HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Jean-Marc Lang
Complainant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Enfants en Péril (Children at Risk)
Respondents
ADDENDUM TO DECISION
Adjudicator: Patricia E. DeGuire
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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
BACKGROUND
1On February 2, 2005, the Tribunal issued its Decision and Reasons, 2005 HRTO 5, in a written motion brought by the parties. In that motion the parties had asked the Tribunal to approve the Minutes of Settlement, which had been caused to be signed by the parties “[i] n order to bind the Complainant, who is a person under a disability…”
2The Tribunal did not grant the motion. Briefly, the reasons are: its function does not include the approval of settlements; section 43 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) provides the assurance the parties were seeking; and that the Tribunal has no jurisdiction to approve the settlement because the complainant is a minor and does not have a court-appointed litigation guardian or a guardian of his property as required by the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
3The Tribunal has received communication from Ontario asking that it amend its Reasons to reflect the clarification that Ontario’s use of the term “disability” “ . . .referred to both . . . the fact that [the complainant] is a minor and that he suffers from a mental disability”. (Emphasis in the original).
DISCUSSION AND CONCLUSION
4Specifically, Ontario makes the following submissions in its request to the Tribunal dated February 2, 2005:
In our written submission of January 26, 2005 and in the Minutes of Settlement, the description of the Complainant as a “person under disability” referred both to the fact that he is a minor and that he suffers from a mental disability. In using the expression “person under disability” we meant person under a legal disability, as set out, for example, in the definitions in the Rules of Civil Procedure, where at Rule 1.03, the term “disability” is defined as follows [sic]:
“disability”, where used in respect of a person or party, means that the person or party is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person or party has a guardian or not, or
(c) an absentee within the meaning of the Absentee Act.
Ontario’s position, therefore, is that the fact that the Complainant is a minor is a central issue for the Tribunal and our submissions were premised on that fact.
We do not believe that this clarification of Ontario’s position is material to the result reached by the Tribunal since the Tribunal turned its mind to the issue of the Complainant’s status as a minor.
We respectfully request, however, that the Tribunal’s Reasons be amended to reflect this clarification (or that this letter be attached to the Tribunal’s Reasons as an Appendix). We believe that it is important to have this clarification of Ontario’s position reflected in the Tribunal’s Reasons as the Tribunal’s decision may well become a guide for future cases and we do not wish Ontario’s position to be misunderstood by persons who might read the Reasons.
5In paragraph 8 of its Decision, the Tribunal particularises the issue to focus on the fact that the Complainant is a minor and states that the fact that the Complainant is disabled is an incidental issue. That approach was crucial and intentional.
6Significantly, the Code defines disability:
“disability” means,
a. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
b. a condition of mental impairment or a developmental disability,
c. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
d. a mental disorder, or
e. an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap”)
7The Code’s definition of the term disability is exhaustive. That definition does not include the status of a person qua minor. For that reason, the Tribunal can not impute the term minor to the definition of disability. To do so would be inconsistent with its enabling statute, and moreover, offend it.
8Second, at paragraphs 68 and 69 of its Reasons, the Tribunal specifically turned its mind to the question whether the Ontario Rules of Civil Procedure should be imported as an instrument to determine the issue before it. The Tribunal concluded that it was inappropriate in this case to rely on Rule 4 of the Tribunal’s Rules of Practice to invoke those rules.
9In its pre-decision submissions, Ontario did not define the term disability. Nor was there anything in those submissions, or any other parties’, which reasonably could have been construed that the term disability encompassed the status of a person qua minor.
10Had Ontario defined the term disability to include a minor in its pre-decision submissions, the Tribunal would have taken the same approach as it does now to answer Ontario’s post-decision submissions. This is because in the Code, the term disability is defined exhaustively; that definition does not include a person qua minor.
11It is significant to note that this does not mean that a Complainant qua minor is barred from making a complaint under the Code on the ground of disability. It simply means that the Tribunal ought not to read-in, as a definitive touchstone of the term disability, the words “a minor”.
12It is noteworthy that at all times, the Tribunal was aware that the Complainant is a minor who suffers from a disability as defined by the Code.
13The Tribunal agrees with Ontario that the clarification it seeks to have the Tribunal append to the Tribunal’s Reasons has no material effect on the result reached by the Tribunal. Notably though, the clarification materially, would affect the application of its Reasons. For, every complainant who is a minor could be deemed disabled even if the minor does not meet the definitive scope of disability enunciated in the Code.
14Indeed, while Ontario’s post-decision submissions do not affect the result determined by the Tribunal, the Tribunal cannot now accept the definition put forward by Ontario in its letter dated February 2, 2005. Thus, the Tribunal declines to grant Ontario’s request.
15The Tribunal notes the concerns raised by Mr Michel Lang in his letter dated February 3, 2005: the Tribunal’s reference to the Civil Action in its judgement. The Tribunal notes that reference to the Civil Action, and more specifically, the issue of damages, was squarely before the Tribunal in a motion brought before it by Mr Lang to amend his complaints dated August 31, 1998 and December 15, 1998.
16The Tribunal’s Reasons in that interim decision, 2003 HRTO 7, April 2, 2003, and the Civil Actions are public records. Reference to them in the Tribunal’s Reasons was necessary in the determination of its judgement.
17Significantly, as the Tribunal noted in its judgement, 2005 HRTO 5, its decision does not affect the Minutes of Settlement in any way.
Dated at Toronto this 15th day of February, 2005.
“Patricia E. DeGuire”
Patricia E. DeGuire
Vice-Chair