COURT FILE NO.: 408/07

DATE: 2008-04-30

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The Incorporated Synod of the Diocese of Toronto et. al. v. Ontario Human Rights Commission et. al.

BEFORE: Ferrier, Molloy and Linhares de Sousa JJ.

COUNSEL: Christopher G. Riggs, for the Applicants

Anthony D. Griffin, for the Ontario Human Rights Commission

HEARD: April 15, 2008

E N D O R S E M E N T

[1] The applicants are named as respondents in a complaint of discrimination filed with the Ontario Human Rights Commission by Balaranjan Thavarajasoorier (“the complainant”). The applicants seek an order quashing the decision of the Commission referring the subject matter of the complaint to the Human Rights Tribunal of Ontario (“the Tribunal”) and an order prohibiting the Tribunal from holding a hearing with respect to the complaint.

[2] The applicants argue that the Tribunal has no jurisdiction to proceed for two reasons: (1) the relationship between the Incorporated Synod of the Diocese of Toronto (“the Diocese”) and the complainant is not a “service” within the meaning of s. 1 of the Ontario Human Rights Code (the “Code”); and (2) by virtue of the amendment of the complaint, the content of the investigating officer’s case analysis, and concessions made by counsel for the Commission on this application, the “subject matter” of the complaint as referred to the Tribunal by the Commission has ceased to exist and there is nothing upon which the Tribunal can proceed.

Appropriate Decision Maker of First Instance on Whether Diocese Provided a “Service”

[3] The complainant had been accepted by the Diocese as a postulant, which is a two year period of training and preparation for the ministry. At the end of the postulancy period, the Diocese decides whether the postulant will be accepted for ordination. In this case, the Diocese did not accept the complainant for ordination, as a consequence of which he filed a complaint with the Commission.

[4] Mr. Griffin, for the Commission, submits that during the postulancy period the Diocese provides a benefit to the postulants and that this relationship is a “service” within the meaning of s. 1 of the Code. However, he argues that this issue should be determined in the first instance by the Tribunal rather than this court. He has undertaken to raise the issue as a preliminary matter going to jurisdiction at the outset of the hearing before the Tribunal, and had already taken steps to do so, which were interrupted by this judicial review application.

[5] Mr. Riggs, for the applicants, argues that the Tribunal clearly has no jurisdiction. He urges this court to determine that the relationship between the Diocese and its postulants cannot possibly fall within the concept of “services” under the Code, rather than requiring the applicants to proceed through the costly and time-consuming process of a human rights hearing.

[6] In our view, there is a clear jurisdictional issue raised as to whether the relationship between the Diocese and its postulants can be characterized as a “service” within the meaning of s. 1 of the Code. This is not a pure question of law. A proper analysis of the issue can only be done on a factual record establishing, for example, the nature of the relationship between the Diocese and those it accepts as postulants, the mutual obligations and expectations between them, what is provided to the postulants by the Diocese, the basis upon which things are provided to postulants, and the like. Those factual determinations are best made by the Tribunal, which would have the advantage of hearing live evidence on these issues if it thought it advisable. Also, the Tribunal has special expertise on issues of interpreting its home statute and the reviewing court would benefit from that opinion.

[7] We are therefore of the view, that the preliminary jurisdictional issue is best decided in the first instance by the Tribunal. There is considerable jurisprudence supporting leaving such issues to be determined by the Tribunal except in the rarest of cases where it can be said that a proceeding before the Tribunal is “fatally flawed”: Re Roosma and Ford Motor Co. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 (Div.Ct.); Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div.Ct.); Ressel v. Board of Directors of Chiropractic, [1990] O.J. No. 1715 (Div.Ct.). This is not one of those rare situations that would warrant the intervention of this Court at this stage.

Subject Matter of the Complaint

[8] The applicants argue that this matter cannot proceed before the Tribunal because the issue of discrimination in “services” was never referred to the Tribunal, counsel for the Commission has indicated it will not be proceeding before the Tribunal on the grounds of discrimination in employment and, therefore, there is in effect nothing left of the complaint. We do not agree.

[9] The complaint as initially filed in August 2004 referred only to discrimination in respect of employment. The particulars provided in the complaint itself are brief. The complainant alleges that he enrolled in the postulancy process in 2001. The complaint then refers to an interview with one of the Diocese’s priests in October 2002, at which issues of race were raised. Finally, the complaint states that in April 2004, the Diocese told the complainant that he would not be allowed to be ordained as a priest. The complaint alleges that this constitutes discrimination in respect of employment because of race and ethnic origin (Sri Lankan).

[10] Following the Commission’s investigation, Commission staff determined that the relationship between the complainant and the Diocese might come within the definition of “services”. Accordingly, on May 22, 2007, the complaint was amended to add the provision of services as an additional area of discrimination. Notice of the amendment was given to the Diocese.

[11] Subsequent to the amendment, on May 25, 2007, Commission staff delivered to the parties a Case Analysis Report summarizing the findings of the investigation. The Report is 46 paragraphs long and deals with investigation findings for the whole period of the complainant’s relationship with the Diocese. It does not focus solely on the fact that the Diocese refused to ordain the complainant. There is considerable detail in the Report about the complainant’s experiences as a postulant that are alleged to have been discriminatory, including the fact that an issue was raised during that time as to whether the complainant had been the victim of racism and no steps were taken by the Diocese to investigate it. The issue of discriminatory treatment during the postulancy period is clearly raised. At the conclusion of the report, the Commission staff recommends that the Commission “refer the subject matter of the complaint” to the Tribunal.

[12] Both parties were provided with the opportunity to make written submissions in response to the Case Analysis. Those submissions and the Case Analysis were before the Commission at its August 2007 meeting. The Commission decided to refer the complaint to the Tribunal. The letter advising the Diocese of this decision tracks the language of the Code itself, which is that the “subject matter” of the complaint is referred to the Tribunal.

[13] Counsel for the Diocese seizes on one paragraph of the Case Analysis in support of his argument that the issue of “services” was not referred to the Tribunal. At paragraph 33, at the beginning of a section entitled “Summary Analysis and Recommendation”, the report states, “There is sufficient evidence to indicate that the complainant was subjected to unequal treatment/discrimination because of race and ethnic origin in employment.” The Diocese submits that the failure of staff to also state that there is sufficient evidence of discrimination in the provision of “services” means that the Commission could not have referred the allegation of services to the Tribunal. There is no merit to that submission. There was no suggestion in the Report that the complaint on the basis of “services” was not substantiated by the investigation; it simply isn’t specifically mentioned at that point. In any event, Commission staff have no authority under the Code to dictate to the Commission the basis upon which a complaint may, or may not, be referred to a Tribunal. Staff may make recommendations, but they cannot limit the Commission’s jurisdiction and decision making authority. The Commission did not refer only the issue of employment; the Commission referred the “subject matter” of the complaint, which, on its face, relates to both employment and the provision of services. The Diocese had full notice that “services” were included in the complaint, and in the investigation of the complaint, and had the opportunity to put its position before the Commission, which it did. Further, pleadings will be filed before the Tribunal hearing proceeds, which will further define the issues. There is no unfairness to the Diocese.

[14] In his factum filed on this application, counsel for the Commission stated that the Commission will take the position before the Tribunal that the relationship between a postulant and the Diocese falls within the definition of a “service” in section 1 of the Code, but will not argue that there is an employment relationship and will not challenge the decision of the Diocese not to accept the complainant for ordination. The Diocese argues that the entire subject matter of the complaint is the decision not to ordain the complainant and that therefore there is nothing left to the complaint.

[15] It is not reasonable to characterize the complaint as relating solely to that one action by the Diocese. It was apparent to the Diocese during the course of the investigation, and particularly after receipt of the Case Analysis Report, that the allegations of discrimination went beyond that one act. A written complaint is not in the nature of an information or indictment, such that nothing outside its written text can be the subject of a finding by the Tribunal: Cousens v. Canadian Nurses Assn. (1981), 2 C.H.R.R. D/ 365 at para 3255 (Ont.Bd.Inq.). The Tribunal has the specific power under s. 39 of the Code to determine whether a right of the complainant under the code has been infringed. It is not limited to the strict wording of the complaint. Indeed, subject to principles of fairness (such as reasonable notice and prejudice) complaints can be amended in the course of hearing to add new grounds or allegations: Smith v. Mardana Ltd. (No. 2) (2002), 2002 46512 (ON HRT), 44 C.H.R.R. D/142 at paras 26-28 (Ont.Bd.Inq.), reversed on other grounds Smith v. Mardana Ltd. (2005), 2005 2811 (ON SCDC), 52 C.H.R.R. D/89 (Ont.Div.Ct.).

[16] Accordingly, there is a complaint that is properly before the Tribunal. At the present time it relates to discrimination based on employment and the provision of services. It encompasses discriminatory treatment during the course of the relationship between the complainant and the Diocese and will be the subject of further definition at the pleadings stage before the tribunal. The Commission has undertaken it will be relying solely on the issue of “services” and only in relationship to what happened during the postulancy period, not the ultimate decision with respect to ordination. There is nothing in any of these circumstances that raises any issue going to jurisdiction that requires the intervention of this Court.

Conclusion

[17] In the result, this application is dismissed. Counsel advise that they will be able to resolve the issue of costs on consent. In the event that agreement cannot be reached, written submissions may be addressed to the Court.

___________________________

FERRIER J.

___________________________

MOLLOY J.

___________________________

LINHARES DE SOUSA J.

DATE: April 30, 2008