Khagram v. Ontario (Attorney General), 2009 HRTO 1874

Human Rights Tribunal of Ontario

BETWEEN:

Hasit Khagram by his litigation guardian, Suniti Shah Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General, Louise Stratford, Darrell Dauphney, Robert Jarecki, Shelly Hobbs, Jill Steinman and Marnie Gibson Respondents

AND BETWEEN:

Hasit Khagram by his litigation guardian, Suniti Shah Applicant

-and-

Bethesda Homes, Wanda Smith, Thomas Zeyl, F. Barerra, Bruce Linder, Sharon Forgeron and Leslie McKay Respondents

Interim DECISION

Adjudicator: Kaye Joachim Date: November 4, 2009 Citation: 2009 HRTO 1874 Indexed as: Khagram v. Ontario (Attorney General)

1The complaints underlying the present Applications were filed with the Ontario Human Rights Commission on June 27, 2008 by Suniti Shah, the applicant’s mother, as the litigation guardian for the applicant. The applicant is an adult with severe developmental disabilities.

2The applicant has resided at Bethesda Homes since December 2000. The Applications against Bethesda Homes (TR-0746-09) (the “Bethesda respondents”) and against the Attorney General (TR-0745-09) (the “PGT respondents”) are identical. They allege that the respondents discriminated against him on the basis of disability, creed and family status by, among other things, failing to provide adequate care, failing to respect his culture and religion and treating the applicant’s mother in an adversarial way.

3The respondents have raised several preliminary issues. This Interim Decision addresses Ms. Shah’s standing as litigation guardian to bring the Applications.

4The Bethesda respondents state that Ms. Shah lacks any standing to bring a human rights application on behalf of the applicant with respect to the care he receives at Bethesda. The PGT respondents also assert that Ms. Shah lacks standing to bring an application against it, with respect to their care decisions of the applicant.

5While section 34(5) of the Code specifically permits a person to apply on behalf of another person if the other person would have been entitled to bring an application and consents to the application, the evidence on the record is clear that the applicant lacks the capacity to give such consent.

6By Order dated July 31, 2000, the Superior Court appointed the PGT as guardian of the person of the applicant. There appears to be no restrictions or limitations on the Order.

7The Substitute Decisions Act, 1992, S.O. 1992, C. 30, as amended, provides that the person who has full guardianship of the person

may… be the person’s litigation guardian, except in respect of litigation that relates to the person’s property or to the guardian’s status or powers.

8In my view, the Court Order effectively gives the PGT full guardianship, except in respect of litigation that relates to the person’s property. In my view, these Applications are not litigation that relate to the applicant’s property. Accordingly, the PGT is the applicant’s litigation guardian and the only entity which may bring an application alleging breach of the applicant’s rights under the Code.

9While it is unlikely that the PGT would bring a human rights application against itself, this does not mean that the applicant’s human rights must necessarily go unprotected. It is open to the applicant’s mother, as she has already done, to seek to vary the Court Order for guardianship, on the basis that the PGT is failing to protect the applicant’s rights under the Code.

10In light of this ruling, it is unnecessary to resolve the other issues raised by the respondents.

ORDER

11The PGT as litigation guardian is directed to advise the Tribunal within 14 days of receipt of this Interim Decision, how it wishes to proceed with the Applications.