Ontario (Attorney General) et al. v. Human Rights Commission (Ont.) et al., (2007) 232 O.A.C. 102 (DC)

• Judge: Jennings, Lederman and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 18, 2007
• Jurisdiction: Ontario
• Citations: (2007), 232 O.A.C. 102 (DC)

Ont. (A.G.) v. HRC (2007), 232 O.A.C. 102 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.018

Attorney General for Ontario and Chief Coroner (appellants) v. Ontario Human Rights Commission, Renata Braithwaite and Robert Illingworth (respondents) and Mental Health Legal Committee, Empowerment Council and Psychiatric Patient Advocate Office (intervenors)

(304/06)

Indexed As: Ontario (Attorney General) et al. v. Human Rights Commission (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Lederman and Swinton, JJ.

December 18, 2007.

Summary:

The complainants, Braithwaite and Illingworth, each had a family member who died while an involuntary patient in a designated psychiatric facility. The Coroner refused to call inquests into the deaths. The complainants filed complaints with the Ontario Human Rights Commission, alleging that s. 10 of the Coroners Act discriminated against involuntary patients with respect to a "service" on the ground of their disability, because it did not make an inquest mandatory. In contrast, s. 10(4) of the Act required the Coroner to hold an inquest when a prisoner died in police custody or a penal institution. The Human Rights Tribunal of Ontario held that s. 10 of the Act discriminated on the ground of mental disability in violation of s. 1 of the Human Rights Code, in that inquests were mandatory for prisoners who died in police custody or in penal institutions, but were discretionary for involuntary mental health patients who died in psychiatric facilities. The Tribunal ordered that a Coroner's inquest be held into the death of the relative of each complainant and it awarded each complainant damages of $5,000. The Attorney General of Ontario and the Chief Coroner appealed.

The Ontario Divisional Court allowed the appeal and set aside the Tribunal's decision.

Civil Rights - Topic 912

Discrimination - General principles - Complaints - General - The Human Rights Tribunal of Ontario held that s. 10 of the Coroners Act discriminated on the ground of mental disability in violation of s. 1 of the Human Rights Code, in that inquests were mandatory for prisoners who died in police custody or in penal institutions, but were discretionary for involuntary mental health patients who died in psychiatric facilities - The Attorney General of Ontario and the Chief Coroner appealed - The appellants argued that the Code focussed on discriminatory conduct by a person who was the respondent to a complaint, and there was no such person here - In essence, they argued that the Code could not be used to attack legislation - The Ontario Divisional Court stated that "the complainants allege that the Coroner violated s. 1 of the Code by refusing to order an inquest. Therefore, the Tribunal had the power to determine whether the conduct of the Coroner, authorized by the Act, was consistent with the Code" - See paragraphs 41 to 42.

Civil Rights - Topic 964.1

Discrimination - Facilities and services customarily available to public - What constitutes a service or facility - The Human Rights Tribunal of Ontario held that s. 10 of the Coroners Act discriminated on the ground of mental disability in violation of s. 1 of the Human Rights Code, in that inquests were mandatory for prisoners who died in police custody or in penal institutions, but were discretionary for involuntary mental health patients who died in psychiatric facilities - The Attorney General of Ontario and the Chief Coroner appealed - The appellants argued that the Tribunal erred in finding that a Coroner's inquest was a "service" provided to a person within s. 1 of the Code - They argued that since a Coroner's inquest was provided to the public only, and not to any individual person, s. 1 of the Code did not apply - The Ontario Divisional Court rejected the argument - Section 1 of the Code did not require that a "service" be provided only to "a person" - Rather, it provided that every person had the right to equal treatment with respect to services - "Services" could include a service provided to the broader public - The appellants' submission that the Code's focus was on discrimination by one person against another person was incorrect - The Code also applied to discrimination by groups or government in the provision of services - The Tribunal was correct in finding that a Coroner's inquest was a service within s. 1 - See paragraphs 33 to 40.

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical disability or mental handicap - The Human Rights Tribunal of Ontario held that s. 10 of the Coroners Act discriminated on the ground of mental disability in violation of s. 1 of the Human Rights Code, in that inquests were mandatory for prisoners who died in police custody or in penal institutions, but were discretionary for involuntary mental health patients who died in psychiatric facilities - The Ontario Divisional Court held that the Tribunal erred in finding discrimination - The Tribunal's finding that inmates in penal institutions was the appropriate comparator group was not unreasonable - However, applying the contextual factors in Law v. Minister of Employment and Immigration (S.C.C.), a reasonable person would not find s. 10 of the Act discriminatory - The public policy to require inquests into the deaths of persons in the limited circumstances outlined in the Act was not concerned with whether those persons suffered from a disability, but rather with the fact that they lived or worked in vulnerable circumstances that were dangerous and largely beyond public scrutiny - See paragraphs 59 to 86.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - The complainants each had a family member who died while an involuntary patient in a designated psychiatric facility - The Coroner refused to call inquests into the deaths - The complainants filed complaints with the Ontario Human Rights Commission, alleging that s. 10 of the Coroners Act discriminated against involuntary patients with respect to a "service" on the ground of their disability, because it did not make an inquest mandatory - In contrast, s. 10(4) of the Act required the Coroner to hold an inquest when a prisoner died in police custody or a penal institution - The Human Rights Tribunal of Ontario held that s. 10 of the Act discriminated on the ground of mental disability and violated s. 1 of the Ontario Human Rights Code - The Tribunal ordered that a Coroner's inquest be held into the death of the relative of each complainant and it awarded each complainant damages of $5,000 - The Ontario Divisional Court allowed an appeal, holding that the Tribunal erred in finding discrimination - With respect to the issue of whether the Tribunal erred in awarding damages, the court stated that "Given that the Coroner acted in good faith in exercising his discretion in the case of the two deaths that led to the complaints, and given that the Tribunal's holding was analogous to a finding that the legislation is unconstitutional, this was not an appropriate case for damages in any event" - See paragraphs 87 to 89.

Civil Rights - Topic 5516

Equality and protection of the law - General principles and definitions - Tests for inequality - General - The Human Rights Tribunal of Ontario held that s. 10 of the Coroners Act discriminated on the ground of disability and violated s. 1 of the Human Rights Code, in that inquests were mandatory for prisoners who died in police custody or in penal institutions, but were discretionary for involuntary mental health patients who died in psychiatric facilities - On appeal, an issue was raised regarding the Tribunal's application of the principles from Law v. Minister of Employment and Immigration (S.C.C.) - The Ontario Divisional Court stated that "The application of the Law analysis, while perhaps open to debate in the case of an individual claiming discrimination against a private party, is appropriate here where legislation is being tested against the broad prohibition on discrimination in s. 1 of the Code. Moreover, a number of other courts have applied the Law test in considering human rights challenges to statutory provisions" - See paragraphs 43 to 48.

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - [See Civil Rights - Topic 912 ].

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - [See Civil Rights - Topic 1164 ].

Coroners - Topic 1004

Powers - To call an inquest - [See Civil Rights - Topic 974 ].

Coroners - Topic 4005

Inquests and fatality inquiries - Decision to hold - Considerations - [See Civil Rights - Topic 974 ].

Cases Noticed:

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 23].

Law Society v. British Columbia - see Andrews v. Law Society of British Columbia.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 23].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 23].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, appld. [para. 23].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), refd to. [para. 29].

Council of Canadians with Disabilities v. Via Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al. (2007), 360 N.R. 1; 2007 SCC 15, dist. [para. 30].

B. v. Human Rights Commission (Ont.) - see Human Rights Commission (Ont.) v. A et al.

Human Rights Commission (Ont.) v. A et al., [2002] 3 S.C.R. 403; 294 N.R. 140; 166 O.A.C. 1; 2002 SCC 66, refd to. [para. 33].

Faber v. Québec (Procureur général) et Québec (Ministre de la Justice) et autres, [1976] 2 S.C.R. 9; 6 N.R. 1 (Fr.), 8 N.R. 29 (Eng.); 27 C.C.C.(2d) 171, refd to. [para. 35].

People First of Ontario et al. v. Regional Coroner of Niagara et al. (1991), 50 O.A.C. 90; 5 O.R.(3d) 609 (Div. Ct.), revd. (1992), 54 O.A.C. 187; 6 O.R.(3d) 289 (C.A.), refd to. [para. 36]

Canadian National Railway Co. v. Canadian Human Rights Commission - see Action Travail des Femmes v. Canadian National Railway Co. et al.

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 39].

Malkowski v. Human Rights Commission (Ont.) et al. (2006), 219 O.A.C. 238 (Div. Ct.), refd to. [para. 41].

Vancouver Rape Relief Society v. Nixon et al. (2005), 220 B.C.A.C. 109; 362 W.A.C. 109 (C.A.), refd to. [para. 43].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employee's Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 46].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1, refd to. [para. 46].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329, refd to. [para. 46].

Saskatchewan v. Human Rights Commission (Sask.) et al. (2004), 254 Sask.R. 185; 336 W.A.C. 185 (C.A.), refd to. [para. 47].

Gwinner et al. v. Alberta (2002), 321 A.R. 279; 217 D.L.R.(4th) 341 (Q.B.), affd. (2004), 354 A.R. 21; 329 W.A.C. 21; 245 D.L.R.(4th) 158; 2004 ABCA 210, leave to appeal denied (2005), 336 N.R. 397; 371 A.R. 400; 354 W.A.C. 400 (S.C.C.), refd to. [para. 47].

Mis v. Human Rights and Citizenship Commission (Alta.) (2002), 326 A.R. 99 (Q.B.), refd to. [para. 47].

British Columbia Government and Service Employees' Union v. Public Service Employee Relations Commission (B.C.) (2002), 172 B.C.A.C. 154; 282 W.A.C. 154; 2002 BCCA 476, refd to. [para. 47].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 53].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 53].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 53].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 68].

Stanford v. Harris - see Kingston Penitentiary (Range Representative on Administrative Segregation) v. Regional Coroner (Eastern Ontario).

Kingston Penitentiary (Range Representative on Administrative Segregation) v. Regional Coroner (Eastern Ontario) (1989), 33 O.A.C. 241; 38 Admin. L.R. 141 (Div. Ct.), refd to. [para. 81].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 88].

Human Rights Commission (Que.) v. Montreal (City) - see Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communautré urbaine).

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379, refd to. [para. 88].

Statutes Noticed:

Coroners Act, R.S.O. 1990, c. C-37, sect. 10 [para. 1].

Human Rights Code, R.S.O. 1990, c. H-19, sect. 1 [para. 20].

Counsel:

Sara Blake, Arif Virani and Michael Blain, for the appellants;

Hart Schwartz and Sheena Scott, for the respondent, Ontario Human Rights Commission;

Susan E. Fraser, for the respondent, Renata Braithwaite;

Marshall Swadron, Kelley J. Bryan and Lisa Romano, for the intervenors.

This appeal was heard on June 25-27, 2007, at Toronto, Ontario, before Jennings, Lederman and Swinton, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was released on December 18, 2007.