Dalton Yuill v. Canadian Union of Public Employees, 2011 HRTO 126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dalton Yuill

Applicant

-and-

Canadian Union of Public Employees

Respondent

-and-

ARCH Disability Law Centre

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 18, 2011

Citation: 2011 HRTO 126

Indexed as: Yuill v. Canadian Union of Public Employees

appearances

Cathy Yuill, proposed litigation guardian ) M. Kate Stephenson, Counsel for Dalton Yuill, Applicant )

Canadian Union of ) Peter Engelmann, Counsel Public Employees, Respondent ) )

ARCH Disability Law Centre, Intervenor ) Kerri Joffe, Counsel

INTRODUCTION

1This Interim Decision determines that the Tribunal has the power to appoint a litigation guardian to conduct a Tribunal Application on behalf of a person under a legal disability, when the proposed litigation guardian is willing to take on this role. Following a further hearing, the Tribunal will decide whether, in the circumstances of this case, Cathy Yuill should be appointed litigation guardian for Dalton Yuill.

BACKGROUND

2As in Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that picketing by the respondent union during a legal strike at a Community Living group home violated the applicant’s Code rights. It is undisputed that Dalton Yuill does not have legal capacity to conduct this litigation on his own behalf and his sister seeks to be his litigation guardian. She asks that the Tribunal make such an order.

3CUPE is not opposed in principle to the Tribunal doing so, but Mr. Engelmann, on its behalf, outlined how previous caselaw is inconsistent with such a power. However, CUPE takes the position that in the particular circumstances of this case, Ms. Yuill should not be appointed litigation guardian.

ANALYSIS

4Minors under the age of 18 years and adults who are mentally incapable of appointing a person to bring an application under s. 34(5) of the Code must participate in Tribunal applications through person who makes decisions on their behalf. There is no question that the Superior Court of Justice can appoint a litigation guardian for a party to a Tribunal application, under the Court’s parens patriae jurisdiction, on an Application made under Rule 38 of the Rules of Civil Procedure. The question I must decide is whether the Tribunal also has this power.

5The Tribunal has the power to control its own process and determine its procedures. Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), gives the Tribunal the “power to determine its own procedures and practices” and to “make orders with respect to the procedures and practices that apply in any particular proceeding”. Section 43 of the Code states that the Tribunal “may make rules governing the practice and procedures before it”. Rule 1.7(w) gives the Tribunal the power to take actions that it determines are appropriate in a particular case. Do these powers include the jurisdiction to name a litigation guardian to conduct the Application on behalf of a person without legal capacity?

6I start with the Tribunal’s Practice Direction on Applications on Behalf of Another Person, which summarizes the Tribunal’s past practice as follows:

Applications on behalf of another person can be made in two ways under section 34(1) of the Human Rights Code.

Traditionally the HRTO has permitted the parent or legal guardian of a minor to participate as a Next Friend. A Next Friend can also include a person with legal custody, a court appointed guardian of the minor's property under the provisions of the Children's Law Reform Act, or the Children's Lawyer.

A section 34(1) application may also be filed by a Litigation Guardian or a Substitute Decision-Maker on behalf of a person who lacks legal capacity to apply on their own behalf. A Litigation Guardian may be appointed by the Superior Court of Justice. A Substitute Decision-Maker is someone with a continuing power of attorney, or is a court-appointed or statutory guardian of property under the Substitute Decisions Act.

The applicant argues that, in allowing a person with legal custody to be next friend or litigation guardian for their children, the Tribunal implicitly assumes the power to appoint a litigation guardian. There is no statute that specifically gives such persons the power to act as next friend, and, in the civil context, they must be appointed in the same manner as a litigation guardian for a person who is mentally incapable: see Rule 7 of the Rules of Civil Procedure.

7In two recent cases, the Tribunal has dealt with issues of legal capacity. In Romanchook v. Garda Ontario, 2009 HRTO 1077, the Tribunal had strong reasons to believe that the applicant did not have capacity to conduct the litigation without a litigation guardian. As there was no one proposing to be the litigation guardian and the Tribunal does not have the power to require the Public Guardian and Trustee to act as litigation guardian, the Tribunal suspended its process. At para. 56, the Tribunal specifically noted that there was no need to determine the issue that arises in this case, whether the Tribunal has the power to appoint a litigation guardian or whether this must be done through a Court application.

8In Kacan, supra, the Tribunal held that s. 34(5) of the Code, which allows an Application to be brought on behalf of another person, can be used by a person who has the legal capacity to bring and withdraw an Application and to delegate the power to make other decisions, even if he or she does not have the capacity to make every decision about the Application.

9Three earlier decisions, Clark v. Toshack Brothers (Prescott) Limited, 2003 HRTO 27, Lang v. Ontario (Community and Social Services), 2005 HRTO 5 and Arzem v. R. (Ontario), 2005 HRTO 11 suggest that the Tribunal does not have the power to name a litigation guardian, and that such an appointment must be made by the Superior Court of Justice. As I understand the Tribunal’s reasoning in Lang and Arzem, it found that the absence of specific provisions regarding the appointment of litigation guardians for administrative tribunal proceedings is a “gap” in the statutory scheme, which can only be filled by the exercise of the inherent jurisdiction of the Superior Court of Justice (see Lang at paras. 46-56 and Arzem at paras. 225-232). In Lang, the Tribunal held at para. 55 that the SPPA was not relevant to the issue. In Arzem, the Tribunal also reasoned that the Tribunal’s power to control its own process could not allow it “to enter the jurisdictional field that is reserved generally for Superior Courts”.

10I do not agree with the reasoning in the previous cases. As stated in Toussaint v. Ontario (Health and Long-Term Care), 2010 HRTO 2102 at paras. 22-26, the Tribunal should take a purposive, functional, and value-based approach to interpreting the powers in the SPPA and the Code. It should not focus its analysis on what historically fell under the inherent jurisdiction of the superior courts, but rather on the modern approach to statutory interpretation and the functional values embodied in the SPPA.

11In my view, the power to control its own process granted to the Tribunal in the SPPA and the Code gives it the power to appoint a litigation guardian to represent a party under a legal disability where that person is willing to do so. Naming a litigation guardian to make decisions on behalf of a person with a disability in the Tribunal’s process is a matter of procedure that falls under this power. While there is little authority on this issue, my interpretation of the Tribunal’s procedural powers is supported by the values in the SPPA, British Columbia case law, other tribunals’ case law and rules, the Code and international law.

12In Smythe (Guardian ad litem of) v. Bourgeois, 2008 BCSC 1847, the Court was dealing with the jurisdiction of the B.C. Provincial Court to appoint a litigation guardian for a minor. The Provincial Court is a statutory court without inherent substantive jurisdiction. There were no specific rules or legislative provisions that provided for the appointment of a litigation guardian in that Court. Citing with approval several previous judgments of the Provincial Court, the B.C. Supreme Court in Smythe found that the power to appoint a litigation guardian for a minor fell within the Provincial Court’s general jurisdiction over its procedure.

13The Ontario Rental Housing Tribunal (now the Landlord and Tenant Board), concluded in The Glenview Corporation (July 13, 1999, File Number EAL-06256) that its power to control its procedure gave it the power to appoint a litigation guardian in a proper case, as a result of its ability to control its process.

14The Financial Services Commission of Ontario (“FSCO”) has adopted rules on the basis that it has the power to appoint a litigation guardian. Section 10.5 of the Dispute Resolution Procedural Code allows FSCO to appoint a spouse, same sex partner or near relative to act on the party’s behalf. While no case has addressed an argument that this is outside the Commission’s jurisdiction, there is support in the fact that another tribunal has concluded, in exercising its rule-making authority, that it has such jurisdiction.

15This interpretation of the SPPA and Code is also favoured by the fact that Canada’s international human rights obligations require equal access to justice and mechanisms for persons with disabilities to exercise their legal capacity. As 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”.

16Article 13(1) of the United Nations Convention on the Rights of People with Disabilities (“Convention”), which has been ratified by Canada, reads as follows:

Article 13

Access to justice

1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

17The values of the Convention, the SPPA and the Code suggest an interpretation of this legislation that facilitates access to the Tribunal process for persons with disabilities while also providing appropriate safeguards to prevent abuse (see Article 12(4) of the Convention and Kacan, supra at paras. 24-25). The HRTO and other tribunals covered by the SPPA are designed to facilitate access to justice in a more informal, tailored and faster process than the courts. Requiring persons with disabilities that affect their capacity to commence a court process in order to access the administrative justice system would hinder that access for them. The Tribunal’s powers to determine its own procedures give it the power to appoint a litigation guardian.

18Having concluded that the Tribunal has the jurisdiction to appoint Ms. Yuill as litigation guardian, the next issue is how the Tribunal should make the decision in this case about whether to do so. The parties made extensive and thoughtful submissions about what the Tribunal’s general practice should be and what the factors should be in this decision. However, my task in this decision is more limited, as I must decide what to do in this case, where Ms. Yuill has provided an affidavit in support of her request, the respondent challenges Ms. Yuill’s appropriateness as a litigation guardian and there is no clear practice direction or set of rules on this issue.

19In these circumstances, the Tribunal will hold a hearing during which it will hear evidence and argument on the issue of whether Ms. Yuill should be appointed litigation guardian. This will allow the appropriate considerations to be addressed in a specific factual context, where the Tribunal has a full understanding of the respondent’s objections. At the hearing, Ms. Yuill shall testify and may supplement the affidavit she has already provided. Any other relevant witnesses may be called. The Registrar’s Office is requested to schedule a one-day hearing in Ottawa for this purpose.