Attorney General for Ontario (The Provincial Prosecutor/Crown Attorney’s Office; Durham Regional Police Services and David Duerdon Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Noble-Gresty v. Ontario (Community and Social Services)
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in the provision of goods and services on the basis of marital status.
2In his Application that applicant alleges that he was stopped by police and charged with driving while his licence was suspended. The applicant’s licence was suspended because he was in arrears of child support according to the Family Responsibility Office. The respondents identified above are part of the chain of decision making that resulted in the applicant being charged and convicted of driving with a suspended licence. The applicant alleges that because he is a separated or divorced parent a different set of rules apply to him which do not apply to parents who are not separated of divorced.
3On March 31, 2013 the Tribunal issued a Notice of Intent to Dismiss this Application as against the respondent identified as the provincial prosecutor/Crown Attorney’s Office.
4The applicant has responded to the NOID but does not address the prosecutorial immunity issue. Instead the applicant articulates this view that a different set of rules apply to him because he is separated or divorced parent.
5At this preliminary stage before the Application has been delivered to these respondents and a Response (Form 2) has been filed, the Tribunal will only dismiss an Application where it is plain and obvious that it is outside its jurisdiction. However in my view this Application must be dismissed because it is plain and obvious that this aspect of the Application must be dismissed because I find that the doctrine of prosecutorial immunity applies and the applicant has not suggested otherwise. Indeed the applicant argues that there was nothing unfair about his prosecution or the conduct of prosecutors but that they represent the “final step in the very discrimination about which I have complained”. The applicant’s ultimate complaint appears to be that the scheme administered by the Family Responsibility Office is discriminatory. Whatever the merits of the applicant’s ultimate complaint the Tribunal has found that, the actions of prosecutors in the course of carrying out their duties are in most cases not “services” within the meaning of s. 1 of the Code and are not subject to the Code because of prosecutorial immunity: See Inward v. Toronto (City), 2010 HRTO 2127. I agree with and adopt the principles outlined in that Decision and accordingly this aspect of the Application is dismissed.
Request for Summary Hearing
6On May 6, 2015 the respondent Minister of Community and Social Services (Family Responsibility Office) filed a Request for Summary Hearing. The applicant did not respond to the Request.
7The Request is granted. Moreover having reviewed the Application and the other pleadings of the parties including the applicant’s submissions to the NOID the Tribunal directs that in addition to the issues raised by the respondent above, the Tribunal directs that a telephone hearing be held on whether the Application should be dismissed, in whole or in part, on the basis that it has no reasonable prospect of success and whether another proceeding has appropriately dealt with the substance of it.
8Rules 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.
9Details 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.
10The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities.
11In this case, the issue will be whether, assuming the allegations to be true, the applicant’s allegations may be reasonably considered to amount to a Code violation.
12The parties will also be prepared to make submissions about whether or not this Application should be dismissed because is an abuse of process. As I understand it the applicant was charged and convicted with an offence arising from his central complaint the enforcement of a court ordered support order. The question arises whether or not if the applicant believed that the enforcement of a court order was discriminatory was this issue raised and dealt with in the court proceeding. If the issue was not raised there should it have been and would it be an abuse of the Tribunal process to allow the applicant to pursue the issue in this proceeding?
13The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument in response to the issues identified by the respondents as well as those set out above.
14If the Tribunal determines that the Application has no reasonable prospect of success or that it has been appropriately dealt with, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.
15A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days after the date of this Direction.
DIRECTION
16The Application as it relates to the Provincial Prosecutor/Crown Attorney’s Office is dismissed.
17The Registrar will schedule a half-day hearing by conference call on the issues identified above. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 35 days after the date of this Direction.
18I am not seized.
Dated at Toronto, this 19th day of June, 2015.
“signed by”
David Muir Vice-chair