Yuill v. Canadian Union of Public Employees, 2012 HRTO 366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dalton Yuill by his litigation guardian Cathy Yuill

Applicant

-and-

Canadian Union of Public Employees

Respondent

-and-

ARCH Disability Law Centre

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: February 22, 2012

Citation: 2012 HRTO 366

Indexed as: Yuill v. Canadian Union of Public Employees

APPEARANCES

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

Canadian Union of Public Employees, Respondent ) Peter Engelmann and Anne Gregory, Counsel

ARCH Disability Law Centre, Intervenor ) Tess Sheldon, Counsel

INTRODUCTION

1Dalton Yuill is a person with intellectual disabilities who lives in a Community Living group home. This Application alleges that picketing of the home by the respondent Canadian Union of Public Employees (“CUPE”) during a legal strike violated his Code rights. Mr. Yuill does not have legal capacity to bring the Application on his own behalf. In a previous Interim Decision (2011 HRTO 126), the Tribunal found that it had the power to appoint a litigation guardian for its proceedings. This Interim Decision is about whether Cathy Yuill, Dalton Yuill’s sister, should be appointed his litigation guardian. There is no dispute that Mr. Yuill does not have the capacity to conduct this Application on his own behalf.

2The respondent argues that Ms. Yuill has a conflict of interest and cannot be counted on to make decisions in Mr. Yuill’s best interest. It suggests that she has a level of hostility to the respondent and unions – an “anti-union agenda” – that makes her an inappropriate litigation guardian and that could conflict with her duties to Mr. Yuill.

3This is one of three Interim Decisions, released concurrently, in which respondents argue that family members should not be entitled to appear as litigation guardians because of a conflict of interest. See also G.M. v. Ariss Place Residential Care and Treatment, 2012 HRTO 367, and Barber v. South East Community Care Access Centre, 2012 HRTO 368. For the reasons that follow, my interpretation of the relevant court authorities is that a family member can be a litigation guardian unless there is a clear, demonstrated conflict of interest with the person under a legal disability. Neither the possibility that the litigation guardian has an additional interest furthered by the litigation nor hypothetical differences in interest should lead to disqualification. In this case, as in the others, I find that the proposed litigation guardian is appropriate.

ANALYSIS

4A litigation guardian must be qualified and prepared to act, with no conflict of interest in relation to the interests of the incapable adult. The absence of conflict of interest is sometimes described as “indifference” as to the outcome of the proceedings. As the Supreme Court explained in Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

5Gronnerud was an estate dispute. Two of Cherie Gronnerud’s four children sought to be her litigation guardians in an action for a greater share of her deceased husband’s estate, which would have decreased the share of one of the other children who had been left the majority of the estate. Ms. Gronnerud was an elderly woman with advanced Alzheimer’s disease. The result of a successful action would have been the sale of the family farm, which Ms. Gronnerud had expressed when she was well that she wished to keep intact. There would have been no benefit to her from the assets, but it would have resulted in a greater inheritance for the proposed litigation guardians, since Cherie’s estate would be split equally among the four children when she died. The children were found to have a conflict of interest, since a successful action would have resulted in direct financial gain for them at the expense of another close family member. In reaching this conclusion, the Court also relied upon the fact that there was a longstanding and acrimonious dispute between the children about their parents’ estate, and held that this acrimony meant that the necessary indifference was lacking.

6Other cases have found that a level of conflict and acrimony between the proposed litigation guardian and an opposing party may constitute a conflict of interest. In Fischer (Litigation guardian of) v. Balofsky, [2005] O.J. No. 2152 (Sup. Ct.), the mother was the litigation guardian for her son in an action for damages for personal injuries to her son, where the father was one of the defendants. At the same time, the mother and father were involved in a highly acrimonious family law action. The Court removed the mother as litigation guardian, finding, among other things, that there was a possibility that the acrimony that existed between the parents could adversely affect the mother's decisions during the course of the tort litigation. The Court cited evidence of "hostility" between the mother and the father in support of this finding. This "high level of acrimony" suggested to the Court that the mother "might well, consciously or unconsciously, not be as objective as she should be with respect to decisions that arise in the course of the litigation... " (para. 8).

7In a series of decisions since Gronnerud, the Ontario courts have held that it should not be applied so as to disqualify a prospective litigation guardian unless a clear conflict has been demonstrated. The criterion of “indifference” is the same as a requirement that there be no conflict of interest. In Chow v. Law, [2007] O.J. No. 1669 (S.C.), the Court held that where both the prospective litigation guardian and the dependent adult stood to benefit from the action, there was no conflict. The Court based its conclusion on the fact that it could not find that the proposed litigation guardian had acted contrary to the interests of the dependent adult. In Shemesh v. Goldlist, [2008] O.J. No. 1629 (S.C.), the Court held that more than a perception of conflict of interest is required; there must be some actual conduct or misconduct. It found that a “high level of distrust between the parties” did not exclude the possibility of appointing one person as a litigation guardian. These authorities were followed in Owen v. Owen, 2010 ONSC 2852, and Zabawskyj v. Zabawskyj, 2008 CanLII 19248 (ON S.C.). In my view, they represent the current state of the law in Ontario.

8The respondent argues that the Tribunal should conduct a relatively rigorous examination to safeguard against the dependent person’s name and circumstances being used to advance the agenda of another person that may not be in his or her interest. It states as follows in its written submissions:

In the same way that persons with disabilities have historically had their agency misappropriated by the state, which has taken action on their behalf and in their name without due recognition and respect for their autonomy and interests, the Tribunal must be alive to the possibility of abuse wherever an individual proposes to take legal action on another vulnerable individual's behalf.

9The respondent argues that Ms. Yuill has an “entrenched, historical acrimony towards unions, union members, and picketing generally” that makes her an inappropriate litigation guardian, since it suggests that she will be unable to separate her views of unions from Mr. Yuill’s best interests. It states that “Ms. Yuill seeks to act on behalf of her brother to advance her personal agenda of banning picketing - an activity she believes is wrongful, and criminal, perpetrated by unions, which lie and bully their members into participating in legal picketing.” It reaches this conclusion based on an incident in her past and what it says is a misguided and exaggerated response to the picketing in this case and her focus on the union’s role in the picketing, to the exclusion of management.

10During a 1991 strike in her workplace, Ms. Yuill crossed a picket line of the Public Service Alliance of Canada (“PSAC”), her bargaining agent. She was sued by the union when she was fined and refused to pay and it is evident that she strongly disagreed with the union’s approach to that strike and with its approach to her at that time and since. The Tribunal also heard considerable evidence about Ms. Yuill’s views and conduct during the CUPE strike at her brother’s home. The details of that evidence are, in my view, unnecessary to this Interim Decision, and to the extent there are discrepancies between the evidence of the different witnesses, there is no need to resolve them. It is evident that Ms. Yuill was angry at the union and the employees at her brother’s home as a result of the picketing and the strike, culminating in this Application. She felt that the strike and picketing had a very negative impact on her brother, and placed the blame on CUPE. She made very strong statements, both privately and publicly, that reflect her strong views. There is a legitimate perspective, taken by the union and its members, that her actions during the strike may not have been in the best interests of her brother. However, that is not the only possible perspective nor do Ms. Yuill’s different views suggest she has a conflict of interest with her brother or that she has taken a position that conflicts with his interests.

11The respondent suggests Ms. Yuill’s anger at the picketers and characterization of the union as having violated her brother’s rights is so misguided as to make her an inappropriate litigation guardian. It sees her view that CUPE has violated Dalton’s rights as so extreme that it can only be explained by her experiences with PSAC and it therefore infers an anti-union agenda unrelated to the particular circumstances of the picketing at the group home. I disagree. Ms. Yuill’s conflict with the union in her own workplace does not establish any “agenda” in this case separate from her view that the picketing was harmful to her brother. While that experience doubtless coloured the applicant’s world view, there is no evidence or reason to believe that the applicant stands to gain anything from this process unrelated to what she sees as her brother’s interests, or that she is using this process to further a political agenda unrelated to her brother. If this litigation is as misguided and without merits as the respondent suggests, then it will be dismissed in accordance with the Tribunal’s processes for dismissing cases that have no reasonable prospect of success. The test for conflict of interest should not become intertwined with an evaluation of the merits.

12Finally, I do not accept the respondent’s suggestion that simply because there is a high degree of acrimony between the proposed litigation guardian and the respondent, she is not an appropriate litigation guardian. The courts’ concern about acrimony causing conflict of interest in Gronnerud, Lodge, and Fischer related to conflict unrelated to the subject-matter of the litigation and advocacy on behalf of the dependent adult. These cases arose in the context of family disputes where the courts’ concern was that litigation on behalf of the dependent adult could be used on behalf of one side in that dispute. I do not believe it was the courts’ intention in this line of reasoning to mean that a person who has come into strong conflict with a service provider in advocating for their family member cannot be a proper litigation guardian.

13I find that there is no conflict of interest between Cathy Yuill and Dalton Yuill. She is appointed litigation guardian for this Application.

14The next steps in this Application are set out in a Case Assessment Direction sent to the parties with this Interim Decision.

15I am not seized.