Ball v. Ontario (Community and Social Services), 2008 HRTO 19

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Ball and the Complainants Listed on Schedule "A"

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: March 25, 2008

Citation: 2008 HRTO 19

Indexed as: Ball v. Ontario (Community and Social Services)

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@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Ontario Human Rights Commission ) Hart Schwartz, Counsel )

Her Majesty the Queen in Right of Ontario as ) Robert E. Charney, Represented by the Minister of Community ) Counsel and Social Services, Respondent )

INTRODUCTION

1On February 27, 2008, the Tribunal received from the Ontario Human Rights Commission ("Commission") the referral of 77 complaints against the respondent Ministry of Community and Social Services. All the complaints relate to the "special diet allowance" under the Ontario Disability Support Program. Some complainants are self-represented, while others are represented by community legal clinics or law firms

THE TRIBUNAL'S SPECIAL PROCESS

2By letter dated March 6, 2008, the Tribunal Registrar wrote to all parties outlining the procedure the Tribunal would follow:

On January 29, 2008, the Ontario Human Rights Commission (Commission) referred the 77 complaints referenced above to the Human Rights Tribunal of Ontario. The Tribunal received these referrals on February 27, 2008. Given the very large number of complainants, many of whom are self-represented, the number of representatives, and the geographical diversity of the parties, the Tribunal finds it necessary to depart from its usual practices in order to best accommodate all the parties and their needs at the initial stage of the Tribunal hearing.

A Special Process

Typically, the Tribunal hearing begins at the Initial Conference Call (ICC) held within 30 days of receiving the referred complaint(s) from the Commission. The purpose of the ICC is to confirm that all parties or their representatives received notice of the referral, ensure the names and contact information of the parties or their representatives are correct, identify any accommodation needs, and canvass the possibility of mediation. If mediation is refused, pleadings and disclosure dates are set. Hearing dates are set at a second conference call. Hearings are generally held in person at the Tribunal's Toronto offices but may also be held in regional centres across the province.

In the present case, given the large number of participants, it will be very difficult to begin the hearing by conference call. At the same time, financial constraints may limit complainants' ability to travel to Toronto or another regional centre to participate in an in-person hearing. Finally, given the complexity, nature and number of complaints, the Tribunal is not prepared to offer the parties Tribunal mediation at this stage in the proceedings.

Accordingly, the Tribunal will commence the proceeding as follows:

Parties will be asked to confirm on the attached form basic information normally obtained during the ICC and return it to the Tribunal in the attached stamped envelope. THIS FORM MUST BE RECEIVED AT THE TRIBUNAL BY MARCH 31, 2008. If you do not return the form by the deadline the case may proceed without your participation. For this form ONLY, the Tribunal does not require that you send a copy to the other parties and will send all parties a letter confirming contact information and other responses. (The Respondent and Commission need only send one form for all cases.)

The Tribunal will hold a case management conference on April 11, 2008 at 10:00 AM at the JPR Arbitration Centre, 3rd Floor, 390 Bay Street, Toronto (Queen-Bay intersection). Complainants and their representatives may designate someone who can attend in person. The representative at the conference need not be the same representative as in other aspects of the process. Commission counsel may be your representative. The Tribunal encourages complainants and their representatives to agree on common representation at this conference. If you do not designate a representative you may make written submissions in advance of the case management conference on the issues to be dealt with or attend in person. Parties (not representatives) may also attend by telephone at no cost to them. Further details about what will happen at the case management conference are set out below.

Case Management Conference

At this time it appears that the Commission wishes that all complaints be heard at the same time. The Tribunal is not aware of the other parties' positions on this issue and on the issue of the location of the hearing(s).

During the case management conference the following issues will be addressed:

• Where should hearing(s) be held? Should complaints be grouped geographically and hearings held in regional centres?
• Should there be one consolidated hearing or more than one hearing?
• Should one complaint or a group of complaints proceed to hearing before the others as representative complaints?
• What should the schedule be for exchange of hearing briefs and disclosure?

The Tribunal will hear submissions on any requests by the parties for other preliminary or procedural orders. Parties are asked to identify any other issues they wish to have dealt with at the conference by letter to the Registrar no later than March 31, 2008. The Tribunal will send a letter to the parties shortly after this date setting out any issues that it agrees to address during the conference.

Following the case management conference, the Tribunal will issue a written decision summarizing what happened at the case management conference and setting out its intended procedure on the issues discussed. Any party will have three weeks following this decision to make any written submissions regarding the Tribunal's proposed procedure. The Tribunal will then issue a decision setting out its final determination of the procedure it will follow... [Bold in Original]

THE COMMISSION'S ADJOURNMENT REQUEST

3In a letter received by the Tribunal on March 20, 2008, counsel for the Commission wrote to the Tribunal as follows:

I write in connection with the in-person case conference, which the Tribunal has scheduled for April 11, 2008.

This is a case of tremendous importance to the Ontario Human Rights Commission. As Director of the Legal Services Branch, I have been asked to be lead counsel for the Commission on these files. I also drafted the request for preliminary orders that the Commission provided with the Referral Brief, which sets out a proposal on the part of the Commission concerning how these extraordinary cases should be litigated; whether they should proceed by way of a test case on discrete legal issues. It is critical, from the Commission's perspective, that I attend this Case Conference. I have also commenced discussions with representatives of the respondent and complainants, with a view to reaching agreement on the procedures to be followed in the above-noted hearings, in advance, as much as possible. Without this agreement, I fear the hearing of these cases may prove very time-consuming.

On April 11, 2008, I will be in the Costa Rican jungle with my wife on a long planned for 25th Anniversary trip. I will be unreachable by telephone or other means of communication.

We are hopeful that agreement may be reached among the parties at the Case Conference as to the preliminary matters and the procedures to follow in these cases. No doubt instructions will be required and I will be unavailable to provide them. Without my direct attendance, counsel would likely have to wait until my return to seek instructions on matters that may arise. Accordingly, it is quite critical, from the Commission's perspective, that I attend the case conference.

In all of the circumstances, and with sincere apologies for the inconvenience that may be caused the Tribunal and the parties, I would ask, then, that the Tribunal re-schedule the case conference. I can certainly be available on any day during the week of April 14 or 21, 2008 (with the exception of Tuesday, April 22).

4It appears that the Commission did not contact the other parties prior to writing to the Tribunal. Counsel for the respondent sent the Tribunal a letter later on March 20, 2008, which reads as follows:

We are in receipt of Mr. Schwartz's letter of March 19, 2008, regarding his request that the Tribunal reschedule the in-person case conference that is currently scheduled for April 11, 2008, in order to accommodate his vacation schedule.

While we are certainly prepared to agree to this adjournment, many of the alternative dates proposed by Mr. Schwartz conflict with religious holidays, and vacation schedules of counsel for Her Majesty the Queen in right of Ontario. Of the alternative dates proposed by Mr. Schwartz, counsel for Her Majesty the Queen are available on April 14-17, and we will agree to the adjournment if one of those days is chosen as an alternative.

5The Tribunal has not received consent to an adjournment from any of the complainants. Moreover, the Tribunal is not available on April 14-17, 2008, the dates available to the respondents.

DECISION

6First, I note that the Tribunal did not receive the request for preliminary orders to which Commission counsel refers in his letter. I assume that this is the result of an administrative oversight, and grant the Commission leave to file its request late. It must be filed with the Tribunal by March 26, 2008 and a statement of service must be filed with it.

7The Commission's request to reschedule the case management conference is denied. The Tribunal does not reschedule Initial Conference Calls without the written consent of all parties: see Savoy v. Aya Kitchens and Baths Ltd., 2007 HRTO 25 at para. 10. This case management conference is the equivalent to the ICC and the same principles apply. A party's desire to have particular counsel attend on its behalf cannot justify an adjournment.

8In designing the process for these cases, the Tribunal was aware that, for various reasons, it might be impossible for all parties or their representatives to participate in person. Accordingly, the process allows submissions to be made in writing before the case conference, and also in response to the Tribunal's decision setting out its proposed procedure. While it will doubtless be possible for another member of the Commission's legal department to make submissions in person, this will allow Mr. Schwartz the opportunity to make written submissions.

9Finally, I note that the adjournment request was not received until two weeks following the letter scheduling the case management conference. Complainants have made arrangements for designation of representatives and attendance at the case conference, which will take place in two and a half weeks. Submissions on the issues to be addressed are due in six days. An adjournment at this stage would be inappropriate.

ORDER

10The Commission is granted leave to file its request for preliminary orders by March 26, 2008. The request to adjourn the case management conference is denied.

Dated at Toronto, this 25th day of March, 2008

"Signed by"

David A. Wright

Vice-Chair

Schedule "A"

COMPLAINANT REPRESENTATIVE

• Ball, Brian – 1443-07 Glenda Devlin
• Bayne, Sandra –1444-07 David Balderston
• Belcourt, Lisa – 1445-07 Nora Simpson
• Bell, Linda – 1446-07 Seana Moorhead
• Bradshaw-Clark, Judy – 1447-07 Nora Simpson
• Buklis, Arlene – 1448-07 Norma MacKenzie
• Buklis, John – 1449-07 Norma MacKenzie
• Butts, Ruth – 1450-07 Jessica S. Michael
• Caissie, Rita –1451-07 Nora Simpson
• Carriere, Debbie – 1452-07 Jessica S. Michael
• Caster, Diane – 1453-07 Anna Zachariah
• Connors, Devon by his litigation guardian John Connors – 1454-07 Jessica S. Michael
• Connors, Drew by his litigation guardian John Connors – 1455-07 Jessica S. Michael
• Connors, John – 1456-07 Jessica S. Michael
• Cook, Cassandra – 1457-07 Norma MacKenzie
• Costello, John H. – 1458-07 Vicki Doidge
• Courville, Diane – 1459-07 Stuart Bailey
• Cranstone, Steven by his litigation guardian Irene Cranstone – 1460-07 Colleen Sym
• Crocker, Doral – 1461-07 Jessica S. Michael
• Dawe, Karen – 1462-07
• Donald, Linda C. – 1463-07
• Dupont, Gail – 1464-07
• Edison, Laura – 1465-07 Jessica S. Michael
• Edwards, Terry – 1466-07
• Fleming, Robert – 1467-07 Nora Simpson
• Frederick, Patricia Mary – 1468-07 Carl Symondson
• Glazewski, Dona – 1469-07 Nora Simpson
• Gray, Petrona – 1470-07 Nora Simpson
• Hampel, Anne – 1471-07 Norma MacKenzie
• Hanna, Judy – 1472-07
• Hartwick, Elsie – 1473-07 Jessica S. Michael
• Hedrich, Glenn V. – 1474-07
• Heyer, Kristi – 1475-07 Carl Symondson
• Hilborn, Gerald – 1476-07
• Hillier, Lanny - 1477-07 Carl Symondson
• Hird, Donna – 1478-07 Nora Simpson
• Hormuz, Sara – 1479-07
• Hunchuck, Suzanne – 1480-07
• Ibbotson, Brenda – 1481-07 Jessica S. Michael
• King, Randy – 1482-07
• LaFranchise, June – 1483-07
• Lawrence, Mary – 1484-07 Deborah Kehler
• LeFebvre, Diane – 1485-07 Georgina Watts
• Locke, Richard – 1486-07 Nora Simpson
• Lutynski, Judy – 1487-07 Jessica S. Michael
• MacDonald, Debbie – 1488-07
• MacDonald, John by his litigation guardian Debbie MacDonald – 1489-07
• Mahaney, Margaret - 1490-07 Nora Simpson
• Manke, Carole – 1491-07
• Marin, Anne – 1492-07 Laura J. Hunter
• Martel, Robert – 1493-07 Stuart Bailey
• McNeil, Neil – 1494-07 Jessica S. Michael
• Molto, Vanessa – 1495-07 Nora Simpson
• Nelson, Andrea – 1496-07
• Ninni, Angela – 1497-07 Nora Simpson
• Pear, Rosalynn – 1498-07 Deborah Kehler
• Penner, Sandra – 1499-07 Stuart Bailey
• Petit, Jamie – 1500-07 Laura J. Hunter
• Pietrobon, Jessica by her litigation guardian Rosemary Pietrobon – 1501-07 Vicki Doidge
• Ray, Patricia – 1502-07
• Remus, Colleen – 1503-07 Laura J. Hunter
• Ricker, Shawn – 1504-07 Seana Moorhead
• Romano, Clara – 1505-07 Seana Moorhead
• Sauve, Julie – 1506-07 Susan Campbell
• Scrutton, Amy – 1507-07 Jessica S. Michael
• Seguin, Raymond – 1508-07 Stuart Bailey
• Sizer, Doug – 1509-07 Jessica S. Michael
• Smith-Reeve, Wendy – 1510-07 Andrew C. Bolter
• Snow, Clarence – 1511-07 David Balderston
• Stapley, Francis – 1512-07 Jessica S. Michael
• Tessier, Victor – 1513-07 Stuart Bailey
• Tilling, Randy – 1514-07 Nora Simpson
• Tursa, Ella – 1515-07
• Vermeulen, Angela – 1516-07 Nora Simpson
• Wickham, Deborah – 1517-07
• Wray, Lorena – 1518-07 Jessica S. Michael
• Yurke, Gregory – 1519-07