HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Arthur Harrison
Applicant
- and-
Her Majesty the Queen in Right of Ontario as represented by the
Attorney General
Respondent
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Harisson v. Ontario (Attorney General)
APPEARANCES
John Arthur Harrison, Applicant ) Self-represented
Attorney General, Respondent ) Matthew Horner, Counsel
1John Arthur Harrison has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services on the basis of disability.
2The Tribunal ordered a summary hearing of the Application in a Case Assessment Direction (“CAD”) issued by the Tribunal on April 26, 2011.
Preliminary Issues
3Mr. Harrison asked if he could record the teleconference call. Counsel for the Attorney General did not object. I confirmed that the reason for the recording was to accommodate Mr. Harrison’s disability. On that basis, I allowed Mr. Harrison to record the proceedings. I also stated that any recording was for his personal use and was not to be considered as part of the record of the proceeding (rule 3.7 of the Tribunal’s Rules).
4At the beginning of the hearing, the applicant asked me if I was or had been a lawyer. It was his position that all lawyers were in a conflict of interest with regards to his ongoing litigation, because a successful lawsuit could result in higher insurance premiums for all lawyers. I asked him if he was seeking to have me disqualified from hearing this matter on the basis of a reasonable apprehension of bias. He stated that he was not, but seemed to suggest that he was reserving his right to raise the issue later. The respondent submitted that it was not practical to consider this a conflict of interest, since potentially all lawyers would be in a conflict of interest situation in all cases involving negligence claims.
5The test for assessing whether there is a reasonable apprehension of bias is an objective test: would a reasonable person, with full knowledge of the situation, think that the adjudicator could not decide the matter fairly: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC). Adjudicators who are lawyers licensed by the Law Society of Upper Canada do not pay insurance premiums. In addition, a reasonable person would not regard a potential increase in insurance premiums as creating an apprehension of bias on the part of a decision-maker. Also, any possibility of an increase in premiums is too remote to the present Application. A positive outcome of this Application is unlikely to directly result in an increase in premiums.
Therefore, there is no evidence before me to suggest there is any conflict of interest or that a reasonable person would conclude that I cannot impartially adjudicate such a case on the basis that I am a lawyer.
Background
6The applicant has been involved in litigation in the courts that originated with the sale of his family property in the 1980’s. Some of the litigation that has resulted includes negligence claims against a number of lawyers. The applicant has a visual disability.
7His Application relates to a court appearance on March 22, 2010. The Court heard his application for public funding of his ongoing litigation. The applicant alleges that he was forced into the Court hearing by the Attorney General “under duress”. He alleges that the Crown Attorney filed documents on his behalf with the Court. He alleges that he was denied his right to legal representation and was not provided with accommodation for his visual disabilities. The respondent denies that it “forced” the applicant into court. For the purposes of this summary hearing I do not need to decide on these disputed facts.
8The applicant also alleges that he was entitled to state-funded legal representation under 15.01 of the Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1). Rule 15.01 states that “a party to a proceeding who is under disability … shall be represented by a lawyer”. Rule 1.03 (1) provides the following definition:
“disability”, where used in respect of a person, means that the person is,
(a) a minor,
(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or
(c) an absentee within the meaning of the Absentees Act; (“incapable”, “incapacité”)
9The applicant filed an application for public funding to allow him to retain a lawyer with the Superior Court of Ontario. The Court ruled on his application on March 22, 2010: [2010] O.J. No. 2082. In his submissions to the court, the applicant relied on a number of grounds, including section 7 of the Charter of Rights and Freedoms. He also argued that Rule 15 grants a right to state funded counsel. The Court stated: “I disagree. Rule 15 creates no such requirement for public funding”.
10The applicant states in his Application to the HRTO that he is seeking a ruling from the Tribunal that “the definition of ‘disability’ in the Rules of Civil Procedure is not in compliance with the Human Rights Code, and that it must be to respect the rights of Ontario citizens in the justice system, and the Charter guarantee of equal access to justice.”
11The CAD set out the following issues for the summary hearing:
(i) Whether, to the extent that the Application relates to the actions of lawyers for an opposing party in a court action, such lawyers were providing a “service” within the meaning of s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In this regard, the applicant’s attention is directed to the Tribunal’s decisions in Cooper v. Pinkofsys, 2008 HRTO 390 and Crawford v. 2176534 Ontario, 2009 HRTO 1028
(ii) Whether there is a reasonable prospect that, as a matter of law, Rule 15.01 of the Rules of Civil Procedure is discriminatory. In this regard, I note that this rule requires that persons without mental capacity to represent themselves and on whose behalf decisions are made by a litigation guardian be represented by a lawyer in court proceedings (see related Rule 7 of the Rules of Civil Procedure).
(iii) Whether this Application should be dismissed pursuant to s. 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, on the basis that a Court has finally determined the issue of whether the applicant’s rights were infringed.
(iv) Whether this Application should be dismissed on the basis of the legal doctrines of abuse of process or collateral attack, on the basis that it challenges a ruling that has already been made by a court.
Submissions
12The respondent submitted that the applicant was attempting to re-litigate a finding of the Court (the March 22, 2010 decision). The Court considered and ruled on the applicant’s Rule 15 argument. This ruling was consistent with a previous decision of the Court: Re Weidenfeld, [2007] O.J. No. 4485. The courts have determined that Rule 15 creates no right to public funding for legal representation and this finding is binding on the Tribunal. The respondent submitted that the Application was an abuse of process and a collateral attack.
13The respondent submitted that counsel for an opposing party is not providing a “service” to the applicant within the meaning of the Code. Cooper v. Pinkofskys at para. 11.
14The applicant stated that it was not his intention to seek an order for the payment of legal costs. The purpose of his Application is to correct the serious legal error in the definition of disability in the Rules of Civil Procedure. If the Rules are brought into conformity with the Code, that would form the basis for payments of his legal costs in his litigation.
15The applicant disagreed with the conclusions of the Court in its decision on public funding of his legal costs. He stated, however, that he was not challenging the ruling of the Court in his Application.
16The applicant submitted that his disability needs to be accommodated in his litigation. He stated that he needs a trained lawyer with good vision to be able to participate in the litigation process.
17He also stated that the Crown Attorney assumed the position of his lawyer when it forced him into the hearing on March 22, 2010.
Analysis and Decision
18For the reasons set out below, I have dismissed the Application.
Rule 19A of the Tribunal’s Rules of Procedure reads as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.
19In Dabic v. Windsor Police Services, 2010 HRTO 1994, the Tribunal set out the following criteria in determining whether there was a reasonable prospect of success:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
20The applicant is alleging firstly that the crown attorney discriminated against him by “forcing” him into a court hearing and secondly, that the Rules of Civil Procedure (Rules 15.01 and 1.03) are discriminatory. I will address each allegation separately.
21The applicant alleges that the crown attorney “forced” him into a court hearing and that he objected to the scheduling of a hearing. He states that he required more time because of his visual disability. I find that it was the Court that ultimately set the hearing and it was open to the applicant to object to the scheduling of the hearing by seeking an adjournment.
22The crown attorney was not acting for the applicant. In litigation between parties, counsel for one party is not providing a service to the opposing party within the meaning of “services” under the Code: Cooper v. Pinkofskys, 2008 HRTO 390.
23The applicant is also alleging that Rules 15.01 and 1.03 of the Rules of Civil Procedure are discriminatory because the definition of “disability” is limited to individuals “mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992”. The applicant is of the view that a broader definition of disability under this Rule would provide him with a right to public funding for legal representation.
24In its March 22, 2010 decision, the Court rejected the applicant’s argument that he was entitled to public funding of his litigation. It is not clear from the decision if the applicant made the same argument before the Court as he is making before the Tribunal. However, even if he was successful in expanding the definition of disability to include physical disabilities, this would still not entitle him to public funding for his own lawyer. The Rule simply requires that those who fall under the definition of “disability” must have a lawyer represent them – it does not require that the state pay for that lawyer: see Weidenfeld, at para. 42.
25I do not need to address the issues of whether the Court has finally determined the matter (subsection 34(11) of the Code) or abuse of process and collateral attack.
26I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.
Dated at Toronto, this 15th day of November, 2011.
”signed by”
Ian R. Mackenzie
Vice-chair