The Ontario Mission for the Deaf v. Buchan, 2021 ONSC 3572

CITATION: The Ontario Mission for the Deaf v. Buchan, 2021 ONSC 3572

DIVISIONAL COURT FILE NO.: DC-18-00000645-00JR

DATE: 20210609

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer and Favreau JJ.

BETWEEN:

The Ontario Mission of the Deaf and Derek Rumball

Applicants

– and –

Human Rights Tribunal of Ontario, Ministry of the Attorney General as represented by Attorney General of Ontario, Justice of the Peace L. Toulouse, Justice of the Peace M. Seguin, Justice of the Peace L. Scully, Justice of the Peace C. Mews, Bruce Buchan and Ian Flett

Respondents

COUNSEL:

Allan Rouben, for the Applicants

Donna Salmon, for the Respondents Ministry of the Attorney General as represented by Attorney General of Ontario, Justice of the Peace L. Toulouse, Justice of the Peace M. Seguin, Justice of the Peace L. Scully and Justice of the Peace C. Mews

Eric Gillespie and Yasmeen Peel, for the Respondents Bruce Buchan and Ian Flett

Brian Blumenthal, for the Respondent Human Rights Tribunal of Ontario

HEARD by videoconference at Toronto: May 10, 2021

REASONS FOR JUDGMENT

FAVREAU J.:

Introduction

[1] The applicants, The Ontario Mission of the Deaf and Derek Rumball, bring an application for judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated May 16, 2018, dismissing a complaint against the respondents Bruce Buchan, Ian Flett and the Ministry of the Attorney General (the “Ministry”). In their complaint, the applicants alleged that the respondents to the complaint breached the Human Rights Code, R.S.O. 1990, c. H.19, by failing to provide sign language interpretation in the context of a private prosecution in the Ontario Court of Justice.

[2] The Tribunal dismissed the complaint summarily on the basis of its finding that Mr. Buchan, who had laid the private information, and Mr. Flett, who was acting as the private prosecutor, were not providing a service to the applicants. However, the Tribunal failed to address the applicants’ complaint against the Ministry that sign language interpretation was requested and refused.

[3] For the reasons below, I find that the Tribunal’s finding that Mr. Flett and Mr. Buchan were not providing a service is reasonable, and the application for judicial review against them is therefore dismissed. The application for judicial review against the named Justices of the Peace is also dismissed as they were not named in the original complaint and, in any event, they are protected by judicial immunity. However, the dismissal of the complaint against the Ministry is not reasonable because the Tribunal never considered whether the Ministry, in its role as administrator of the courts, provides a service and may have breached the applicants’ Code protected rights. Therefore, this aspect of the application for judicial review is granted.

Background

Private prosecution against the applicants

[4] The Ontario Mission of the Deaf advocates for members of the deaf community and operates the Ontario Camp for the Deaf in Parry Sound. Mr. Rumball is the director of the camp.

[5] Mr. Buchan owns a property near the camp. In 2016, Mr. Buchan initiated a private prosecution against the applicants for noise pollution. The prosecution was brought under the Environmental Protection Act, R.S.O. 1990, c. E.19, and the Provincial Offences Act, R.S.O. 1990, c. P.33, in the Ontario Court of Justice in Parry Sound. Mr. Flett acted as the private prosecutor.

[6] There were a number of appearances before the Court. The charges were ultimately withdrawn on March 14, 2017 at the direction of counsel for the Ministry of the Environment and Climate Change (as it was known at the time).

[7] The applicants claim that they requested sign language interpretation throughout the proceeding and that those requests were refused until the final appearance when the charges were withdrawn.

Application to the Tribunal

[8] Following the withdrawal of the charges, the Mission made an application to the Tribunal. Andrew Chalmers, who is not a lawyer, filed the application on behalf of the Mission. In the application form, the Mission named Mr. Buchan, Mr. Flett and the “Ministry of the Attorney General” as respondents. The complaint included the following allegations:

The complaint being made revolves around a private charge for an alleged noise violation against co-defendants, The Ontario Mission of the Deaf and Mr. Derek Rumball, Director at The Ontario Camp for the Deaf. Although the charge was withdrawn, there were several appearances at the Ontario Court of Justice, Provincial Offences Court, Parry Sound during which time requests were made by Ms. Jane Hooey, retired Crown Prosecutor and counsel for the co-defendants, to the private prosecutor, Mr. lan Flett and to the Court.

During the first appearance on December 6, 2016 at the Provincial Offenses Court at 52 Seguin St., Parry Sound, Ontario, Ms. Hooey asked the court and prosecution to provide an interpreter. They refused to do so. Mr, Flett commented that section 14 does not apply and upon objection, Justice of the Peace, Ms. L. Toulouse asserted that Mr. Rumball could interpret for members of The Ontario Mission of the Deaf.

Ms. Hooey requested an interpreter for the second appearance through the clerk's office. An interpreter was not made available for the subsequent appearances on January 17, 2017 and on February 7, 2017. It was not until March 14th at the fourth appearance, at which time the charges were withdrawn that the private prosecutor ordered an interpreter to be present.

There are several matters of concern with respect to access to justice on the part of The Ontario Mission of the Deaf, all members of which are deaf. In no particular order ...

1. Justice of the Peace, Ms. L. Toulouse's direction that co-defendant Mr. Derek Rumball could interpret for members of The Ontario Mission of the Deaf would have the effect of splitting Mr. Rumball's attention during the appearances and fails to ensure that members of, The Ontario Mission of the Deaf are provided with a qualified and unbiased interpreter in accordance with the section 14 of the Charter of Rights and Freedoms.

2. Despite Ms. Hooey's repeated requests for an interpreter, it was not until March 14th at the fourth appearance, that private prosecutor, Mr. Flett arranged to have an interpreter present. Mr. Flett's decision not to consent to requests for an interpreter is discriminatory against The Ontario Mission of the Deaf.

3. The Ontario Court of Justice, Provincial Offences Court, Parry Sound failed to uphold section 14 of the Charter by not ensuring that an interpreter was made available after requests had been made to the Justices of the Peace and to the clerk by Ms. Hooey… [Emphasis added.]

[9] Following receipt of the complaint, the Tribunal sent a Notice of Intent to dismiss dated March 28, 2018 to the Mission’s representative advising that it was considering dismissing the complaint on a preliminary basis because it appeared that the application was outside the Tribunal’s jurisdiction. The Tribunal listed the three following reasons as the basis for stating that the application appeared to fall outside its jurisdiction:

The Application against the named respondents does not appear to allege discrimination with respect to any of the social areas identified in the Code (services, goods and facilities; accommodation (housing); contracts; employment; membership in vocational associations). See Noor v. Midyanta Community Services, 2012 HRTO 375, MF v. Child and Family Services of Timmins and District, 2009 HRTO 979.

The issues raised in relation to Ian Flett relate to the conduct of a lawyer representing a party in another legal proceeding. The HRTO has stated that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.

The Application does not allege that any of the rights of the claimant (Jane Hooey) have been infringed: see Oliphant v. Ontario (Attorney General), 2009 HRTO 1902 and Freitag v. Penetanguishene (Municipality), 2010 HRTO 1704.

[10] Mr. Chalmers responded in a letter dated April 19, 2018. He clarified that the application was brought by the Mission and not by Ms. Hooey. In addressing the issue of whether the application addressed discrimination based on one of the areas identified in the Code, Mr. Chalmers stated that “preventing deaf co-defendants and Deaf members of the gallery from having access to interpretive services is a form of discrimination based on a disability”. With respect to the issue of Mr. Flett’s role as opposing counsel, Mr. Chalmers stated that Mr. Flett impeded access to an interpreter which was a form of discrimination.

[11] In a decision dated May 16, 2018, the Tribunal dismissed the application on the basis that the matter did not fall within its jurisdiction. At the outset of the analysis, the Tribunal stated that an application is only to be dismissed at a preliminary stage where it is “‘plain and obvious’ on the face of the application that it does not fall within the Tribunal’s jurisdiction”. The Tribunal then stated that the Code only prohibits discrimination in the context of specific relationships, such as the provision of a services. The crux of the Tribunal’s analysis is set out in the following two paragraphs:

The applicant alleged that the respondents discriminated in the social area of service provision. However, the only services provided on the facts set out in the Application were provided by the OCJ and the OCJ is not listed as a respondent. Neither Mr. Flett nor Mr. Buchan was in a service relationship with the applicant or the intended claimant, the Ontario Mission of the Deaf, as they were an opposing party in a legal proceeding and a prosecutor in that proceeding. Neither of these amounts to a service relationship under the Code. Similarly, the applicant has not made any allegations against the Ministry of the Attorney General nor has he asserted any facts that would indicate that he was in a service relationship with the Ministry.

In these circumstances, I find that it is plain and obvious that the subject matter of the Application is not conduct prohibited by the Code. Therefore, the Application does not fall within the Tribunal's jurisdiction. [Emphasis added.]

Application for judicial review

[12] The applicants commenced this application for judicial review on October 15, 2018. In addition to naming the respondents to the application made to the Tribunal, the applicants named the four Justices of the Peace who dealt with the private prosecution. As part of the grounds for seeking judicial review of the Tribunal’s decision, the applicants claim that the Tribunal erred in finding that the provision of sign language interpretation is not a service and “in failing to find that the Ministry of the Attorney General, as the body responsible for superintending the administration of justice in Ontario, was a proper party to the application”.

Standard of review

[13] The applicable standard of review is reasonableness in accordance with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.[^1]

[14] As held in Vavilov, the guiding principles for deciding whether a decision is reasonable include the following:

a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.

b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.

c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.

d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.

Preliminary issue on the record and scope of issues before the Court

[15] Before turning to the analysis, I find it necessary to first address a preliminary issue regarding the proper record before this Court.

[16] Generally, the Court is to decide an application for judicial review on the record before the original decision maker. The court will consider additional evidence on an application for judicial review in limited circumstances, which include to show the absence of evidence on an essential point, to demonstrate a breach of natural justice that cannot be proven by reference to the record, or to provide general background that might assist the court in understanding the underlying issues: Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10-12.

[17] In this case, given that the Tribunal dismissed the application on a preliminary basis, the only documents available to the Tribunal were the application, any documents appended to the application and the applicants’ response to the Tribunal’s proposal to dismiss the application on a preliminary basis. The Tribunal filed a Record of Proceeding that includes these documents.

[18] However, both the applicants and the Ministry seek to amplify the record with additional evidence.

[19] In their application record, the applicants included an affidavit sworn by Jane Hooey, who was counsel for the applicants on the private prosecution. In her affidavit, Ms. Hooey gives evidence regarding the background to the provincial prosecution and various attempts she made to obtain sign language interpretation in the context of the prosecution. For the most part, her affidavit qualifies as general background and is thereby admissible. However, in some instances, Ms. Hooey adds some information about the prosecution that was not included in the original application. For example, she includes transcripts from all the appearances when there was only one transcript included in the Record of Proceeding. It would not be appropriate for this Court to consider that additional information in deciding whether the Tribunal’s decision was reasonable.

[20] In addition, in response to the application for judicial review, the Ministry has put forward an affidavit sworn by Jamie Lee, who is employed by the Court Services Division of the Ministry. In her affidavit, Ms. Lee provides some evidence about the Ministry’s role in administering the courts in Ontario. She includes a Memorandum of Understanding between the Ministry and municipalities to show that municipalities are responsible for administering the courts on behalf on the Ministry in the context of provincial offences prosecutions. This evidence is not properly before the Court. In the context of the dismissal of the applicants’ complaint, the Tribunal did not solicit responses from the respondents but rather decided the matter based only on the documents filed by the applicants. The Ministry’s evidence did not form part of the original record and it does not meet any of the exceptions for the admissibility of fresh evidence. It is not general background but rather evidence in support of a substantive defence to the human rights complaint. It is not the role of this Court to decide an issue that was not before the Tribunal.

Analysis

[21] The applicants argue that the Tribunal’s decision is unreasonable as it relates to both the finding that Mr. Buchan and Mr. Flett had no obligation to provide a service and as it relates to the finding that there were no allegations against the Ministry. In addition, while the Justices of the Peace were not originally named as respondents to the application made to the Tribunal, the applicants have named them as respondents on this application for judicial review and allege that they breached the Code by failing to order sign language interpretation at the first few appearances on the prosecution. Accordingly, the issues on this application are as follows:

a. Are the respondent Justices of the Peace proper parties to the application for judicial review?

b. Was the Tribunal’s decision to dismiss the complaint against Mr. Buchan and Mr. Flett reasonable?

c. Was the Tribunal’s decision to dismiss the complaint against the Ministry reasonable?

The Justices of the Peace are not proper respondents

[22] The applicants did not name the Justices of the Peace as respondents in the original application to the Tribunal. Accordingly, they are not proper respondents on this application for judicial review. Again, the role of this Court is to review the application on the record before the Tribunal. It would be improper for this Court to find that the applicants have a valid complaint against the Justices of the Peace when they were not named in the original complaint.

[23] In any event, Justices of the Peace benefit from judicial immunity, including in the context of applications before the Tribunal: see Justices of the Peace Act, RSO 1990, s.20; Persaud v. Ontario (Attorney General), 2008 37215 (On. Sup. Ct.), at para. 46; and Belso v. York Region Police, 2009 HRTO 757, at para. 9. Any issues related to the conduct of Justices of the Peace can be raised on an appeal in the context of the prosecution or by way of a complaint to the Justices of the Peace Review Council. However, Justices of the Peace cannot be the subject of an application to the Tribunal under the Code for the manner in which they conducted a proceeding.

The dismissal of the complaint against Mr. Buchan and Mr. Flett was reasonable

[24] The applicants argue that the Tribunal’s dismissal of the complaint against Mr. Buchan and Mr. Flett was unreasonable because, in his capacity of private prosecutor, which the applicants claim is akin to the role of a Crown attorney, Mr. Flett had an obligation to make sign language interpretation services available to the applicants. I do not agree that this aspect of the Tribunal’s decision was unreasonable.

[25] In its decision, the Tribunal found that it did not have jurisdiction over the complaint made against Mr. Buchan and Mr. Flett because they were not providing a service to the applicants. Rather, these parties were in an adversarial relationship in a litigation context.

[26] The Tribunal’s jurisprudence has consistently held that lawyers are not providing a “service” to an opposing party: see, for example, Cooper v. Pinkofskys, [2008] O.H.R.T.D. No. 391, at para. 11; and Shaganenko v. Benmor, 2020 HRTO 729, at para. 7. The rationale for this principle is that opposing counsel’s role is to represent their own client’s interests; not the interests of an opposing party. There is no reason to deviate from this principle in this case, where Mr. Flett was acting as a private prosecutor. Even if I were to accept that Mr. Flett’s role was analogous to that of a Crown attorney, the courts have consistently held that, while Crown attorneys are to act fairly toward an accused, they have an overarching obligation to protect the public interest: see, most recently, Ontario (Attorney General) v. Clark, 2021 SCC 18, at paras. 32-33. While the role of Crown attorneys or even private prosecutors may not be identical to the role of defence counsel, the prosecutor’s duty to act independently and protect the public interest supports the Tribunal’s finding that Mr. Flett was not providing a service to the applicants.

[27] Crown attorneys and private prosecutors may as a practical matter play a role in assisting with the accommodation of accused persons, as was done in this case by counsel for the Ministry of the Environment and Climate Change at the time the charges were withdrawn. However, the Tribunal’s finding that Mr. Flett was not providing a service to the applicants is reasonable. Accordingly, the Tribunal’s conclusion that it did not have jurisdiction over the complaint made against Mr. Buchan and Mr. Flett was reasonable. The decision is consistent with the relevant factual and legal constraints in this case, and falls within a range of reasonable outcomes.

The dismissal of the complaint against the Ministry was not reasonable

[28] The application named the Ministry as a respondent. While most of the allegations in the application referred to Mr. Flett’s conduct and the manner in which the Justices of the Peace responded to requests for sign language interpretation, the application did specifically allege, as referred to above, that “Ms. Hooey requested an interpreter for the second appearance through the clerk's office”. Yet, in its dismissal of the application, the Tribunal found that “the applicant has not made any allegations against the Ministry of the Attorney General nor has he asserted any facts that would indicate that he was in a service relationship with the Ministry”.

[29] In my view, given the specific allegation that a request for sign language interpretation was made to the court clerk’s office, this finding was unreasonable. The Tribunal’s own summary process requires that applications be dismissed only where it is “plain and obvious” that they cannot succeed. In this case, the Tribunal ignored or disregarded an allegation explicitly made against the Ministry and explicitly found that there were no allegations against the Ministry.

[30] During the hearing, the Tribunal argued that the applicants did not address this issue in their response to the Notice of Intent to Dismiss letter. In my view, this is not fatal. First, it was explicitly addressed in the application document filed with the Tribunal. In any event, while the applicants did not specifically refer to the Ministry in their response to the Notice letter, they did more generally state that they were prevented from having access to a sign language interpreter.

[31] The applicants’ allegations are serious. They claim that they were not able to fully participate in the hearings before the court because they did not have access to a sign language interpreter. The Ministry was named as a respondent and is responsible for the administration of the courts in Ontario. The Tribunal’s finding that there were no allegations against the Ministry miss the core of the complaint in this case, which is the applicants’ request for sign language interpretation were denied. Given that the Ministry is named as a respondent and that there is an allegation that a request for sign language interpretation was made to the clerk’s office, the Tribunal should have turned its mind to the issues of whether the Ministry provides a service in administering the courts, what role it may or may not be required to play in making sign language interpretation available, and whether sign language interpretation was required in this case to accommodate the Mission’s members. More significantly, the Tribunal should have considered whether these issues can be decided on a preliminary basis.

[32] As referred to above, the Ministry takes the position it is not responsible for the administration of provincial prosecutions because of its Memorandum of Understanding with municipalities. This may be a valid response to the complaint, but it is not the role of this court to decide the issue when the Tribunal did not have a chance to do so.

[33] Ultimately, it will be up to the Tribunal to decide whether the Ministry is responsible for providing sign language interpretation services in the context of provincial private prosecutions and, if so, whether its failure to do so in this case was a breach of the Code. There may be other grounds on which the complaint against the Ministry can be dismissed. However, by finding that there were no allegations against the Ministry, when there clearly were, the Tribunal’s decision was unreasonable.

Conclusion

[34] For the reasons above, the application for judicial review is allowed only with respect to the complaint made against the Ministry, which is remitted back to the Tribunal to be decided in accordance with these reasons. It will be up to the Tribunal to determine the appropriate procedure, including whether it can be decided summarily, or whether it should go to a hearing. The balance of the application for judicial review is dismissed.

[35] As agreed between the parties, no party shall pay or receive costs.

Favreau J.

I agree _______________________________

R. Smith J.

I agree _______________________________

Lederer J.

Released: June 9, 2021

[^1]: In its factum, the Tribunal argued that the applicable standard of review is patent unreasonableness. However, at the hearing, counsel for the Tribunal did not press this issue, recognizing that, since Vavilov was released, this Court has already found that the standard of review to be applied to Tribunal decisions is reasonableness; see, for example, A.K. v. Peel District School Board, 2020 ONSC 680, at paras. 3-5.