James Lloy v. Diane Meikle, 2013 HRTO 741

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lloy Applicant

-and-

Diane Meikle Respondent

DECISION

Adjudicator: Naomi Overend Date: May 2, 2013 Citation: 2013 HRTO 741 Indexed as: Lloy v. Meikle

APPEARANCES

James Lloy, Applicant Sandra Dahir, Representative

Diane Meikle, Respondent Raj Anand, Counsel

INTRODUCTION

1This is an Application filed 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 the provision of services because of disability.

2By Case Assessment Direction dated October 5, 2012, the Tribunal scheduled this matter for a summary hearing. The hearing took place by conference call on February 20, 2013. The Case Assessment Direction noted that the summary hearing would address two issues:

1. Whether the allegations in the Application, if true, might reasonably be considered to amount to a Code violation.
2. Whether the substance of the applicant's allegations were appropriately dealt with, in whole or in part, by the October 7, 2011 settlement of the applicant's motion filed in Superior Court on June 22, 2011.

3The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent's version of one or more of the facts.

5The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

6Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

FACTUAL BACKGROUND

7Most of the allegations relied upon by the applicant appear in his Application. The applicant was assisted by his daughter at the Summary Hearing, and she was able to supplement the factual allegations in his Application.

8It is common ground between the parties that the applicant was a respondent in a matrimonial matter before the Superior Court of Justice Family Court Branch in London, Ontario. The respondent, Diane Meikle, was at the time the Supervisory Duty Counsel in the Family Court Duty Counsel Office in London.

9The applicant states that he is hard of hearing, which makes it difficult for him to understand what is going on in court. He was scheduled to attend a matter in court on September 28, 2010. Shortly before that date, his counsel got off the record and so he attended court on his own, without representation.

10When he arrived in court on September 28, 2010, the applicant alleges he asked who could assist him with arranging a "note taker" and was told by a person at the front desk to speak to duty counsel. The respondent states that, in fact, it is not the role of duty counsel to provide note takers or interpreters. The applicant was not aware of this, but does not dispute this fact.

11The applicant alleges that he was told by the respondent that a note taker would not be provided. He further alleges he was told nothing about requesting an adjournment, and so did not do so when he attended court after speaking with the respondent. The applicant alleges essentially the same conversation took place again between him and the respondent on January 17, 2011, when he returned to court.

12The respondent denies this version of events, but for the purpose of a summary hearing, I am only considering those facts either alleged by the applicant or, at least, not disputed by him.

13The applicant alleges that, as a result of attending court without representation or a note-taker, he did not understand the order of the presiding judge on September 28, 2010. He did not subsequently comply with this order and on January 17, 2011 hearing date, his "Answer" was struck and a summary hearing in his family law matter was ordered.

14Prior to the (family law) summary hearing taking place, the applicant retained counsel who brought a motion to reinstate his Answer. In the affidavit in support of the motion, the applicant repeated the allegations that appear in his Application to this Tribunal, although in greater detail. Prior to the motion to reinstate being heard on July 6, 2011, his counsel took action to get off the record.

15The applicant's daughter telephoned the respondent to ask her to attend court on the applicant's behalf to ask for an adjournment. After receiving confirmation of his instructions by fax, the respondent indeed appeared in court on July 6, 2011 and asked for the adjournment, which was granted. At the time, she was unaware of the contents of the affidavit in support of the motion. The applicant does not allege discrimination with respect to the respondent's actions on this date.

16On October 7, 2011, the applicant attended court to argue the motion and (family law) summary hearing. On that date, he settled the matrimonial matter with his former spouse. He states that he made an unfavourable settlement because of the legal position he was in vis-à-vis the struck Answer.

DECISION AND ANALYSIS

Abuse of Process, Section 45.1 and Section 34(11) of the Code

17The respondent asks that this matter be dismissed under s. 34(11) of the Code, s. 45.1 of the Code or under the doctrine of abuse of process. With respect to s. 34(11), the respondent argues that the applicant's motion within his matrimonial case is a civil action, in which he requests relief for his human rights violations.

18It would appear that the applicant sought relief from the order that his Answer be set aside, but not any remedy from the respondent for her alleged violation of his rights under the Code. I do not see how such relief could have been requested given that she was a stranger to the matrimonial litigation.

19Alternatively, the respondent argues that in the settling of the matrimonial matter – and implicitly the motion – another proceeding has "appropriately dealt with the subject matter" of the Application. In the further alternative, the respondent argues that to relitigate the issues in the motion would amount to an abuse of this Tribunal's processes.

20While it is true that the applicant raised these allegations in the other proceeding, I have no evidence before me that they were ever addressed by the parties. The settlement was the settlement of the remaining property division issues in the matrimonial case. The applicant's dispute in his matrimonial matter was with his former spouse. She is a stranger to this proceeding. I am not prepared to infer, in the absence of any meaningful information in support of this proposition, that that the allegations against the respondent had any impact on the settlement between the applicant and his former spouse in the matrimonial proceeding. Certainly, the applicant disputes this.

21Accordingly, I am not prepared to find that this Application is precluded by s. 34(11) or exercise my discretion to dismiss on the basis of either s. 45.1 of the Code or the doctrine of abuse of process.

No Reasonable Prospect of Success

22The applicant argues that the respondent in particular, and duty counsel in general, are under a positive obligation to take all necessary steps to ensure that litigants who seek their assistance face no barriers because of disability when accessing the justice system. Although I was referred to s. 24(2) of the Legal Aid Services Act, S.O. 1998, c.26, that provision was clearly inapplicable and no other section of that Act appeared to stand for the proposition put forth by the applicant.

23I do not disagree with the proposition that the applicant was entitled, subject to any applicable defence, to access the justice system. If he required assistance in court to understand what was taking place, and his needs for assistance were manifest or communicated, then he would be in a position to assert a claim of discrimination vis-à-vis the court. Likewise, if he required the services of duty counsel, but could not avail himself of that service because of his hearing impairment, then he might similarly assert a claim against that office. See Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624.

24However, the applicant does not say that he wished to avail himself of a service offered by duty counsel, and was unable to do so. Rather, he is asserting that the respondent had an obligation to provide him with a service that was outside her mandate as duty counsel. The applicant may have mistakenly believed that the note taking service was one of the many services offered by the respondent, but that mistaken belief cannot be the foundation for an Application under the Code.

25At the summary hearing, the applicant argued that if duty counsel did not provide the specific service he sought, the respondent should have, at minimum, attended court with him and requested an adjournment rather than simply telling him that she would or could not provide this service. This allegation does not form part of the applicant's current Application, nor does the applicant allege that he requested such assistance and it was denied.

26The respondent's written submissions, which were delivered two weeks in advance of the summary hearing, state that the applicant was only eligible for summary advice from duty counsel, which he received. The respondent states that she would not ordinarily be permitted to appear in court on behalf of the applicant because of the applicant's financial ineligibility and the fact that the issues that were in dispute involved property and equalization. Again, the applicant does not challenge this.

27In summary, the applicant has not alleged any act that would constitute differential treatment on the basis of disability. Accordingly, this Application is dismissed on the basis that it has no reasonable prospect of success.