HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
G.M. by his litigation guardian J.M.
Applicant
-and-
Ariss Place Residential Care and Treatment,
Leisa Garniss-Marsh, and Vivien Pukarowski
Respondents
A N D B E T W E E N:
G.M. by his litigation guardian J.M. and J.M.
Complainants
-and-
Ontario Human Rights Commission
Commission
-and-
Waterloo Catholic District School Board,
Deb Zettel-Schmidt, Peter Gross and Roger Lawler
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: G.M. v. Ariss Place Residential Care and Treatment
WRITTEN SUBMISSIONS
G.M. by his litigation guardian J.M., ) M. Kate Stephenson, Counsel
and J.M., Applicant/Complainants ) )
Ontario Human Rights Commission ) Margaret Flynn, Counsel )
Ariss Place Residential Care and Treatment, ) Kathryn J. Bird, Counsel
Leisa Garniss-Marsh, and Vivien Pukarowski )
Waterloo Catholic District School Board )
Deb Zettel-Schmidt, Peter Gross, ) John W. Woon, Counsel
and Roger Lawler, Respondents )
INTRODUCTION
1The issue in this Interim Decision is whether J.M. can continue as the litigation guardian and next friend for her son, G.M. The respondents in Tribunal files HR-1553-08 and HR-1554-08, including Waterloo Catholic District School Board (the “Board”), take the position that she is not an appropriate litigation guardian. Although the respondents in Tribunal file 2009-02365-I do not take this position, it is evident that if J.M. is not an appropriate litigation guardian for her son in one case, that conclusion must apply to the other. Accordingly, this Interim Decision relates to both cases.
BACKGROUND
2These proceedings were suspended in October 2009, when the Children’s Aid Society of the Regional Municipality of Waterloo obtained interim custody of G.M. and sought permanent wardship. Over the objection of J.M., the Tribunal suspended proceedings pending the resolution of the child protection matters for the following reasons, set out in G.M. v. Ariss Place Residential Care and Treatment, 2009 HRTO 1729, at paras. 9 and 10:
In my view, the Court’s decision about who will have permanent custody of the child will be an important factor in determining whether J.M. should be litigation guardian in these proceedings. Equally significant is the fact that J.M. and the Society are currently engaged in litigation in which they are taking different positions about the best interests of the child and whether J.M. should lose parental rights. In my view, this ongoing litigation is a significant factor in deciding whether either J.M. or the Society has the necessary absence of conflict of interest to be litigation guardian at this time.
These circumstances – the uncertainty over permanent custody and the ongoing litigation – should not affect the final determination of whether J.M. should be replaced as litigation guardian. I find that the negative effects of any delay are outweighed by the child’s, the parties’ and the public interest in ensuring that these temporary factors do not affect the important final decision over whether J.M. can remain litigation guardian, which may well affect whether the matters continue and the course of the proceedings generally.
3Ms. M. has now regained custody of her son. There was a supervision order in favour of the Children’s Aid Society in place, which was terminated in January 2012.
4The Board takes the position that J.M., who is still not represented by counsel in the proceeding against it, should not be permitted to continue this matter as G.M.’s litigation guardian given what has transpired with the child protection proceedings. It submits that the appearance of impropriety is sufficient to disqualify J.M. from continuing this proceeding and making decisions on behalf of G.M. respecting issues that must be made through a hearing and/or mediation process. It states that there is a conflict between J.M.’s personal interest and G.M.’s personal interest in view of all that has transpired over the years. It submits that it would be adverse to the integrity of the Tribunal process to permit J.M. to pursue these complaints ostensibly on behalf of G.M. but which in reality to validate her conduct with educators and caregivers.
5The Tribunal’s Practice Direction on Applications on Behalf of Another Person states as follows:
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.
6The current practice direction establishes a presumption that parents are an appropriate litigation guardian or next friend. However, where there is a conflict of interest a parent, like any other proposed litigation guardian, cannot act.
7The analysis of whether there is a conflict of interest is discussed in Yuill v. Canadian Union of Public Employees¸ 2012 HRTO 366, released concurrently. In that case the Tribunal stated as follows at para. 3:
Neither the possibility that the litigation guardian has an additional interest furthered by the litigation nor hypothetical differences in interest should lead to disqualification.
8At paras. 4-7, the Tribunal held:
A 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.
Gronnerud 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.
Other 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. ln 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 father sought an order removing the mother as litigation guardian. 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).
In 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.
9The authorities require that there be a clear and demonstrated conflict of interest, rather than just a potential for conflict. There is no conflict in these cases, in particular now that J.M.’s involvement with the Children’s Aid Society and the child protection system is concluded, and no conduct that suggests that J.M. has a conflict of interest with her son. J.M. should continue to be the litigation guardian. Given, among other things, the Commission’s active involvement, in my view there is no reason that in the Commission-referred cases Ms. M. should be required to retain counsel at this time.
NEXT STEPS
10Before proceedings in the Commission-referred cases against the Board were suspended, the parties were in the process of arguing preliminary matters before Vice-chair Alan Whyte. Mr. Whyte is no longer a member of the Tribunal, and the case will be assigned to a new adjudicator. The Registrar will schedule a case management conference with the new adjudicator to determine the next steps.
11In the s. 34 Application, the respondents argue that it is important to clarify the scope of the allegations in light of the changed circumstances since it was filed. I agree. The applicant is directed to deliver and file a proposed revised Application within three weeks of the date of this Interim Decision. Among other matters, the applicant is urged to consider whether the naming of individual respondents is necessary in the circumstances. The respondents are directed to deliver and file a proposed revised Response, including any objections to the proposed amendments, within six weeks of the date of this Interim Decision. The applicant may deliver and file a reply within eight weeks of the date of this Interim Decision. If all parties agree to mediation, the matter will be scheduled for mediation. If not, the Tribunal will then give further directions at that time about the next steps.
12I am not seized.
Dated at Toronto, this 22nd day of February, 2012.
“Signed by”
David A. Wright
Associate Chair```