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-
Athanasopoulos, et al “Group E”
-and-
Burrows, et al “Group F”
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
HR-0844-04 and HR-0845-04 (Group C); HR-0870-04 to HR-0882-04 (Group D); HR-0921 to HR-0931-05 (Group E); HR-541-03 and HR-0567-03 (Group F)
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]
Ontario Human Rights Commission Sharon Ffolkes-Abrahams and Alyssa Case, Counsel
Complainants Ellie Venhola, Counsel Laughlin Campbell, Counsel William Dermody, Counsel Jackie Martin, Agent Nancy Van Louwe, Agent Mary Snell, Agent Rosemary Cruz, Agent Voula Kantzavelos, Agent Kiritea Nesbitt, Agent Janette Jones, Agent Karen Cannata, Agent Tina Ciccone, Agent Daren Frick, Agent
Her Majesty the Queen in Right of Ontario (Respondents) Robin Basu, Sarah Wright, and Bruce Ellis, Counsel
INTRODUCTION
1The Tribunal convened a telephonic Pre-Hearing Conference (“PHC”) on April 8, 2005, at 5:00 P.M., with counsel and agents of the parties in the Arzem matters. The following persons participated: Robin Basu, Laughlin Campbell, Karen Cannata, Alyssa Case, Tina Ciccone, Rosemary Cruz, William Dermody, Bruce Ellis, Sharon Ffolkes-Abrahams, Daren Frick, Janette Jones, Voula Kantzavelos, Jackie Martin, Kiritea Nesbitt, Mary Snell, Jonathan Strug, Nancy Van Louwe, Ellie Venhola, and Sarah Wright.
2The following persons are the agents for minor Complainants; they were given notice of the PHC, but did not participate: Bradley Boufford, Paul Cristini, Laurene Shonuck, and Dina Vardouniotis.
Confirmation of Matters Determined
3At the onset of the proceeding, Mr. Strug informed the Tribunal that he was no longer counsel of record for the following Group B-Complainants: Cameron Borgstadt, Jonathan Hewitt, Shawn Scandrett, John Shonuck, and Tyler Thomason. He advised the Tribunal that their new counsel is Ms Venhola, and that he had sent a letter to the Tribunal informing it accordingly. Based on that information, the Tribunal allowed Mr. Strug to exit the PHC.
4There is no letter on record from Mr. Strug to that effect. However, for the record, this writing will serve to acknowledge that Mr. Strug is no longer counsel of record for those Complainants.
5Ms Venhola informed the Tribunal that she intends to pursue the “appeal” (which ought to be a judicial review) of the Tribunal's January 5, 2005 decision on Motion 3. In that decision the Tribunal held that it does not have jurisdiction to grant the type of interlocutory injunctive relief sought by the Complainants.
6The Tribunal is satisfied that Ms Venhola’s appeal or judicial review will not hinder it moving forward to convene the hearing on the merits.
7Also, Ms Venhola informed the Tribunal that she intends to pursue the Constitutional question. Towards that end, the Tribunal shall deal with the Constitutional question. The motion will be heard before the hearing on the merits. The scheduling for this motion will be discussed later in this writing.
8On consent of the parties, all the Complaints, which have been referred to the Tribunal as at April 8, 2005, will be combined—not joined—subject to any difference in issues. The batch of Complaints that the Tribunal received from the Commission on February 18, 2005, will be identified as Group E.
9The Tribunal acknowledges Ontario's position that it reserves the right to raise objections in the future, either by judicial review of the Tribunal’s decision on Motion 1 or by a motion before the Tribunal specific to Group E.
10Mr. Campbell informed the Tribunal that he has been retained to represent Master Burrows. In addition, he advised that he had received instructions from Ms Whitney, Master Burrows’ maternal parent, to combine those two Complaints with the Arzem cases. Therefore, those cases are combined, and will be identified as Group F.
11On the consent of the parties, at the onset of dealing with these cases, the Tribunal had deferred issuing any directive regarding disclosure. The parties wish to proceed with these matters. It is the consensus of the parties that it is timely to deal with disclosure now. Thus, the Tribunal directs the parties to produce disclosure within the timelines that follow. The Commission shall produce disclosure to all the parties by June 30, 2005. By the said date, Ontario shall produce disclosure for the period ending June 2004. Its disclosure from July 2004 up to the present shall be produced by August 19, 2005. Ms Venhola, Mr. Dermody, and the Complainants who are represented by agents shall provide disclosure by July 20, 2005. Mr. Campbell shall do so by July 30, 2005.
12No disclosure should be sent to the Tribunal.
13The Tribunal thanks Ontario for its generous gesture, again extending an invitation to the parties to use its facilities to cull the documents, which may be specific to their needs. Logistically, this may speed up the disclosure process. Indeed, the parties recognise that they have an ongoing duty to provide each other with disclosure.
14Because of the precariousness of the Tribunal's ability to do scheduling at the time of the PHC, the Tribunal and all the parties agreed to reserve October 17 to November 30, 2005, for the hearing on the merits. The Tribunal undertook to inform the parties when it is able to set specific dates for the Constitutional question and the hearing on the merits. The parties are advised through this medium that the scheduling of those matters can be dealt with now.
15Any party who will not be participating in the Constitutional question is asked to inform the Tribunal in writing by May 11, 2005.
16The parties have agreed and are directed to peruse the Wynberg/Deskin and the Auton Reasons to determine, against the backdrop of those Reasons, the scope of the case before the Tribunal, and whether, or to what extent the pleadings ought to be amended.
17Since the PHC on April 8, 2005, another batch of Complaints for autistic children has been referred to the Tribunal. The Initial Conference is scheduled for May 16, 2005, at 10:00 A.M. The Tribunal solicits your input on how it ought to proceed with this batch of autism Complaints. Also, the Tribunal requests that you comment on whether it is feasible or practical to set dates for the Constitutional question and the hearing on the merits on May 16, 2005, as well? Your comment should be directed to the (Acting) Registrar in writing by May 11, 2005.
18If the parties are unable to participate in the May 16, 2005 proceeding, the Tribunal will direct the (Acting) Registrar to canvass dates with the parties for the Constitutional question and the hearing on the merits.
19Indeed, the Tribunal recognises that there ought to be a point when "combining" the cases is no longer feasible or practical.
20Finally and importantly, these are numerous cases with panoplies of divergent interests, and multiple issues, which the Tribunal must handle without the benefit of "class action” process or the joining of these matters. Given the sheer volume of Complaints, and the adversarial nature of litigation, tension may be inevitable. Thus, the Tribunal commends counsel and all the parties for the cooperation and fluid communication that has prevailed, in the main, so far in these proceedings.
21The Tribunal is mindful of the type of problems that can occur when parties stop cooperating or communicating meaningfully, and acrimony or mistrust is allowed to creep in. Thus, the Tribunal encourages you to continue to cooperate and communicate positively and constructively throughout these proceedings, especially in the exercise of producing disclosure.
Dated at Toronto, this 29th day of April, 2005.
“Patricia E. DeGuire”
Patricia E. DeGuire Vice Chair
APPENDIX A
List of Complainants’ Counsel and Agents
HR-0602-04 to HR-0722-04 Arzem et al. v. R. (Ontario) (Group A) HR-0747-04 to HR-0825-04 Aslanboga et al. v. R. (Ontario) (Group B) HR-0844-04 AND HR-0845-04 Brooke/Allan v. R. (Ontario) (Group C) HR-0870-04 to HR-0882-04 Ciccone et al. v. R. (Ontario) (Group D) HR-0921-05 to HR-0931-05 Athanasopoulos et al. v. R. (Ontario) (Group E) HR-0541-03 AND HR-0567-03 Burrows et al. v. R. (Ontario) (Group F)
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 Ellie Venhola 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 GELLER-CUMMINGS, Adam by his next friend Gail Geller ** represented by Laughlin Campbell HEWITT, Jonathan by his next friend Mrs. Deborah Campbell * represented by Ellie Venhola 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 Ellie Venhola SCANTAMBURLO, Luigi by his next friend Vesna Scantamburlo † represented by Ellie Venhola SHONUCK, John by his next friend Laurene Shonuck * represented by Ellie Venhola SNELL, Laura by her next friend Mary Snell *** on own behalf TESFAY, Robel by his next friend Tsigeweyin Tesfay † represented by Ellie Venhola THOMASON, Tyler by his next friend Martin Thomason * represented by Ellie Venhola 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
Complainants “Group E”
Athanasopoulos, Spiridon by his litigation guardian Mrs. Voula Kant*** on own behalf Boufford, Jordan by his litigation guardian Mr. Bradley Boufford*** on own behalf Cruz, Linda and Sandra by their litigation guardian Mrs. Rosemary Cruz*** on own behalf Millington, Aidan by his litigation guardian Ms. Janette Jones*** on own behalf Nahmiache, Cody by his litigation guardian Ms. Jackie Martin*** on own behalf Nesbitt, Thais Victoria by her litigation guardian Ms. Kiritea Nesbitt*** on own behalf Shonuck, John by his next friend Laurene A. Shonuck*** on own behalf Van Louwe, Dylan by his litigation guardian Mr. Nancy Van Louwe ***** represented by William P. Dermody
Complainant “Group F”
BURROWS, Luke by his next friend Norrah Whitney ** represented by Laughlin Campbell