E.L. v. Ministry of Health and Long-Term Care, 2015 HRTO 1095

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E. L.

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Health and Long-Term Care

Respondent

C. M.L, by the litigation guardian E.L.

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Health and Long-Term Care

Respondent

T. M.L, by the litigation guardian E. L.

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Health and Long-Term Care

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: August 17, 2015

Citation: 2015 HRTO 1095

Indexed as: E.L. v. Ministry of Health and Long-Term Care

WRITTEN SUBMISSIONS

E.L., C.M.L. and T.M.L. by their ) E.L., Self-Represented litigation guardian, E.L., Applicants ) )

H.M., Interested Party ) H.M., Interested Party )

1These Applications concern the alleged refusal of the respondent to provide two health care cards to children who reside in two family homes. E.L. filed these Applications as litigation guardian for his children. H.M. is the children’s mother. E.L. and H.M have joint custody of their children. The children reside half-time in each of their homes.

2H.M. objects to E.L. acting as litigation guardian. The issue in this Interim Decision is whether E.L. should be removed as litigation guardian.

ANALYSIS

3The Practice Direction on Litigation Guardians before Social Justice Tribunals Ontario affirms that litigation guardians are required for minor children in applications before the Human Rights Tribunal of Ontario (the “Tribunal”). The Practice Direction states that a parent or a legal guardian will usually be a minor’s litigation guardian. As such, the default position is that a parent who files the litigation guardian declaration required under the Common Rules of the Social Justice Tribunals Ontario (Rule A10.3) becomes the litigation guardian unless the Tribunal decides otherwise.

4Rule A10.7 of the Common Rules states 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. No litigation guardian is needed to conduct the proceeding.

5In this case, H.M. has asked that E.L. be removed as litigation guardian. While H.M. does not dispute the validity of the issue raised by E.L. in these Applications – that children of two homes may be better served by having health cards at each of their homes – she states that E.L. has a conflict of interest because his business interests are to promote solutions for two-home families. H.M. states that the provision of health care cards for two homes would promote these interests and that this is the sole reason as to why he has brought the Applications. H.M. also asserts that some of the information contained in the Application is false with respect to the impact on the children of not having a health care card in their father’s home. H.M. also raises an issue with respect to E.L.’s parenting, including the prior involvement of a children’s aid society.

6E.L. states there is no conflict of interest between being the founder and Director of the Fair Parenting Project, a corporate entity which promotes a community integrated, best practices parenting plan for children with two homes, and the children’s interests in this case. He states the Fair Parenting Project has no vested interest, financial or otherwise, in the outcome of these Applications. He states further that H.M.’s submissions regarding his parenting, including the involvement of a children’s aid society, are irrelevant and have nothing to do with an alleged conflict of interest. He submits the Tribunal has no jurisdiction to consider family law issues.

7The question before me is whether there is a reason to remove E.L. as litigation guardian pursuant to Rule A10.7 because of an alleged conflict of interest. The parenting of E.L. and H.M., including the history between them, is not relevant to the conflict of interest question. More specifically, there is no information before me as to how an earlier involvement with a children’s aid society creates a conflict of interest in relation to the matters set out in these Applications.

8The analysis of whether there is a conflict of interest is discussed in Yuill v. Canadian Union of Public Employees¸ 2012 HRTO 366. 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.

9At paras. 4 and 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.

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.

10These authorities require that there be a clear and demonstrated conflict of interest, rather than just a potential for conflict.

11H.M. has failed to demonstrate that E.L.’s business of promoting solutions for two-home families is contrary to the children’s interests in this case. Indeed, H.M. acknowledges that children of two homes may be better served by having health cards at each of their home. While H.M. disputes E.L.’s assertion with respect to the impact on the children of not having a health care card in E.L.’s home, that assertion is relevant to merits of the Applications and not whether E.L. has a conflict of interest in bringing these Applications on behalf of his children. H.M. has failed to establish a clear and demonstrated conflict of interest on the part of E.L. and it is for this reason that her request to remove E.L. as litigation guardian is denied.

12I am not seized.