HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lynn Korevaar on behalf of Barbara Kacan Applicant
-and-
Ontario Public Service Employees Union Respondent
INTERIM DECISION
Adjudicator: David A. Wright Date: April 12, 2010 Citation: 2010 HRTO 795 Indexed as: Kacan v. Ontario Public Service Employees Union
APPEARANCES
Lynn Korevaar on behalf of Barbara Kacan, Applicant Kate Stephenson, Counsel
Ontario Public Service Employees Union, Respondent Nick Coleman, Counsel
INTRODUCTION
1This Application was brought under s. 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), by Lynn Korevaar on behalf of Barbara Kacan. Ms. Kacan lives in Tillsonburg, together with other persons with intellectual disabilities, in a house where support services are provided by Community Living Tillsonburg ("CLT"). The Ontario Public Service Employees Union ("OPSEU") represents a bargaining unit of CLT employees that includes individuals who work at Ms. Kacan's home. In late July and early August 2007, members of the bargaining unit engaged in a legal strike against their employer and conducted picketing at the home. The Application alleges that, given all the circumstances, the picketing had the effect of discriminating against Ms. Kacan on the basis of disability.
2This Interim Decision results from issues raised by the respondent about Ms. Kacan's capacity. Based on various assertions about Ms. Kacan's disability made in the Application and communications by the applicant with the Tribunal, the respondent argues that the Tribunal should inquire further into this issue to determine whether a litigation guardian must be appointed for Ms. Kacan. It asserts that if Ms. Kacan is not mentally capable of making decisions regarding all issues that might arise in her Application, she must have a litigation guardian. The applicant takes a different position about the decisions Ms. Kacan must have the capacity to make. She asserts that the issue of capacity must be considered in light of the process of making an application "on behalf of another" under s. 34(5) of the Code. She argues that the decisions that must be made by the claimant in such a case are different than for an applicant under s. 34(1), and that there is a more limited set of decisions for which Ms. Kacan must have capacity. Counsel for the applicant argues that there is no reason to inquire further into the issue of Ms. Kacan's capacity.
3This Interim Decision addresses the issue of what decisions Ms. Kacan must have capacity to make, given that the Application was brought on her behalf by Ms. Korevaar under s. 34(5). By agreement of the parties, following this decision, the Tribunal will hear further submissions on whether, in light of these principles and the facts of this case, the Tribunal should inquire further into this issue.
ANALYSIS
Applications on Behalf of Another Under s. 34 (5)
4My analysis commences with a discussion of the interpretation of s. 34(5), and then considers how that interpretation bears on the issue of the capacity of persons on whose behalf an application is made under that section.
5Section 34(5) is a new provision of the Code, which was added as part of the extensive amendments that took effect on June 30, 2008. The relevant portions of s. 34 read as follows:
(5) A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,
(a) would have been entitled to bring an application under subsection (1); and
(b) consents to the application.
(6) If a person or organization makes an application on behalf of another person, the person or organization may participate in the proceeding in accordance with the Tribunal rules.
(7) A consent under clause (5)(b) shall be in a form specified in the Tribunal rules.
(8) An application under subsection (5) shall be made within the time period required for making an application under subsection (1).
(9) Subsections (2) and (3) apply to an application made under subsection (5).
(10) An application under subsection (5) may be withdrawn by the person on behalf of whom the application is made in accordance with the Tribunal rules.
6Section 36 sets out the "parties" to an application as follows:
The parties to an application under section 34 or 35 are the following:
In the case of an application under subsection 34(1), the person who made the application.
In the case of an application under subsection 34(5), the person on behalf of whom the application is made.
In the case of an application under section 35, the Commission.
Any person against whom an order is sought in the application.
Any other person or the Commission, if they are added as a party by the Tribunal.
7I begin by addressing the issue of terminology. It would, for obvious reasons, be helpful to have terms that concisely describe the person or organization making the application on another's behalf under s. 34(5) and the person on whose behalf the application is brought. The person bringing the application on behalf of the other person should be identified as the applicant. As discussed in detail below, as the delegate of the person whose rights have allegedly been infringed, this person has the responsibility to file the application, make submissions, and take other steps required of participants in the Tribunal's process. Of course, the use of the word "applicant" in Tribunal rules, policies, or jurisprudence may not apply in a particular circumstance to a person making an application on behalf of another under s. 34(5), but the context will generally make this clear. The person whose rights have allegedly been infringed, on whose behalf the application is brought, should be called the "claimant", to identify him or her as the person whose rights have allegedly been violated. Therefore, in this Application, Ms. Kacan is the claimant and Ms. Korevaar is the applicant.
8In considering the interpretation of s. 34(5), I am guided by the contextual approach to statutory interpretation in which statutes are interpreted in "their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58.
9In my view, the Legislature must have intended that the role of a person making an application on behalf of another be different from that of a representative. Under the Law Society Act, R.S.O. 1990, c. L.8 and the by-laws of the Law Society of Upper Canada, a person can be represented in administrative proceedings by a lawyer, paralegal, or an exempted person, including an unpaid friend (see generally, with regard to Tribunal proceedings, Hansen v. Toronto (City), 2010 HRTO 13). The Legislature chose to provide that a person or organization could make an application on behalf of another person, and participate in accordance with the Tribunal's Rules. The inclusion of this provision, and the language used, suggests a different role as a participant in the process than that of a representative.
10While s. 34(5) is new, the principle of a person or organization pursuing the rights of others in human rights litigation is not. Under the Code as it read prior to June of 2008, the Ontario Human Rights Commission became a party to a complaint that it referred to the Tribunal together with the complainant and respondent, and generally took a position supporting the complaint. Moreover, unions have often pursued human rights claims in the workplace on behalf of bargaining unit members through the grievance and arbitration process. The union, and not the individual, is the party in such circumstances.
11The applicant notes that s. 34(5) was adopted following representations by various groups about the proposed Code amendments. They suggested that a provision of this kind would promote accessibility to the Tribunal's process by enabling groups and other individuals to pursue complaints on behalf of applicants who may be unable to do so because of vulnerability or disadvantage which makes it difficult for them to take all the steps in an application on their own behalf.
12In my view, the purpose of s. 34(5) is to promote the accessibility of the Code's processes. It allows an individual to delegate to another individual or organization the ability to take the steps in the Tribunal's process on his or her behalf, for whatever reason he or she believes that this is the best way of pursuing his or her Code rights.
13The Code specifically provides that the consent must be given in a form specified by the Tribunal Rules and can be revoked. In specifying these particular actions by the claimant, it is implicit that other steps in the process can be taken on the person's behalf by the applicant. The claimant remains the "party", among other reasons because remedies can only be ordered under s. 45.2 in favour of a "party" to the application whose rights are found to have been infringed.
14In my view, the applicant under s. 34(5) may take any steps in the application, subject to the right of the claimant to withdraw the application or request that the applicant no longer pursue the application on his or her behalf. The claimant has delegated to the applicant the power to make the decisions in the Tribunal process. Where appropriate, decisions should be made by the applicant together with the claimant and with respect for his or her wishes, which is how Ms. Kacan and Ms. Korevaar intend to conduct this application. Moreover, the claimant may well need to appear at the hearing and testify. However, the section provides for a general delegation of the power to conduct the application, and the person bringing the application on the claimant's behalf takes on the obligations of the applicant under the Tribunal's process.
Capacity
15As discussed in Romanchook v. Garda Ontario, 2009 HRTO 1077 at paras. 32-29, there are no specific provisions governing the conduct of proceedings in administrative tribunals where individuals may not have the mental capacity to make decisions in the litigation. The Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended, allows for the appointment of guardians of property and personal care, where a person does not understand the information relevant to making decisions about such matters or does not understand the reasonably foreseeable consequences of a decision or lack of decision about such matters. Unlike in the courts, there are no statutes specifically conferring on tribunals the power to appoint substitute decision makers for the purpose of their proceedings.
16The law presumes that adults have capacity: Perino v. Perino (2008), 2008 CanLII 11048 (ON SC), 52 R.F.L. (6th) 341, at para. 26 (Ont. S.C.J.). Whether an individual has capacity depends upon the particular decision being made. As explained by Benotto J. in Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON CTGD), 32 O.R. (3d) 281 at paras. 54-55 (Gen. Div.):
A person's right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:
Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.
The courts have recognized these varying levels of capacity. Birkert L.J. said there "can be no doubt there are degrees of capacity": Park v. Park, [1953] 2 All E.R. 1411 at p. 1434. [1954] P. 112 (CA).
17Decisions about litigation generally require a relatively high level of capacity. As noted in Calvert at para. 36:
There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.
18The question is this case is whether, given the nature of an application under s. 34(5), the claimant must have capacity to understand all decisions regarding the litigation and the instruction of counsel or rather, a more limited set of decisions. In my view, the application of the common law principles discussed above suggests that the claimant need not have capacity to make all decisions in the litigation, but only those that the claimant must make in all cases: the delegation of the power to pursue an application under s. 34(5) and the withdrawal of the application.
19This follows from s. 34(5) and the basic principles of legal capacity. Capacity must be considered in relation to the specific decisions that a person must make. Under s. 34(5), the decisions to commence an application, delegate the power to pursue it, and terminate it through withdrawal are separated from those regarding the conduct of the litigation. The Legislature intended to create different roles for the claimant and applicant in a s. 34(5) application, and in my view, the capacity required relates to the particular decisions that each makes within this scheme. It would not be consistent with the principles summarized above, and the requirement that interference with self-determination be as minimal as possible, to require that the claimant have capacity to make decisions that, under the statutory scheme of s.34(5), he or she is not required to make.
20The respondent argues that where a claimant may not have capacity to make all decisions in the litigation, he or she is not "entitled" to bring an application within the meaning of s.34(5)(a), and therefore the applicant cannot bring the application on his or her behalf. It suggests that understanding the consequences of decision to commence or withdraw an application requires an understanding of all the issues and particular decisions that arise in the course of litigation. It relies upon paras. 52 and 53 of Romanchook, supra, in which the Tribunal stated as follows:
The paralegal suggested that I should not be concerned about the applicant's potential lack of capacity because he is capable of making decisions about where he wants to be placed, and the paralegal is fully aware of his wish to be placed at Huron Lodge. Instructing a representative in litigation, however, is not just about the ultimate end a person wishes to achieve, but rather making the many decisions that must be made through a hearing and/or mediation process. These include, for example, considering settlement offers, evaluating risks and costs, and, in this case, deciding who will be his representative in light of the allegations against the paralegal.
The paralegal also argued that the only time a party's capacity is relevant is at the time an Application to the Tribunal is commenced, arguing for a very literal interpretation of the Tribunal's Practice Direction on Applications on Behalf of Another. This is inconsistent with the fundamental principles of the law of capacity, and of the ethical principles he is bound to in the Law Society of Upper Canada's Paralegal Rules of Conduct.
21In Romanchook, however, the Tribunal was not considering an application made pursuant to s. 34(5). The comments were directed to the capacity required of the person who must make day-to-day decisions in litigation and instruct a representative in this regard. They do not address the specific situation of a claimant in a s. 34(5) application. Moreover, I do not agree with the respondent that decisions about the commencement or withdrawal of an application, and about who will be delegated the power to pursue it, require an understanding of all of the other, more complex decisions that arise along the way. In my view, so long as a claimant understands the information relevant to making decisions to delegate the conduct of the litigation to the applicant and withdraw the application, he or she has sufficient capacity to sign the s. 34(5) consent and for the application to proceed on his or her behalf. The necessary understanding relates to the delegation to the applicant and the bringing or withdrawal of the application, and these decisions are different and often less complex than the making of detailed decisions in the course of the process. This is consistent with the approach in the Substitute Decisions Act, in which the definition of the capacity to give a power of attorney for property (s. 8) or personal care (s. 47). is different and less stringent than that of the capacity required to manage property (s. 6) or for personal care (s. 45).
22This approach is consistent with the basic values of both the common law and the Code, which promote an interpretation that would promote autonomy and dignity for people with disabilities. As noted in Calvert, common law principles regarding capacity favour self-determination wherever possible. This interpretation of s. 34(5) will allow persons who may not have the capacity to make the detailed decisions required in the human rights process to retain the ability to choose to commence the application, make decisions about who will pursue it on their behalf, and to withdraw it, and remain as a party claimant.
23As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 70, "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review". The values of autonomy, self-determination, and support for persons with disabilities in exercising legal capacity on their own are reflected in article 12 of the United Nations Convention on the Rights of People with Disabilities, which has been ratified by Canada. It reads, in relevant part, as follows:
Article 12 Equal recognition before the law
States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.
[Emphasis added.]
The principles of Article 12, in my view, also support the above interpretation.
24Of course, as Article 12, section 4 of the Convention recognizes, ensuring safeguards to ensure that the interests of persons with disabilities are protected is also a critical value. I agree with the applicant that the common law imposes fiduciary duties upon the applicant to act in the best interests of the claimant: see Galambos v. Perez, 2009 SCC 48 at paras. 48-86. There is a "power-dependency" relationship, a mutual understanding and implicit undertaking by the applicant to act in the best interests of the claimant, and the discretionary power to affect the claimant's legal or practical interests. A failure to act in accordance with those fiduciary duties may give rise to legal liability for the applicant.
25Moreover, in my view the Tribunal must, in appropriate cases, exercise its powers to remove a s. 34(5) applicant who may have a conflict of interest with the claimant or to make appropriate orders to ensure competent representation of the claimant's interests in accordance with the applicant's fiduciary duties to him or her. In this case, at this stage, where the applicant is represented by counsel, there is no reason for any concern in this regard and no need for the Tribunal to make any such order.
NEXT STEPS
26The parties agreed that this Interim Decision should address general principles regarding what decisions the claimant must have capacity to make, and that they would then address the question of whether the Tribunal should inquire further into Ms. Kacan's capacity. In view of the guidance provided in this Interim Decision, the parties are directed to file submissions setting out their position on whether the Tribunal should take any further steps regarding the claimant's capacity, and what such steps should be. The respondent shall file its submissions within two weeks of the date of this Interim Decision. The applicant shall reply within four weeks of the date of this Interim Decision. The respondent may reply within five weeks of the date of this Interim Decision. It is my intention to make the decision on the basis of the written submissions. If either party believes that further oral submissions are necessary, they should set out this position and their reasons for it in their written submissions.
Dated at Toronto, this 12th day of April, 2010.
"Signed by"
David A. Wright Interim Chair