HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Lucas Burrows by his next friend Norrah Whitney
Complainant
-and-
Her Majesty the Queen in Right of Ontario
as represented by the Ministry of Community and Social Services and
the Ministry of Health and Long-Term Care
Respondents
INTERIM DECISION
Adjudicator: Patricia E. DeGuire
Human Rights Tribunal of Ontario
400 University Avenue, 7^th^ Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Sharon Ffolkes Abrahams, Counsel
) Nina Gandhi, Counsel
) Anita Balakrishna, Student-at-Law
Lucas Burrows by his next friend Norrah Whitney, ) Michael Loughlan, Counsel
Complainant )
Her Majesty the Queen in Right of Ontario as represented )
by the Ministry of Community and Social Services ) Robert E. Charney, Counsel
and the Ministry of Health and Long-Term Care, ) Robin K. Basu, Counsel
Respondents )
INTRODUCTION
1Master Lucas Burrows, by his next friend Norrah Whitney (“Master Burrows”) filed two complaints to the Ontario Human Rights Commission (the “Commission”) on June 24, 2002 and December 27, 2002. In those complaints, he alleges discrimination with respect to services because of disability (the “Complaints”) by Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and the Ministry of Health and Long-Term Care (the “Respondents”). Discrimination with respect to services on basis of disability is contrary to section 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
BACKGROUND
2Master Burrows was born on January 11, 1996. He suffers from a disability called autism: a serious neuro-behavioural disorder. The Complaints state, among other things, that “Erinoak…a transfer agency of the Ontario Ministry of Community and Social Services…” provided intensive behavioural services to children with autism spectrum disorder. Master Burrows received such services until March 31, 2002, when he was no longer eligible to receive such services.
3The Commission referred the subject-matter of the Complaints to the Human Rights Tribunal of Ontario (the “Tribunal”). The Tribunal received the referrals on August 12 and October 14, 2003. The Tribunal commenced the proceedings for the first Complaint by telephonic conference on September 10, 2003. During that proceeding, counsel for Master Burrows advised the Tribunal that he intended to bring a motion for injunctive relief to reinstate funding for Master Burrows’ treatment.
4The Tribunal informed the parties that in light of the nature of the proceeding, it would hold an expedited motion to deal with the issue. The motion date was set for October 20 and 29, 2003.
5At the onset of the proceeding, the Tribunal directed the parties to deal with the threshold question first, i.e., whether the Tribunal has jurisdiction to grant the injunctive remedy being sought by Master Burrows.
6By their submissions, the parties informed the Tribunal that Master Burrows, among others, had brought a motion in the Ontario Superior Court of Justice (the “Court”) seeking injunctive relief to reinstate funding for his treatment. That motion was heard on October 17, 2003.
7In addition, the Tribunal was informed that Master Burrows and others have a civil action pending before the Court. In that action, they allege that the provincial government has breached their rights as protected under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) by the termination of funding for their treatment.
8During the course of the hearing on October 20, 2003, the Respondents’ counsel informed the Tribunal that the Court had released its decision on the motion for injunctive relief. It had granted the remedy sought by Master Burrows and others.
9In response to this news, the Tribunal granted a recess to allow all parties to review the Court’s Endorsement of Backhouse, J. (Lucas Burrows by his litigation guardian et al. v. Her Majesty The Queen, Court File No. 03-CV-253464CM3, October 20, 2003) and to determine the next practical step in its proceeding. After the recess, the Tribunal invited the parties to make oral submissions on whether the relief sought from and granted by the Court is the same as the relief being sought from the Tribunal in the instant motion.
10In the course of their oral submissions, the Respondents argue that since the factual underpinning that had given rise to the motion no longer exists, the instant issue before the Tribunal was “moot”. They rely on Phillips v. Nova Scotia (Westray Mines Inquiry), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, (Phillips, supra) to support that proposition. On that basis, the Tribunal invited further submissions. At the request of the parties, the Tribunal invited the parties to make fuller submissions in writing on the question of mootness concerning the threshold issue about whether it has jurisdiction to grant such relief.
11The Tribunal issued its Decision orally on October 29, 2003. These are the Tribunal’s written Reasons for its Interim Decision issued on October 29, 2003 concerning the disposition of the initial motion and the motion on the mootness of the original motion in light of the Court’s decision to grant injunctive relief to Master Burrows on October 20, 2003.
ISSUES
12The Tribunal has dealt with the following questions in its Reasons:
(1) Does the Tribunal have jurisdiction to grant the type of injunctive relief being sought by Master Burrows in the original motion?
(2) Is the relief sought from and granted by the Court the same as Master Burrows seeks now from this Tribunal?
(3) Should the Tribunal continue the proceeding, in particular, to determine whether it has jurisdiction to grant such a remedy?
DECISION
13The motion seeking injunctive relief is dismissed because the issue is moot. If necessary, Master Burrows or the Commission or both may bring the issue back before the Tribunal.
THE PARTIES’ POSITIONS
Master Burrows’ Position
14The Complainant’s submissions are stated below:
The Tribunal “must” first establish whether it has statutory jurisdiction to grant the substantive interim order requested, before it can address the issue of mootness. “By not proceeding in that manner, the question of mootness could itself become moot.”
The motion before the Tribunal is a “full motion” for interim relief. That is more than the “partial interim-interim relief” in a civil “motion within a motion” to which Master Burrows was a “late addition.” The interim-interim relief granted was not “individualised for the Complainant.” “The Complaint as a whole, before the Tribunal, is strictly about Luke and the interim relief sought by him is similarly about his unique and urgent needs alone.”
“The Court is dealing with the Charter and not the Code. The Tribunal is not a creature of the Court. It is a stand-alone entity and need not automatically defer to the Courts’ way of dealing with matters before it. Indeed, by the fundamentals of administrative law dealing with discretion, the Tribunal must actively exercise its discretion in dealing with matters before it. The Tribunal is not bound or fettered in the exercise of its discretion. ”
The relief sought from the Tribunal is for the “amount of funding which will allow him to remain in his currently stable situation until the Tribunal makes its decision after the full hearing on the merits.” If his “subsidy at his treatment centre be discontinued, he will be in crisis, as his costs will be twice that about to be funded. The relief granted by the Court alone will be moot in practical effect.”
In the motion before the Tribunal, Master Burrows seeks reinstatement of funding for his “medically necessary treatment” because treatment needs change. Emphasis should not be placed on the quantum required at any one time during this proceeding. It “is different in terms of quantum, duration, and circumstances of the moment.”
Right now Master Burrows is ready for a programme at the treatment centre. It provides him with a “shadow” IBI-trained therapist to accompany him as he begins to go to normal school for an hour or so a day as a first. “The problem with finding a school to accommodate him is another issue of a separate complaint before the Commission and the Tribunal. The Crown is indivisible, and the Crown has a duty to accommodate Master Burrows under the Education Act.”
“The Complainant is seeking in this motion that funding which will allow the Crown to properly accommodate the Complainant, nothing more and nothing less, until the Tribunal issues its decision.” The Tribunal itself has a duty to accommodate during the proceeding.
“The Tribunal should consider and adopt the rationale of Madam Justice Backhouse at para. 32 of the endorsement on the civil motion for interim-interim relief, where she [states]: “The children have already gone through the assessment process and have their therapists and supervising psychologists in place.”
The Commission’s Position
15The Commission says that the Court’s decision does not render the original motion before the Tribunal moot. It urges the Tribunal to continue to hear the motion brought by the Complainant for interim relief and to take a decision on whether it has jurisdiction to award such relief.
16The Commission’s pertinent submissions are stated below:
In the motion before the Tribunal, the Complainant does not seek an interim interim order. The “quality” of the interim interim order is the same as what he now seeks from the Tribunal, but the “quantity” is different.
The duration of the type of Order the Court has issued is “uncertain.” So, the Complainant “ought to know whether this Tribunal has the jurisdiction to award the relief requested.”
The Complainant seeks an interim order from the Tribunal reinstating his necessary medical treatment from the beginning of the Tribunal’s proceeding until the Tribunal has determined the case on the merits. Further because the Court’s Order is “not a final order, the issue is not resolved and the matter is still a live one before the Tribunal.” Therefore, the issue is not moot.
The Commission’s argues alternatively, that if the Tribunal decides the matter is moot, it “ought nevertheless to decide the question of its own jurisdiction to order the above-noted remedy.” The Commission argues that “the Supreme Court of Canada and many other Courts in this country have decided a question although the subject matter or substratum has disappeared. To support its submission, the Commission cites British Columbia (Superintendent of Motor Vehicle) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868. The Commission argues that in that case, the Supreme Court of Canada had decided to hear the issue whether Mr. Grismer should have been granted a drivers’ licence even though he was dead.
In addition, the Commission makes several submissions concerning the appropriateness of hearing an issue even if the issue is moot. To support its proposition, it has cited R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 S.C.R. 530; Phillips, supra; and Saskatchewan (Human Rights Commission) v. Moose Jaw (City), 1989 CanLII 19 (SCC), [1989] 2 S.C.R. 1317.
The Respondents’ Position
17The Respondents take the position that the original issue before the Tribunal is moot in light of the Court’s interim interim decision. They urge the Tribunal not to continue hearing the motion.
18The Respondents’ salient submissions are stated below:
- The Court’s Order of October 20, 2003 granted to Master Burrows the same relief he
seeks on the motion before this Tribunal.
It is an “interim interim injunction order” but it remains in effect until the Court decides the actual interlocutory injunctive motion.
The factual underpinning that gave rise to the motion before the Tribunal no longer exists.
The “only difference” between the remedy granted by the Court and the remedy Master Burrows seeks before the Tribunal is the duration of the injunctive relief. Specifically, the Court’s Order remains in effect until it decides whether to allow the reinstatement of the funding until it takes a decision on the trial on the merits. On the other hand, Master Burrows seeks reinstatement of the funding until the Tribunal decides whether there has been a violation of his human rights as alleged.
For the first time, Master Burrows has raised the argument that he now seeks an order for “accommodation” and “support” in the school system. This was not raised before the Court or before this Tribunal. The proper entity that ought to answer to this issue is not a party before either the Court or the Tribunal.
The Court has inherent jurisdiction to grant interim and interlocutory injunctive remedies. It has done so. The Tribunal should not amplify or modify the relief granted by the Court. Instead, it should give deference to the Court and wait for the outcome of its proceedings concerning the interlocutory injunction. That approach is consistent with the principle of comity between decision-makers: (Morguard Investments, Ltd. v. DeSavoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077; and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board, 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897).
The justification of urgency advanced by Master Burrows and the Commission no longer exists. Similarly, it cannot be said at this juncture that the question of irreparable harm and balance of convenience are real.
The Commission admits that the relief sought before this Tribunal and that which Master Brown had sought from and was granted by the Court are the same. It urges the Tribunal not to continue to hear the motion just because the Tribunal is offered “an opportunity” to deal with the issue of injunctive relief.
The ground of jurisdiction can be considered only as an issue “in a context in which relief is sought in a real, concrete, live dispute. It is clear that the judicial policy of refraining from deciding questions of law unless necessary is a policy of general application: (Phillips, supra).
The Commission says that there are other complaints concerning children with autism who may seek injunctive relief. Speculation about what might happen in the absence of an interlocutory injunction is not a basis for an interim or interlocutory injunction where compliance with time-limited injunction has been achieved.
The Tribunal has declined to order a remedy where to do so would be moot or inefficacious because of change in circumstances: (Turnbull v. Famous Players, [2003] O.H.R.T.D. No. 10 (O.H.R.T.) at paras. 9 and 27).
Therefore, the motion should be dismissed for mootness, without prejudice to Master Burrows’ right to bring it back again, if necessary.
ANALYSIS
19Based on the information before it, the Tribunal finds that the remedy sought from and granted by the Court is the same remedy Master Burrows now seeks from this Tribunal. Further, the Tribunal is content that the remedy granted by the Court shall remain in effect until the Court determines the interlocutory motion. Thus, the urgency of the matter, the irreparable harm and convenient forum concerns no longer exist.
20In the Endorsement of Backhouse, J. dated October 20, 2003, the Court granted an “interim interim mandatory order (the “Order”). The Order required the Crown to reinstate the funding for certain therapy for specific minors pending the hearing of the interlocutory injunction that had been scheduled for January 5, 2004. Master Burrows is included specifically in the Order.
21In her Endorsement, Backhouse, J. states:
Lucas Burrows
Lucas was first diagnosed as having Pervasive Development Disorder (a mild form of autism) at an early state, which was subsequently revised to a diagnosis of autism. He was approved for funding under the [Intensive Early Intervention Programme (“IEIP”)] in April, 2001. His funding ended March 31, 2002.
By all accounts, Lucas is a dramatically different child than he was prior to receiving IBI therapy. It is recommended that Lucas would benefit from spending part of his day in an elementary classroom but only with the assistance of trained IBI therapist which is not available in the public school system.
In the result, on an interim interim basis, the provincial government funding for the IEIP shall be reinstated (and in the case of Cameron Borgstadt shall be continued) pending the hearing of the interlocutory injunction. (Burrow, supra at paras. 19-20 and 34).
22Essentially, the Court ordered that whatever funding Master Burrows was receiving before March 31, 2002 had to be reinstated: nothing more, nothing less.
23Injunctive remedies are essential to the principles of fairness, specifically equity. Such remedies may be permanent or temporary. The nexus between an interim interim injunctive remedy and an interim injunctive remedy is the same as an interim injunctive remedy and a permanent injunctive remedy. That is why, among other criteria, it is usually necessary for the requester to establish that there is a high likelihood of success on the merits of the case and the probability of irreparable harm if an injunction is not granted before an injunctive relief is granted. In the absence of such proof, the requester must wait to have a permanent remedy after the hearing or the trial.
24Injunctions are inherently provisional solutions until a court or a tribunal can take a final decision after a trial or a hearing. If the provisional scope of an injunction makes it “uncertain,” then uncertainty is indeed an inherent characteristic, which may not be curable.
25Once the Court has wrapped a person in its protection by ordering such equitable relief, which compels another to do a specific thing, if the person so ordered refuses to comply, he, she or it is in contempt of court and risks a penalty. The Court has the power to modify the duration of the injunction. Notably, the substantive matter is still before the Court. So, the uncertainty of the duration of the Order granted by the Court might not be relevant to the scope of the remedy sought in the instant motion.
26In this case, the substantive issue of discrimination with respect to service is still a live matter. However, the substratum that engendered the necessity for the original motion no longer exists because the Court, a superior tribunal with inherent jurisdiction, has provided an adequate remedy. So, modifying one uncertainty for another would be a poor use of judicial resources.
27Further, if one presumes that the Tribunal has jurisdiction to grant the injunctive remedy that Master Burrows seeks, the Tribunal might have taken the decision not to grant the remedy. The rationale is one of common sense: it would be counterintuitive to have the same remedies running concurrently.
28Moreover, on the principle of comity between a superior and inferior tribunal, it conforms with common sense and practicality to wait for the outcome of the Court’s decision in the interim matter before embarking on a further proceeding concerning the type of injunctive relief being sought now.
The Mootness Principle
29To assert the different between the matter before this Tribunal and the motion that was before Backhouse, J., the Complainant’s counsel argues that “the problem with finding a school to accommodate [Master Burrows] is another issue of a separate complaint before the Commission and the Tribunal. The Crown is indivisible, and the Crown has a duty to accommodate Master Burrows under the Education Act.”
30The Commission and the Respondents concur that the relief Backhouse, J. granted is the same that Master Burrows seeks from this Tribunal.
31Significantly, the issue of accommodation as submitted by Master Burrows’ counsel, to delineate the difference between the issues and remedies before the Court and this Tribunal are extraneous. Besides, the Tribunal notes that the proper entity that ought to address the issue of accommodation is neither a party to the substantive case nor this motion.
32It is important that a tribunal ensures that the results of its adversarial process emerge from a context where the parties have a real live interest in the matter and where a live controversy remains. It is even more important for an adjudicator in the administrative justice system to ensure that this guarantee ensues from such decision. Unlike traditional courts, which are bound, generally, to follow their own rulings, administrative tribunals are not bound in law by their earlier decisions or those of any other tribunal. Indeed, a tribunal should try for continuity, consistency, and to a lesser extent, predictability. However, it should not be governed by fixative deference to earlier administrative decisions. As Macaulay cautions: “In exercising its delegated discretionary powers, [an administrative tribunal] must appreciate that rigid adherence to consistency can discredit its ability to improvise and adapt.” (Macaulay, Practice and Procedure Before Administrative Tribunals: “Stare Decisis, Precedent and Guidelines in Administrative Law” – 6-2, Toronto Carswell, 1990). An adjudicator of an administrative tribunal must always be responsive to the interest affected by the parties in a live controversy before it. Thus, a tribunal ought not to engage in answering hypothetical questions of law.
33In this specific motion, much weight is given to the general principle of the doctrine of mootness. Notably, the Court specifically has addressed Master Lucas’ interest. In considering all the factors, including the interest of all the affected parties, it would be an improvident use of sparse judicial resources, and it would be of no practical effect or utility to hear this particular issue since the Court has ordered the same remedy being sought in the instant motion.
34Stated simply, the issue is moot in law and remedy. The lis over which this fight began no longer exists. The lis here is the funding of Master Burrows’ treatment.
35It is well settled law that courts and tribunals ought not to decide abstract propositions of law, especially where the lis over which the fight began is over.
36The Tribunal is mindful that this mootness doctrine is not absolute. A court or tribunal can exercise its discretion to hear a matter that is, on its face, moot if the issue is one of great national importance or if the moving party can establish that even though the issue is resolved, an important question of law remains unresolved and may evade review. (International Brotherhood of Electric Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, 1967 CanLII 116 (SCC), [1967] S.C.R. 628; see also L.S.U.C. v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357). A review of some key cases indicates that the Supreme Court of Canada is more willing and has exercised its discretion to hear matters where it was alleged that the impugned act had infringed one’s constitutional rights, e.g., Grismer, supra and Skapinker, supra.
37The “issue” referred to above is whether this Tribunal has jurisdiction to grant injunctive relief based on its enabling statute. That issue is significant to this Tribunal and stakeholders, but it cannot be said to be an issue of great national importance.
38It is often said that human rights legislation is quasi-judicial. While that is so, human rights legislation is limited to a specific jurisdiction: in this case, Ontario. So, the Code does not enjoy the status of “broad application” as the Charter or the Criminal Code of Canada where a justiciable issue may have broad application to the rest of Canada.
39To embark on a proceeding just because it seems like an opportune time to answer the question whether this Tribunal has jurisdiction to grant injunctive relief of this nature must not be accepted as an appropriate reason to continue the original motion. This tribunal need not hear the motion “so that the Complainant [would] know whether [it] has the jurisdiction to award the relief requested.” The rationale is simple: such decision may not contribute necessarily to the development of its own jurisprudence or provide guidance generally to human rights substantive law.
40As noted earlier, although the Tribunal is mindful of the need for consistency in its jurisprudence, the doctrine of stare decisis does not apply in the administrative realm. A tribunal is free to recant from its previous conclusion regarding the law or apply different criteria at different times based on the public interest. (See Macaulay, at 28.2(b)).
41In considering the de jure adverse impact on the affected group, looking at the matter quite broadly, the Tribunal is of the view that it is not convinced that unless it hears the original motion the issue would otherwise evade review or that it would be unlikely that the question might be raised before it again. The Tribunal is not persuaded that, unless it hears the original motion, autistic children who have matters before it would be adversely affected.
42The Commission argues that there are other complaints concerning children with autism who may seek injunctive relief. It submits that, therefore, the Tribunal is presented with an opportunity to deal with the issue now. The Tribunal disagrees.
43The Commission has aptly brought to the Tribunal’s attention that most likely the Tribunal will be called upon to adjudicate other similar autism cases. Thus, in all likelihood, there will be another opportunity for the Tribunal to deal with this controversial issue. So, the issue will not evade review. Thus, there is no need now to hear the original motion merely to establish whether the Tribunal has jurisdiction to grant this type of injunctive relief.
44The Tribunal’s decision is, which is symbiotic with common sense, to reserve hearing such a motion for the appropriate case where the issue is alive, justiciable and ripe for hearing.
Conclusion
45In conclusion, the following are the Tribunal’s answers to the questions listed under the section captioned “Issues”:
Q. Does the Tribunal have jurisdiction to grant the type of injunctive relief being sought by Master Burrows in this motion?
A. Because of the Backhouse, J.’s decision, the Tribunal does not have to answer this question now.
Q. Is the relief sought from and granted by the Court the same as that Master Burrows now seeks from this Tribunal?
A. Yes.
Q. Should the Tribunal continue the proceeding, in particular, to determine whether it has jurisdiction to grant such a remedy?
A. No. The issue is moot.
46The Tribunal’s decision does not preclude the Commission or the Complainant from bringing this issue back before it, if it is necessary to do so.
Order
47For the reasons stated above, the Tribunal orders that the motion concerning whether it has jurisdiction to grant an injunction be dismissed. The motion about the mootness of the foregoing issue is granted.
Dated at Toronto, this 1st day of June, 2004.
“Patricia E. DeGuire”
Patricia E. DeGuire, Vice-Chair