Robyn Dalton v. Regional Municipality of York-York Region Transit (Mobility Plus), 2009 HRTO 22

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robyn Dalton

Applicant

-and-

Regional Municipality of York-York Region Transit (Mobility Plus)

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 9, 2009

Citation: 2009 HRTO 22

Indexed as: Dalton v. York (Regional Municipality)

1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this Interim Decision is to make case management directions with respect to a production dispute between the parties.

2The applicant alleges discrimination in services on the basis of disability. The applicant is a person with a cognitive disability. The respondent is a Regional Municipality which operates a public transit service, Mobility Plus, that provides services to residents who are unable to use conventional public transit due to a physical or functional disability. Access to these services are determined on a case by case basis according to criteria approved by the Regional Municipality.

3The applicant has been receiving door to door transit services to and from "approved day programs and employment" from the respondent but seeks general access to its transit services.

4The human rights complaint underlying this Application was settled with a number of agreements between the parties. Amongst other terms, the respondent agreed to continue to provide the applicant with door to door services to and from "approved day programs and employment". The settlement also allowed the applicant to appeal the denial of general access to Mobility Plus service to the Mobility Plus Eligibility Appeal Panel (the "Appeal Panel"). If the result of the appeal was not satisfactory to the applicant she would be entitled to proceed with her human rights complaint.

5The Appeal Panel was established by the Municipality to deal with appeals of denial of service by Mobility Plus. An Appeal Panel consists of a health care professional and a citizen representative of the disabled community, both appointed by the Regional Municipality. The third member of the Appeal Panel is the Manager of Mobility Plus.

6The Appeal Panel heard the applicant's appeal on May 29, 2008 and issued a decision on June 26, 2008 denying the appeal. The applicant would continue to receive door to door service to and from approved day programs and employment but not access to general transit services.

7Pursuant to the terms of the settlement made by the parties, the applicant re-opened her human rights complaint and then made her Application to the Tribunal pursuant to section 53(3) of the Code.

8The applicant seeks the notes taken by Appeal Panel members and any materials relied upon by the Panel members in coming to their decision. The respondent has refused to produce the requested material.

9Although the parties argued as if the request was for one kind of document, it seems to me that the applicant's requests comprise production of two quite different types of materials: the notes taken by members of the Appeal Panel during the course of the Appeal hearing; and materials provided to the Appeal Panel during the hearing.

10Rule 9.3 of the Rules of Procedure for applications under Section 53(3) requires that the parties provide all arguably relevant documents to each other, except where privilege is claimed.

11I am not satisfied that the Appeal Panel members' notes of the hearing are arguably relevant to the issues in dispute in this Application. The issue for resolution is whether or not the decision of the Appeal Panel and the criteria it was required to apply are discriminatory. It is the decision itself and not the manner in which it was made that is at issue. The applicant's reasons for seeking the notes might be relevant to an application for judicial review but not to the issues this Tribunal must decide. This request for production is refused.

12On the other hand, there may have been materials before the Appeal Panel that are relevant to the issues in dispute in this Application. The respondents state the criteria to be applied in determining entitlement to access Mobility Plus were considered by the Appeal Panel and have been provided to the applicant. Copies of any other documents or materials considered by the Appeal Panel not already been provided to the applicant must be delivered to her as soon as possible and, in any event, within five days of the date of this decision.