Ganovsky v. Rygiel Supports for Community Living, 2013 HRTO 1863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Ganovsky, as represented by her Litigation Guardian, Nancy Gendron

Applicant

-and-

Rygiel Supports For Community Living

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 6, 2013

Citation: 2013 HRTO 1863

Indexed as: Ganovsky v. Rygiel Supports for Community Living

WRITTEN SUBMISSIONS

Lisa Ganovsky, Applicant ) Nancy Gendron, Litigation Guardian

Rygiel Supports For Community ) Richard A. Wallenreiter, Counsel Living, Respondent )

1This is an Application filed under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services on the basis of disability and family status.

2This Application was filed by Nancy Gendron as the representative for her sister Lisa Ganovsky. Ms. Gendron states that Ms. Ganovsky does not have legal capacity to conduct this litigation on her own behalf.

3On May 30, 2013, and September 12, 2013, the Tribunal issued Case Assessment Directions (“CADs”) directing Ms. Gendron to provide further information in order to confirm whether or not she can act as a litigation guardian for Ms. Ganovsky.

4On September 30, 2013, Ms. Gendron filed a Request for an Order During Proceedings (“RFOP”) seeking to be appointed as litigation guardian. The RFOP states that Ms. Ganovsky is developmentally disabled and unable to participate in the Tribunal’s process. The RFOP notes that Ms. Ganovsky was cared for by her father, who passed away in 2002, after which Ms. Gendron became the executor of her father’s will and took on responsibility concerning Ms. Ganovsky. Alena Gabel, Ms. Ganovsky’s and Ms. Gendron’s mother, provided a supporting letter. In this letter, Ms. Gabel confirms Ms. Gendron has been taking care of Ms. Ganovsky’s needs since 2002.

5On October 15, 2013, the respondent filed a response opposing the RFOP. The respondent argues that Ms. Gendron has not been appointed by the court to serve as Ms. Ganovsky’s litigation guardian. The respondent also disputes Ms. Gendron’s and Ms. Gabel’s involvement in Ms. Ganovsky’s care.

DECISION

6Rule A10 of the Social Justice Tribunals Ontario (“SJTO”) Common Rules, found in Part 1 of the Tribunal’s Rules of Procedure, sets out the process by which a person may apply to the Tribunal to be a litigation guardian for an individual who lacks mental capacity to participate in the Tribunal’s proceedings. In the context of a Tribunal application, the term “mental incapacity” means the proposed applicant cannot understand information needed to make decisions about the case or cannot understand the consequences of such decisions. See SJTO Practice Direction on Litigation Guardians.

7Rule A10 states that a proposed litigation guardian must file Form 4B, a signed declaration confirming:

a. the litigation guardian's consent to serve in this role;

b. the nature of the litigation guardian's relationship to the person represented;

c. reasons for believing that the person is not mentally capable of participating in the proceeding;

d. the nature and extent of the disability causing the mental incapacity;

e. that no other person has authority to be the person’s litigation guardian in the proceeding;

f. that any person who holds power of attorney or guardianship for the person for other matters has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians;

g. that the litigation guardian has no interest that conflicts with the interests of the person represented;

h. an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and

i. that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

8The respondent’s submissions appear to question Ms. Gendron’s and Ms. Gabel’s commitment to Ms. Ganovsky’s care. The respondent also raises the issue that Ms. Gendron has not been duly appointed by the court as her sister’s litigation guardian. In Yuill v. Canadian Union of Public Employees, 2011 HRTO 126, the Tribunal found that it has the power to appoint a litigation guardian for the purpose of conducting a Tribunal application on behalf of a person under a legal disability, where the proposed litigation guardian is willing to take on this role. It is, therefore, not necessary that Ms. Gendron make an application to the court to be appointed a litigation guardian for the purposes of this proceeding.

9Rule A10 came into force after Ms. Gendron filed her RFOP. Prior to this Rule, persons seeking to be appointed a litigation guardian were required to file a Request for Order during Proceeding making a request to be appointed by the Tribunal as a litigation guardian. With the creation of this new Rule, a specific declaration form, Form 4B, must be filed by the individual indicating the basis for them to serve as a litigation guardian on behalf of a party in the Tribunal process. Rule A10.5 eliminates the need for the Tribunal to issue an order appointing the litigation guardian where the litigation guardian files a complete Form 4B declaration.

10The RFOP and supporting letter confirm that Ms. Ganovsky has, for her whole life, been developmentally disabled. The respondent does not dispute that Ms. Ganovsky lacks capacity to conduct this litigation or to consent to an application being brought on her behalf under section 34(5) of the Code. As such, the only way an application can be filed with the Tribunal regarding Ms. Ganovsky’s concerns is through a litigation guardian. Ms. Gendron is Ms. Ganovsky’s sibling and the executor of their father’s will. Given this relationship, as well as the fact there does not appear to be any other person who has power of attorney or guardianship regarding Ms. Ganovsky’s affairs, I find that, subject to filing Form 4B, Ms. Gendron may act as litigation guardian for Ms. Ganovsky.

11I draw the Ms. Gendron’s attention to Rules A10.8 and A10.9 which set out the responsibilities of and restrictions on litigation guardians in participating in a Tribunal proceeding:

A10.8 A litigation guardian shall diligently attend to the interests of the person represented and shall take all steps necessary for the protection of those interests including:

a. to the extent possible, informing and consulting with the person represented about the proceedings;

b. considering the impact of the proceeding on the person represented;

c. deciding whether to retain a representative and providing instructions to the representative; and

d. assisting in gathering evidence to support the proceeding and putting forward the best possible case to the tribunal.

A10.9 No one may be compensated for serving as a litigation guardian unless provided for by law or a pre-existing agreement.

12I draw the parties’ attention to Rule A10.7, which contains the reasons a party may request, at any time during the proceeding, that the Tribunal remove a litigation guardian:

Upon review of the declaration, or at any later time in the proceeding, the Tribunal may refuse or remove a litigation guardian on its own initiative or at the request of any person because:

a. the litigation guardian has an interest that conflicts with the interests of the person represented;

b. the appointment conflicts with the substitute decision making authority of another person;

c. the person has capacity to conduct or continue the proceeding;

d. the litigation guardian is unable or unwilling to continue in this role;

e. a more appropriate person seeks to be litigation guardian; or

f. no litigation guardian is needed to conduct the proceeding.

13The submissions made by the respondent do not appear to support the existence of any basis to refuse Ms. Gendron’s request to act as a litigation guardian for her sister. The respondent does not dispute that Ms. Ganovsky is mentally incapable of pursuing this Application, nor does the respondent assert that there is a conflict of interest that is a barrier to Ms. Gendron acting as litigation guardian. As previously noted, the respondent’s objection appears to be that Ms. Gendron has not been actively involved Ms. Ganovsky’s life. Should the respondent become aware, at a later date, of circumstances that constitute a barrier to Ms. Gendron acting as a litigation guardian that would support her removal (e.g., a conflict of interest), the respondent can bring a request in accordance with Rule A10.7

ORDER

14Within 14 days of the date of this Interim Decision, Ms. Gendron is directed to file with the Tribunal, copied to the respondent, a Form 4B with her original signature. Upon receipt of a complete and originally signed Form 4B, Ms. Gendron may act as litigation guardian for the applicant in this Application.

15I am not seized of this case.