HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

[Indexed as: Arzem v. R (Ontario)]

Ontario Human Rights Commission

Commission

-and-

Arzem, et al “Group A”

-and-

Aslanboga, et al “Group B”

-and-

Brooke, et al “Group C”

-and-

Ciccone, et al “Group D”

-and-

Burrows, et al

Complainants

-and-

Her Majesty the Queen in Right of Ontario

(as represented by Minister of Community and Social Services, Minister of Health and Long Term Care and Minister of Children and Youth Services)

Respondents

INTERIM DECISION

Adjudicator: Patricia E. DeGuire

Date: April 14, 2005

HR-0844-04 and HR-0845-04 (Group C); HR-0870-04 to HR-0882-04 (Group D); HR-541-03 and HR-0567-03 (Burrows)

Citation: 2005 HRTO 11

Human Rights Tribunal of Ontario 400 University Avenue, 7th 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 ^1_app

Ontario Human Rights Commission ) Sharon Ffolkes Abrahams and ) Nina Gandhi, Counsel

Complainants ) Ellie Venhola, Counsel ) Laughlin Campbell, Counsel ) Michael Loughlan, Counsel ) Jonathan Strug, Counsel ) Norrah Whitney, Agent ) Mary Snell, Agent

Her Majesty the Queen in Right of Ontario ) Robin Basu, (Respondents) ) Sarah Wright and ) Bruce Ellis, Counsel

INTRODUCTION

1During November 1 to 5, and December 5 and 6, 2004, the Human Rights Tribunal of Ontario (the “Tribunal”) heard four motions in this matter: each essentially concerned the jurisdiction of the Tribunal. The Tribunal has considered all the factual and legal submissions of the parties in determining these motions. However, only the salient facts and legal submissions made by the parties are set out in these Reasons.

Motions 1 and 2

2Specifically, the Respondent, Her Majesty the Queen in Right of Ontario—as represented by four government ministers¹ (“Ontario”) brings a motion challenging the Tribunal’s jurisdiction to hear these complaints. Ontario seeks an Order dismissing or staying these complaints on the ground that the Tribunal has no jurisdiction to deal with them. Ontario says that the allegations of the complaints are based on age discrimination—the age, which is less than 18—that is not an enumerated ground in the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Moreover, says Ontario, the complaints with respect to disability, as pleaded, are untenable.

3In the alternative, Ontario asks the Tribunal to stay its proceedings until: (i) the Supreme Court of Canada had issued its decision in the Auton (Guardian ad litem of) v. British Columbia (Attorney General)² case, (“Auton”); and the Ontario Superior Court of Justice issues its decision in the Wynberg/Deskin, [2004] O.J. No. 1066 cases; and (ii) until the Commission decides whether to refer to the Tribunal the Complaints against the school boards.

4Regarding the second part of the alternative request, the Respondent says it is not the proper respondent to the complaints relating to the inadequate accommodation for the complainants in the school system. The Tribunal treats this as a separate motion—Motion 2—because it relates to a distinct statutory power under subsection 39(3) of the Code.

Motion 3

5The Ontario Human Rights Commission (the "Commission") and the Complainants in Groups A, B and C bring a motion, seeking a determination on whether the Tribunal has jurisdiction to grant “injunctive and/or interim relief” or “substantive interim relief” to these complainants. The Tribunal’s decisions and Reasons encompass whether the Tribunal has the power to grant this type of remedy.

Motion 4

6On its own motion, the Tribunal had asked the parties to make submission on whether it has jurisdiction to appoint guardian ad litem.

Interim Decision

7On January 5, 2005, via its (Acting) Registrar, the Tribunal issued the following decisions to the motions:

The Respondent’s motions are denied. To dismiss the Complaints at this juncture would require the Tribunal to look behind the pleadings and enquire summarily about the real facts and circumstances of the subject-matter. The Code does not empower the Tribunal to do so. With respect to the alternate requests, the Tribunal is not convinced that the decision in Auton has answered all the central issues in these Complaints. Further, the Tribunal has no way of knowing whether the Superior Court’s decision in Deskin/Wynberg will answer the central issues in these Complaints. Thus, the Tribunal is not inclined to tie the timetable of these proceedings to the latter cases.

Regarding the Respondent’s request to stay the proceedings until the Commission decides whether to refer to the Tribunal the Complaints against the school boards, the Tribunal believes that the Code provides a more efficient way to deal with this issue than a stay. If it wishes, the Respondent can bring a motion to add the school boards.

The Commission’s and the Complainants’ motion is denied. The Tribunal concludes that it does not have any jurisdiction under the Code alone or in conjunction with the Statutory Powers Procedure Act to grant “substantive interim relief” or “injunctive and/or interim relief”.

Concerning the question about whether the Tribunal has jurisdiction to appoint a guardian ad litem, the Tribunal concludes that it has no power to do so. That power resides exclusively within the jurisdiction of the Superior Court. The Tribunal concludes that the lack of jurisdiction does not prevent the matter from going forward. However, the Tribunal believes that this is a curable issue and steps ought to be taken, if necessary, to address it.

BACKGROUND

8Between August 12, 2003 and October 15, 2004, the Commission has referred 217 cases to the Tribunal, all concerning minors who are afflicted with Pervasive Developmental Disorders, which includes Autism Spectrum Disorder (“autism”), and Asperger’s Disorder. Each Complainant alleges that he or she had been discriminated against by the Respondent, Ontario with respect to services because of disability, which is a contravention of sections 1 and 9 of the Code, (the “Complaints”).

9As a means of efficiency, the Tribunal has combined³ all the Complaints and has put them into clusters according to the time of referral, namely Groups A, B, C, and D (the “Complainants”). The Complainants in all the groups except D, which were referred on October 14, 2004, participated in the motions. For the purpose of these motions only, the Arzem cases have been combined with the cases HR-0541-03 and HR-0567-03, Burrows v. 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 parties in the Burrows cases participated in the motions as well.

10The initial hearing for the group referred on October 14, 2004, was held electronically on November 10, 2004. On the unanimous consent of all the parties, the Tribunal directed that the complaints in that group, administratively identified as HR-0870-04 to HR-0882-04, be combined with Arzem v. R. (Ontario) as Group D.

11On the consent of all the parties, the Tribunal ordered that Group D be bound by the submissions before the Tribunal and the Tribunal’s decision on the motions noted above. That Order was subject to the determination on whether any of the issues in the complaints in Group D is substantially dissimilar to those in Groups A, B, and C.

12These are the Tribunal’s Reasons for its Interim Decision issued January 5, 2005.

Motion 1: Does the Tribunal have jurisdiction to deal with these Complaints?

SUBMISSIONS OF THE PARTIES

13Below the Tribunal sets out a compendious account of the parties’ submissions. In the interest of brevity, the submissions of the Commission and the Complainants will be summarised together. Only where the submission of counsel or the agent of any Complainant differs from the Commission’s or other Complainant’s or neither adopts that submission would the Tribunal make specific reference to the submission and who made it.

Ontario’s Submissions

14Ontario brings this motion. It argues that the Complaints, as expressed in the Commission’s pleadings, are founded on allegation of age discrimination in respect of an age, which is less than 18 years, and not on a ground of discrimination enumerated in the Code.

15Specifically, Ontario submits that the Commission and the Complainants have made statements in their Statements of Facts and Issues that: the age limit for eligibility in the Intensive Early Intervention Programme (“IEIP”) is discriminatory; the failure to provide Applied Behaviour Analysis/Intensive Behavioural Intervention (“ABA/IBI”) services with respect to “health services”, and “educational services” is discriminatory on the basis of disability; the waitlist for IEIP, the funding and services—through direct funding and direct service options—offered by the IEIP are discriminatory on the basis of disability; the failure to provide ABA-based treatment to children who are not at the severe end of the autism spectrum, such as children with asperger’s disorder is discriminatory on the basis of disability, all of which are contrary to sections 1 and 9 of the Code. (Ontario’s Factum, para. 6).

16Ontario submits that in the spring of 1999, the government proclaimed that it would fund a new programme, IEIP, to provide services for children with autism. That programme was designed to address a particular service-gap, as identified by parents and professionals, for autistic pre-school children. The priority of service was based on the children most in need when the service can be most effective. The IEIP was directed at children less than six years. However, children who began to receive service after age 5, generally are entitled to a full year of IBI before being required to leave the programme. This service, Ontario submits, is a special programme as defined by subsection 14(1) of the Code and subsection 15(2) of the Canadian Charter of Rights and Freedoms. (Ibid, paras. 7 to 12).

17Ontario asserts that the government’s decision to allocate IBI services or to withhold such services is determined on the criterion of age: the choice is to allocate services to children who are less than 6 years, and to withhold such service from children who are more than 6 years. Thus, the case is about the allocation of services based on age.

18Further, Ontario asserts that IBI programme is offered exclusively to children with a disability. The Ontario Health Insurance Plan (“OHIP”) does not provide IBI services. Only the government IBI programme offers such services, and it contains an age criterion for eligibility. The comparator of “cancer” proposed by the Commission and the Complainants is not sound because OHIP provides coverage to all citizens of Ontario for cancer treatment, but it does not cover drugs for cancer treatment.

19Ontario argues that the Commission and the Complainants do not complain that they are deprived of OHIP. They seek to gain access to IBI services for all autistic children regardless of age. Unlike the situation in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 (S.C.C.), where the translation service was a crucial link in gaining access to hospital services, a core medical service, autistic children “do not need IBI service to get to some other place”.

20Ontario submits that on the face of the Commission’s and the Complainants’ pleadings, including the remedy sought, there are clear indications that the allegation of discrimination is based on age. Specifically, part of the Commission’s relief is that Ontario cease and desist from the practice of automatically cutting off funding for ABA/IBI treatment for autistic children who have reached or past the age of six. Further, Ontario asserts that of the 90 Complaints, nine are less than six years of age; only one would be less than six years after December 2005. Of the remaining 81, 21 have received direct service under the IEIP, 36 have received direct funding, and 24 did not receive funding or service under the IEIP. In addition, Ontario says, the fact that some Complainants have launched a constitutional challenge supports its proposition that the ground engaged here is age. Thus, Ontario concludes, the Complaints are based on nothing but age discrimination in respect of an age that is less than 18 years: the Complaints are not discrimination because of disability, although couched in such diction.

21Ontario argues that the Code defines the jurisdiction of the Commission and the Tribunal. It lists the prohibited grounds of discrimination, which essentially define the jurisdiction of the Tribunal. The prohibited grounds of discrimination with respect to services include “age” and “disability”. The Code defines age to mean an age of 18 years or more, except in the employment provision in subsection 5(1); there, age means an age of 18 or more and less than 65 years.

22Invoking Cooper v. Canada (Human Right Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854 (S.C.C.), Ontario submits that the Code does not confer power on the Commission to deal with allegations of discrimination based on an age that is less than 18 years as defined in section 10. Therefore, the Commission does not have the jurisdiction to refer such matters to the Tribunal. By extension, the Tribunal can not exercise jurisdiction over a matter that was improperly referred to it.

23About the other allegations of discrimination, Ontario submits that they are not based on a prohibited ground under the Code. Ontario asserts that it is well-established common law—whether under the Charter or the Code—that a claimant must demonstrate that the ground of discrimination is the basis for the differential treatment between the claimant and a comparator group. Ontario relies on Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 (S.C.C.), to support that proposition.

24Ontario argues that neither the Commission nor the Complainants have identified any comparator that is dissimilar to the Complainants because of disability. Ontario asserts that the Commission and the Complainants have not identified any distinction based on a prohibited ground; their assertions concerning disability are untenable.

25Specifically, Ontario asserts that the Commission and the Complainants have not identified any comparator who receives a benefit provided by the government generally, which is not provided to children who are afflicted with autism.

26Further, Ontario says that to assert a tenable claim, the Commission must identify precisely which government service, statutes and regulations are being challenged. Ontario argues that the Commission relies on ground of disability because the Commission knows if it does otherwise, its case would flounder.

27Ontario’s arguments about the alleged discrimination because of disability regarding the waitlist, and the direct funding versus direct service, are much the same. Ontario argues that these two subcategories have no discriminatory factors, and so, do not trigger the Code. It admits that children are on waitlists, but says that is not a result of discrimination because of a prohibited ground under the Code.

28Further, Ontario argues that if the failure to provide IBI services is not discriminatory, it can not be contended that tardiness in providing IBI is discriminatory. Besides, only five of the 90 children are on the waitlist, but that is so because the resources are not available to serve everyone at the same time. In addition, no distinction is established because all the children on the direct service and direct funding options are afflicted with autism. Thus, absent discrimination on a prohibited ground, the Tribunal has no jurisdiction to adjudicate those claims because of an alleged tardiness in providing IBI service or claims founded on distinctions in services or funding levels between the direct funding and the direct service options.

29In the case of Complainants afflicted with asperger’s and those at the milder end of autism, Ontario admits that these Complainants are excluded from IEIP. Ontario argues that while the Commission says the government must assist children with asperger’s, the government says it could be a good policy, but refusing to assist them is not a case of discrimination. It says they could have valid claims. However, those cases should not be combined with other autism cases because they do not require the same degree of involvement and they are different cases.

The Commission’s and Complainants’ Submissions

30The Commission submits that all Complainants have been diagnosed with autism, including asperger’s disorder. Without effective treatment, autism is a life-long affliction that will “almost always result in a life of physical, emotional, social, and intellectual isolation and the eventual institutionalisation of the vast majority of untreated children in group home or other residential facilities”.

31Specifically, IBI—a form of ABA, which is a general mode of treatment that offers promise of reducing the effects of autism—has helped many children achieve previously unexpected social and educational gains. In 1999, under the aegis of the Ministry of Community and Social Services (“MCSS”), Ontario established a programme called IEIP to help fund treatment for children with autism.

32The Commission says it has several concerns about that programme. First, children on the waitlists must wait a long time before they are assessed or begin treatment. Second, there are serious inadequacies in the provision of direct funding and direct services. Third, treatment is arbitrarily restricted to children age five and under, and arbitrarily not extended to children six years or more. Fourth, Complainants are not accommodated based on their disability in gaining access to education services provided by Ontario.

33The Commission submits that Ontario, through the Ministry of Education and Training (“MET”), had implemented Policy 81 to ensure that no school-aged child would be denied access to education during school hours because of special health support needs. The responsibility, to provide such support services was to be shared among the MET, the Ministry of Health and Long Term Care (“MOH”), and MCSS. The role of each ministry is defined in Policy 81.

34At the request of a local school board, and at the referral of a local school board, MET, and MOH respectively had specific responsibilities. Also, those two ministries were mandated to have consultative and advisory communication towards the provision of special health and support needs for school-aged children. MCSS was to continue to provide health support services for children in residential care and treatment facilities.

35The Commission submits that this arrangement allows for a seamless delivery of “medically necessary services” while the disabled child is in the classroom engaging in learning. However, children with autism do not receive such treatment. “They are provided with assistance by generic special education resource specialists,” who are “not specifically trained in any form of medically necessary ABA/IBI autism treatment.” The Commission argues that this difference in treatment constitutes discrimination because of disability. These children are subjected to different treatment based on their disability.

36The Commission argues that simply because Ontario had decided to limit services to autistic children, and call the programme a benefit does not make it so.

37The Complainants argue that Ontario holds the view that if a child can achieve the best results at a particular period from a service or benefit, service should be provided, but only during that period. Thus, on that basis, Ontario has selected a discrete group that will receive IEIP services.

38The Commission submits that autism is a disability as defined by the Code. The Tribunal must decide whether the ABA/IBI treatment is a necessary health care need and whether a denial of such need is discrimination because of disability. Therefore, it has the power to refer the Complaints to the Tribunal. In turn, the Tribunal has the jurisdiction to deal with the Complaints. Furthermore, the Complainants say that Ontario’s arguments are based on the wording of the Complaints. However, the Tribunal’s power to determine whether a right had been infringed is not based solely on law; nor is it based on the wording of the complaint. Counsel for the Hewitt, et al—part of Group B—stresses that the Tribunal would require factual underpinnings to make such a finding.

39The Commission submits that the Complainants face discrimination on the basis of disability as well as age. It submits that in Dudnik v. York Condominium Corp. No. 216 (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd. Inq.), the Tribunal had found that the exclusion of children from a condominium building constitutes discrimination on the basis of age and family status. To the extent that the age definition in the Code precludes protection to disabled persons who are less than 18 years, there is a conflict with section 15 of the Charter and is therefore, of no force and effect with respect to the Complainants. Relying on that decision, the Commission says the Tribunal may proceed with these Complaints on the ground of disability separate from the ground of age.

40More specifically, Ms Venhola, counsel who has launched the constitutional challenge for most Complainants, submits that if the Tribunal decides that the allegations of discrimination are based on age—not disability—it has jurisdiction to consider the Complaints on the ground of age. Counsel asserts that the Tribunal can deal with the question of jurisdiction in one of two ways: (i) “by applying a contextual analysis of direct and analogous ground under the Code, and subsequently ‘reading in’ by means of statutory interpretation the ground of ‘age’ into s. 1 of the Code . . . ”; or by invoking the Constitution and declare s. 1 of the Code inoperable for the reason that the absence of age as a direct ground of discrimination under the Code infringes the Charter and is not justified under s. 1, “and by granting a remedy under s. 24(1) of the Charter to include the ground of age for the purpose of these Complaints while issuing a stay of the declaration of invalidity of the Code for a period pending” its amendment. Counsel emphasises that the Code was enacted before the patriation of the Charter.

41Relying on Werbeski v. ODSP, 2004 CanLII 41165 (ON CA), [2004] O. J. No. 3724 (Ont. C.A.); Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Lasuer, 2003 SCC 54, [2003] 2 S.C.R. 504 (S.C.C); Paul v. British Columbia, 2003 SCC 55, [2003] 2 S.C.R. 585 (S.C.C.); Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854 (S.C.C.); and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2S.C.R. 5 (S.C.C.), among other cases, the Complainants submit that in taking decisions, the Tribunal engages in questions of law and in doing so, its decisions must be consistent with the Charter and the Code. Thus, the Tribunal has jurisdiction to determine the constitutional validity of the definition of age stated in section 10 of the Code.

42The Commission submits that if the Complainants were merely six years and had no autism, most likely, they would not be before the Tribunal. Nothing is wrong with being six, 16 or 18 years of age, argues counsel. However, if the Tribunal finds that discrimination is based on age, the definition of age in the Code must be subjected to constitutional scrutiny. The Tribunal has jurisdiction to consider and decide whether the Code’s definition of age is inconsistent with the Charter. The Commission relies on Nova Scotia (Workers’ Compensation Board) v. Martin: Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 (S.C.C.).

43The Commission argues that by stating that the Complaints are based on age discrimination, Ontario has classified these Complaints erroneously. As a result, Ontario has selected the comparator for the Complainants to be autistic children who are less than six years of age. That is incorrect. The Commission avers that the proper comparators are “non-autistic children, adults with mental disabilities and persons with physical disabilities.” Relying on Law, the Commission argues that in choosing the proper comparator, one must examine the subject matter of the legislation, its effect, and the contextual factors—factors that determine whether the legislation has the effect of demeaning a complainant’s dignity—which must be examined and interpreted from the complainant’s perspective.

44The Commission asserts that it is only a short period that separates those children who are now less than six years, and are not complainants, from these Complainants. The children in both categories are in the same situation: those children who are less than six years and receive treatment will have the service cut off when they are over six years and will be in the same situation as those over six. So, really, there is no comparison between them.

45The Commission submits that treatment for people with physical disabilities is not allocated or discontinued based on age. However, treatment for autism alone is subject to cut-off based on age. Moreover, the Commission argues, the termination of treatment is arbitrary: there is no accommodation based on individual assessment, and there is no flexibility in the policy regarding the age cut-off. There is no regard for medical evidence whether the Complainants would benefit from further treatment. That difference in treatment constitutes discrimination based on disability. The Commission submits that in Grismer⁴, the Supreme Court of Canada requires accommodation based on individual assessment.

46The Commission submits, relying on Sparkes v. Newfoundland and Labrador (Ministry of Health and Community Services) (2002), 2 C.H.R.R. D/230, Nfld. Bd. Inq.), aff’d, [2004] N.J. No. 34 (N.L.S.C.), that the waitlists are forms of unequal treatment for children with autism as compared to the way persons with other disabilities are treated in the system.

47Regarding direct service versus direct funding, the Commission argues that because many families choose this option does not make it non-discriminatory. The Commission contends that many families had no choice in accepting direct funding. At the time Ontario had offered assistance under the IEIP, the direct service programme was not fully established or the waitlists’ waiting period for the direct service was much longer. Besides, families who choose direct funding are not compensated for full costs: the rate is only a portion of the actual costs of the treatment, and the costs of the behavioural analyst and other integral services are not reimbursed.

Analysis

48There are two parts to this motion: the jurisdictional question and a stay. The jurisdictional question can be further divided into two sub-issues: the Tribunal’s general jurisdiction to deal with a complaint once referred by the Commission; and the Tribunal’s jurisdiction to deal with these Complaints where it is alleged that the discrimination is based on an age less than 18 years.

(i) General Jurisdiction

49Ontario’s position is that Commission had no jurisdiction from the onset to deal with allegations of discrimination is based on an age that is less than 18 years because section 10 of the Code exhaustively defines the term age. By inference, the Commission has no jurisdiction to refer these cases to the Tribunal. By extension, the Tribunal can not exercise jurisdiction over these matters because they were improperly referred to it.

50The Tribunal disagrees with Ontario’s position.

51It is settled law that once the Commission refers a matter to the Tribunal, “there is no provision in the Code which limits the [Tribunal’s] obligation to conduct a hearing into a complaint”. (McKenzie Forest Products Inc. v. Tilberg and Ontario Human Rights Commission (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 (C.A.)) (McMurtry, C.J.O. at para. 41 (appeal to the S.C.C. denied).

52The scheme of the Code acts as a shield and sword against Ontario’s position that the Tribunal has no jurisdiction to deal with these Complaints. The only weapon that may pierce this armour is for Ontario to show that the Commission’s referral demonstrates an abuse of the Tribunal’s process. Ontario does not take such a position explicitly. However, the Tribunal makes such an inference from Ontario’s factum, oral submissions and the remedy it seeks.

53There is a built-in statutory deference, vis-à-vis the Tribunal, to the Commission’s power to refer a complaint to the Tribunal. This deference is so air tight that it works both ways: the Tribunal can not refuse to accept a referral from the Commission, or refer a case back to it. The Commission can not withdraw a case once referred to the Tribunal; nor can it withdraw from a case. Moreover, the Tribunal has no jurisdiction to review the Commission’s procedure before a referral to determine whether the Commission had exercised its statutory mandate correctly. The Tribunal can not look behind the legality of the referral, except to prevent an abuse of its process: (see subsection 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22, as amended (the SPPA”).

54If the Tribunal were to otherwise question the legality of a referral to it, even if there were defects in the Commission processes, would be tantamount to judicially reviewing the Commission. That is the current state of the law, which has been entrenched in several cases: Joe v. University of Toronto Library (No. 1) (1995), 1995 CanLII 18192 (ON HRT), 25 C.H.R.R. D/472 (Ont. Bd. Inq.); Anonuevo v. General Motors of Canada Ltd. (No.1) (1996), 1996 CanLII 20105 (ON HRT), 31 C.H.R.R. D/238 (Ont. Bd. Inq.); Shepherd v. Ontario Corp. 1110494 (2000), 2000 CanLII 20866 (ON HRT), 38 C.H.R.R. D/284 (Ont. Bd. Inq.); Commanda v. Rainbow Concrete Industries Ltd. (No. 2)(2002), 2002 CanLII 46499 (ON HRT), 42 C.H.R.R. D/97 (Ont. Bd. Inq.); and Jeffrey v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 (Ont. Bd. Inq.)

55Relying on this firmly entrenched principle, the Tribunal finds that it has jurisdiction to deal with the Complaints referred by the Commission. Ontario’s objection to the Tribunal’s jurisdiction to deal with these Complaints can be raised properly only before the Ontario’s Superior Court of Justice, not with the Tribunal. The Tribunal turns to the second arm of the jurisdictional question.

(ii) Jurisdiction to Deal with these Complaints

56The Tribunal concludes that it has jurisdiction to deal with these Complaints as pled. This conclusion is based on the wording and schema of the Code. It is important to examine the scope of the Tribunal’s mandate to hold a hearing into a complaint. Subsection 39(1) of the Code defines the scope of the Tribunal’s power to conduct a hearing into a complaint: (a) to determine whether a right of the complainant under the Code has been infringed; (b) to determine who infringed the right; and (c) to decide upon an appropriate order under section 41.

57To determine whether a right of the complainant under the Code has been infringed, is not just confined to the actual wording of the complaint filed with the Commission, nor the Commission’s or Complainant’s pleadings, although it must relate to the nature of the complaint as filed by a complainant. By inference, a right of the complainant under the Code found to have been infringed need not be the right as alleged. It could be any right that the evidence bears, indeed subject to any prejudice to the Respondent. The converse is also inferred. The Commission or the complainant may allege discrimination on one or more grounds, but it is the sole jurisdiction of the Tribunal to determine, based on the evidence, if that right or any other right has indeed been infringed. The precondition to taking a decision about the infringement of a right is that a hearing must be held: that precondition is prescriptive.

58Ontario’s approach and framing of this motion is unique. It challenges the Tribunal’s jurisdiction to hear these Complaints on the basis the Tribunal has no jurisdiction to deal with these cases. It says the Commission’s and the Complainants’ allegations of the Complaints are based on age discrimination: an age less than 18 years, and which is precluded under the Code. The Commission had no jurisdiction from the onset to deal with these cases, let alone to refer them to the Tribunal. Therefore, by extension, the Tribunal has no jurisdiction to deal with these cases: the referral being unlawfully begotten.

59In addition, Ontario argues, the Commission’s and the Complainants’ allegations of discrimination because of disability, as pled, are untenable. Ontario submits that the Commission and the Complainants have used the ground of disability because they know if they did otherwise, their cases would flounder.

60To bolster its position, Ontario points to the language of the Commission’s and the Complainants’ pleadings, the remedy they seek, the fact that Complainants have launched a constitutional challenge on the ground of age, and the fact that the criterion Ontario uses to allocate or discontinue ABA/IBI services or the treatment, is based on an age less than 18 years. Ontario argues that the waitlists are not the result of discrimination; it can not be contended that tardiness in providing IBI service is discriminatory.

61Essentially, Ontario is saying that it would be unfair or oppressive to require it to participate in a hearing when the Tribunal has no power to deal with the Complaints because they were unlawfully referred. Also, the Complaints based on the ground of disability, as pled, would not succeed. In other words, Ontario is saying, an abuse of the Tribunal’s process would occur if the Tribunal allows the Commission and the Complainants to proceed to a hearing with these Complaints. Thus, Ontario asks the Tribunal to dismiss or stay these matters without a plenary hearing, conducted in the ordinary way: that is, without hearing the evidence of witnesses in an open hearing. Ontario asks the Tribunal not to exercise its legislative authority to hear these Complaints.

62The way Ontario has framed its arguments can be looked at from two legal perspectives: as noted above, the common law principle of abuse of process; and another common law principle of not establishing a cause of action. The Tribunal will address both perspectives.

Abuse of Process

63Dismissal or stay is the remedy imposed to prevent the abuse of process if, to allow a case to continue would be oppressive, or if it is shown that, an action is frivolous or vexatious. I. H. Jacob’s treatise entitled, The Inherent Jurisdiction of the Court⁵ elucidates, and connects the dots between, the common law doctrinal concept of abuse of process, and the remedy to terminate proceedings without a trial:

. . .It follows that where an abuse of process has taken place, the intervention of the court by stay or even dismissal of proceedings may often be required by the very essence of justice to be done, and so to prevent parties being harassed and put to expense by frivolous, vexatious or groundless litigation.

Indeed, the typical circumstances in which abuse of process is held to take place are where the proceedings are frivolous or vexatious. These words either separately, or more usually in conjunction, are often used interchangeably with the term “abuse of process of the court . . . . A proceeding may be said to be “frivolous” when a party is trifling with the court, or when it is not capable of reasoned argument. A proceeding may be held to be “vexatious” on many grounds, e.g., where it is or is shown to be without foundation or where it cannot possibly succeed or where an action is brought or defence raised only for annoyance or to gain some fanciful advantage. [P. 41: emphasis added].

64In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.), the Supreme Court of Canada examined the principles of abuse of process within the administrative law context. Bastarache J. states: “Abuse of process is a common law principle invoked principally to stay proceedings where to allow them to continue would be oppressive.” He notes that a respondent had asked for the same remedy in an administrative law proceeding and comments:

There is however, no support for the notion that a stay is the only remedy available in administrative law proceedings. A stay accords very little importance to the interest of implementing the Human Rights Code and giving effect to the complaints’ rights to have their cases heard. Other remedies are available for abuse of process. Where a respondent asks for a stay, he or she will have to bear a heavy burden. The discussion that follows often links abuse of process and the remedy of a stay because the stay, as I have said, is the only applicable remedy in the context of a s. 11(b) [of the Charter] application. [para. 117].

65After reviewing several criminal cases where that doctrinal concept was examined, Bastarache J. held:

In R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1667, L’Heureux-Dubé J. explained the underlying purpose of the doctrine of abuse of process as follows:

Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. . . . It acknowledges that the courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the social interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Para. 119].

66In considering whether abuse of process, and its attendant remedy ought to be applied in administrative proceedings, and with the same rigidity as in criminal cases, Bastarache J. states:

In order to find an abuse of process, the court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should be proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted (Brown and Evans, supra, at p. 9-68). According to L’Heureux-Dubé J. in Power, supra, at p. 616, “abuse of process” has been characterized in jurisdiction as a process tainted to such a degree that it amounts to one of the clearest cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L’Heureux-Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive. [Para. 120; emphasis added].

67Applying those attendant elements of that fundamental principle to this motion, the Tribunal rules that Ontario has not convinced it that these are the clearest of cases where it is correct for the Tribunal to refrain from exercising its legislative authority under subsection 39(1) to hold a hearing into these Complaints. Even if a complainant has braided or muddled some substratum of a grievance with a ground covered under the Code is no reason for the Tribunal to dismiss or stay the case.

No Cause of Action

68From the perspective that the Commission and the Complainants have not pled a cause of action, the Tribunal finds that they have done so. However, the Tribunal goes back farther than their pleadings. The subject-matter referred to the Tribunal is allegations of the infringement of a right to equal treatment with respect to service without discrimination because of disability. That is evinced by the factual allegations set out in the Complaints. The Commission’s and the Complainants’ pleadings are replete with allegations specific to discrimination because of disability. The Tribunal need not repeat them here. Simply put, on the face of the record, the Commission and the Complainants have stated a cause of action. That ought not to be confused with a determination whether that right of the Complainants has been infringed. The Tribunal will know whether those factual allegations are tenable, to support a finding of discrimination, only when it has heard the evidence.

69In the apposite words of Bastarache J., “ [a] stay accords very little importance to the interest of implementing the Human Rights Code and giving effect to the complainants’ right to have their cases heard” as mandated by subsection 39(1). It would be quite troubling if the Tribunal were to substitute its statutory mandate to hold a hearing for a cursory or summary look at a complaint or the pleadings, where there are allegations of discrimination based on any enumerated ground in the Code, and summarily dismiss or stay a complaint because a respondent says the Commission and the complainant will not succeed if they proceed to a hearing on the merits.

70Moreover, it would be quite distressing for an unsophisticated complainant, who has braided or muddled some substratum of grievance with an infringement of a right protected under the Code, only to have her or his complaint summarily dismissed or stayed as being frivolous or vexatious and is an abuse of the Tribunal process or because a respondent declares that the pleadings show no cause of action. It is this very summary approach the legislative scheme tries to avoid when it expresses the Tribunal’s mandate in specific plenary terms: that “The Tribunal shall hold a hearing. . .to determine whether a right of the complainant under this Act has been infringed.” Further, it is for this reason that a very high burden is imposed on an applicant who seeks a dismissal or stay before such a remedy is granted.

71The Tribunal agrees with Ontario that equality is a comparative notion. Ontario is correct that it is crucial that the Commission and the Complainants must demonstrate that the ground of discrimination is the basis of differential treatment between the Complainants and the appropriate comparator group.

72In Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, para. 23 (Quicklaw), the Court held:

The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter. An example of the former is the requirement that spouses be of the opposite sex: M. v. H, supra. An example of the latter is the omission of sexual orientation from the Alberta Individual’s Rights Protection Act; Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493. [Emphasis in original].

73Applying that test, it would appear that an appropriate comparator is a non-disabled person, a person with a lifetime physical or mental illness, other than an autistic child.

74That the Commission or the Complainants have not chosen the right comparator at this juncture is not fatal to their cases at all. In fact, the Tribunal “. . .must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the complainants is not appropriate: Hodge, supra, at para. 20”: (cited in Auton, at para 52).

75However, the Tribunal believes that the identification of the appropriate comparator is best determined during the hearing on the merits. Within that context, the Tribunal will have full factual underpinnings on which to determine whether the comparator is appropriate. The Commission and the Complainants allege that mentally or physically disabled children are entitled to a seamless delivery of “medically necessary services” in the classroom. However, autistic children are not. That arrangement was made possible by Policy 81.

76Thus, for the purpose of this motion, the Tribunal is satisfied that the Commission and the Complainants have established that these Complainants are treated differently; and that the benefit or service is government sponsored. Whether the treatment is medically necessary is a factual and legal determination, which can be made by the Tribunal in the hearing on the merits.

Jurisdiction vis-à-vis Age

77There is no dispute that autism, which the Complainants are afflicted with, is a disability as defined by the Code. In choosing to whom ABA/IBI services or treatment should be allocated or from whom it should be withdrawn, by its own admission, Ontario has singled out a specific group of children based on age.

78Thus, the Tribunal concludes that on the face of the record, it appears that all the Complainants in these cases face discrimination based on age as well as disability. A finding of whether those rights or any other right of the Complainants’ has been infringed, requires a mixture of facts and law, which must be done in hearing as prescribed by subsections 39(1).

79Subsection 10(1) of the Code states: “age” means an age that is eighteen years or more, except in subsection 5(1) where “age” means an age that is eighteen years or more and less than sixty-five years.” As the Commission submits, that definition precludes the protection of the right of disabled children to equal treatment with respect to services, without discrimination because of age.

The Constitutional Question

80On the face of the record, the factual underpinnings about the ground of age and disability are linked inextricably. The extent of that linkage is so critical that the Tribunal believes that if they were to be severed, the Tribunal would not be able to conduct a meaningful hearing. The scope of the Tribunal’s hearing would circumscribe significantly and unnecessarily, and thus, only allow the Tribunal to render a decision, which likely would be useless. Proceeding on both grounds might allay concerns of prejudice if the Tribunal was to find that both rights have been infringed.

81The Tribunal agrees with the Commission’s and the Complainants’ submissions that in taking an adjudicative decision in matters referred to it by the Commission, the Tribunal engages in questions of law. Further, in the exercise of its adjudicative mandate, the Tribunal ought not to take decisions that are inconsistent with the Charter and the Code. Therefore, the Tribunal has jurisdiction to consider and decide whether the definition of age in the Code is inconsistent with the Charter. To support its ruling, the Tribunal relies on Werbeski, Martin, Lasuer, Paul, Cooper, and Cuddy Chicks, and Dudnik.

82The Complainants have served notice of their intention to launch a constitutional challenge of subsection 10(1) of the Code. Accordingly, the Tribunal will proceed to hear this motion. Direction to the parties on this point will be given at the end of these Reasons under the heading entitled “Order”.

83In sum, the Tribunal rules that having received referral of a subject-matter of these Complaints from the Commission, it has unfettered jurisdiction over these matters. This conclusion is subject only to a Superior Court’s decision that the referral was unlawful. The unlawfulness of a referral is a matter within the exclusive jurisdiction of the Superior Court.

84Having obtained jurisdiction over these matters, the Tribunal must proceed either to dispose of the matter, on the consent of the parties, as provided under section 4.1 of the Statutory Powers Procedure Act R.S.O., 1990, c. S.22, as amended, (the “SPPA”) or hold a hearing. Indeed, subsection 23(1) of the SPPA allows the Tribunal to dismiss or stay a matter to prevent an abuse of its process. However, such order or direction can be made only in the clearest of cases. Ontario has failed to make out a clear case here.

85Alternatively, Ontario has not satisfied the Tribunal that the Commission and the Complainants have not made out a cause of action. The Tribunal rules that the Complaints and the pleadings state a cause of action within the rubrics of the grounds of discrimination enumerated in the Code.

86The Tribunal has concluded that on the face of the record, it appears that these Complaints involved the grounds of age and disability. Because the factual underpinnings are so critically inextricably linked, the Tribunal has determined that it would meet the ends of justice to hold a hearing under subsection 39(1) to determine whether these grounds or any other had been infringed by Ontario. However, because on the face of the record, the protection of the right to equal treatment with respect to service, without discrimination because of age is precluded from children who are less than 18 years, the Tribunal will hear the Constitutional question on whether subsection 10(1) of the Code violates subsection 15(1) of the Charter.

Alternative of Motion 1

87Ontario’s alternative remedy—a stay, pending the Supreme Court of Canada’s decision in Auton is otiose now. That Court has issued its decision. Its decision does not affect the Tribunal’s ability to proceed with these cases. The stay vis-à-vis the Wynberg/Deskin matters is still alive.

Stay pending Wynberg/Deskin Decision

Ontario’s Submissions

88Ontario submits that the proceedings before the Tribunal should be stayed pending the decisions in Wynberg/Deskin matters. Ontario states four primary reasons to support its position.

89First, that the proceedings before this Tribunal are substantially similar and to a large extent identical to the very extensive proceedings that have taken place before the Ontario Superior Court of Justice in the Wynberg/Deskin actions. Moreover, the proceedings before the Tribunal will be affected greatly by the rulings in those cases because the issues in the Wynberg/Deskin cases “are inextricable linked to” the Complaints before the Tribunal.

90Ontario says integral to this rationale is the courts’ recognition that the interests of the parties, the public, and judicial economy are valid reasons to grant a stay of proceedings, pending the resolution of proceedings, which are substantially similar, and which would be affected significantly by the decisions of pending cases.

91Ontario submits that neither the public interest nor the parties’ interests would be served if the Tribunal proceeds to hold the hearing now. That is because the parties would incur costs and be subjected to hardships because of participating in proceedings that are essentially duplicative of cases soon to be decided by courts, which have much broader remedial powers. For the reason alone that the cases are not identical or that there are additional issues in the proceedings for which a stay is being sought, is not enough to refuse to grant the stay. To support this first primary reason, Ontario cites Vanbrabant v. Alberta (Minister of Education), [1989] A.J. NO. 830 (C.A.); Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342 (S.C.C.); Alberta Provincial Judges’ Assn. v. Alberta, [1996] A.J. No. 277 (Q.B.); Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (s.c.c.).

92In addition, Ontario submits that Rule 6 of the Ontario Rules of Civil Procedure and section 9.1 of the SPPA confers discretionary power on the Tribunal to stay these proceedings pending a court’s or its decision. In support of that argument, Ontario relies on McCallum v. Toronto Transit Commission, [1996] O.H.R.B.I.D. No. 8; Dwyer v. Toronto (Metropolitan), [1996] O.H.R.B.I.D. No. 33; and Stonjanovski v. Honeywell Ltd., [1997] O.H.R.B.I.D. No. 25.

93Second, that the decisions in Wynberg/Deskin will likely render the proceedings before the Tribunal moot, i.e., an academic exercise, since those decisions will resolve most, if not all, of the general issues before the Tribunal.

94In the Tribunal’s view, even if that were so, the issue of the constitutionality of subsection 10(1) of the Code was not an issue in the Wynberg/Deskin matters. That is not merely an additional or general issue; it is a significant issue in the Arzem cases. The answer to the constitutional validity of the age limit of the IEIP and the disability discriminations claims in Wynberg/Deskin matters will not answer this question.

95Third, as an inferior tribunal—especially in a case where its jurisdiction is limited or in doubt—the Tribunal should defer to the Superior Court, which has inherent jurisdiction that is broader and undoubted. However, the Tribunal believes that this third reason, while pragmatic and has common sense value, is not an element of the test for granting a stay.

96Fourth, the decisions in Wynberg/Deskin were expected to be released by December 2004. It is now March 31, 2005, yet the decisions have not been released⁶. Indeed, this is not a criticism on the Court or Ontario; but to point out how precarious it is for the Tribunal to rely on or vouch for the timing of an event over which one has little or no control.

97The Tribunal notes that the McCallum and Dwyer cases were at the same adjudicative level: before this Tribunal. That is not the case here. Therefore, the Tribunal will not rely on them. The third case, Stonjanovski, is the same as here: there is a case pending at the Superior Court, and the Arzem cases before the Tribunal. Notably though, Ontario has not given any assurance that it would agree to be bound by the Superior Court’s decisions in the Wynberg/Deskin matters. Besides, this Tribunal is not convinced that the decisions would be released soon.

The Test for Granting a Stay

98The Tribunal agrees with Ontario that integral to its power to control its own process, the Tribunal has discretion to stay proceedings. The question posed by the submissions of Ontario, the Commission and the Complainants is what is the appropriate test for granting this type of stay that Ontario has requested. The Tribunal’s Rules of Practice, July 2004 does not deal with a stay of proceedings. Rule 66 deals with an adjournment. However, the Tribunal has power to control its own process: Jeffrey v. Dofasco (No. 3). The SPPA specifically deals with a stay.

99Subsection 9.1(1) of the SPPA states: “If two or more proceedings before a tribunal involve the same or similar questions of fact, law or policy, the tribunal may . . .stay one or more of the proceedings until after the determination of another one of them.” Subsection 1(1) of the SPPA defines the term: “tribunal” means one or more persons, whether or not incorporated and however described, upon which a statutory power of decision is conferred by or under a statute.” The definition does not contemplate a court of law. Besides, the SPPA does not apply to the judiciary: see subsection 3(2). By inference, the tribunal in subsection 9.1 does not include a court. Thus, the Tribunal concludes that absent the consent of the parties, where two or more proceedings are in a different forum—the Tribunal being one of the forum—it can determine whether to grant a stay based on its absolute jurisdiction to control its own process. Its decision should be based on common law principles. The typology of stay engaged here is the type the Ontario Superior Court of Justice dealt with in Farris v. Staubach Ontario Inc., 2004 CanLII 11325 (ON SC), [2004] O.J. No. 1227 (S.C.J.). It is the same type of stay within the rubrics of section 9.1 of the SPPA.

100In that case, the defendant in the civil action brought a motion for an Order staying the civil action pending the disposition of a human rights complaint, which had been filed with the Commission, but investigation had not yet begun. The defendant had argued that the allegations in the statement of claim were duplicated and had subsumed the complaint, and that the parties involved were effectively the same.

101In enunciating the test for granting the stay, Lederman J. held that a stay of proceedings should be ordered only in the clearest of cases. The party seeking the stay must evince that: (i) continuing the action would cause substantial prejudice or injustice to the defendant; and (ii) the stay would not cause an injustice to the responding party, i.e., the plaintiff. (Farris, at para. 15). Inconvenience and costs alone would not be enough to satisfy the test. Lederman J. further states:

As McNair J. stated in Varnman v. Canada (Minister of National Health and Welfare) (1987), 12 F.T.R. 34 at 36 (F.C.T.D.):

A stay of proceedings is never granted as a matter of course. The matter is one calling for the exercise of judicial discretion in determining whether a stay should be ordered in the particular circumstances of the case. The power to stay should be exercised sparingly, and a stay will only be ordered in the clearest cases. In an order [sic] to justify a stay of proceedings two conditions must be met, one positive, and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. Expense and inconvenience to a party or the prospect of the proceedings being abortive in the event of a successful appeal are not sufficient special circumstances in themselves for the granting of a stay.

Factors to be considered in determining prejudice include: the likelihood and effect of the two matters proceeding in tandem in two different forums; the possibility and effect of different results; the potential for double recovery; and the effect of possible delay.

102The Superior Court has already heard the case in the Wynberg/Deskin matters. The Tribunal acknowledges the difference in that case from the one before it: the Commission had not yet begun its investigation. However, as in that case, these cases are still in their infant stage in that the hearing on the merits has not begun, and likely, more issues that are preliminary may need to be resolved before the hearing. In fact, the issue of the Tribunal’s jurisdiction over these Complaints may still be a live issue.

103Notably, the Commission and the Complainants have raised an issue about the constitutional validity of subsection 10(1) of the Code. Significantly, that is not an issue in the Wynberg/Deskin matters. Furthermore, the Commission was not a party in those matters. Besides, the Commission and the Complainants are willing to proceed. And notably, as Lederman J. aptly states in Farris, the evidentiary rules; the standard of proof; and the legislative scheme, e.g., no proof of intent required to prove discrimination, and the adverse impact principle, and the remedial matrix specific to human rights schema are not the same or not present in the Superior Courts’ forums.

104The Tribunal is mindful that the public purse is finite. It appreciates that nearly all the participants, Ontario and a Superior Court on the one hand, and Ontario, the Commission, numerous Complainants who are represented by a legal clinic, and the Tribunal are all beneficiaries of the public purse. However, the clearest of cases, and the injustice or prejudice must be more than the ordinary liability that the government must incur to carry out its mandate to uphold the Code and the Charter.

105The Tribunal finds that Ontario has not met the test for an Order to stay these proceedings. The Tribunal is not convinced that continuing these proceedings would be unjust because it would be oppressive or vexatious to Ontario. Significantly, Ontario has not shown that a stay would not cause an injustice to the Complainants. Therefore, the alternative motion for a stay is denied.

106In sum, the Tribunal finds that Ontario has not convinced the Tribunal that the Commission and the Complainants have not established that proceeding to a hearing of these Complaints would be an abuse of the Tribunal’s process or would be oppressive or vexatious to it. Nor has it demonstrated that the Commission and the Complainants have not stated a cause of action. In addition, Ontario has not satisfied the Tribunal that this is the clearest of cases where a stay is appropriate remedy because it would not cause any injustice to the Complainants or to continue these cases would be more than an inconvenience and expense to it. Therefore, the primary motion and the alternative motion are not granted.

Motion 2

Is a stay appropriate until the Commission decides whether to refer the complaints against the school boards to the Tribunal?

107Ontario takes the position that it is not the proper respondent to claims concerning the failure to accommodate autistic children in schools. Thus, it seeks a stay of these proceedings until the Commission has decided whether to refer the cases against the school boards. The Commission has taken a decision to not refer the complaints against the school boards to the Tribunal. Granting a stay pending the outcome of the Commission’s decision is otiose now. However, the Commission’s decision does not oust Ontario’s ability, if it so wishes, to bring a motion with respect to adding the school boards as third parties to these Complaints.

108Notably, subsections 39(2) and (3) of the Code confer jurisdiction on the Tribunal to add “any person appearing to the Tribunal to have infringed the right at any stage of the proceeding upon such terms as the Tribunal considers proper. (See para. 39(2)(d) and subsection 39(3); and Payne v. Ontario (Board of Inquiry, Human Rights Code), [2000] O.J. No. 1896).

109By reason that this power can be invoked post-referral implies that the Tribunal’s jurisdiction to add a person who appears to have infringed the right—indeed, other than a complainant—is not ousted by the Commission’s decision to not refer the school board matters to the Tribunal. The Tribunal can seek, on its own motion, to add the school boards. The real concern is, if the Tribunal finds that the right to accommodation has been infringed, and that the school boards are responsible for ensuring such accommodation, the Tribunal can not make an order against them unless they are a party.

Motion 3

Does the Tribunal have jurisdiction to grant “injunctive and/or interim relief” or “substantive interim relief” to the Complainants?

110The Commission seeks a determination whether the Tribunal has jurisdiction to award “substantive interim relief”. Succinctly, the Commission frames the question this way: “Does the Tribunal have jurisdiction to award substantive interim relief? This motion concerns only whether the Tribunal has jurisdiction; not whether it would award substantive interim relief in this case.”

111However, Ms Venhola, counsel for numerous Complainants, states that her motion was for an “Order for interim or interlocutory injunctive relief compelling the Respondent Crown to provide direct Intensive Behavioural Intervention (“IBI”) treatment or, alternatively, to provide adequate funding for the purchase of private IBI treatment, because the treatment is necessary as a consequence of the Complainants’ developmental disabilities.”

The Commission’s and Complainants’ Submissions

112The Commission submits that in the light of the modern approach to statutory interpretation, the legislative and applicable history of subsection 16.1(1) of the SPPA in the labour context, the Tribunal has jurisdiction to award substantive relief. More specifically, the Commission asserts that the context in which subsection 16.1(1) was added to the SPPA indicates that the Legislature intended to confer on tribunals the ability to make procedural and substantive interim orders.

113Further, the Commission avers that the Society of Ontario Adjudicators and Regulators’ (“SOAR”) recommendation to the government to confer more “substantive powers” on tribunals, in part, informed the amendment of the SPPA and shows the Legislature intended that the conferral of power upon tribunals was for more substantive powers and was not limited to procedural orders. To support its view, the Commission relies on several “authorities” including: Direction (Toronto: Queen’s Printer for Ontario, 1989) (“Macaulay Report”) at pages 4-4 to 4-5, Tab 8; Allan Q. Shipley, “Statutory Powers Procedure Act: Prospects for Further Reform” at 117, Tab 9; Margot Priest, “Amendments to the Statutory Powers Procedure Act (Ontario): Analysis and Comments at 85-85, Tab 10; Andromache Karakatsanis, “The Statutory Powers Act: Empowering Tribunals – a SOAR Proposal” at 110, Tab 11; and Ministry of the Attorney General, “A Proposal to Amend the Statutory Powers Procedure Act (January 1994) (“SOAR Proposal”) at Tab 12; Ontario, Legislative Assembly, Official Report of Debates (Hansard), Nos. 150 and 165A at Tabs 14 and 15, respectively.

114The Commission submits that the issue of interim relief was addressed specifically by the Legislature in the debates about subsection 16.1(1). Yet, despite misgivings, e.g., objections posed by the opposition, subsection 16.1(1) was included.

115To further support that position, the Commission refers to the particular debate between the government and the opposition specific to the topic of “interim relief” vis-à-vis the Ontario Labour Relations Board’s (“OLRB”) experience concerning interim relief under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1. Thus, the Commission concludes, enacting subsection 16.1(1) of the SPPA makes it clear that the Legislature intended to confer power to award “substantive interim relief, as was exercised by the OLRB at that time”.

116The Tribunal digresses to note an observation. Despite the Commission’s submissions, the Tribunal notes that none of these authorities indicates that the government actually adopted the recommendation to confer more substantive powers on tribunals.

117The Commission submits that a purposive interpretation of subsection 16.1(1) requires the capacity to award interim relief. Specifically, these cases involve children with autism. In those cases where the courts had awarded interim relief compelling Ontario to provide ABA/IBI treatment for children, the courts had found that the children would regress severely and suffer irreparable harm if the treatment had not continued while the trial proceeded. The same can be said in these cases before the Tribunal. The Complainants would suffer irreparable harm because of lack of treatment while they wait for the Tribunal’s final decision. Therefore, the Tribunal’s remedial power would be thin and impoverished without the ability to award interim relief.

118A liberal and purposive approach to subsection 16.1, asserts the Commission, is consistent with the general scheme and purpose of the SPPA. A narrow interpretation would minimize and enfeeble the rights set out in the Code, and would be inimical to the method of interpreting statutes—giving words their full recognition and effect—enunciated by the Supreme Court of Canada in C.N.R. v. Canada (Human Rights Commission), [1987] 1. S.C.R. 1114 (S.C.C.).

119The Commission declares that the SPPA grants tribunals significant powers that affect substantive rights: the power to dismiss a hearing without a proceeding in subsection 4(6); the power to engage in alternate dispute resolution if all the parties consent in subsection 4(8); the power to deny the public access to a hearing under section 9; and the power to award costs under section 17.1. Specifically, subsection 16.1 only allows a tribunal to award, in the interim, the type of remedy that its enabling statute allows it to order at the end of a hearing on the merits.

120To bolster its interpretation of subsection 16.1(1), the Commission says that the OLRB has interpreted that provision to include jurisdiction to award substantive interim relief. It argues that the OLRB’s ability to grant such a relief was taken away explicitly by an amendment of the Ontario Labour Relations Act, 1995 by excluding the applicability of subsection 16.1(1). Nonetheless, the Legislature did not make any changes to section 16.1 of the SPPA. The Commission declares that blatant preclusion is indicative of the legislative intention to include the jurisdiction to grant substantive interim relief within the purview of subsection 16.1(1).

121Counsel for the Commission submits that in at least two instances before the OLRB, Ontario (Management Board of Cabinet), [1996] O.L.R.B. No. 3477; and Ontario Hydro, [1996] O.L.R.B. No. 3638, a party had put forward the argument that subsection 16.1(1) did not confer power to grant substantive interim orders. In rejecting that argument, the OLRB ruled that subsection 16.1(1) confers jurisdiction on tribunals to make substantive decisions, on an interim basis, for which it has the jurisdiction to make on a final order after the hearing on the merits. The Commission urges the Tribunal to adopt such an interpretation as persuasive precedents and Legislative intent to confer power on other tribunals to award substantive interim relief under the SPPA.

122The Commission acknowledges that the Supreme Court of Canada and the British Columbia Human Rights Tribunal have ruled that the Canadian Human Rights Act, and the British Columbia Human Rights Code, respectively, do not contain a provision for awarding interim relief. (See Canadian (Human Rights Commission) v. Canadian Liberty Net et al., 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626 (S.C.C.); and Akiyams v. Judo BC, [2001] B.C.H.R.T.D. No. 4 (B.C.H.R.T.).

123In distinguishing those rulings, the Commission says that no legislation equivalent to the SPPA exists in British Columbia or the federal administrative justice system. However, in Ontario, this Tribunal is governed by the Code and the SPPA.

124Finally, the Commission reminds the Tribunal that the Code does not expressly preclude the application of subsection 16.1(1) of the SPPA. Furthermore, there is no conflict between subsection 16.1(1) and the Code. If there were, subsection 16.1(1) would prevail because section 32 of the SPPA states that in the event of a conflict between a provision in the SPPA and a provision in the enabling statute, the former prevails unless the enabling statute expressly provides that it prevails.

125The Complainants adopt the Commission’s submissions. In addition, Ms Venhola submits:

This is a motion. . .for an Order for interim or interlocutory injunctive relief compelling the Respondent Crown to provide direct Intensive Behavioural Intervention (“IBI”) treatment or, alternatively, to provide adequate funding for the purchase of private IBI treatment, because the treatment is necessary as a consequence of the Complainants’ developmental disabilities. [Factum at para. 43].

126The “body of common law” counsel cites consists of: OPSEU v. Ontario (Management Board of Cabinet), [1996] O.L.R.B. Nos. 449 and 3477; Newfoundland and Labrador v. Sparkes, [2004] N.J. No. 34, (S.C.J.); Lowrey (litigation Guardian of) v. Ontario (2003), 2003 CanLII 2436 (ON SC), 64 O.R. (3d) 222 (S.C.J.); Burrows (Litigation Guardian of) v. Ontario, [2003] O. J. No. 5858 (S.C.J.); Juravsky v. Ontario (Attorney General), [2003] O.J. No. 5857), Fleischmann (Litigation guardian of v. Toronto District School Board, [2004] O.J. No. 160 (Div. Ct.); Eisler (Litigation Guardian of) v. Ontario, [20004] O.J. No. 1864 (S.C.J.); Thomas v. Ontario, [2004] O. J. No. 3340 (S.C.J.); Naccarato (Litigation guardian of) v. Ontario, [2004] O.J. No. 3278 (S.C.J.); and Kohn v. Ontario (Attorney General), [2004] O.J. No. 4112 (S.C.J.).

127Except one case—OPSEU, all the cases are decisions of a Superior Courts, which have inherent jurisdiction to deal with injunctions. That body of common law is not useful to the Tribunal in this motion. The OLRB cases too are not useful. This will be dealt with later in these Reasons.

Ontario’s Submissions

128Ontario counter states that it is clear from the legislative record that the Legislature did not intend to grant power on boards and tribunals in Ontario to dispense equitable remedies, such as interlocutory injunctions and mandatory orders. Ontario argues that the brief exchange between the Government and the Opposition about the OLRB’s experience is no proof of legislative intent.

129Ontario asserts that the Attorney General had made it clear to the Legislature that Bill 175 was administrative, minor and housekeeping in nature, and thus invited “quick debate and speedy passage”. The Minister had stated:

The efficiency of tribunal hearings will be increased by amendments to the Statutory Powers Procedure Act, sections 56-61 of the bill. Approximately 80 boards and tribunals may be affected by these changes. In some circumstances, they will be able to use teleconferencing and other technologies rather than hold oral hearings.” (Cite: Debate of the Ontario Legislature, October 31, 1994, at 17:00 (per the Hon. Marion Boyd, Attorney General).

130Ontario contends that the Macaulay Report contained recommendations for changes to the SPPA, “which would apply to all 91 agencies”. Conferring power on agencies to issue interim orders and decision was just one of them. Section 16.1 was one of the amendments of a 142 page Omnibus Bill entitled Statute Law Amendment Act, S.O. 1994, c.27 (“Bill 175”), which was to amend over 100 statutes. Section 16.1 would apply to approximately 80 provincial boards and tribunals. In fact, the provision granting tribunals power to make interim orders is included in Part II of the overall proposal for amendment. The Explanatory Note states that Part II is to “deal mostly with procedure and closely follow the existing [1971] Act”. The introductory note states: “PART OF THE ACT, DEALING WITH PROCEDURAL REQUIREMENTS”.

131Granting power to dispense interlocutory relief hardly represents limited reform to the SPPA; that fundamentally alters the scope of the SPPA, and the tribunal to which it applies, argues Ontario. To support that position Ontario relies on Ministry of the Attorney General, a Proposal to Amend the Statutory Powers Procedure Act (January 1994), in P. Anisman & R. F. Reid, eds. Administrative Law Issues and Practice (Toronto: Carswell, 1995) at 283.

132Counsel for Ontario argues that as a creature of statute, this Tribunal must rely on its enabling statute, the Code, for all the power it seeks to exercise over the subject-matter of the application, the parties and the remedy sought. Ontario cites Martin, and Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570 to support its argument. More specifically, Ontario submits, to grant interlocutory injunctive relief or an interlocutory mandatory order, the Tribunal must be endued with that power by statute, which must enunciate that authority clearly and explicitly.

133Ontario points to the absence of such a clear and explicit grant in the Code. In fact, Ontario argues, the structure and language of the Code indicate a contra-view: the Legislature did not intend to confer on the Tribunal the authority to grant any relief before it holds a hearing on the merits, and has determined that a right of the complainant has been infringed by the respondent. That, Ontario submits, is the explicit requirements of subsections 39(1) and 41(1) of the Code.

134Ontario argues that the language and structure of the Code is similar to the Canadian Human Rights Code. It has been established that the Canadian Human Rights Tribunal has no power to grant interlocutory injunctive relief. The courts have ruled they, and not the Canadian Human Rights Tribunal, have jurisdiction to grant such relief. Ontario cites two cases where the Superior Court in Ontario ruled that it had jurisdiction to grant injunctive relief: not the Canadian Human Rights Tribunal. (See Stevenson v. Air Canada et al. (1982), 1982 CanLII 1867 (ON HCJ), 35 O.R. (2d) 68 (Div. Ct.), and Lamont v. Air Canada et al. (1981), 1981 CanLII 1854 (ON HCJ), 34 O.R. (2d) 195 (H.C.J.).

135The Tribunal deviates from Ontario’s submission to make two observations why these cases are not useful. First, the cases were decided before the enactment of section 16.1 of the SPPA. That amendment was enacted in 1994. Second, the subject-matter fell under the federal jurisdiction. The SPPA does not apply to federal statutes, and so it could not have been integral to the court’s analysis.

136Specific to the SPPA, Ontario submits that “[i]t is not intended to create substantive rights or to confer equitable jurisdiction upon tribunals which do not have under their constituent statute the power to grant equitable relief or substantive interlocutory relief”. That is so, particularly because the language and structure of the Code contemplates that interlocutory relief is not to be granted. The legislative purpose and the title of the SPPA indicate clearly that it is a codification of minimum standards for procedures for tribunals in Ontario.

137Ontario submits that interlocutory injunctions or mandatory orders are so extraordinary, and potentially drastic in scope, that the conferral of such a power on any tribunal must be expressed in clear and explicit language.

138To bolster that proposition, Ontario refers to three statutes enacted by the Legislature of Ontario in which power is conferred on the curial body to grant equitable relief: First, the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (“CJA”), section 101. Ontario says:, “[t]he jurisdiction of the Superior Court to grant injunctive relief or mandatory orders on an interlocutory basis is conferred expressly by section 101. . . .” As a result, the Ontario Courts of Justice and the Small Claims Court—which is integral to the superior court system—do not have power to grant equitable relief. (Section 96 of the CJA regarding the Small Claims Court). Based on the highly restrictive language of subsection 96(3), “. . .a statutory power to grant equitable relief, including interlocutory injunction must refer expressly to the power to grant equitable or injunctive relief”.[Emphasis added]

139It is apposite to note at this point that the inherent jurisdiction of Superior Courts’ orders is separate and independent sources of jurisdiction from this statute or the rules of the court. Statutory powers and the rules of the court are complementary to its inherent jurisdiction. The difference is, statutory power and the rules are definitive; inherent jurisdiction of the court is hard to define, and its source emerges from its very nature as a court of law.⁷

140The second statute is Arbitration Act, 1991, S.O. 1991, c.17. Section 31 of that Act states: “An arbitral tribunal shall decide a dispute in accordance with law, including equity, and may order specific performance, injunctions and other equitable remedies.” The third is the Ontario Works Act, S.O. 1997, c.25, Schedule A, section 30 that directs the provision of “interim assistance”.

141Ontario submits that it does not take the position that the provincial Legislature does not have jurisdiction to confer the power on tribunals to grant injunctive relief. Ontario cites Tomko v. Nova Scotia (Labour Relations Board), 1975 CanLII 183 (SCC), [1977] 1 S.C.R. 112 (S.C.C.) to support its view. It says, however, the order that the Commission and the Complainants seek from the Tribunal is not similar to the cease and desist order sought in Tomko, in which the Court held did not offend s. 96 of the Constitution Act, 1867. It is precisely the same as an interlocutory injunction that would be requested from a Superior Court.

142In Tomko, certain provisions in that labour board’s enabling statute had expressly authorised jurisdiction to issue cease and desist orders. In Tomko, the Court gives instructions when considering whether the grant of that power offended section 96 of the Constitution Act, 1867. The Court states: “. . .it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation”: (Tomko at p. 120).

143In Tomko, Chief Justice Laskin (as he then was) distinguishes the many ways a cease and desist order is different from the Superior Courts’ injunctive practise: (Tomko at 122-123). Ontario says that broadly speaking, section 96 of the Constitution Act, 1867, to a certain extent, restricts the power of a provincial legislature to confer on its interior tribunals powers traditionally exercised by Superior Courts.

144On the authority of Sharpe, Injunctive and Specific Performance,⁸ counsel argues that the Tribunal can not assume, in the absence of express statutory jurisdiction, that it has the power to grant relief that traditionally has been the inherent power of Superior Courts. For while it would be within provincial competence to confer this power on certain tribunals, to do so on mass for 80 tribunals at once could raise issues with respect to section 96 of the Constitution Act, 1867. Thus, Ontario says, it is highly unlikely that the Legislature intended the conferral of such power when it enacted section 16.1.

145Ontario points to Todd v. Chevalier, [2000] O.J. No. 5038 (S.C.J.), and submits: “Tribunals governed by the SPPA have been held not to have the power to grant equitable relief, including mandatory orders.” However, Ontario hastened to add that at the onset of the judgement, the SPPA is noted to have been considered by the court. Ontario notes that section 184 of the Tenant Protection Act, 1997, S.O. 1997, c.24 states that the Ontario Rental Housing Tribunal is subject to the SPPA. Ontario says that neither the Commission nor the Complainants have pointed to any case where this Tribunal has granted interlocutory injunctive relief or mandatory order at all. They point to a series of cases from the OLRB where it had relied on section 16.1 of the SPPA.

146Ontario refutes the Commission’s and the Complainants’ submissions that the body of cases decided by the OLRB concerning section 16.1 offers curial guidance and instruction for this Tribunal. Counsel for Ontario submits that in 1995, the Ontario Labour Relations Act was amended explicitly to preclude the OLRB from using the “power to make interim orders, including interim relief” (conferred on it in 1993), to grant “substantive interim relief”. The amendment stated that the power to make interim orders was restricted to procedural matters only. After that explicit amendment, the OLRB invoked section 16.1 to grant substantive interim relief. The Legislature reacted by a further amendment to the Ontario Labour Relations Act to clarify that the OLRB could not rely on section 16.1 to circumvent the provisions of its enabling statute: (Ontario (Management Board of Cabinet), [1996] O.L.R.B No. 3477; McIntosh Limousine Services Ltd., [2000] O.L.R.B. No. 1453; and the Labour Relations Act Amendments: S.O. 1992, c. 21, s. 37; S.O. 1995 c. 1, Sched. A, s. 98(1); and S.O. 1998 c. 8 s. 10. Those responses, amendments to only the Labour Relations Act, Ontario argues, are indicative of the fact that the Legislature did not contemplate a grant of any authority to order interlocutory injunctive relief when it enacted section 16.1 of the SPPA.

147Ontario asserts that the intended structure of the Code’s remedial sections, which prescribe a hearing on the merits before a remedy may be granted, must be respected. It says section 16.1 of the SPPA was not intended to give the Tribunal authority to ignore the basic structure of its constituent statute. Ontario argues that to give such an interpretation to section 16.1 would do violence to the purpose of the SPPA—to provide procedural protection to the parties who are subject to the jurisdiction of administrative tribunals.

148In addition to the absence of statutory jurisdiction to grant interlocutory injunctive relief, logistically, there is a fundamental difficulty with respect to such relief, specifically the undertaking of damages, argues Ontario. The giving of an undertaking on damages is a legal precondition to the granting of interlocutory injunctive relief and is integral to the balance of convenience. Ontario cites Armanda Lines Ltd. v. Chaleur Fertilizers Ltd., 1997 CanLII 362 (SCC), [1997] 2 S.C.R. 617, at para. 24; and Lac La Biche (Town) v. Alberta, 1993 ABCA 104, [1993] A.J. No. 263 (Alta. C.A. per Cote, J.A.) to support that argument.

149Ontario argues that there is no evidence that the Complainants have given the necessary undertaking on damages, and even if it were given, the Code does not provide any enforcement mechanism in favour of a respondent. Nor does the Code provide for damage awards against a complainant in favour of a respondent. Further, in the event that the beneficiary of the injunctive relief is unsuccessful in the main action, only a Superior Court has the jurisdiction to assess and award damages against the complainant. The jurisdiction to do so is found in the law of equity: (Hambury & Martin, Modern Equity, 16th ed. (London: Sweet & Maxwell, 2001) at 792. Thus, it follows, the Tribunal does not have jurisdiction to grant the type of interlocutory injunction sought in this motion.

150With respect, deviating from Ontario’s submission, the Tribunal notes that subsection 41(4) does not provide “orders to be made against complainants . . .which permit cost awards”. The costs award in the Code is specific; the Tribunal may award costs only against the Commission in favour of the respondent.

151Ontario submits that although the Tribunal does not have jurisdiction to grant interlocutory injunctive relief, the Complainants are not deprived of such a remedy. Ontario points to the fact that the Complainants can seek such remedy at the Superior Court; already, eight have received interlocutory relief from the Superior Court of Justice. In fact, Ontario emphasises, the Ontario Superior Court of Justice, through directions issued by Nordheimer J. and Smith C.J.S.C.J., a judge—Ferrier J.—has been designated to deal with all autism IBI funding injunctions brought in Ontario. Thus, to ignore this provision would undermine the “principle of comity”, which govern the relations of tribunals and courts to each other. (See Burrows et al. v. Ontario (Ministry of Community and Social Services) (2004), 2004 HRTO 6, 49 C.H.R.R. D/451, 2004 Human Rights Tribunal of Ontario 6 para. 18, 28; citing: Morguard Investments v. DeSavoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077; and Alchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897).

152In addition, Ontario asserts, it would be a waste of scarce public resources for the Tribunal to engage in proceedings for interlocutory injunctive relief. Ferrier J, has dealt with one case extensively. He is familiar with large volumes of the general evidentiary material and case law on autism; so, the next case will take less time.

153Further, Ontario argues, with each motion, public resources would be incurred because of the involvement of the judiciary and Ontario, which is the respondent. By contrast, an injunctive proceeding before the Tribunal would incur more public resources because of the involvement of the Tribunal, the government Respondent, the Commission, and in many cases the Complainants who are represented by a legal clinic.

154Finally, Ontario submits, using the Superior Courts for injunctive relief is the most expeditious means to obtain a determination of the Complainants’ interim relief issues. That is so because the courts’ jurisdiction is not in doubt, as is the case with the Tribunal.

Analysis

155In this motion, the only issue the Tribunal considers is whether it has jurisdiction to grant a party interim or injunctive relief. The Tribunal notes that the Commission and the Complainants have couched the remedy they seek as “substantive interim relief”, but have used that term interchangeably with “interim injunction”.

156The Tribunal shall address the issue specific to these Complaints: Does the Tribunal have jurisdiction to grant interlocutory injunctive relief, i.e., to compel Ontario to provide direct IBI treatment or adequate funding for IBI treatment or accommodation in schools to children with autism?

157To be clear, the relief sought from the Tribunal is the same as the parties sought from the Ontario Superior Court of Justice before Backhouse J. in (Lucas Burrows by his litigation guardian et al v. Her Majesty The Queen, Court File No. 03-CV-253464CM3, October 20, 2003, unreported); and from the Tribunal in Burrows v. Ontario (Ministry of Community and Social Services) (2004), 49 C.H.R.R. D/451, 2004 HRTO 6.

158The Tribunal’s decision is, it does not have jurisdiction under the Code alone, in conjunction with the SPPA, or within its power to control its own process, to grant the injunctive relief sought here by these Complainants.

The Law

159Subsection 16.1(1) SPPA states: “A tribunal may make interim decisions and orders.” Subsection 16.1(2) states: “A tribunal may impose conditions on an interim decision or order.” Subsection 16.1(3) states: “An interim decision or order need not be accompanied by reasons.”

160The Tribunal agrees with Ontario’s submission that the Legislature did not intend to use the SPPA as a vehicle to create substantive rights or to confer equitable jurisdiction upon tribunals, which do not have under their constituent statute, the power to grant equitable relief or substantive interlocutory relief through the vehicle of the SPPA. That is so, particularly because the language and structure of the Code contemplate that interlocutory relief is not to be granted. The legislative purpose and the title of the SPPA indicate clearly that it is a codification of minimum standards for procedures for tribunals in Ontario.

161The Tribunal notes the relevance of Explanatory Notes in the enactment of statutes. It is customary to include a concise statement explaining the purport of a bill. Explanatory Notes should be concise and to the point and be free of contentious issues. Driedger states: In an amending bill. . .[t]here is also a short statement of the reasons for the proposed change.” (Elmer A. Driedger, The Composition of Legislation: Legislative Forms and Precedents (2 ed rev’d), (Ottawa: Department of Justice, 1976), at p. 173 (“Driedger”).

162The practical application of section 16.1 of the SPPA must be interpreted in juxtaposition with subsections 39(1) and 41(1) of the Code. Subsection 39(1) is reproduced below:

The Tribunal 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

(c) 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 Tribunal. [Emphasis added].

163The preconditions to the exercise of the Tribunal’s discretion to make any remedial order are set out in subsection 41(1). The specific remedial powers of this Tribunal are contained in paragraphs 41(1)(a) and (b). This subsection is reproduced below:

Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order. . . .

(a) direct the party to do anything that, in the opinion of the tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. [Emphasis added].

164Examining the diction in which the provisions under section 16.1 are framed, it is clear that a tribunal has permission to make interim decisions and orders, and to impose conditions on an interim decision or order; which need not be accompanied by reasons.

165On the other hand, and significantly, the Tribunal’s enabling statute prescribes that before this Tribunal may exercise its power under subsection 41(1) three imperatives must be satisfied: (i) there must be a hearing; (ii) based on the hearing, there must be a finding of liability, i.e., that a party to the proceeding has infringed a right of the complainant, which the Code protects; and (iii) that the infringement contravenes section 9.

166Section 9 states: “No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.” Stated simply, those three imperatives are the constituent elements that this Tribunal must satisfy before it may invoke its jurisdiction under subsection 41(1).

167In the light of the Tribunal’s clear mandate with respect to issuing restitutive orders, the Tribunal turns to consider the following questions: What is interlocutory injunctive relief? What do the parties contemplate when they ask for substantive interim relief? Does subsection 16.1 of the SPPA contemplate such remedies?

What is interlocutory injunctive relief?

168Black’s Law Dictionary (6ed) St. Paul, Minn.: West Publishing Co., 1990) gives a definition of the term interlocutory injunction, which is helpful:

Interlocutory injunctions are those issued at any time during the pendency of the litigation for the short-term purpose of preventing irreparable injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merits. In accordance with their purpose, interlocutory injunctions are limited in duration to some specific length of time, or at the very outside, to the time of conclusion of the case on the merits. Within the category of interlocutory injunctions there are two distinct types which must be considered individually. The first is generally referred to as a preliminary injunction, and includes any interlocutory injunction granted after the respondent has been given notice and the opportunity to participate in a hearing on whether or not that injunction should issue. [Emphasis added].

169It is clear from that definition, the hearing required is merely to determine whether interim relief should issue. The purpose of the hearing is not to determine liability, who is the wrongdoer or to determine whether to grant or deny permanent relief. It is not a hearing on the merits. This is essential given the mandate of this Tribunal with respect to the granting of any restitutive order. This segues into the next question, which arises because of the language in which the Commission and the Complainants frame their request: “substantive interim relief”.

What do the parties contemplate when they ask for substantive interim relief?

170What is substantive interim relief? It is settled law that interim relief is a temporary remedy pending the outcome of a final determination on whether to grant or deny permanent relief on the merits. Substantive interim relief, however, is not a legal term generally known to this Tribunal. However, the term “substantive” is a legal term. Two legal phrases in which the word substantive is used are enlightening: substantive law and substantive rights. Black’s definitions of both terms are reproduced below. Neither needs elucidation.

Substantive law. That part of law which creates, defines, and regulates rights and duties of parties, as opposed to “adjectives, procedural, or remedial law,” which prescribes methods of enforcing the rights or obtaining redress for their invasion.

Substantive rights. A right to the equal enjoyment of fundamental rights, privileges and immunities; distinguished from procedural right.

171The Commission declares that section 16.1 of the SPPA allows the Tribunal to award, in the interim, the type of remedy that its enabling statute allows it to order at the end of a hearing on the merits. At paragraph 1 of her factum Ms Venhola states:

This is a motion. . .for an Order for interim or interlocutory injunctive relief compelling the Respondent Crown to provide direct Intensive Behavioural Intervention (“IBI”) treatment or, alternatively, to provide adequate funding for the purchase of private IBI treatment, because the treatment is necessary as a consequence of the Complainant’s developmental disabilities.

172By inference, the remedy the Commission and the Complainants contemplate is an award for the infringement of a substantive right—disability—on an interim basis. Thus, the Tribunal concludes that the relief contemplated by them is not different from an interlocutory injunctive relief, which is within the rubric of Superior Courts’ inherent jurisdiction.

Does subsection 16.1 of the SPPA contemplate such remedies?

173There is no doubt that subsection 16.1(1) confers jurisdiction to this Tribunal to make interim decisions and orders, with or without conditions or without giving reasons. But it says so clearly without more. The question is, what type of interim decisions or orders subsection 16.1(1) contemplates? Surely, this Tribunal has made interim decisions and orders; the Tribunal issues decisions and orders for motions it hears as a matter of course. More specifically, some interim decisions and orders this Tribunal has issued include adjournments, production of disclosure or particulars, to add an intervenor, to add a respondent, to amend title of proceeding, and to strike a party from the complaint. The Tribunal concludes that these are types of procedural matters, which subsection 16.1(1) contemplates.

174The Commission has asked the Tribunal to give a “liberal and purposive approach to [the interpretation of] section 16.1 of the SPPA”. It says that the purposive interpretation requires the capacity to award substantive interim relief. In addition, as noted above, the Commission says that section 16.1 allows the Tribunal to award, in the interim, the type of remedy that its enabling statute allows it to order at the end of a hearing on the merits.

175The Tribunal disagrees. A liberal approach that will result in the Tribunal granting interlocutory injunctive relief of the type contemplated by the Commission and the Complainants is inimical to the scheme of the Code. The Code clearly prescribes imperatives, which are preconditions to the exercise of the Tribunal’s discretion to make any restitutive orders. A liberal interpretation of the SPPA must not override the purpose of that statute or the Code. That would lead to meaningless outcomes.

176The Tribunal agrees with Ontario that the scheme of the remedial matrix of the Code prescribes a hearing on the merits before granting a remedy, and it must be respected. Subsection 39(1) of the Code provides procedural protection to all parties who are subject to the jurisdiction of this Tribunal. Those procedural protections are vested rights for all parties, particularly a respondent. A respondent’s right to know the case it has to meet, the right to make full answer and defence, and the right to a fair hearing or trial are sacrosanct principles of our adversarial justice system. There is a presumption that a Legislature does not intend to interfere with vested rights unless expressed in clear and unequivocal language: (Driedger at p. 107).

177There is no question that the SPPA affects the substantive rights of parties. No doubt, it is for that reason that the consent of parties is required in the disposition of a proceeding without a hearing. However, to affect a substantive right is not the same as applying the SPPA to suspend a respondent’s vested right to a trial. To suspend a respondent’s right to make full answer and defence and impose a restitutive order is an exceptional interference with a respondent’s vested right. Thus, to confer injunctive relief power on the Tribunal, which is a derogation of the procedural right under subsection 39(1) and 41(1), must be expressed in the Code or SPPA clearly, “. . .and must extend not only to the subject matter of the application and the parties, but also to the remedy”. That is because this Tribunal is a creature of statute; thus, its jurisdiction, in every case, must be found in a statute. (See Martin at para. 33, citing Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570 (S.C.C.) at p. 595). Subsection 16.1(1) of the SPPA does not contain such clear language.

178The fact that the Legislature, on more than one occasion, amended the Ontario Labour Relations Act—not the SPPA–to prohibit the OLRB from granting substantive interim relief is not indicative that the Legislature intended to include that jurisdiction within the purview of subsection 16.1(1) of the SPPA. In fact, this begs the question why the Legislature kept amending the OLRB’s enabling statute whenever the OLRB granted substantive interim relief. Those resolute responses appear to be the clearest indicia that the Legislature did not intend to confer such power on inferior tribunals or boards. Generally, it is the enabling statute that governs the creatures the Legislature creates and by which the Legislature confers or withdraws jurisdiction on them. Besides, there was no deficiency in section 16.1 of the SPPA.

179The Tribunal notes that section 4.1 of the SPPA defers to the supremacy of a specific statute, which prescribed a hearing. It is clear that if another Act or regulation, which applies specifically to the proceeding provides otherwise, the consent of the parties will not confer jurisdiction on the tribunal to take a decision without a hearing. There is no question that the term “hearing” in section 4.1 of the SPPA includes a hearing on the merits.

180The Tribunal digresses at this juncture to clarify the relevance of this conclusion to mediation, an important process in which the Tribunal engages. This conclusion ought not to be interpreted to mean that section 4.1 of the SPPA precludes the Tribunal’s discretion to offer mediation. In the mediative process, albeit with the parties’ voluntary consent, the Tribunal takes a decision to dispose of a matter according to the terms of settlement agreed to by the parties. This is not the type of order subsection 41(1) contemplates. The Tribunal does not order a respondent to pay a specific sum of money to any person. In fact, as the Tribunal states in Lang v. Ontario (Ministry of Community and Social Services) (No. 5) (2005), C.H.R.R. Doc. 05-069, 2005 HRTO 5, at paras. 64 and 70, the Tribunal does not take decisions to approve settlements. Read together, subsections 39(1) and 41(1), prescribes that the Tribunal must hold a hearing on the merits, and make defined findings before it can exercise its discretionary power to make any restitutive order, including the type of remedy sought by the Commission and the Complainants.

181An interlocutory injunction is a relief traditionally within the inherent jurisdiction of Superior Courts. The Tribunal notes that in statutes where the Ontario Provincial Legislature confers powers that are within the Superior Courts’ inherent jurisdiction, it uses clear and unambiguous language. As Ontario points out, this is demonstrated clearly in sections 96 and 101 of the CJA, section 31 of the Arbitration Act, and section 30 of the Ontario Works Act.

182In addition, the Tribunal notes that the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) specifically confers power on the Family Courts, Ontario Courts of Justice and Superior Courts, in consultation with the Children’s Lawyer, to appoint a “litigation guardian” for a minor. The statute expressly states that such a conferral of power on other courts does not deprive the “Superior Court of Justice of its parens patriae jurisdiction”: [Section 69].

183The Superior Courts as parens patriae, exercise an inherent and peculiar jurisdiction over minor persons, concerning their wardship and any compromise or settlement affecting their property: (Jacobs at p. 46). The point being, the Legislature is aware of the inherent powers of the Superior Courts. When it derogates from the Courts’ inherent jurisdiction, and confers similar powers on inferior courts or tribunals, it does so in clear and unequivocal language, and is mindful to recognise and preserve the Superior Courts’ inherent power.

184The Tribunal concludes that the body of case law, and the statutes reviewed evince this very point. Because injunctive relief is an extraordinary remedy, one that is within the inherent jurisdiction of the Superior Courts (section 96 Courts), to confer such power on inferior courts or tribunals must be expressed in clear and unequivocal language—extending to the subject-matter of the application, the parties and the remedy being sought. That must be so to avoid constitutional issues.

185Ontario’s point is well taken that neither the Commission nor the Complainants have provided a decision where this Tribunal has held that it has jurisdiction to issue the type of interlocutory injunctive remedy they seek in this motion. This is indeed a novel matter for the Tribunal.

186Ontario points to Todd, and says, the Superior Court’s decision indicates that the SPPA does not confer power on the Ontario Rental Housing Tribunal (“ORHT”) to grant interlocutory injunctive relief. By extension, the SPPA does not confer such power on any tribunal.

187In Todd, an agent brought an application before the Superior Court of Justice after the ORHT—a tribunal to which the SPPA applies—had taken the decision that it did not have jurisdiction to grant punitive damages, equitable relief and a mandatory order, the remedy sought by the agent.

188The Tribunal notes that the Court did not deal with section 16.1 specifically. However, the Tribunal presumes that the Court knows the purview of the SPPA and has considered the relevant provisions of it. Thus, the Tribunal finds this case offers not only guidance, but is binding.

189At paragraph 15 Cusinato J. states:

Without specific authority it is accepted that the Tribunal exercises neither common law nor equitable jurisdiction. This is reserved to the Justices of the Superior Court and s. 96 of the Courts of Justice Act, R.S.O. 1990, c.43 provides this authority: It is stated in these terms:

s. 96(1)- Courts shall administer concurrently all rules of equity and the common law.

(2) Where a rule of equity conflicts with the rule of common law the rule of equity prevails.

(3) Only the Court of Appeal and the Supreme Court of Ontario exclusive of the Small Claims Court may grant equitable relief unless otherwise provided.

190Further, at paragraph 41 the Court concludes: “I accept the Tribunal’s determination concerning jurisdiction because without specific statutory authority, they [sic] lack the right to grant the equitable or prerogative relief the agent seeks.”

191The specific exclusion of the Small Claims Court to grant equitable relief raises the question: why would the Legislature confer such extraordinary power, en masse, on 80 tribunals? The discernible deduction is, the language of section 16.1 of the SPPA is quite an impotent statutory implement to bestow such an extraordinary power on the entire administrative justice system.

192The genesis of that term seems to have emerged in the 1990s during the polemical jurisdictional dialogues between the Legislature and the OLRB concerning whether the Ontario Labour Relations Act or the SPPA or neither conferred jurisdiction on the OLRB to grant such relief. It appears that the phrase, substantive interim relief, is esoteric to the labour relations’ adjudicative forum.

193Thus, the Tribunal is not inclined to follow the jurisprudence of the OLRB, which holds that section 16.1 of the SPPA, without more, confers jurisdiction on all tribunals to grant “substantive interim relief”. Further, the Tribunal is not inclined to adopt the OLRB’s coined phrase, substantive interim relief. The Tribunal is convinced that the substantive interim relief (cease and desist order) or interlocutory injunctive relief is the type of interim relief that is within the inherent jurisdiction of Superior Courts: Tomko.

194Injunctive relief is traditionally an inherent power of the Superior Courts, which are governed by section 96 of the Constitution Act, 1867. There are constitutional imperatives that circumscribe the bestowal of such an extraordinary power on inferior courts or tribunals. The institution of the Superior Courts is within the exclusive realm of section 96 of the Constitution Act, 1867.

195As Ontario submits, citing Laskin C.JC., writing for the majority of eight justices in Tomko:

Section 96. . .is now regarded as a limitation not only on provincial power to provide for the appointment of Judges of the status of those mentioned in s. 96 but also on their power to invest agencies of their creation and members thereof appointed under their authority with jurisdiction or powers that (to use the formula adopted by the Privy Council and by this Court in a succession of cases) are broadly comfortable or analogous to jurisdiction or powers exercised and exercisable by Courts which are within s. 96. [Emphasis added].

196In ruling that a provincial legislature may confer such authority on agencies it creates, the Court makes it clear that the bestowal of the power to grant injunctive relief would be lawful and not offend section 96 of the Constitution Act, 1867, if it is within “the institutional arrangements in which it appears and is exercisable under the provincial legislation”: (Tomko, at p. 120).

197Further, it is settled law that the Legislature must express the conferral of power in clear and unambiguous language referable to the subject-matter of the application, and the parties, and the remedy sought. Subsection 16.1(1) is short on those criteria.

198The Tribunal notes the Commission’s submissions that there is no conflict between subsection 16.1(1) and the Code, but if there were, subsection 16.1(1) would prevail because section 32 of the SPPA; and that in the event of a conflict between a provision in the SPPA and a provision in the enabling statute, the former prevails unless the enabling statute expressly provides that it prevails.

199One must be mindful in the application of section 32 of the SPPA. Section 32 of the SPPA ought not to be invoked where to do so would oust the substantive rights in an enabling statute. More particularly, as a quasi-constitutional statute, the Code must always be seen to hold supremacy over all other statutes in Ontario. With respect to substantive rights, section 32 of the SPPA could not take away that supremacy. The Legislature is deemed to know the law, and would know about the supremacy of the Code. More than likely, it was not in the Legislature’s contemplation that any part of the SPPA would supersede the Code. Such an overriding effect would require clear and specific language referable to the Code: not the catchall wording expressed in section 32. Perhaps, this is the strongest reason why the SPPA, particularly, with respect to the Code, can be said to be a minimum procedural code for tribunals.

200In sum, the Tribunal concludes that it does not have jurisdiction under the Code or the SPPA, or specifically section 16.1 to grant interlocutory injunctive relief as contemplated by the Commission and the Complainants. The eight words enunciated in subsection 16.1(1), regardless of how liberal or purposive an interpretation one applies simply can not bear such an extraordinary power, especially en masse, to agencies the Province of Ontario creates. The SPPA is a veritable valuable adjunct to an enabling statute. It is the legislative recognition and approval of tribunals’ exercise over their processes; a codification and conferral of power on them to make rules for the conduct of their proceedings. It is useful in that it regulates with much consistency, garnished with the force of law, the circumstances in which tribunals can implement their mandate, which is set out in the enabling statute.

201Having determined that it has no jurisdiction to grant the type of interim injunction the Commission and the Complainants seek in this motion, the Tribunal need not consider the aspect of the requirement of an undertaking.

Motion 4

Does the Tribunal have jurisdiction to appoint a guardian ad litem?

202The Tribunal notes that the title of proceedings of all the Complaints indicates the term “litigation guardian” or “next friend”. However, neither the Code nor the SPPA specifically or by implication deals with the appointment of such an agent. The Tribunal, taking judicial notice of the CLRA, (see section 7 of the Interpretation Act, R.S.O. 1990, c. I.11), on its own motion, requested that the parties make submissions on whether it has jurisdiction to appoint a guardian ad litem, particularly in the light of certain provisions under the CLRA with respect to money payable to a minor. The Tribunal’s reasons focus on the situation where an award is in excess of $10,000.

The Commission’s Submissions

203The Commission says neither the Code nor the SPPA speak to the representation of minor persons. The Code sets out that a person who believes that his or her rights under the Code have been infringed may file a complaint to the Commission: (subsection 32(1)). The SPPA empowers the Tribunal to make its own procedures and practices regarding the representation of minor complainants before it: (clause 25.0.01(a)). However, the Tribunal has issued new Rules of Practice, amended July 2004, which are silent on the procedure on the representation of minor persons.

204The Commission points to Rule 7 of the Ontario Rules of Civil Procedure. That rule states, a proceeding shall begin, continue or be defended on behalf of a party under disability by a litigation guardian. Further, the Commission submits, according to Rule 7.02(1), a litigation guardian may act without the court’s appointment.

205The Tribunal notes that all the Complainants in these cases are mentally incapable persons as well as being a minor. Rule 7.02(1) is qualified by subrule 7.02(1)(1.1), which states:

Mentally incapable person or absentee—Unless the court orders otherwise, where a plaintiff or applicant,

(a) is mentally incapable and has a guardian with authority to act as litigation guardian in the proceeding, the guardian shall act as litigation guardian.

206The Commission submits that the proposed guardian must file an affidavit setting out specific touchstones in subrule 7.02(2). Specifically, the litigation guardian must submit, in writing, an agreement to act in that role; the minor’s birth date; the relationship between the minor and the proposed litigation guardian, and whether that person is a custodial parent; and whether the person has any interest adverse to the minor’s. In addition, the Commission refers to its own Procedures Manual (repealed April 13, 2004), which sets out direction regarding “an aggrieved person [who] lacks legal capacity”.

207The Commission points out that neither protocol is binding on the Tribunal. Nonetheless, it is persuasive that in civil cases, where there is no concern about the ability of the proposed guardian to represent the minor’s best interest, Courts have not enquired into the minor’s representative or require a court appointed litigation guardian.

208The Commission submits that the Code does not specify to whom awards should be paid. However, in the past tribunals in Ontario have ordered payments of awards to minor complainants in some cases and to their litigation guardians in others. The cases the Commission refers to indicate that damage awards were below $10,000. And so are the awards in the cases to which it refers in other jurisdictions. The Commission says in such situations, a respondent could pay the award directly to the minor complainant according to section 51 of the CLRA. If the Tribunal orders payment to the litigation guardian, a respondent would simply comply with the order. However, if the Tribunal orders payment less than $10,000 to the minor, the CLRA, and subsection 36(6) of the Trustee Act, R.S.O. 1990, c. T.23 would not be engaged.

209The Commission submits that subrule 7.09 of the Rules of Civil Procedure requires that an order made to a party under a disability, which includes a minor, must be paid into court. However, logistically, the subrule can not be applied to the Tribunal. The Commission submits that the CLRA governs application to the Court concerning the guardianship of minor persons. Section 47 gives the Court discretion to appoint a guardian of the property of the child. Where the Court grants such an order, all monetary amounts and benefits, ordinarily payable into Court, may be paid to the court-appointed guardian. A person bringing such an application must serve notice on the Office of the Children’s Lawyer.

210Distinguishing the requirements under section 51, the Commission submits that an order or judgement of a court for debts under $10,000 payable to a minor person do not require the appointment of a guardian of the property. Monies under that amount may be made without a litigation guardian. However, this statutory “shortcut” does apply to an order or judgement of the Tribunal.

211The Commission submits that the Tribunal need not enquire into the representation of the minor Complainants by the named litigation guardians. Further, the Commission submits that the Tribunal has the authority to order Ontario to pay an award to the Complainants’ litigation guardians. The minor persons have claimed special damages for the costs of ABA/IBI treatment, which their guardians have incurred for them. The Tribunal’s remedial powers are sufficiently broad to order Ontario to pay the litigation guardians these special damages directly.

212The Commission submits that the CLRA and the Trustee Act govern the payment of awards to the minor Complainants by Ontario. Ontario may obtain a release only if the funds are paid into court according to the Trustee Act or a guardian of the property appointed under the CLRA. However, if the Tribunal orders Ontario to pay an amount less than $10,000 to the minor Complainants, Ontario may make the payment to the minor’s guardian directly according to section 51 of the CLRA.

The Complainants’ Submissions

213The Complainants adopt the Commission’s submissions. In addition, Ms Venhola makes further submissions.

214Counsel submits that where the Code is silent on procedural issues, the Tribunal must resort to the SPPA. However, she points to no specific provision in the SPPA that is relevant to this issue. With respect to the representative of a minor under the Code, counsel points out that the section engaged in these matters, section 1, affords protection to “every person in Ontario”. While the Code generally does not restrict the filing, referring or hearing of a complaint to certain categories of individuals, the nature of a complaint may trigger a statutory restriction that will prohibit the filing and investigating of the complaint, e.g., a person 65 years of age.

215Counsel submits that the Tribunal has broad statutory powers of decision-making prescribed by the SPPA, to control its own process. It has the ability to “fill the gaps” in procedure and must do so where it would result in a just, expeditious and cost-effective determination of a complaint on its merits. Counsel cites section 25.1 of the SPPA and Rules 3, 4, 12, 13 and 14 of the Tribunal’s Rules of Practice to support this submission. However, counsel submits that the Tribunal’s Rules do not expressly provide representation of minor complainants. Rules 33 and 55 provide guidance on representation. Those rules address the procedure of ensuring, confirming, and identifying participants during preliminary procedures.

216With respect to awarding monetary compensation to minor complainants, counsel submits that the Tribunal is entitled to specify how, and to whom orders are to be paid according to its broad powers under the Code: subsection 41(1). However, on its face, section 43 of the Code with respect to settlement of a complaint agreed to in writing, appears to preclude a minor complainant. Counsel argues that the provision should not be construed so narrowly to preclude a minor complainant from benefiting from this type of disposition because he or she lacks the legal capacity to sign the agreement.

217Counsel submits that in the past, the Ontario boards of inquiry have accepted jurisdiction to award damages to a minor complainant. The awards were made through the “next friend” or the litigation guardian as recognised by the board. However, there is no evidence that the board had conducted a legal analysis on the guardian ad litem in any of these cases. To support her position, counsel cites Blainey v. Ontario Hockey Assn. (No. 2)(1988), 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972 (Ont. Bd. Inq.); followed in Dudnik v. York Condominium Corp. No. 216 (No. 2) (1990), 12 C.H.R.R. D/235 (Ont. Bd. Inq.); and Cassellman v. Ontario Soccer Assn. (1993), 1993 CanLII 16463 (ON HRT), 23 C.H.R.R. D/397 (Ont. Bd. Inq.).

218Based on her own analysis, counsel submits the Tribunal has “inherent jurisdiction to exercise a discretionary power of decision-making” to: (i) “appoint a guardian ad litem for the benefit of the minor Complainants in this case”; and (ii) “to make compensatory award of money for the benefit of the minors”.

219Counsel submits that it appears that the Tribunal is exempt from the statutory obligations prescribed by the CJA. She states that the Code does not require the Commission or the Tribunal to appoint a guardian ad litem to represent a minor complainant’s interest in proceedings. “Therefore, the Tribunal is not lawfully bound to appoint a guardian ad litem in any proceedings before it.”

220Pragmatically, counsel argues, informal representation is lawfully employed by a parent or the guardian of the person without engaging the permission of a Tribunal or the court. Counsel asserts that “it is clear that the Tribunal has the broad statutory jurisdiction to make its own discretionary ruling to formally appoint a guardian ad litem for a minor Complainant. It can find this specific jurisdiction under the SPPA, the Judicial Review Procedure Act, [R.S.O. 1990, c.J-1, subsection.1 and 2 ] and the Tribunal’s Rules of Practice. Counsel states that the best evidence that the Tribunal has statutory authority to award compensation for the benefit of minor complainant is that it has done so in the past.

221Notwithstanding this, counsel argues, “the CLRA has primacy over the governance of guardianship of a minor’s property interest because it expressly provides for such governance in the absence of similar legislative expressions under the Code or the SPPA.” Counsel argues that the CLRA does not confer exclusive jurisdiction on the courts to determine guardianship of property issues.

222Further, counsel submits that “[i]t is within this Tribunal’s authority to decline to take jurisdiction of the minor Complainant, thus refusing to hear the minor’s complaints”. Counsel says, “[i]nstead, the Tribunal might refer the minor Complainant-by his next friend- to [sic] the court to seek an order for guardianship of property pursuant to the CLRA. The reason for taking this decision “would be to protect the minor’s property interests in a potential award made by the Tribunal for the benefit of the minor”.

223Although there is no specific statutory provision, which allows the Tribunal to gain access to the account of the Superior Court of Justice, submits counsel, apparently, there is no legislation, which prevents the Tribunal from ordering that a monetary award, regardless of the amount, be declared a trust for the benefit of the minor, and must be administered by the minor’s next friend or guardian ad litem. Once the trust is declared and upon application by the trustee, a monetary award can be paid into the Superior Court of Justice for disposition pursuant to the Trustee Act. Counsel proposes several approaches the Tribunal may adopt in the determination of a final order. There is no need to reproduce them here.

Ontario’s Submissions

224Ontario states that it has reviewed the submissions of the Commission on whether the Tribunal could appoint a litigation guardian for the minor Complainants or a guardian of the property of the minor Complainants. Ontario states that it concurs with the Commission’s submissions with the following caveats:

1. We do not agree that it would be appropriate for the Tribunal to make an award compensating the next friends (i.e., parents) for costs that they have incurred or for damages unless those persons are parties to the proceedings. We do not agree that the Tribunal has jurisdiction to make an award compensating a non-party. Further, in our submissions, Part V, of the Ontario Family Law Act does not apply to proceedings under the Human Rights Code. Accordingly, we do not accept the statement at paragraph 22 of the Commission’s submissions.

2. In our submissions, an amount (if any) award for past IBI costs incurred for the benefit of a minor Complainant can only be awarded to the minor Complainant. The question of whether the minor Complainant must reimburse the parent who actually incurred the cost is a matter of determination as between the Complainant and the parent, and not a matter for the Tribunal.

3. In our submission, if a minor Complainant is awarded an amount less than $10,000, s. 51 of the CLRA applies to permit payment of such an amount directly to the minor or the parent, without the appointment of a guardian of the property under the CLRA. If a minor Complainant is awarded an amount greater than $10,000, the Respondent may discharge its obligation by paying the money into the Superior Court under subsection. 36(6) to 36(6.5) of the Trustee Act. Alternatively, the appropriate family member or other person may apply to the Superior Court to be appointed guardian of the property of the minor under s. 47 of the CLRA. It is our position that the Tribunal does not have jurisdiction to make such an appointment under s. 47 of the CLRA.

Analysis

225The Tribunal determined in Lang v. Ontario (Ministry of Community and Social Services) (No. 6) 2005 HRTO 6, (unreported February 15, 2005), at paras. 5, 6, 7, and 8, referring to Lang, (No. 5), that it was inappropriate to apply Rule 4 of its Rules of Practice, July 2004, to adopt the Rules of Civil Procedure. That is because there is a gap in the Code and the SPPA, and because the definition of the term disability in the Rules of Civil Procedure is different from and broader than the definition of the term disability in the Code the Tribunal’s enabling statute. In this motion, the Tribunal adopts those rulings. Thus, the Tribunal will not address arguments regarding the application of the Rules of Civil Procedure.

226The parties say that in the past, boards of inquiry and the Tribunal have accepted jurisdiction to award damages to minor complainants. That is correct: e.g., see Dudnik, and Blainey. However, that does not preclude the Tribunal from determining now the proper procedures it ought to adopt when dealing with the complaints of minors. Thus, the Tribunal finds it useful to preface its analysis with a brief history and scope of the parens patriae jurisdiction as précised by LaForest J. in E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388 (S.C.C.) at pp. 425-426:

From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort, supra at 2 Russ. at p. 20, 38 E.R., at p. 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early [page426] England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the seventeenth century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.

The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare".

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably "moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion ...." In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

What is more, as the passage from Chambers cited by Latey J. underlines, a court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. I might add that the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect [herself or] himself. [Emphasis added].

227It could very well be that the CLRA and the Trustee Act are specific to the courts and do not apply to tribunals. What flows from that postulate is that this Tribunal, while it has jurisdiction to deal with these Complaints, must defer to the Superior Court to appoint guardians ad litem for all these matters.

228However, the Tribunal presumes, at the very least, it is bound by the minimum standards prescribed in the CLRA and the Trustee Act. Thus, the Tribunal’s analysis and Reasons will focus only in the event that damage awards are more than $10,000.

229The parties submit that the Tribunal need not enquire into the minor’s representative or require a court appoint a litigation guardian. Further, the Commission states that Courts have not made such an enquiry. That might be so, but significantly, those courts, having either statutory or inherent parens patriae jurisdiction, need not make such an enquiry. The Tribunal has neither. If a litigation guardian appears to be inadequate, the courts can deal with the issue.

230As a creature of statute, the Tribunal has no inherent jurisdiction at all. The Tribunal’s absolute discretion to control its own process is quite different from inherent jurisdiction. That absolute discretion does not endue the Tribunal with authority to enter the jurisdictional field that is reserved generally for Superior Courts. As the Tribunal held in its decision of January 5, 2005, the failure to appoint a guardian ad litem is an irregularity that may be cured even before the Tribunal issues a restitutive order. Steps ought to be taken, if necessary, to address it.

231The Tribunal believes, as part of its duty under Part IV-Enforcement of the Code, it has an obligation to ensure that the orders it issues are enforceable and comply with the law. The supremacy of the Code does not preclude the Tribunal from the application of the CLRA. Ms Venhola is correct to say that the CLRA does not bestow on courts exclusive jurisdiction to determine guardianship of property issues. Notably, though, as section 69 of the CLRA implies, the residual jurisdiction resides with the Superior Courts. Whether it is within the CLRA or the Superior Courts’ parens patriae jurisdiction, which is integral to the Superior Courts’ inherent jurisdiction, the dictates of the law can not be ignored by this Tribunal. The gap as a result of the specific jurisdiction under the Code or the SPPA can be filled by the Superior Courts.

232The Code, the SPPA and the Tribunal’s Rules of Practice govern the proceedings before the Tribunal. None by itself, or collectively, is a complete implement for resolving matters which the Tribunal is required to resolve. However, to fill a gap, the Tribunal can not arrogate to itself powers that are not clearly bestowed on it by statute. To do so, likely would be creating a patchwork of the rule of law. (See Brotherhood of Maintenance of Way Employees Canada Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495 (S.C.C.).

233A conflict of interest would disqualify a parent from standing in that relationship. At this point in the proceeding, the Tribunal does not know whether any parent has a conflict of interest with the child. The purpose of the requirement to have a litigation guardian is to ensure unbiased protection of the interest of the minor. There is a tacit understanding in the courts that a parent would be the litigation guardian. Thus, the courts would intervene only if no one steps forward to act in that capacity for the minor, or the person who steps forward has an interest that is adverse to the minor’s.

234The Commission states that the minor persons in these Complaints have claimed special damages for the costs incurred for ABA/IBI treatment. The Commission says that the Tribunal’s remedial powers are broad enough to order Ontario to pay those costs directly to the litigation guardian. Ontario disagrees. Ontario submits that any costs incurred for the minor can be awarded only to the Complainants.

235Clause 41(1)(b) of the Code does not stipulate to whom a monetary compensation order should be paid. The Tribunal agrees with the Commission and the Complainants that it has jurisdiction to determine to whom and how a monetary compensation order should be made. Indeed, it is the norm that the plaintiff is the beneficiary of monetary award. But this is not the norm; the Tribunal can not appoint a litigation guardian or order that an award in excess of $10,000 be paid to a minor complainant.

236In Lang, No. 5, the Tribunal states:

Based on the state of common law, and absent clear and precise language in the Code or the SPPA conferring incidental power to control its process vis-à-vis a complainant qua minor, the Tribunal concludes that it has no jurisdiction to appoint a litigation guardian or a guardian for the property of the minor. . . .” [Para. 59].

237The Tribunal further states at para. 60:

the significant corollary is, the Tribunal can not exercise its power under section 41 of the Code to make an order directing a respondent to make payment to a minor or to any person who is not a court-appointed litigation guardian or guardian of the property of a minor, if the amount of damages exceeds $10,000.

238Therefore, the Tribunal can not and will not order Ontario to pay special damages in excess of $10,000 directly to a complainant’s next friend. The Tribunal has the discretion to order a respondent to pay such monetary awards into a Superior Court. It would be up to the respondent to do so within the purview of statutory or common law precepts.

239The Tribunal notes that subsection 36(6) of the Trustee Act permits a person who owes money to a minor, to pay the money into court to the credit of the minor or mentally incapable person. Unlike subsection 51(1.1) of the CLRA, an upper limit is not imposed.

240Although the Tribunal does not deem the interpretation or application of section 43 of the Code to be relevant to this motion, it believes it is apposite to make a comment for clarification.

241Ms Venhola submits section 43, on its face, precludes a minor complainant from benefiting from the type of disposition because of the requirement that a settlement must be agreed to in writing. This requirement must be viewed as a shield and not a sword in the protection of the minor’s interest. A minor has no capacity to enter into a contract. However, subsection 36(6) of the Trustee Act and subsection 51(1.1) of the CLRA are veritable tools to protect any settlement, which falls within the purview of section 43.

242The Tribunal has determined that it has no inherent jurisdiction, and that neither the Code nor the SPPA confers power on the Tribunal to appoint a litigation guardian for a minor complainant. Therefore, the Tribunal can not agree with Ms Venhola’s submissions that it has inherent jurisdiction to appoint a guardian ad litem for the benefit of the minor complainants in this case. There is no question that, by virtue of subsection 41(1), the Tribunal can make an award of monetary compensation for the benefit of the minors.

243With respect to Ms Venhola’s submissions that it “. . .is within this Tribunal’s authority to decline to take jurisdiction of the minor Complainant, thus to hear the minor’s complaints,” the Tribunal disagrees. Indeed, it is within the Tribunal’s power, in controlling its process, to direct the person who seeks to be the litigation guardian to be appointed by the court as either the litigation guardian or the guardian of the property pursuant to the CLRA. However, it is settled law that the Tribunal can not decline to deal with a case once referred. The Code is clear. The Tribunal must proceed to a hearing, or it can dispose of the matter, providing it does so within the requirements of the law.

244The Tribunal agrees with Ontario that the Respondent may discharge its obligation by paying the money into a Superior Court under subsection 36(6) of the Trustee Act. Or, in the alternative, the appropriate family member or other person may apply to the Superior Court to be appointed guardian of the property of the minor under section 47 of the CLRA. In addition, the other counsel have proposed several options, which the Tribunal could revisit, if the situation arises. There is no need to repeat them here. For now it is enough to say the logistics of Ontario obtaining a release is not relevant to the exercise of the Tribunal’s adjudicative functions.

245Finally, the Tribunal takes this opportunity to express its gratitude to the parties and counsel for their diligence, passion, and patience throughout these proceedings.

ORDER

246The Tribunal directs Ms Venhola to file and serve the motion record, factum and book of authorities towards the commencement of the constitutional question.

Dated at Toronto, this 14th day of April, 2005.

“Patricia E. DeGuire”

Patricia E. DeGuire

Vice Chair

APPENDIX A

List of Complainants’ Counsel and Agents

December 6, 2004

HR-0602-04 to HR-0722-04 (Group A)

HR-0747-04 to HR-0825-04 (Group B)

HR-0844-04 AND HR-0845-04 (Group C)

HR-0870-04 to HR-0882-04 (Group D)

Arzem et al. v. R. (Ontario)

HR-0541-03 AND HR-0567-03 Burrows

Complainants “Group A”

ARZEM, Andrew by his next friends Sheri and Gary Arzem † represented by Ellie Venhola

BARGER, Brendan by his next friend Thomas Berger † represented by Ellie Venhola

BRADY, Adam by his next friend Susan Brady † represented by Ellie Venhola

BROOKHOUSER, Jordan by his next friend Lucy Brookhouser † represented by Ellie Venhola

CANDIDO, Jared by his next friend Marti Candido † represented by Ellie Venhola

CIUMMELLI, Lucas by his next friend Lucas Ciummelli † represented by Ellie Venhola

COLACICCO, Nicholas by his next friend Susan Colacicco † represented by Ellie Venhola

COLLINS, Benjamin by his next friend Lise Collins † represented by Ellie Venhola

CRISTINI, Anthony by his next friend Paul Cristini *** on own behalf

CROWDER, Ben by his next friend Kimberley Crowder † represented by Ellie Venhola DELAHUNTY, Kyle by his next friends Terry and Maltie Delahunty † represented by Ellie Venhola D'ULISSE, Christian by his next friend Giancarlo D’Ulisse † represented by Ellie Venhola

FIALA, Thomas by his next friend Yvette Fiala † represented by Ellie Venhola

FRENCH, Tyler by his next friends Terry and Elisa French † represented by Ellie Venhola

FRYER, Evan by his next friend Timothy Edwin Fryer † represented by Ellie Venhola

GALATI, Michael by his next friend Teresa Galati † represented by Ellie Venhola

GIVELAS, Michael by his next friend Angela Givelas † represented by Ellie Venhola

GOEBEL, Connor by his next friend Gavin Goebel † represented by Ellie Venhola

GUBERNAT, Rick † represented by Ellie Venhola

GUBERNAT-VOLINZ, Elise by her next friend Rick Gubernat † represented by Ellie Venhola

HUNT, Riley Andrew by his next friend Juliana Hunt † represented by Ellie Venhola

IACONO, Liam by his next friend Gaetano Iacono † represented by Ellie Venhola

JOHNSTON, Payton by his next friend Sandi Johnston † represented by Ellie Venhola

KRUMINS, Kieran by his next friend Jennifer Krumins † represented by Ellie Venhola

KUHLMANN, Grant by his next friend Laura Kuhlmann † represented by Ellie Venhola

LI, Nathan by his next friend Chris Li † represented by Ellie Venhola

MADDOCK, Chad by his next friend Tracy Maddock † represented by Ellie Venhola

MAJOOR, Quenten by his next friend Barry Majoor † represented by Ellie Venhola

MEDD, Luke by his next friend Wendy Arnott-Medd † represented by Ellie Venhola

MEIN, David by his next friend John Mein † represented by Ellie Venhola

MELAMED, Jay by his next friend Andrea Bellman † represented by Ellie Venhola

MICELI, Giacinto by his next friend Rita Miceli † represented by Ellie Venhola

MOORE, Curtis by his next friend Joanne Moore † represented by Ellie Venhola

MOORE-JEHA, Joseph by his next friend Christine Jeha † represented by Ellie Venhola

MORRISON, Sean by his next friends Nancy and Philip Morrison † represented by Ellie Venhola

MURACA, Robert by his next friend Flavia Muraca † represented by Ellie Venhola

MYERS, Daniel by his next friend Leah Myers † represented by Ellie Venhola

NOLAN, John Eric by his next friend Beth Nolan † represented by Ellie Venhola

PANOKOS, Sara by his next friend Julie Panakos † represented by Ellie Venhola

QUANSAH, Cameron by his next friend Damian Quansah † represented by Ellie Venhola

ROY, Adam by his next friend Ellen Farrington † represented by Ellie Venhola

RUPAKUMAR, Krishan by his next friends Juliet and Rock Rupakumar†represented by Ellie Venhola

SCHMALZ, Jacob by his next friend Michael Schmalz † represented by Ellie Venhola

SEGAL Eric by his next friend Sharon Gabison ** represented by Laughlin Campbell

SISTI, Nicholas by his next friend Joanne Sisti † represented by Ellie Venhola

STEFFEN, Benjamin by his next friend Darla Steffen † represented by Ellie Venhola

THIELE, Robert by his next friend Nelly Thiele † represented by Ellie Venhola

UTHAYAN, Nakulan Vishal by his next friend Usha M. Uthayan † represented by Ellie Venhola

UTHAYAN, Sahadaevan Vittal by his next friend Usha M. Uthayan † represented by Ellie Venhola

VELIKONJA, Ernest by his next friend Sandra Velikonja † represented by Ellie Venhola

Vijayarajah, Jonathan by his next friend Joseph Vijayaraj † represented by Ellie Venhola

VOGELS, Jacob by his next friend Ms. Cindy Vogels **** represented by Karen Canatta

WAGMAN, David by his next friend Lillian Wagman † represented by Ellie Venhola

WAGMAN, Michael by his next friend Lillian Wagman † represented by Ellie Venhola

WALSH, Cameron by his next friend Ms. Sheri-Lee Walsh † represented by Ellie Venhola

WEE, Jan-Eric by his next friend Ms. Tessie Wee † represented by Ellie Venhola

WEICHEL, Kieran by his next friend Sandra Weichel † represented by Ellie Venhola

ZUCCARO, Michael by his next friend Lina Zuccaro † represented by Ellie Venhola

Complainants “Group B”

Aslanboga, Burak by his next friend Ms. Nazile Baydir † represented by Ellie Venhola

BRIDE, Emily Sara Elizabeth by her next friend Mr. Peter Bride † represented by Ellie Venhola

BORGSTADT, Cameron by his next friend Carolyn Borgstadt * represented by Jonathan Strug

CARDONA, Jonathan by his next friend Ms. Laura Cardona † represented by Ellie Venhola

CESARIO, Andrew by his next friend Mrs. Patricia Cesario † represented by Ellie Venhola

CRAREY, Samantha by her next friend Elli Crarey ** represented by Laughlin Campbell

CURRIE, Joshua by his next friend Mrs. Donna Currie † represented by Ellie Venhola

DEWIT, Nicholas by his next friend Michael DeWit † represented by Ellie Venhola

FRANKLIN, Calvin by his next friend Alex Franklin *** on own behalf / Mary Snell

GELLER-CUMMINGS, Adam by his next friend Gail Geller ** represented by Laughlin Campbell

HEWITT, Jonathan by his next friend Mrs. Deborah Campbell * represented by Jonathan Strug

MARKAKIS, Jon by his next friend Ms. Constantina Arvanitis † represented by Ellie Venhola

MICANOVIC, Ana by her next friend Mladen Micanovic † represented by Ellie Venhola

MILLAR, Brandonby his next friend Victoria Millar † represented by Ellie Venhola

MOGYORODI, Samuel by his next friend Gary Mogyorodi † represented by Ellie Venhola

NIKOLIC, Eric Benjamin and James by their next friend Mark Nikolic † represented by Ellie Venhola

ROBINSON, Brandon by his next friend Karen Robinson † represented by Ellie Venhola

SCANDRETT, Shawn by his next friend Cindy Scandrett * represented by Jonathan Strug

SCANTAMBURLO, Luigi by his next friend Vesna Scantamburlo† represented by Ellie Venhola

SHONUCK, John by his next friend Laurene Shonuck * represented by Jonathan Strug

SNELL, Laura by her next friend Mary Snell *** on own behalf / Norrah Whitney

TESFAY, Robel by his next friend Tsigeweyin Tesfay † represented by Ellie Venhola

THOMASON, Tyler by his next friend Martin Thomason * represented by Jonathan Strug

TOBIN, Jeffrey by his next friends Barbara and Brian Tobin † represented by Ellie Venhola

TURNER, Kathleen, Scott and Stephen by their next friend Mary Turner†represented by Ellie Venhola

VAUSE, Justin by his next friend Linda Vause † represented by Ellie Venhola

WALSH, Matthew and Michael by their next friend Anita Walsh † represented by Ellie Venhola

Complainants “Group C”

ALLAN, Mackenzie by his litigation guardian Brad Allan † represented by Ellie Venhola

BROOKE, Daniel by his litigation guardian Sylvia Brooke † represented by Ellie Venhola

Complainants “Group D”

CICCONE, Michael by his litigation guardian Ms. Tina Ciccone *** on own behalf

DOWSETT, Aidan by his litigation guardian Jennifer Dowsett † represented by Ellie Venhola

EVRENIADIS, Jonathan Alexander by his litigation guardian Dina Vardouniotis *** on own behalf

FRICK, Thomas by his litigation guardian Mrs. Rose Frick *** on own behalf

GALATI, David by his next friend Teresa Galati † represented by Ellie Venhola

McLEOD, Connor by his litigation guardian Brenda Bogardis † represented by Ellie Venhola

WU, Adonia by her litigation guardian Yvonne Wu † represented by Ellie Venhola

BURROWS, Luke by his next friend Norrah Whitney ***** represented by Michael Loughlan

Footnotes

1. 1_appSee appendix A for a complete list of the Complainants’ counsel and agents as at December 6, 2004.
2. 1The Minister of Community and Social Services; the Minister of Health and Long-Term Care; the Minister of Education; and the Minister of Children and Youth Services.
3. 22004 SCC 78. (Neutral citation)
4. 3Notably, this is not a joinder of parties; the parties are neither co-complainants nor co-respondents within the rubrics of the common law precept established in Wedderburn v. Wedderburn (1853), 17 Beav. 158, 51 E.R. 993 (M.R.).
5. 4Indexed as British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (SCC.)
6. 5Current Legal Problems, 1970 ed. Lord Lloyd of Hampstead and Georg Schwarzenberger, Vol. 23 at p. 23 – Stevens & Sons, London, 1970).
7. 6On April 4, 2005, the Tribunal learned from CBC radio, 99.1 that the Wynberg/Deskin decisions had been issued. It requested and received the decisions electronically from Ontario’s counsel, Mr. Basu. There was an e-mail accompanying the court’s decision from Kiteley J. stating that the decision had been released inadvertently on March 31, 2005. The e-mail is dated, “ Friday, April 01, 2005 5:28 PM.”
8. 7Ibid at p. 24.
9. 8Looseleaf ed. (Aurora, Ont.: Canada Law Book) at 347.