Konesavarathan v. Ontario (Attorney General), 2017 HRTO 1715

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General (Office of the Children’s Lawyer)

Respondent

DECISION

Adjudicator: David Muir

Date: December 28, 2017

Citation: 2017 HRTO 1715

Indexed as: Konesavarathan v. Ontario (Attorney General)

APPEARANCES

Kovarthanan Konesavarathan, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General (Office of the Children’s Lawyer), Respondent

Tamar Friedman, Counsel

1The respondent filed a Request for Summary Hearing (“Request”). The applicant opposed the Request.

2In a Case Assessment Direction (“CAD”) issued on October 6, 2017 the Request was granted and the merits hearing scheduled to take place on October 27, 2017 was cancelled and converted to a summary hearing to be conducted by telephone conference call.

3In the October 6, 2017 CAD I directed that the following issues would be spoken to at the summary hearing:

a. Whether the Application is outside of the Tribunal’s jurisdiction to decide because there is no service relationship between the respondent and the applicant;

b. Whether the Application is outside of the Tribunal’s jurisdiction to decide because it is untimely; and

c. Whether the Application should be dismissed in whole or in part because it has no reasonable prospect of success.

THE SUMMARY HEARING

4The summary hearing took place on October 27, 2017. On October 11, 2017 the applicant wrote to the Tribunal with written submissions addressing the issues identified above. The applicant also indicated that he did not wish to participate in the summary hearing. The letter states in part as follows:

[…] I am not willing to participate in an unrecorded summary hearing, in which there is no way for me to hold the adjudicator accountable for misapprehending the facts, misstating my claims and submissions, asking irrelevant questions, being selective of the arguments that help it dismiss the application rather than considering all the arguments or engaging in any other forms of abuse or oppressive behaviours. In the past, I raised similar concerns but the Tribunal did not care about it.

I see that the Tribunal, in the Notice of Summary Hearing, by stating, “If you do not attend the hearing after receiving proper notice, the HRTO may proceed in your absence (if you are a respondent or intervener) or dismiss the Application as abandoned (if you are the applicant)” compels me to attend the Summary Hearing. If the Tribunal will continue to compel me to attend the unrecorded Summary Hearing, I will attend it, but I will exercise my right to remain silent, so that the Tribunal cannot manipulate my unrecorded submissions as it wishes, or my response will be only that the Tribunal has to rely on my written materials.

5Unfortunately due to administrative error by Tribunal staff the applicant’s October 11, 2017 letter was not provided to me until moments before the summary hearing. Accordingly there was no way to address what appeared to be a request to make written submissions in lieu of attending the summary hearing and making oral submissions.

6I was able to read the letter and spoke to it at the summary hearing. The applicant attended the summary hearing as he indicated he would. I advised the parties that I had just received the letter. I asked the applicant if it remained his position that he would not provide further oral submissions. He indicated that it was. After some brief introductory remarks, I asked him again if he wished to add anything to his written submissions in response to the Request. He indicated that he did not and would rely on his written submissions. The applicant did not request at any point in this case leave to record the summary hearing.

7The respondent took no position on the issues raised in the applicant’s letter and made very brief submissions in response to the applicant’s written submissions.

BACKGROUND

8The authority to hold a summary hearing flows from Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which provide 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.

9The substance of this Application is that the respondent failed to properly investigate a complaint that the applicant filed with it on July 4, 2016 in whole or in part because of his citizenship, colour, disability, ethnic origin, family status, marital status, place of origin, race, sex, and association with a member of a protected group. The complaint was that a 2013 Report of a clinical investigator for the Office of Children’s Lawyer was discriminatory on the grounds of disability, family status, place of origin and race. This was a clinical investigator required by the presiding judge under section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, in a custody dispute involving a child of the applicant. The investigation that was conducted did not substantiate the applicant’s complaint about the earlier investigation and this Application was filed shortly after receiving this advice, on September 19, 2016.

NO REASONABLE PROSPECT OF SUCCESS

10In his Application the applicant alleges that the respondent failed to investigate his complaint to “the reasonableness standard.” On the face of the Application there are no facts plead that would tend to establish that a factor in the manner in which the investigation was conducted were any of the grounds of discrimination claimed. His written submissions opposing the Request add no new alleged facts in support of his claim of discrimination.

11The applicant made lengthy written submissions, but as indicated, did not elaborate at the summary hearing on what facts he was intending to rely upon to substantiate his claim. In his written submissions it appears that the applicant’s complaint is that the respondent’s reasons for not supporting his complaint were deficient and relies on a decision of the Health Professions Appeal Review Board commenting on the deficiencies of a decision of a Committee under one of the regulated health professions statutes.

12This is an entirely different circumstance – here we are dealing with a complaint to an agency whose obligation to investigate, to the extent such an obligation exists, is entirely different than a statutory decision maker like a Committee under one of the Regulated Health Professions statutes. In any event adequacy of reasons without anything further is insufficient to support the conclusion that an investigation was inadequate and more importantly that the investigation was conducted in the way that it was because of the applicant’s personal characteristics.

13As the Tribunal has noted on many occasions it has no authority to address general allegations of unfairness. In order for it to allow an Application to continue in its hearing process there must be facts plead that might establish that a factor informing an alleged act or omission of a respondent was a protected ground in the Code. The applicant has pled no such facts beyond an assertion that the response of the respondent to his complaint did not address all of his points. A deficient response or investigation, whatever the case, is not in and of itself discriminatory and without anything else would not tend to establish that the investigation was tainted by Code prohibited bias. For the purposes of the summary hearing, the applicant has not pointed to any evidence in his possession or that may be reasonably available to him in support of his allegation that the respondent discriminated against him in the manner in which it investigated his complaint.

14In my view, there is no reasonable prospect of success for this Application and it must be dismissed for that reason.

NO SERVICE RELATIONSHIP

15In its Request the respondent argued that the Application is outside of the Tribunal’s jurisdiction to decide because there is or was no service relationship between it and the applicant. The respondent relies on a number of prior Tribunal decisions which it argues support this position. See, Sweezey v Ontario (Attorney General), 2009 HRTO 1296 (“Sweezey”).

16In Sweezey the applicant argued that the report provided by the Office of the Children’s Lawyer’s clinical investigator in the context of ongoing litigation before the Court in which it was directed to provide legal representation to a minor child was discriminatory because of the applicant’s sex. The Tribunal rejected the claim. The Tribunal concluded that the Office of the Children’s Lawyer and its clinical investigators were not in a service relationship with the applicant in that case. The services that were provided were provided to and on behalf of the child in question. The Tribunal stated the following at para. 8:

This is the statutory role and responsibility of the OCL conferred upon it under the Courts of Justice Act. While I can appreciate that the applicant feels aggrieved by the findings of the OCL in its report and by other actions or omissions by the OCL, the simple fact of the matter is that it was not providing a service to him

17The Tribunal’s approach to this issue was recently confirmed in Ormerod v. Ontario (Children’s Lawyer), 2017 HRTO 656.

18The applicant argued at length in his written submissions that Sweezey was incorrectly decided. The applicant argued that the Tribunal did not adequately explain its reasons for its conclusion. The applicant argued that in Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 the Tribunal when called on to consider whether there was a service relationship between a coroner and the family of the deceased did not do so based on an “impressionistic” view of the coroner’s services. The applicant argued that the approach in Braithwaite required that a full hearing be held before this determination could be made. The Tribunal has consistently taken the view that relationships between litigants opposed to each other are not in a service relationship as defined in the Code. Similarly it has been determined by the Tribunal on several occasions that there is no service relationship between the Children’s lawyer, its clinical investigators and the parents of the child.

19Although the applicant’s allegations relates to an investigation of a complaint, the subject matter of the complaint concerned a service not provided to him but to the Court in its supervisory role as the guarantor of the best interests of one or more of his children. If there was no service relationship between the respondent and the applicant in relation to the subject matter of his complaint there may be no “duty” to investigate his complaint.

20The Tribunal’s case law on the extent of the “duty to investigate” in the face of an unproven allegation of discrimination is not settled. See, Ananda v. Humber College Institute of Technology & Advanced Learning, 2017 HRTO 611 at paras. 119 - 126 and the cases cited therein. Whatever the extent of the “duty” to investigate, in my view it does not mean that there is a free standing duty to investigate any issue about which an individual might wish to complain. In my view there must have been a substantive Code issue to which the alleged duty to investigate was potentially related. I take this view because this obligation to investigate does not flow directly from the Code itself, there is no such duty expressly set out in the Code, but flows from the obligation on service providers and employers etc., to prevent discrimination and harassment in their operations and businesses. This issue has not been expressly addressed in any Tribunal decision that I was referred to but in my view that it is implicit in the cases referred to above that there was a legitimate and bona fide Code issue that underscored the alleged obligation to investigate. In my view the obligation to investigate must be related to some other potential Code related obligation on the part of the respondent. As the applicant noted himself in his submission on this point, the rationale underlying the duty to investigate is to ensure that the rights under the Code are meaningful – the subject of the duty must relate to a right under the Code. In this case there was no such obligation in my view because the subject matter of the applicant’s complaint was not a right of his under the Code because the respondent was not in a relationship covered by the Code when its clinical investigator conducted an allegedly flawed investigation.

21As indicated the applicant argued that Sweezey is incorrectly decided and in support of this seeks to argue by analogy from a decision of the Newfoundland Court of Appeal in Rubens v. Sansome, 2017 NLCA 32 dealing with an insurance case. The court held that in some circumstances there might be a duty of care between an insured and a medical assessor retained by the insurer. The respondent did not address this argument in its written submissions or at the summary hearing. However I would observe that the relationship between an insured and their insurer are often quite different than between parties in child custody litigation. I note as well that the relationship between an insured and an insurer is contractual but in this case it is statutory. More importantly is the fact that the report of the clinical investigator was made at the request of the presiding judge and was concerned with the best interests of one or more of the applicant’s children. This is completely different from the circumstances arising in the adjusting of a claim under a contract of insurance.

22In my view the circumstances underlying the applicant’s complaint to the respondent are indistinguishable from the facts in Sweezey. I agree with and adopt the reasons in Sweezey and Ormerod, above. Accordingly because the subject matter of the complaint was in relation to something over which the Tribunal had no jurisdiction it follows in my view that the Tribunal has no jurisdiction to consider the applicants allegation of a failure to investigate.

23For these reasons I agree with the respondent that this Application should be dismissed for this reason as well.

24Having come to these conclusions there is no need to address the delay issue.

25The Application is dismissed.