BOARD OF INQUIRY (Human Rights Code)

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;

AND IN THE MATTER OF the Complaints by Gwen Neusch and Kate Fox dated July 6, 1998 and July 7, 1998 alleging discrimination in services on the basis of disability.

B E T W E E N:

Ontario Human Rights Commission

-and-

Gwen Neusch and Kate Fox

Complainants

-and-

Ministry of Transportation; City of Hamilton;

Disabled and Aged Regional Transit System

Respondents

INTERIM DECISION

Adjudicator : Steven J. Faughnan

Date : May 24, 2002

Board File No. : BI-413/418-01

Decision No. : 02-011

Board of Inquiry (Human Rights Code)

505 University Avenue

5th Floor, Toronto ON M5G 2P3

Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946

TTY: (416) 314-2379 / 1-800-424-1168

A P P E A R A N C E S

Ontario Human Rights Commission ) Kikee Malik, Counsel

Gwen Neusch and Kate Fox ) Ena Chadha, Hugh Tye, Counsel

) Craig Foye, Student-at-Law

Ministry of Transportation ) Fateh Salim, Counsel

City of Hamilton ) Trevor Lawson, Counsel

Disabled and Aged Regional Transit System ) Kathryn Hunter, Counsel

INTRODUCTION

This proceeding arises under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The Ontario Human Rights Commission (the “Commission”) referred to the Board of Inquiry (the “Board”) the complaints (the “Complaints”) of Gwen Neusch and Kate Davey against the Ministry of Transportation (the “Ministry”), the City of Hamilton, the Transportation Services Committee, Accessible Transportation Services and the Disabled and Aged Regional Transit System (“DARTS”). At the initial conference call Ms. Davey’s name (her married name) was amended on consent to Kate Fox and an order was made to amend the style of cause accordingly. By letter dated July 26, 2001, the Board allowed the request, also on consent, to replace the Transportation Services Committee and Accessible Transportation Services (“ATS”) by the City of Hamilton (the “City”) in the style of cause.

The Complaints allege discrimination in the provision of public transit services on the basis of handicap (now expressed as disability, see S.O. 2002, c.32, s.27).

It appears that, as of the date of the motions, a review of the pleadings and materials filed by the Complainants, the Commission and DARTS indicates that, generally, the main issues that may arise at the hearing of this matter is whether, by withdrawing funding for transit services in Hamilton the Ministry discriminated against the Complainants in the provision of services and whether the “family of transportation services” offered by the City (referred to on the motion as the Hamilton Street Railway (“HSR”)), which includes the delivery, through a contract with DARTS, of specialized transportation services for Hamilton residents with disabilities, discriminates against the Complainants on the basis of disability or amounts to accommodation to the point of undue hardship or alternatively, qualifies as an exemption to the application of the Code, because it is a special program under section 14(1) of the statute. In addition, although it does not appear to have been among the enumerated grounds set out in the Complaints referred to the Board, the Complainants’ Statement of Facts and Issues also allege reprisal, contrary to section 8 of the Code.

THE LEGISLATIVE PROVISIONS

Before setting out the issues dealt with in this motion, and the reasons for the Board’s determination in this matter, it is helpful to set out the relevant legislative provisions in the Code, the Board’s Rules of Practice (the “Rules”), and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”).

Human Rights Code

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or disability.

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

3. A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

4. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

35. (1) There shall be a board of inquiry for the purposes of this Act composed of such members as are appointed by the Lieutenant Governor in Council.

(5) The board of inquiry may make rules regulating its practice and procedure and generally for the conduct and management of its affairs and such rules are not regulations within the meaning of the Regulations Act.

36. (1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry.

(2) Where the Commission decides to not refer the subject-matter of a complaint to the board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefore and inform the complainant of the procedure under section 37 for having the decision reconsidered.

39. (1) The board of inquiry shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been

infringed;

(b) to determine who infringed the right; and

(b) to decide upon an appropriate order under section 41, and the hearing shall be

commenced within thirty days after the date on which the subject-matter of the complaint was referred to the board.

(2) The parties to a proceeding before the board of inquiry are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the board of inquiry to have infringed the right;

(4) Where the board exercises its power under clause 12 (1)(b) of the Statutory Powers Procedure Act to issue a summons requiring the production in evidence of documents or things, it may, upon the production of documents or things before it, adjourn the proceedings to permit the parties to examine the documents or things.

Rules of Practice

Rules

The Board of Inquiry is committed to a fair, accessible and efficient hearing process which affords all parties an opportunity to present their case and to respond to the opposing case. To this end, the Board has created Rules to govern its proceedings. These Rules, which are effective November 1,1996, replace the Interim Rules of Practice.

APPLICATION OF THE RULES

1. These Rules apply to all proceedings of the Board of Inquiry.

DEFINITIONS

2. In these Rules:

“case management-prehearing” is a step within the proceeding where a panel may identify issues, hear motions, issue orders and discuss any matters concerning the conduct of a hearing;

“hearing” is any part of a proceeding including preliminary matters and/or the submission of evidence and argument on the merits of the complaint;

“proceeding” includes all possible steps directed by the Board, whether or not requested by a party, in the determination of a complaint from the receipt of the referral by the Human Rights Commission until the issuance of a panel’s final decision by the Registrar;

BOARD POWERS

14. A panel may waive or vary the application of any of these Rules as it considers appropriate.

CONFERENCE CALL

33. The purpose of the hearing by conference call includes:

(a) scheduling dates for steps in the proceeding including mediation and the case management-prehearing;

(b) identifying preliminary and procedural matters including motions to be dealt with at the case management-prehearing;

(c) ensuring that all parties and their representatives, if any, have received notice of the proceeding;

(d) identifying any other person(s) not already named in the complaint, who may be affected by the proceeding and should be given notice of the proceeding.

PLEADINGS

35. Within thirty (30) days of the conference call, the Human Rights Commission or the complainant(s), where the Human Rights Commission has been permitted to withdraw by the panel, shall serve on the other parties and file with the Board together with a statement of service (Form 2), a statement with the following information:

(a) a statement of the facts and issues in dispute;

(b) the desired remedy including any claim for interest; and

(c) a notice of motion to amend the complaint, if appropriate.

Where the Human Rights Commission remains as a party, and a complainant chooses, the complainant may file pleadings in accordance with this rule.

36. Within twenty-five (25) days of service of the statement referred to in rule 35, all respondents shall serve on the other parties and file with the Board together with a statement of service (Form 2), a response in writing, which shall include:

(a) a response to the issue(s) raised in the complaint and a concise statement of the facts and the events on which the Respondent relies;

(b) any agreement with respect to facts stated by the Human Rights Commission or the complainant that are not disputed by the respondent;

(c) the desired remedy;

(d) name, address, telephone and fax numbers of any representative acting for the person for whom a response is filed; and

(e) the identification of any person(s) not already named in the complaint who may be affected by the proceeding, their addresses, telephone and fax numbers, and their representatives, if any.

PARTICULARS OF ALLEGATIONS

38. At any time in a proceeding, the panel may order any party to provide to any other party and the panel such further particulars as the panel considers appropriate.

39. Where the good character, propriety of conduct, or competence of a party is an issue in a proceeding, the party making such allegations shall provide particulars to the other parties five (5) days prior to the hearing.

MUTUAL DISCLOSURE

40. The Human Rights Commission, shall provide full disclosure of the results of its investigation including, but not limited to, witness statements, documents, and evidence relating to the complaint, to all parties and to any other person the panel directs, at least ten (10) days prior to the first scheduled mediation date or thirty (30) days before the case management-prehearing if no mediation is scheduled.

41. All other parties except the Human Rights Commission, shall deliver to all parties full disclosure of the information and evidence including, but not limited to, witness statements and documents it will rely on to support its case at least ten (10) days prior to the first scheduled case management-prehearing.

42. At any time in a proceeding, a panel may order any party to deliver to any other party further particulars, physical or documentary evidence, expert(s)’ reports, lists of witnesses and witness statements for the purposes of the hearing, and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding.

43. If a party fails to disclose in accordance with these Rules or an order of the panel, the party may not refer to or enter the document or physical evidence at the hearing without an order or a ruling of the panel which may be on such conditions as the panel considers appropriate.

CASE MANAGEMENT-PREHEARING

49. The Board may direct the parties and or their representatives to attend one or more case management-prehearings, for the purpose of simplifying and expediting the course of the hearing. Parties and/or their representatives should be prepared to discuss any matter including the following:

(a) identification and determination of parties and other interested persons and the scope of their participation in the hearing;

(b) identification of issues relating to the exchange and confidentiality of documents and information;

(c) identification and simplification of issues to be argued and facts or evidence agreed upon;

(d) identification and hearing of preliminary motions;

(e) exploration of procedural issues including the dates by which any step in the proceeding is to be taken or begun, the estimated duration of the hearing and scheduling of dates of the hearing on the merits;

(f) discussion of whether further mediation is appropriate; and

(g) examination of any other question that may simplify, assist or accelerate the

course of the hearing.

ORDERS AT CASE MANAGEMENT-PREHEARING

50. A panel presiding at the case management-prehearing may make such orders as it considers appropriate for the conduct of the proceeding and these orders are binding on the parties unless the panel orders otherwise.

EXPERT WITNESSES

52. A party who intends to call an expert as a witness at the hearing shall, not less than fifteen (15) days before the anticipated date the expert is to testify, serve on every other party and file with the Board, a statement of the name, address and qualifications of the expert, the report(s) of the expert and a statement of the issues to be addressed by the expert.

Statutory Powers Procedure Act

2. This Act, and any rule made by a tribunal under section 25.1 shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

5.4(1) If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,

(a) the exchange of documents;

(b) the oral or written examination of a party;

(c) the exchange of witness statements and reports of expert witnesses;

(d) the provision of particulars;

(e) any other form of disclosure.

(1.1) The tribunal’s power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.

(2) Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

12(1) A tribunal may require any person, including a party, by summons,

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceeding and admissible at an oral or electronic hearing.

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

25.1(1) A tribunal may make rules governing the practice and procedure before it.

(2)The rules may be of general or particular application.

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

(4) The tribunal shall make the rules available to the public in English and in French.

(5) Rules adopted under this section are not regulations as defined in the Regulations Act.

(6) The power conferred by this section is in addition to any power to adopt rules that the tribunal may have under another Act.

32. Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

THE ISSUES

This interim decision deals with a number of issues that arise as a result of the Respondents’ motions for disclosure of certain documents in the care and control of the Commission and for particulars of certain allegations contained in the Statements of Facts and Issues of the Commission and the Complainants, which the Commission and the Complainants refused to provide. The City withdrew a request for costs of its motion.

Prior to the date that the motions were heard, efforts had been made to attempt to answer some of the Respondents’ requests. During the course of the motions the Commission agreed to provide some documents requested by the Respondents, subject to certain terms. In addition, Interim Decisions were made regarding the sufficiency of some of the responses to the Respondents’ requests for particulars. Ultimately, in accordance with the terms of an Interim Decision, the Ministry withdrew its motion on all its requests save and except for certain items requested by the City that remained outstanding. The Interim Decisions made during the hearing of the motions, which were a result of the considerable efforts of all counsel involved, reduced the number of outstanding items initially requested. A summary of the Interim Decisions made during the motions is attached as an appendix to this decision.

Notwithstanding the steps taken by the parties to address many of the requests, the issues that remain to be determined on this motion remained fairly constant. They can be distilled to the following:

1. Are the motions for disclosure and particulars premature?

2. Should particulars and disclosure be ordered in this case?

3. When should the City and the Ministry be required to deliver their Responses and disclosure?

THE DECISION

The motions are not premature. The Commission shall provide the particulars and disclosure as set out in the order that follows these reasons.

THE FACTS

In an initial conference call held to address the matters set out in Rule 33 of the Rules, on the consent of the parties, the following directions were given by the Board with respect to the procedural steps to be taken in the matter:

• The Commission was to provide their Statement of Facts and Issues and disclosure under Rule 40 of the Rules, by June 22, 2001.

• The Complainants were directed to provide their Statement of Facts and Issues and disclosure under Rule 41 of the Rules by July 6, 2001.

• The Respondents were to provide their Responses and disclosure under Rule 41 of the Rules by September 5, 2001.

• The parties tentatively agreed to attempt a mediation of the Complaints and that mediation was scheduled for two days before the date that the Respondents were to provide their Responses and disclosure, and again for a further two day period after all the pleadings had been exchanged. The timing of the mediation reflected an effort to avoid unnecessary expense by an early resolution of the matter, if possible.

After the Commission and the Complainants provided disclosure and served lengthy and detailed Statements of Facts and Issues and the parties had attended on the first mediation, the Respondents advised the Board that they could not deliver their Responses. The reason they gave for this was two-fold: the alleged lack of particularisation of almost all the allegations in the Statements of Facts and Issues of the Commission and the Complainants; and the lack of adequate disclosure.

A telephone conference call was convened to deal with the issue. At the telephone conference call the Board extended the date for the Respondents to provide their Responses and disclosure under Rule 41 of the Rules and set a date for the hearing of the motions. The scope of the motions was defined during the conference call and confirmed in a letter forwarded to the parties dated August 28, 2001. The motions were to consider the sufficiency of the particulars and disclosure provided by the Commission and the Complainants so as to enable the Respondents to respond or in other words, to file a Response under Rule 36.

The motions commenced on October 11, 2001, and were heard over a number of days. The continued exchange of correspondence and efforts to attempt to answer the request for particulars continued during breaks in the motion days. In accordance with the terms of an Interim Decision on consent on the second day of argument, DARTS was permitted to adjourn its motion on terms. DARTS filed its Response on November 12, 2001.

Are the Motions for Disclosure Premature?

The Submissions of the City

The City submits that Rules 38 to 42 of the Rules operate in conjunction with Rules 35 and 36 to allow for motions for particulars and disclosure to be brought “at any time in a proceeding”.

As this stage is a gateway to the mediation and hearing stage it is necessary for the parties to focus the case to the extent that they are able to do so now. The purpose of having full facts and disclosure is to avoid further amendment and delay. Putting the case forward in a full and complete manner in the early stages will serve to expedite the process at later stages, and facilitate settlement. The question is not what is required to plead, but rather what is required in order to allow the City to plead properly and to minimize the necessity of amendments.

The City submits that while the civil rules of practice follow specific timelines for steps in a proceeding, the Board’s Rules have no such limitation, are more flexible and can, in appropriate cases, vary from an application of any mechanical progression contained in the Rules.

Given that there is no examination for discovery in the proceedings before the Board, if the Respondents believe that full disclosure has not been provided in accordance with the agreement of the parties and direction of the Board or if, as contemplated by Rule 42, the Respondents believe that further documentation exists that is required to allow the Respondents to make full answer and defence in their Responses, the Respondents should be permitted to bring a motion for disclosure.

The Submissions of the Commission and the Complainants

The Commission submits that the motions for particulars and for disclosure are premature and are not being brought at the appropriate time in the Board’s processes. The Commission submits that the Board is an administrative tribunal with processes and procedures that are to be accessible, affordable and expeditious. The Commission submits that it has not been the Board’s practice to allow these types of motions before the exchange of pleadings or to derogate from the sequence of the Rules that follow a specific timeline. The Commission asserts that an ordinary and purposive interpretation of the Rules suggests that the proceedings should follow a sequence of exchange of pleadings, exchange of disclosure, mediation (if consented to), and if no resolution, a case management-prehearing conference under Rule 49, at which time matters relating to the alleged inadequacy of disclosure or a request for particulars is addressed, and then to a hearing.

As the Rules provide the Commission, and a complainant who wishes to file their own Statement of Facts and Issues, only 30 days to prepare the Statements of Facts and Issues, such a statement should only be a concise statement of what they believe to be the facts and issues in dispute and the requested remedy, nothing more. Since a respondent only has twenty-five days thereafter to serve their pleadings, it should be concluded that the steps intended by the Rules were not to include the hearing of motions within that short time frame. Allowing these motions now would result in pleadings not being closed within the time frames set out in the Rules and would introduce extra costs and complexity to the hearing process.

The Commission further submits that in order to obtain disclosure arguable relevance must be established. There has to be a connection between what is sought and an issue or issues in dispute before the Board of Inquiry. As the City has not filed its pleadings, the Commission submits that the City is unable to establish this nexus. This is because, in the absence of a pleading indicating the issues in dispute, there are no issues in dispute to which the Board can refer in order to determine arguable relevance.

The Complainants adopt the submissions of the Commission and state that the issues asserted by the City and the Ministry in oral argument have not been made in a pleading and may ultimately have little to do with their pleadings. The Complainants also inquire how this Board is to determine relevancy, the significance of particulars and the probative value versus the prejudice of production in the absence of a foundation set out in pleadings.

Are the Motions for Particulars Premature?

The Submissions of the City

In accordance with Rule 36 of the Rules, a Response identifies both the issues in dispute, the issues that are agreed and any facts in dispute. The City submits that what is important is not that a pleading or Response can be filed, rather that a respondent can file a Response that focuses the case. The City suggests that in the face of insufficiently particularised allegations it could simply state a denial however, that would not serve to assist in the pleading, mediation or hearing process. If a Response only restates the response filed to the initial complaint, Rule 36 serves no purpose and the parties are no further ahead.

If the pleadings do not contain all the material facts within the knowledge of the Commission and the Complainants and upon which they intend to rely then the parties will be left wondering what remains unsaid, not knowing the full extent of the case to be met. This will not allow full discussion of the case at the mediation stage, and if left to the hearing date, would inevitably result in an adjournment request to allow for the provision of particulars or disclosure. To serve and expedite the proceedings before the Board then, the parties must to the extent that it is possible for them to do at this stage and to the extent that they are aware, state all the material facts upon which they intend to rely.

The City submits that the necessity of particulars and more specifically a degree of particularity at the pleading stage is not as necessary in the civil context, because there is access to an examination for discovery and further particulars can be obtained in the examination for discovery process. This is why the authorities relied upon by the Commission are distinguishable. The fact that there is an opportunity built into the civil process to obtain further particulars permits a civil Court to acknowledge a lower threshold at the pleadings stage. However, at proceedings before the Board such a disclosure process is contemplated by the Rules and it is precisely because there is no formal discovery process that the parties must provide full particulars in support of the allegations contained in the Statement of Facts and Issues. The cases relied on by the City dealt with requests for particulars at the eve of pleadings simply because the Board at the time did not have any rules in place for the exchange of pleadings or the provision of particulars in respect of such pleadings. Rules now exist contemplating such a request. The principles set out by the Board in the decisions relied on by the City should not be disregarded but should be applied by the Board to this stage of the proceeding.

With respect to the issue of timing, if factual allegations were made prior to filing a Response the City would undertake to investigate and inquire as to the basis of the allegations. In that way the City’s Response would be complete and specific and would focus the facts and crystallize the issues in dispute. The City submits that it would be unfair to proceed to a hearing in respect of allegations that have not been sufficiently particularised.

The Submissions of the Commission and the Complainants

The Commission submits that the pleadings delivered under the Rules are somewhat analogous to an originating process, but an originating process in an administrative context. The purpose of pleadings before the Board is to provide notice of the case to be met, define at the outset of the Board’s process the issues and facts that form the subject matter of the complaint and to set out a desired remedy, which is often not indicated in a Complaint.

The Commission submits that the authorities relied on by the Respondents, are superseded by the subsequently adopted Rules, and relate to the sufficiency of particulars in a human rights inquiry at a hearing or on the eve of a hearing, not at a pleading stage.

The Commission suggests that if the Board is inclined to consider an order for particulars at this stage of the proceeding, the reasoning contained in cases in the civil context may be more useful. The Commission relies on the analysis contained in Physicians’ Services Inc. v. Cass, 1971 CanLII 359 (ON CA), [1971] 2 O.R. 626 (Ont.C.A.) and Saskatchewan Provincial Court Judges Assn. v. Saskatchewan (Minister of Justice), [1994] S.J. No. 431 (Sask. Q.B.) to advocate a more limited role for particulars at a pleading stage before the Board and submitted that they should only be ordered in “exceptional circumstances”. The Commission submits that, in accordance with those authorities, if particulars are ordered the standards as to when particulars are ordered depends on the timing of the request and the reason for which they are sought. The level of particularization for the purposes of pleading should be a lower standard than that for a hearing. If the matters are within the knowledge of the party demanding them they are not to be ordered. Similarly, if they are not necessary for the party to plead, they will also not be ordered at the pleading stage. The Commission asserts that particulars should only be ordered at the pleadings stage if the allegations are so bald and so vaguely drawn that the opposing party cannot tell what are the facts in issue or, in the words of Cotton, L.J. in Spedding v. Fitzpatrick, (1888) 38 Ch D 410 “what case he has to meet”.

The Commission submits that in the case before the Board no further particulars are necessary because the City and the Ministry know the case they have to meet and clearly know what is at issue from the perspective of the Commission and the Complainants. The City and the Ministry are able to articulate their theory of the case, the Commission and the Complainants have filed extensive pleadings, there have been seven volumes of documentary disclosure and the Respondents have been provided with further particulars covering over some 100 pages of correspondence. In the opinion of counsel for the Commission, and in her experience before the Board, the level of particularity provided is unprecedented.

The Complainants adopt the submissions of the Commission. The Complainants submit that the purpose of pleadings in any proceeding is to provide notice of the issues, formalize the allegations and formalize the defences of the respective parties but that there is no obligation to provide evidence at this preliminary stage. The Complainants submit that if a respondent is permitted to bring a motion for particulars and disclosure before the close of pleadings, no future respondent would have any incentive to comply with the time frame for the delivery of a Response and there would be no purpose for the case management pre-hearing process set out in the Rules.

The Submissions of the Ministry on the Timeliness of both Motions

The Ministry submits that there is nothing in Rules that restricts the bringing of these motions and that there should be no hard and fast rules regarding the timing of the requests. Each case must be decided on its merits, based on the principles of fairness.

The Ministry submits that even if there are more parties that end up requesting particulars prior to the close of pleadings that is a right afforded to the parties according to the Rules and they are entitled to do so. The Ministry submits that it is an incorrect interpretation of the Rules to allow particulars prior to the close of pleadings only in the most exceptional of cases. Had the Board intended that limitation it would have specifically stated so in the Rules.

The Ministry finally submitted that, notwithstanding the position taken by the Complainants and the Commission that these Complaints have a systemic discrimination component, there must still be a breach of the Code established in relation to these Complainants in order to make out a case of systemic discrimination. These two Complainants have to establish that they have been discriminated against or not accommodated and the sufficiency of the particulars must be determined in that context.

Introduction: General Principles

In determining the issues raised on the motions and interpreting the applicable provisions, the Board has considered, amongst other things, the complexity of this specific proceeding, and the wording of section 2 of the SPPA which provides that the SPPA and rules made under it “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”. At bottom then, after considering many factors, including any claims of confidentiality or privilege, any decision made must conform to the principles of natural justice and procedural fairness.

In making the rulings set out hereafter, even if the submission of a party or an authority that the party addressed is not referred to expressly, all the submissions presented by the parties in their factums and at the hearing along with the authorities upon which they relied have been considered. It is implied when disclosure or particulars are ordered hereafter that such order is being made in accordance with the terms of Rules 38 and 42 of the Rules, as the case may be.

Finally, it should be noted that although the City and the Ministry have not filed a Response under Rule 36 of the Rules, DARTS has. In its Response DARTS raises, amongst other things, an undue hardship and section 14 defense.

General Principles Applicable to the Motions for Disclosure

It is trite to say that there is a general movement towards more, not less disclosure. The most recent pronouncement of the principles underlying disclosure is set out in the Ontario Court of Appeal’s decision in Jeffrey v. Dofasco, 2001 CanLII 2554 (ON CA), [2001] O.J. No. 4420 (Ont.C.A.) (“Jeffrey”), a case that arose as a result of a respondent’s request for the production of a complainant’s medical records in the context of an accommodation of disability case. The ruling again reinforces the important principle enunciated by the late Mr. Justice Sopinka in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.), that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. In that regard it is preferable to have disclosure before the hearing to avoid almost inevitable adjournments if disclosure is made at the first time at the hearing and to enable each side to prepare its case more effectively. (See the discussion in Jeffrey at paragraph 51 and Anonuevo v. General Motors of Canada Ltd., [1997] O.H.R.B.I.D. No.22 (Ont. Bd. Inq.) at paragraph 12.)

The threshold for production and disclosure in these proceedings is discussed in Biederman v. Banfai, [2000] O.H.R.B.I.D. No. 17 (Ont. Bd. Inq.), which states at paragraph 14 of the decision that:

The threshold for production and disclosure of documents before the Board, like the civil courts in Ontario, is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Board. (references omitted)

The first step in determining what is relevant is to identify the facts that are in issue in the case and it is the substantive law relating to the particular charge or cause of action that forms the basis for this identification exercise. (See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Canada: Butterworths, 1999) at paragraph 2.36)

As stated again in Jeffrey, disclosure is not limited to the documents a party intends to rely on to support its case and would include any documents in a party’s possession that are arguably relevant to an issue in the proceeding and which may be helpful to the other party. (See Jeffrey paragraphs 46 and 47).

Furthermore, finding that documentation is arguably relevant for the purposes of prehearing disclosure does not necessarily mean that such documentation will be admissible at a hearing. (See Chacko v. Transpharm Canada Inc. (c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 4 (Ont. Bd. Inq.) at paragraph 13.)

With the foregoing in mind, the timing of the motions can be addressed. “Proceedings” is defined in Rule 2 to include all possible steps directed by the Board from the receipt of the referral of the complaint from the Commission. In keeping with the principles set out above then, although Rule 49 refers to preliminary motions being heard at the case management pre-hearing, a plain reading of Rules 38 and 42, as backed up by section 5(4) of the SPPA, which allow for an order for further particulars and documentary evidence to be made at “any time in a proceeding” indicates that there is no impediment to the motions being brought now. That being said, in the absence of a Rule 36 Response, the City and the Ministry must establish that the test for ordering disclosure has been met and that it is appropriate to grant the relief now.

General Principles Applicable to the Motions for Particulars

As the comments above are comments of general principle and because section 5.4(1)(d) of the SPPA refers to the provision of particulars in the context of disclosure, there is some overlap of rationales relating to the scope and application of the concept of particulars in this case.

The Rules expressly provide for the exchange of documents that are classified as pleadings and that closely resemble pleadings in a civil action. This reflects the intention to import some of the principals found in a civil proceeding, with appropriate alterations, into the administrative proceedings before the Board. When one considers that there is no mechanism at the Board level comparable to an examination for discovery, this makes particularisation of allegations and documentary production, if found to be necessary, even more important. In keeping with the analysis set out above, on a plain reading of the Board’s Rules, as supported by section 5.4(1)(d) of the SPPA, a request for particulars can be made at any stage of the proceedings.

However, the substance of what particulars are is not defined in the Code, the Rules, or the SPPA. While counsel referred to various authorities in an effort to define particulars, they were of limited assistance because the bulk of them predated the enactment of section 5.4 by S.O. 1994, c. 27, s. 56(12) and they do not specifically consider or the Rules that are applicable to a request for particulars of a pleading.

A reading of section 5.4 of the SPPA in its entirety indicates that the definition of particulars in the SPPA connotes a potentially broader scope of application than that set out in the authorities provided by all the parties. Without seeking an exhaustive definition, as flexibility must be maintained in an administrative proceeding, the Board is of the opinion that particulars may be more than simply facts, whether material or otherwise. Particulars may be details, explanations, or clarifications of matters, and it is arguable that particulars clarifying legal points could also fall within that definition. So long as the Board considers such further particulars to be appropriate under Rules 38 or 42, as the case may be, then the Board may order that they be provided.

However, it will likely only be on rare occasions when a motion for particulars is allowed at the pleadings stage. This is because, by the very nature of proceedings before the Board and the fact finding process before the matter is referred to the Board, there should have been a great deal of information exchanged between the parties, making a request for further particulars unnecessary. That being said, the purpose of pleadings under the Rules cannot be underemphasized. The filing of a Statement of Facts and Issues by the Commission is the first time that the Commission informs a respondent what it asserts the facts and issues in dispute to be and what is its desired remedy. When a complainant chooses to file a Statement of Facts and Issues it often expands upon the recitation of facts in the complaint and informs the respondent of the remedy sought by the complainant. A full and complete Statement of Facts and Issues at the outset will only serve to expedite the Board’s process by focussing the facts and issues in dispute, eliminate unnecessary issues and/or avenues of exploration at a hearing and creating a more productive environment for mediation. Hearings proceed much more efficiently and effectively when the parties know what the issues, and the Board would add the facts, are at the outset, or the pleadings stage before the Board. (See Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), [2000] O.J. No. 2689 (Ont. C.A.) at paragraph 58).

To set out what particulars are required at the pleadings stage a review of some of the authorities provided is helpful. Many of the cases cited by the City in support of its request for particulars referred to Fairburn v. Sage, (1925) 1925 CanLII 403 (ON SCAD), 56 O.L.R. 462, a 1925 decision of the Ontario Court of Appeal, which involved an application by a defendant for particulars prior to the delivery of a statement of defence in a civil action for negligence. In that case the Court of Appeal explained that particulars are ordered for several purposes:

(1) To define the issues.

(2) To prevent surprise.

(3) To enable the parties to prepare for trial.

(4) To facilitate the hearing.

However, after discussing the rules of civil practice then in force, the Court of Appeal recognized that there are no hard and fast rules as to when, at what time, or in what cases, particulars will be ordered or refused. The endeavour of the Court of Appeal as stated in that case, and the Board in this case, should be to do justice to all parties in view of all the circumstances.

The Rules of Civil Procedure, R.R.O. 1990, regulation 194, require every pleading in a civil action in Ontario to contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved. Rule 25.10 of the Rules of Civil Procedure, permits a party to request particulars of a pleading, and, if such particulars are not provided voluntarily, they may be ordered.

In Ontario (Human Rights Commission) v. Ontario (Ministry of Education), (1988) 1986 CanLII 6477 (ON HRT), 9 C.H.R.R. D/4535 (Ont. Bd. Inq.), a case dealing with a request for particulars in a proceeding before the Board, notably the names of person or persons who requested the Commission to initiate the complaint, the right of a respondent to particulars is discussed. After reviewing the authorities relating to the required content of a complaint and the law of particulars, at paragraph 35292 of the decision, the Board concludes that:

1. The complaint must contain all the “essential elements,” including identification of the complainant and the victim or the class being discriminated.

2. The respondent must be aware of all matters which form a “substantial part of the facts material to the issues.” Evidence in support of those facts need not be divulged.

3. The respondent must be provided with sufficient information to allow it to prepare to meet all the allegations against it.

It is possible to incorporate the principles outlined above and in the authorities provided by the parties, in fashioning appropriate considerations on motions of this nature, keeping in mind that an order for particulars at the pleadings stage should be the exception, not the rule.

Since a complaint, as supplemented by the pleadings, should inform a respondent of the particular issues toward which proof must be directed and of the facts material to the issues relied on, the operative test when considering the motions for particulars at this stage of these proceedings is: what is necessary for these Respondents to plead. This means that in assessing these requests for particulars, the Board should consider whether the City and the Ministry are sufficiently aware of all matters that form a substantial part of the facts material to the issues and whether the City and Ministry have been provided with enough information to allow them to file a Response that adequately fulfils the requirements of Rule 36. This is subject to the caveat that, although there may be exceptions, strictly speaking, when particulars are requested at the pleadings stage, evidence in support of the facts need not be divulged. In this way a request for particulars at the pleadings stage does not become the equivalent of a civil examination for discovery cloaked in other terms.

The Request for Particulars of Paragraph 15 of the Commission’s Statement of

Facts and Issues

The City requests particulars of the first sentence of paragraph 15 of the Commission’s Statement of Facts and Issues. It provides as follows:

Hamilton, through HSR, offers a transit service which is inaccessible to many people with physical disabilities, including the Complainants….

In a letter from the City’s solicitors to the Commission dated July 17, 2001, the City requested particulars of this sentence by inquiring how is the transit system inaccessible and to whom is it inaccessible. In response the Commission replied in a letter dated August 9, 2001,

Ms. Eber asks to be informed regarding how the HSR transit service is inaccessible to persons with disabilities. One example, in answer to the question, is that people in Hamilton who use wheelchairs for mobility are unable to access non-ALF (referred to on the motion as Accessible Low Floor) HSR buses because such buses have steps that wheelchairs cannot ascend. The Commission does not believe that there are any parties to this proceeding who seriously dispute the fact that the HSR Transit service is inaccessible to many persons with disabilities; if the City of Hamilton or other parties do dispute the fact, then they are welcome to take such a position in their Statement of Facts and Issues.

In response the City replied in a letter dated September 7, 2001 as follows:

Insufficiency of Response: The City does “seriously dispute” the allegation “... that the HSR transit service is inaccessible to many persons with disabilities.” The City operates many accessible transit vehicles across the HSR system and also has contracted with DARTS to provide accessible transportation. The Commission provides “one example” of how the City’s transit system is allegedly inaccessible. The City is entitled to know the case against it, not “one example”.

The Submissions of the City and the Ministry

The City submits that the problem lies in the use of the word “example” in the response to the request for particulars. The question that remains for the City is whether there are any other examples. The words “one example” suggests that there may be other examples not stated. The City relies in this regard on Bhadauria v. Toronto (City) Board of Education (1987), 1987 CanLII 8498 (ON HRT), 9 C.H.R.R. D/4501 (Ont. Bd. Inq.) (“Bhadauria”), as support for its proposition that it is not sufficient to provide a partial list and leave open the chance to add other criteria by using the word “include” to preface an example.

The City submits that, at this point in the proceedings, it cannot meet the case against it if it is only provided with a partial list or selected examples. This City submits that it is making this request so that the City is provided with a complete list of examples, which the Commission is aware of and upon it wishes to rely. In the alternative, the City stated that it would be content if the Commission would simply states that the example provided is the only example that it is aware of and upon which it intends to rely.

The Ministry adopted the submissions of the City on this issue.

The Commission’s Submissions

The Commission takes the position that it has provided sufficient particulars to require the City and the Ministry to file their pleadings.

The Commission submits that the Board should not limit its consideration to the specific sentence to determine whether further particulars should be ordered, rather the Board should consider that sentence in the context of the pleading as a whole. The sentence is simply a starting point, or a point in the analytical framework within which the Commission is considering these Complaints; the framework relates to the provision of a service and whether the City is meeting its duty to accommodate disability in the provision of the service. The allegations the Board must consider relate to the differences in service that is provided to non-disabled and disabled members of the community. From the pleadings it is clear that these Complainants use the ATS service, that their issues are with the ATS service and that the ATS in Hamilton exists because the HSR is inaccessible to many persons with physical disabilities.

Analysis

In Bhadauria, the Board was faced with a similar partial list. At paragraph 35084 of that decision, after a discussion about the criteria used to assess persons during interviews in that case, and how a letter provided by Commission counsel in answer to a request for particulars of the criteria began with the words, “such criteria include”, the Board states:

… If the Commission intends to allege that certain “criteria” are improperly utilized in the assessment process, it is not sufficient to present a partial list to the respondent and leave open the chance to add other criteria by using the words “include” at the head of the list. The respondent is entitled to notice of the allegedly offensive criteria prior to the hearing. This falls squarely within the requirement of having to provide reasonable information of the allegations.

Although it is asserted that the balance of the pleading provides sufficient information to allow the City to respond, the Board does not agree. The Commission alleges that the City offers a transit service that is inaccessible, but provides only one example of inaccessibility due to a physical barrier. The 12 examples listed in paragraph 15 of the Commission’s Statement of Facts and issues relate to the alleged inequality of service and service delivery restrictions but do not address physical barriers. It should be a simple matter for the Commission to set out how, in its view, what physical barriers to access exist. The Commission is therefore ordered to provide the particulars requested.

The Request for Particulars of Paragraph 9 and 14 of the Complainants’ Statements of Facts and Issues

Paragraph 9 of the Complainants’ Statement of Facts and Issues reads as follows:

Ms. Nuesch was born with Cerebral Palsy and as an adult used a cane for mobility. In September 1988, Ms. Nuesch suffered a debilitating stroke and since then she has used an electric wheelchair. Five subsequent milder strokes have left her successively weaker. Ms. Nuesch was diagnosed with mild Multiple Sclerosis in 1996. As a result of the Multiple Sclerosis, Ms. Nuesch experiences fatigue, numbness in her lower extremities, balance difficulties and vision difficulties.

Paragraph 14 of the Complainants’ Statement of Facts and Issues reads as follows:

Dr. Fox was diagnosed with Multiple Sclerosis in 1985 and has been hospitalised periodically. Her condition varies as she gains and loses her remission. She uses a wheelchair, walker or cane depending on her health at the particular time. The Multiple Sclerosis has rendered her legally blind, and on occasion, unable to speak.

In a letter from the City dated July 17, 2001, the City requests that the Complainants provide particulars with respect to Ms. Nuesch’s and Ms Fox’s physical abilities and limitations and how those have changed over time, supported by a medical report.

In a responding letter dated August 17, 2001, the Complainants’ counsel replied with respect to Ms. Neusch as follows:

Please advise on what basis the City of Hamilton seeks disclosure of information and records pertaining to the Complainant’s personal medical status. The Complainants have always qualified for DARTS eligibility and at no point in this proceeding have (sic) any party disputed the fact that each Complainant lives with a “handicap” as defined in the Code. If the Respondents dispute the fact that the Complainants have disabilities, then the Respondents are welcome to take such a position in their Statement of Facts and Issues.

The same response was provided for Ms. Fox.

The City responded to this request for further information in its correspondence of September 10, 2001 as follows:

Insufficiency of Response: The City does not dispute the fact that the Complainants have disabilities. However, the City cannot make full answer and defence to the allegations related to a breach of the Code without a complete understanding of the physical limitations for which Ms. Nuesch required accommodation, what kinds of accommodation she may have required, and how her limitations have changed over time. In short, the very nature of this complaint puts Ms. Nuesch’s physical abilities and limitations squarely in issue during these proceedings. This is demonstrated by your description of her medical history in paragraph 9, quoted above. You have put these matters in issue. The City is entitled to particulars and all supporting documentation, including medical reports, related to matters in issue before the Board of Inquiry.

The City took the same position with respect to Ms. Fox.

In a letter dated November 19, 2001, the Complainants’ wrote the following to the Respondents:

We confirm the response provided in our correspondence dated August 17, 2001, (Motion Record of the Respondent, City of Hamilton, Tab J), specifically, that the Complainants are unwilling to disclose particulars with respect to Ms. Neusch’s physical abilities and limitations, how those have changed over time and further refuse to supply a medical report at this stage of the proceedings. We submit that information with respect to the Complainant’s health status and medical documentation is private, irrelevant and not necessary for the purposes of the Respondents satisfying their obligation to file a Statement of Facts and Issues.

The same response was provided for Ms. Fox.

In light of the ruling that follows it is not necessary to set out the submissions of the parties in detail.

The Submissions of the City and the Ministry

The City submits that without knowing the degree and severity of the Complainants’ disability, and how it changed over time, the City cannot know or make an assessment of what amount of accommodation, if any, was required by the Complainants. The particulars requested are therefore relevant to a defence of undue hardship and are necessary for the City to file its Response.

Notwithstanding the position of the Complainants, the allegations against the City are subject specific and individualised. The City submits that the interest served by protecting the medical records of the Complainants from disclosure do not outweigh the interests of pursuing the truth in this case and properly disposing of the litigation. The City submits that any concerns regarding intrusion on privacy can be minimized to the fullest extent possible by the Board placing the same restrictions upon the use of the report as were ordered in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (S.C.C.) (“Ryan”).

The City clarified that it is not requesting an exhaustive production of all of the Complainants’ medical records. The City’s request was confined at the motion to a medical report prepared by the Complainants’ respective physicians which outlines the Complainants’ physical abilities and limitations during the time period to which these allegations relate.

The Ministry adopted the City’s submissions on this point.

The Complainants’ Submissions

The Complainants submitted that the requested material improperly intrudes on the Complainants’ privacy interests. Applying the test in Ryan, the Complainants say, would lead to a refusal to order production, particularly in the case of these Complainants who are subject to more medical scrutiny and whose lives are more heavily documented than non-disabled persons. Furthermore, the accommodation issue here is not a subjective or individualized assessment rather it is of a systemic nature and the particular circumstances of the Complainants is not relevant.

Analysis

The reasons for and the competing interests that arise when dealing with a request for disclosure of medical records have been addressed in R. v. Osolin, (1993) 1993 CanLII 54 (SCC), 109 D.L.R. (4th) 478 (S.C.C.), R. v. Mills, (1999) 1999 CanLII 637 (SCC), 180 D.L.R. (4th) 1 (S.C.C.), R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.) and Ryan and need not be revisited here because the request fails on other grounds.

Whether framed as a request for particulars or of a medical report, the City essentially seeks a report on the Complainants’ medical condition over a time continuum, not the Complainants’ medical records. In the Board’s view the report sought to be produced falls squarely in the realm of evidence, which as set out in the section on particulars above, is not strictly to be provided at this stage of the proceedings. An expert report as set out in the Rules falls under different timing requirements (See Rules 52 to 54). Furthermore, even if the request was limited to the production of the Complainants’ medical records, the medical records also fall within the realm of evidence, and in any event are not a prerequisite to enable the Respondents to file a Response.

That being said, as section 39 of the Code provides that the Board shall hold a hearing to determine whether “a right of the complainant” under the Code has been infringed and the remedial provisions of the Code apply only if the Board finds that “a right of the complainant” under Part 1 has been infringed, the Board is of the view that the extent of the Complainants’ disability may be arguably relevant to the steps that the Respondents should have taken to accommodate the Complainants and whether the Respondents did so to the point of undue hardship.

As a result, the Board will not order the requested information at this stage of the proceedings. After all the Responses have been filed, provided that the tests set out in Ryan are satisfied and it is appropriate to do so, this request may be revisited.

The Request for Particulars of Paragraph 21 of the Complainants’ Statement of

Facts and Issues

This request for particulars relates to the following sentence of the paragraph 21 of the Complainants’ Statement of Facts and Issues:

In the limited situations where a person with a disability is able to board an ALF bus, the person continues to experience inferior service compared to the non-disabled passenger.

To put the request in context it is useful to set out certain excerpts from the materials filed on the motion that were referred to by the parties.

Both Complaints contain the following identical paragraphs:

2. The Region of Hamilton-Wentworth operates the conventional and parallel public transportation systems within the Regional Municipality of Hamilton-Wentworth. The conventional system, known as the Hamilton Street Railway (HSR) is made up of buses. In order to use the system, a person pays a standard fare when boarding a bus. Bus service is provided on a regularly scheduled basis. Conventional buses are inaccessible to many people with physical disabilities. The HSR has added low floor buses to the system but these are also inaccessible to many people with physical disabilities.

The following is found in the City’s responses to the Complaints:

Accessible Low Floor Buses (ALF):

Introduced in September, 1996, this service provided about 9,500 trips by persons using personal mobility devices (PMD – scooter, wheelchair, walker) in 1998. The introduction of ALF buses has also had a positive impact on the travel options of ambulatory persons with disabilities. Regional Council has mandated an ongoing policy of fleet replacement using ALF vehicles to ensure increased travel options and opportunities for all persons with disabilities. The current fleet of 55 ALF buses (25 more slated for delivery in 1999) will be expanded as existing buses are retired from service. ALF buses have priority compartments designed specifically for PMD’s. Boarding and disembarking is accomplished by the passenger independently, driver assistance being in the form of ramp deployment only. There are no requirements for the complicated tie-down and restraint procedures associated with travel on specialized transit. A number of features which facilitate travel by passengers who have lesser mobility disabilities or sensory disabilities are incorporated in the design of the ALF bus. Route evaluation and implementation, bus stop and shelter accessibility, customer contact review and daily service monitoring are performed on an ongoing basis to ensure customers needs are properly addressed.

In the case analyses under section 36 of the Code, the following is found:

19. An examination of the services offered indicates that the conventional system is inaccessible to the complainant. Although ALF buses have been introduced, the complainant requires personal assistance to board the bus. ALF buses do not offer personal assistance.

Paragraphs 7 and 21 of the Complainants’ Statement of Facts and Issues sets out the following:

7. The Hamilton Street Railway (HSR) is the conventional public transportation system that operates buses known as Accessible Low Floor Buses (ALF) that have easier access features. The ALF buses operate only on certain routes.

8. The Complainants allege that the HSR system, which is mandated to provide transportation to the general public, is discriminatory because persons with disabilities are frequently and systemically unable to access this conventional service. In the limited situations where a person with a disability is able to board an ALF bus, the person continues to experience inferior service compared to the non-disabled passenger. For example, the ALF buses run sporadically and only on certain routes. The ALF buses require the wheelchair user to ride backwards. The ALF buses do not offer tie downs for the wheelchair passenger.

As set out in the letter from the City dated July 17, 2001, the grounds for the request are as follows: What are the limited situations where a person with a disability can board an ALF bus? Other than the examples listed, how is the service inferior? Provide full particulars.

In their correspondence dated August 17, 2001, the Complainants respond as follows:

The Complainants contend that the opportunity to ride ALF buses are limited and such service is often inferior because:

• ALF buses do not run on all routes,

• even on routes which provide ALF service, not every bus has this feature,

• to board an ALF bus, the rider must be able to propel herself up the ramp, consequently the rider must either have a motorized wheelchair or the rider must have enough strength to be able to independently ascend and descend the ramp in a manual wheelchair,

• unpredictability and risks associated with inclement weather make it difficult for riders to wait for a bus,

• some riders feel vulnerable without tie downs because the lap belt does not stop the wheelchair from tipping over, it just succeeds in trapping a person suspended between the belt and the chair,

• some bus drivers fail to automatically lower the bus for passengers and must be requested to do so.

The Complainants concur with the Commission’s position that if the Respondents dispute the fact that the HSR system is inaccessible to persons with disabilities, then the Respondents are welcome to take such a position in their Statement of Facts and Issues.

In the City’s letter dated September 10, 2001, the alleged insufficiency of that response is addressed as follows:

Insufficiency of Response: The Complainants’ response does not provide specific examples of allegedly inferior service provided to persons with disabilities boarding ALF buses. Instead, Ms. Chadha provides general statements in respect of “some riders” feeling vulnerable, and “some bus drivers” failing to automatically lower the bus for “passengers”. No reference is made to any specific incidents in support of these general statements. No particulars are provided as to which routes are inadequately serviced by ALF buses. No particulars are provided as to what frequency of ALF bus service is allegedly required on each route or the ratio of such buses that should be in the HSR’s system. No particulars are provided as to the rate at which Hamilton should be acquiring ALF buses if its current rate of acquisition is insufficient. Without such particulars the City does not know the full case it is required to meet and is in no position to provide a full answer and defence.

In a further responding letter dated November 19, 2001, the Complainants reiterated their earlier response and stated:

With respect to request #10, the Complainants add that there are a myriad of elements of the conventional service, which makes it inaccessible to persons with disabilities. There are concerns with maintenance of the surrounding area of the bus stops, conditions of the sidewalk, location and consistency of curb cuts, irregularities of slope, distance the bus stops from the curb, accessibility of scheduling information, stop announcements, position and frequency of handrails, height and location of padded stanchions.

The Complainants point out that problems with the fixed route service are not the central focus of their complaints, but rather constitute the backdrop or context of the allegations of systemic discrimination. Further, even if the preceeding deficiencies in the service were addressed, the service would remain inaccessible for some persons with disabilities. The conventional service imposes certain requirements on all users, in order to use the conventional service the rider must, among other requirements:

• be able to get to where the service picks up riders,

• be able to wait for the arrival of the vehicle,

• be able to board the vehicle,

• be able to conform to the physical requirements of safe travel on the vehicle, and

• be able to cope with routes that have stops that leave the rider responsible for reaching their destination from the stop.

In conclusion, the Complaints (sic) reiterate while access to the conventional transit system is a facet of the Complaints, the central focus of their complaint is the direct and indirect discrimination with respect to the accessible transportation services.

The Submissions of the City and the Ministry

The City again submits that the use of the “myriad” is like the use of the word “example” in the Bhadauria case, and raises the spectre of other examples existing. No amount of referral to other allegations in the Complaints or the Commission or Complainants’ Statement of Facts and Issues will provide the City with particulars of these allegations, which are vaguely pleaded.

The City’s specific request with respect to paragraph 21 is that the Complainants provide specific examples of the allegedly inferior service provided to persons with disabilities boarding ALF buses, that the Complainants provide specific incidents including all material facts in support of the Complainants’ general allegations that some riders feel vulnerable and that some bus drivers fail to automatically lower the bus for passengers and must be requested to do so. In addition, the City requests that the Complainants provide full particulars as to what frequency of ALF bus service is required on each route and the ratio of such buses that should be in the HSR system as well as the rate at which Hamilton should be acquiring ALF buses, if its current rate of acquisition is insufficient. With respect to the response provided on November 19, 2001, the City requires the following: All of the material facts in support of the new allegations not previously disclosed as set out in the paragraphs of that letter reproduced above.

The Ministry adopted the submissions of the City.

The Complainants’ Submissions

The Complainants submit that the Respondents would know from the Complaint, the section 36 case analyses and the Complainants’ Statement of Facts and Issues that the Complainants, because of disability, are unable to use the conventional transit system as it is inaccessible even in those situations where there are low floor buses. The particulars request must be considered in the context of the initial allegations as set out in the Complaints that the HSR system is inaccessible to many persons with disability, which was the backdrop to the core allegations of the systemic and discriminatory services of the para-transit system.

Having received the particulars of the discrimination in the Complaints, the Commission Investigation Report and the Commission’s and the Complainants’ Statement of Facts and Issues along with the responses to the requests for particulars, the City has all the particulars with respect to how the opportunity to ride the ALF buses is limited and how the service is inferior. The paragraph from the City’s response to the Complaints reproduced above shows how the City, in the Complainants’ submission, has responded to the allegation that the system is inaccessible by attempting to demonstrate that it is accessible.

Finally, the Complainants’ submit that the requests for frequency, ratio and rate of ALF bus service in the City’s system and the rate of acquisition of ALF buses are questions to be resolved at the remedial stage or are questions of remedy.

Analysis

The requests for the frequency, ratio and rate of ALF bus service in the City’s system, particulars of inadequately serviced routes and the rate of acquisition of ALF buses is really in the nature of evidence, for which an expert’s report may be required, and, as set out in the section on particulars above, is not strictly to be provided at this stage of the proceedings. Furthermore, while this Board is mindful that there has been no bifurcation of the hearing, the information that is sought is less required for pleading and more in the nature of the information required to determine remedy, if liability is established.

In contrast to the absence of steps taken by the Commission to address the request for particulars of paragraph 15 of the Commission’s Statement of Facts and Issues, the Complainants’ have attempted to provide more detailed responses to the request for particulars of this paragraph. This Board does not agree that further particularization is required at this stage.

While the Board finds that at this stage of the proceedings the Complainants have provided an adequate response to this request for particulars, if any further facts are to be relied on by the Complainants with respect to this issue they shall be provided promptly and shall be subject to whichever order the Board sees fit at the time. After all the Responding pleadings are filed and it is appropriate to do so, the sufficiency of the particulars of this paragraph, as supplemented by the letter dated November 19, 2001, that are required for the hearing of this matter can be addressed.

The Request for Particulars of Paragraph 37 of the Complainants’ Statement of

Facts and Issues

After discussing certain eligibility criteria for the use of the DARTS service, paragraph 37 of the Complainants’ Statement of Facts and Issues provides as follows:

The Complainants allege these eligibility criteria, which were determined and enforced by the Respondent City, are discriminatory since they unfairly deny service based on stereotypical categories of disability. This restrictive criteria fails to take into account a variety of disabilities, i.e., those that result in episodic relapsing debilitating fatigue such as Multiple Sclerosis and cognitive disabilities. The Respondent City’s ability to alter the eligibility criteria arbitrarily and without notice is also discriminatory. The Complainants further allege that the Respondent Province is complicit in this discrimination having abandoned its role to set provincial standards of accessibility.

In their July 17, 2001 correspondence the City requested particulars of the following sentence in that paragraph: The Respondent City’s ability to alter the eligibility criteria arbitrarily and without notice is also discriminatory. The City enquires: How is it discriminatory? In their correspondence dated August 17, 2001 the Complainants respond as follows:

24. How is arbitrary alteration of eligibility criteria discriminatory?

The Complainants consider this issue to be a matter of legal argument and not an issue requiring factual particulars.

In their letter of September 10, 2001, the City sets out the following:

Paragraph 37: ...The Respondent City’s ability to alter the eligibility criteria arbitrarily and without notice is also discriminatory.

Our Request: How is it discriminatory?

Complainants’ Statement of our Request: How is arbitrary alteration of eligibility criteria discriminatory?

Complainants’ Response to our Request:

The Complainants consider this issue to be a matter of legal argument and not an issue requiring factual particulars.

Insufficiency of Response: The response is unresponsive to our request. It was the Complainants’ who made the allegation. The City is entitled (sic) particulars as to the factual basis for their allegation that the arbitrary alteration of eligibility criteria is discriminatory. No factual basis is provided, making it impossible for the City to provide a full answer and defence.

In their correspondence dated November 19, 2001, the Complainants maintain their position.

The Submissions of the City and the Ministry

The City agreed that its ability to alter the eligibility criteria arbitrarily and without notice is an ultimate issue that the Board may be required to determine. However, it is not sufficient to simply allege that a certain act or failure to act is discriminatory but rather that material facts in support of that allegation must be provided. At this point in time the legal theory asserted by the Complainant has no factual basis. The Complainants cannot present their case without some facts to that show that in its purpose or effect, the City’s alleged conduct is discriminatory. Nor can the City respond to this allegation, this theory, without having sufficient particularisation. In keeping with the purpose of a responding pleading under the Rules, after receiving sufficient particularization of the allegation, perhaps the City would agree that the alleged conduct is discriminatory, but that accommodation is not required or that no further accommodation is necessary.

The Ministry adopted the submissions of the City on this point.

The Submissions of the Complainants

The Complainants submit that on a reading of the Commission’s and the Complainants’ Statement of Facts and Issues it is clear that the challenge is to the actual content of the eligibility criteria. The sentence sets out that the Complainants’ perceive that the manner in which the eligibility criteria were altered, that being the execution of those alternatives, was arbitrary and without notice and discriminatory. The issue is a matter of legal argument and does not require factual particulars. The Complainants submit that at the end of the day, the Respondents will hear about the Complainants’ legal theory of liability which establishes that arbitrary and without notice actions of the state constitute discrimination.

Analysis

The City and the Ministry request the material facts in support of the allegation. Those material facts are set out in the sentence of the paragraph. The City’s ability to arbitrarily alter the eligibility criteria without notice is at issue. Whether that is discriminatory is an issue for the Board to decide. That decision will have to be made after legal submissions. Although it is arguable that particulars clarifying legal points may fall within the definition of particulars, especially in a complex case such as this one, only the material facts in support of the allegation were requested.

While the Board finds that at this stage of the proceedings the Complainants have provided an adequate response to this request for particulars, if after all the Responding pleadings are filed, it is appropriate to do so, the sufficiency of the particulars of this paragraph required for the hearing of this matter can be addressed.

Disclosure of the Transit Survey, Responses and Updates

The City requested disclosure of a Transit Access Survey distributed by the Commission in 1999 to 25 Ontario Municipalities and transit service providers and the responses thereto. In addition, the City requested a subsequent series of update questions and responses.

The Transit Access Surveys are referred to in a discussion paper generated by the Commission dated January 16, 2001 entitled, Discussion Paper on Accessible Transit Services in Ontario (“Discussion Paper”). The purpose of the paper was to discuss access to public transportation in Ontario as a human rights issue.

It would appear that, amongst other things, the basis for the paper is the Transit Access Surveys now requested by the Respondents. The Surveys are described in greater detail at page 4 of the Discussion Paper as follows:

In July 1999, the Commission wrote to 25 Ontario municipalities and transit service providers to survey the accessibility of their transit systems. Each was asked about specific services to accommodate persons with disabilities, about the status of integrated transportation services, and any new initiatives being planned to accommodate patrons with disabilities. Nineteen authorities replied.

Since 1999, the Commission has issued update questions to the 1999 Transit Access Survey and is awaiting all the responses. This next stage involves surveys that were more specifically tailored to each municipality based on what the specific municipality provided in response to the 1999 Transit Access Survey.

The request for disclosure was first made in a letter from the City to the Commission dated June 20, 2001. In response, the Commission replied in a letter dated August 27, 2001 as follows:

It is not clear to us the relevance of the survey and/or responses to the survey to these proceedings, especially as we do not have the respondents’ pleadings. We will consider disclosure of the material requested once we have received the City’s pleadings and its position on the relevance of this material to the issues raised by the Neusch and Fox complaints.

In a further letter from the City dated September 7, 2001, the relevance of the requested material is stated by the City as follows:

The transit survey and replies that we have requested are obviously relevant to the complaints and to the City’s previous response, all of which squarely raise the issue of transit accessibility. Further, the City’s previous response to the complaints specifically references the fact that its service levels compare very favourably with those in other communities in Ontario. We remind the Commission that the Complainants too seek disclosure of the survey and replies (see page 14 of the Complainants’ Statement of Facts and Issues). The transit material and replies may be relevant to issues of what constitutes reasonable accommodations and what constitutes undue hardship for the City. They may also relate to potential issues regarding whether the City is being arbitrarily and unfairly singled out by the Commission in this case, i.e., whether this case involves an abuse of process. The materials requested are therefore central to the preparation of the City’s defence and response.

The City understands that the Commission has issued “1999 Transit Survey Update Questions.” Therefore, the City is also requesting disclosure of the update questions and replies to the update questions. The City’s position is that they are relevant on the same basis that the original survey and replies are relevant.

At page 39 and 40 of the Discussion Paper a brief summary of the comparative services offered by the survey respondents is set out. In the summary, the “family of services approach” of the City is discussed.

The summary and conclusions of the Discussion Paper are set out at pages 43 and following. At page 45 and 46, the paper states:

The survey revealed material variations in the levels of services provided in Ontario. Some authorities restrict access to paratransit for ambulatory persons with disabilities, while some are less restrictive. Some authorities allow temporarily disabled persons to use their paratransit services, while others do not. (Footnote references omitted)

In addition, the financial cost of registering for paratransit services varies significantly from region to region.

In the Complaints the Complainants’ make allegations regarding the level and type of services provided by the City. In its responses to the Complaints the City included a table of statistics showing a comparison with accessible transit services provided by other communities in Ontario. At page 6 of its responses the City refers to the table of statistics provided and states that its “service levels compare very favourably with other communities in Ontario”.

At paragraph 4 on page 1 of the Commission’s section 36 case analyses in this matter, the following is set out in relation to the City:

The respondent maintains that the policies and terms applied to the service were necessary to ensure maximum efficiency; the services provided are the best that can be offered within budgetary constrictions. Thus, the respondent raises an undue financial hardship defence.

At paragraph 29 on page 6 of the section 36 case analyses it states:

Statistics comparing the respondent’s transit services for disabled riders to five other Ontario cities reveal that the respondent offers substantially more trips per capita; however, advanced booking time required far exceeds other cities. The respondent’s total expenditure per trip and the number of trips per hour is significantly less than nearly all other cities.

The following conclusion is found at paragraph 30 of the section 36 case analyses:

In summary, the evidence indicates that the transportation services provided by the respondent directly discriminate against persons with disabilities.

At page 14 of the Complainants’ Statement of Facts and Issues there is a section entitled disclosure sought. At set out at number 3 of that section the Complainants’ seek disclosure of the transit accessibility survey(s) and a copy of the replies.

The Submissions of the City and the Ministry

The City submits that the Commission has not provided its final position on disclosure of the materials requested. The Commission does not assert privilege or confidentiality or suggest any harm may arise from disclosure. Its position is that the relevance of the documents, is not yet clear. The City submits that the requested material is arguably relevant to the issues of what constitutes reasonable accommodation of the Complainants and what constitutes undue hardship for the City. In the City’s view this material is required for the City to meet its obligations under Rule 36 and is one of the means by which the City intends to prove that it met its duty to accommodate and that further accommodation by the City would constitute undue hardship.

Specifically, the City submits that a comparative analysis of services offered by Ontario Municipalities, notably the comparative analysis done by the Commission at paragraph 29 of the case analyses, which it says contributes to the conclusion at paragraph 30, was part of the foundation for the referral. Furthermore, the City has always sought to defend the allegation of discrimination in part by asserting that it provides better levels of service than that provided in other municipalities in Ontario. If the survey responses reveal unfavourable facts the City’s position may change and it may make certain admissions of fact accordingly in its pleadings.

The City submits that since the Commission relied upon the statistics comparing the City to other cities in drawing a conclusion of direct discrimination in its section 36 case analyses the most recent statistics available which make the same comparisons between the City and other municipalities, but on a much broader scale, are at least relevant to the City’s undue hardship defence and indeed to the determination as to whether the City discriminated against persons with disabilities.

Just because the information can be obtained from another source does not mean that it should not be disclosed. If the Commission has the materials they should be provided.

The Ministry adopted the submissions of the City on this point.

The Submissions of the Commission

The Commission explained that the Discussion Paper was prepared by the policy and education branch of the Commission pursuant to its mandate under section 29 of the Code. The Transit Access Survey was not conducted as part of any investigation of these complaints or, for that matter, of any complaints before the Commission. As a result, this information is not required to be disclosed under Rule 40 of the Rules.

The responses received to the survey are summarised in the discussion paper. After the release of the Discussion Paper some public consultations were held. As a part of the ongoing initiative of the policy branch, the survey results are currently being updated in the Transit Access Survey update.

It is clear from the pleadings filed by the Commission and the Complainants that the framework within which the Commission sees these Complaints is that of accommodation and whether the duty to accommodate has been met. The Commission also acknowledged that the City’s position regarding service levels was a position taken during the investigation stage of the Complaints and at the hearing of the motions. However, because the City has not filed any pleadings, there is no way to demonstrate a nexus between the documentation sought and issues in dispute before the Board. Furthermore, the position being advanced by the City about their service levels being comparable or superior to that offered by other municipalities does not require documents from the Commission to be concisely stated in the City’s Response under Rule 36.

Finally, the Commission submits that there is no abuse of process motion before this Board and until there is, the Board cannot determine whether the Transit Access Surveys and responses are relevant to that issue.

Analysis

The City did not assert at the hearing of the motions that the material was needed for the purpose of an abuse of process motion. As a result there is no need to deal with the request on that basis.

A review of the footnotes to the Discussion Paper, specifically footnotes 39 and 40, gives the City a sufficient indication as to which Municipalities responded to the survey. It would have been fairly simple for the City to request the material from the survey respondents.

The Board is of the opinion that the matter has proceeded to a stage sufficient to make a determination regarding arguable relevance of the Transit Access Surveys and responses under Rule 42, even in the absence of a Rule 36 Response from the City and the Ministry. Although this is not necessarily material to the decision the Board notes that the Complainants have also requested the Transit Access Surveys and responses in their Statement of Facts and Issues.

The Board finds that this material may be useful and appropriate for a full understanding of the issues in the proceeding, and is arguably relevant if a comparative analysis of the services rendered by the municipalities is undertaken to provide a baseline of comparative services offered.

Providing the material now will allow the City to set out in its Response their position regarding the City’s standing amongst Ontario municipalities in providing accessible transit alternatives. This would avoid any amendment that could result if the City set out a position in its Response that did not accurately reflect its level of service in comparison to other municipalities.

As a result, notwithstanding the material could have been obtained from another source, the Commission is to provide the material requested that it currently has in its possession.

ORDER

1. The Commission shall provide particulars of paragraph 15 of the Commission’s Statement of Facts and Issues by setting out, in addition to the example provided, how the City’s transit service itself is inaccessible due to certain physical barriers to accessibility.

2. The Commission shall provide the Transit Access Surveys and the responses thereto as referred to in the Discussion Paper on Accessible Transit Services in Ontario as well as the transit survey updates and responses.

3. A conference call will be convened on June 6, 2002 at 8:30 a.m. to set out the dates for the delivery of the Ministry’s and the City’s Responses under Rule 36 of the Rules and disclosure under Rule 41 of the Rules as well as dates for the Commission and the Complainants to file their Replies, if any, under Rule 37 of the Rules.

Dated at Toronto, this 24th day of May, 2002

“Steven J. Faughnan”

Steven J. Faughnan, Vice-Chair

A P P E N D I X

Summary of Interim Decisions made during the Motions:

On October 1, 2001, the motions were adjourned to October 17 and 18, 2001. The first ruling that was made on October 17, 2001 is as follows:

On consent, DARTS’ motion is adjourned sine die on the condition that DARTS’ ability to bring the motion back on for hearing is contingent on the Board finding that doing so is appropriate.

The following ruling was also made on October 17, 2001:

DARTS must deliver their responding pleading and provide disclosure on or before November 12, 2001. The date for the Complainants and the Commission to provide their reply would be set for a reasonable date subsequent to the date that all the Respondents had delivered their response, which date has yet to be fixed. If the Board felt that it was appropriate, the Board would ask for submissions from DARTS on the delivery dates for the Commission’s and Complainants’ reply.

On October 18, 2001, the matter was reconvened. The first ruling that was made that day is as follows:

On consent, on or before November 1, 2001, the Commission shall provide to the other parties the documents set out at numbers 1 to 15 of the letter from Nancy Eber to William Holder dated August 3, 2001, attached as exhibit R to the affidavit of Karen Sargeant in the City of Hamilton’s Notice of Motion. Such order is subject to the following requirement; that the documents set out at numbers 1, 2, 3, 5, 6, and 10 in the above noted letter dated August 3, 2001 shall have the names of the complainants and respondents referred to in those documents omitted.

The following ruling was also made on October 18, 2001:

The Commission has provided responses to some of the requests for particulars set out in a letter from Nancy Eber to Kikee Malik and William Holder dated July 17, 2001. The responses are contained in a letter dated October 18, 2001, from Kikee Malik to Trevor Lawson. In the letter dated October 18, 2001, the Commission has provided responses to the requests numbered 1, 3, 4, and 5-16 in the letter dated July 17, 2001. The Commission’s response to the request in item 1 of the July 17th letter is further supplemented by an agreement by the Commission to provide the information in item 1 to the other parties on or before November 1, 2001.

The Commission has thereby provided an adequate response to the request for particulars set out at items numbered 1, 3, 4, and 5-16 of Nancy Eber’s letter dated July 17, 2001, so as to enable the City of Hamilton to file a response to those items.

Finally, at the end of the day on October 18, 2001, the following ruling was made:

The matter is adjourned. Matter will recommence on November 30, 2001 at 9:30 a.m. December 7, 2001 is also set aside as a motion date. In the interim the Complainants are to communicate with the City of Hamilton and the Ministry of Transportation, respectively, with respect to the items requested in the letter of July 17, 2001 from Nancy Eber to Ena Chadha and the items listed at item number 2 on in the letter from Mary Gersch to Ena Chadha dated July 17, 2001, with a view to determining if the issue of the particulars request set out in those letters can be resolved. The Commission is to make similar efforts with respect to the items listed from item number 2 on in the letter from Mary Gersch to Kikee Malik and William Holder dated July 17, 2001.

Such efforts are to be made by the Commission on or before November 15, 2001 and the Complainants on or before November 19, 2001. Once such efforts have been made the Respondents are to notify the Board and the other parties by no later than November 23, 2001, as to what, if any, items remain outstanding to be dealt with on the motion.

Accordingly, the Board is adjourning the delivery date of the Response of the Ministry of Transportation and the City of Hamilton pending the hearing of the motion, or such earlier time, in the event of a resolution of the motion.

On November 30, 2001, the following ruling was made:

In accordance with the content of a letter from the Complainants’ counsel to the Board dated November 27, 2001, with the Complainants acknowledging that they did not have knowledge of or intend to rely on any further particulars of paragraphs 8, 10, 12, 15, 16, 19, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 40, 42, 43, 44 and 45 of the Complainants’ statement of facts and issues other than those particulars set out in the Complainants’ August 17, 2001 correspondence and as supplemented by the Complainants’ letter dated November 19, 2001, subject to the matters set out in the last paragraph of the Complainants’ letter dated November 27, 2001, the Complainants have provided an adequate response to the City’s request for particulars of those items so as to enable the City to file a response to those items.

At the end of the day on November 30, 2001, the following ruling was made:

Between now and the next motion date the Ministry is to specify to the parties the substance of its request to withdraw its motion, and the terms, if any, to be attached to the withdrawal request. The parties are to provide the Board with their position on the Ministry’s withdrawal request by December 7, 2001 or on the return date of December 11, 2001.

On December 11, 2001, the following ruling was made:

The Ministry is permitted to withdraw the balance of its motion in accordance with the terms set out in its letter of December 6, 2001, on the condition that the Ministry’s ability to renew the withdrawn portions of its motion is contingent on the Board finding that doing so is appropriate.

On December 19, 2001, the following ruling was made:

The decision is taken under reserve. Subject to the outcome of the decision, delivery dates for the remaining Respondents’ Responses, disclosure, and the dates for replies, if any, will be addressed in a conference call to be scheduled for a short and specific time frame after the decision release date.