W.M. v. Ontario (Attorney General), 2015 HRTO 1319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

W.M.

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of the Attorney General and Daniel Johnson

-and-

Toronto District School Board

-and-

Ryerson University and Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Training, Colleges and Universities

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: October 6, 2015 Citation: 2015 HRTO 1319 Indexed as: W.M. v. Ontario (Attorney General); W.M. v. Toronto District School Board; and W.M. v. Ryerson University

APPEARANCES

W.M., Applicant Self-represented

Ministry of Attorney General and Ministry of Training, Colleges and Universities, Respondents Nadia Laeeque, Counsel

Ryerson University, Respondent Giselle Basanta, Counsel

Toronto District School Board, Respondent Gail Geronimo, Counsel

Daniel Johnson, Respondent Alexandra Lev-Farrell, Counsel

Introduction

1These Applications allege reprisal and discrimination with respect to services because of age, citizenship, and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this decision is to provide reasons for the adjournment of the summary hearing and to provide directions to the parties.

background

2On November 19, 2014, the Tribunal issued a Case Assessment Direction ("the 2014 CAD") with respect to the Application against the Ministry of the Attorney General and Daniel Johnson (File # 2014-18667), and with respect to the Application against the Toronto District School Board (File # 2014-18668). The 2014 CAD noted that "it is difficult to discern what the applicant is alleging in each of these two Applications." It made the following direction:

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall explain what he is alleging in each of the Applications, and then make argument about why the Applications should not be dismissed as having no reasonable prospect of success. If necessary, the respondents will be able to make argument in response.

3The applicant subsequently filed another Application against Ryerson University and the Ministry of Training, Colleges and Universities (File # 2015-20139-I). The Tribunal issued another Case Assessment Direction on April 9, 2015 ("the 2015 CAD"). In it, the Tribunal made the following direction:

It would appear that the issues raised in the November 19, 2014 CAD apply to this Application. Accordingly, the Tribunal will also address this Application at the summary hearing scheduled to deal with the previous two applications. An amended Notice of Reschedule [sic] Summary Hearing will follow.

4The Tribunal issued a Notice of Summary Hearing, which referenced the 2015 CAD, and informed the parties that the summary hearing would take place on October 5, 2015.

5The 2014 CAD noted that the applicant was a minor in the context of an allegation he might be making with respect to services and the ground of age, but neither Case Assessment Direction nor the Notice of Summary Hearing made any reference to the fact that the applicant had no litigation guardian.

6Prior to the summary hearing, Ryerson University filed submissions, briefly noting that the applicant was a minor, and it had no notice of a declaration of litigation guardian.

the summary hearing

7The summary hearing commenced on October 5, 2015, and the applicant confirmed that he was 17 years of age, had no litigation guardian and would be turning 18 in November 2015. I explained that I had some concerns about proceeding without a litigation guardian for the applicant, suggesting that the matter be adjourned until after the applicant attained the age of 18.

8The respondents agreed that the summary hearing should be adjourned. They had not prepared arguments on whether the applicant might proceed without a litigation guardian.

9The applicant objected, explaining that some of his allegations involved the unconstitutionality of age requirements used by some of the respondents in their dealings with him. He implied that an age requirement for him to proceed alone at the summary hearing might also be unconstitutional. I noted that no Notice of Constitutional Question had been filed, and, in fact, the parties had no notice that the summary hearing would address the serious issue of whether a minor might proceed before the Tribunal without a litigation guardian. I noted that the Tribunal's Rules of Procedure and Practice Direction were ambiguous with respect to whether a minor might do so, but that there was at least one decision in which the Tribunal stated that a litigation guardian was required for a minor. (See E.L. v. Ministry of Health and Long-Term Care, 2015 HRTO 1095).

adjournment

10The issue of whether a minor might proceed at the Tribunal without a litigation guardian is complex. It is also novel given that custodial parents or guardians generally act as litigation guardians at the Tribunal, particularly in the area of services.

11Rule A10 of the Social Justice Tribunals of Ontario's ("SJTO") Common Rules sets out the process for a litigation guardian to act for a minor. The process is an important one, and ensures that anyone else with custody or guardianship of the minor has notice of the person's intention to engage in litigation on behalf of the minor. The process is explained in more detail in the SJTO's practice direction on litigation guardians for parties appearing before the various Tribunals which form the SJTO. As noted by "Practice Direction on Litigation Guardians before Social Justice Tribunals Ontario":

Depending on the type of case, a minor who is a party may require a litigation guardian. There are some situations where it is not necessary for a minor to have a litigation guardian. Applications at the Human Rights Tribunal of Ontario are the only cases at the SJTO where litigation guardians for minors are typically necessary and used.

12The Practice Direction provides examples of situations before other SJTO tribunals where minors can engage in litigation on their own behalf as a result of the statutory provisions governing those proceedings. I would note that the question of whether a litigation guardian is required for a minor to sue under a particular statutory regime has been considered by the Divisional Court in the context of a family law proceeding, see C.M.M. v. D.G.C., 2015 ONSC 2447.

13Section 4 of the Code provides that 16 and 17 year olds who have "withdrawn from parental control" have rights of equal treatment with respect to the occupancy of accommodation, and they may enter into contracts for accommodation. In certain circumstances, it may be an empty right if a minor may not proceed at the Tribunal without a litigation guardian. For this reason the SJTO Practice Direction acknowledges that a 16 or 17 year old can file an application without a litigation guardian in the area of accommodation.

14The Code does not have similar provisions for such 16 and 17 year olds with respect to services and employment, but, at least in the area of employment, it is not difficult to imagine circumstances where minors are employed, experience discrimination and have no adult willing to take on the role of litigation guardian. The questions of whether those minors require a litigation guardian in all circumstances or can in some way be relieved of the presumption of needing one are important ones in the context of the Code.

15Given that the parties in this case had been prepared to address only the issue of whether there is no reasonable prospect for the applicant's allegations to succeed, it would not have been fair to have required the parties to argue, without notice, the complex issue of whether a minor might proceed without a litigation guardian before the Tribunal. I adjourned the summary hearing for that reason.

directions

16The parties agreed that there was no possibility of rescheduling the summary hearing before the applicant became 18 years of age on November 4, 2015. All therefore agreed that the issue of whether the applicant might proceed without a litigation guardian need not be addressed at the summary hearing that the Tribunal will shortly reschedule. The only issue will be whether the applicant's allegations have no reasonable prospect of success as per the 2014 and 2015 CAD's. Any requests to amend any of the applicant's Applications will be addressed after that issue is decided, and if the Applications are not dismissed.

17The applicant is reminded that if he intends to raise constitutionality issues in his argument about why any of his Applications should not be dismissed as having no reasonable prospect of success, then he must comply with Rule 4 of the Tribunal's Rules:

4.1. Where a party intends to question the constitutional validity or applicability of any law, regulation, by-law or rule or where a party claims a remedy under s. 24(1) of the Charter of Rights and Freedoms, in relation to an act or omission of the Government of Canada or the Government of Ontario, a Notice of Constitutional Question must be delivered to the Attorneys General of Canada and Ontario and all other parties and filed with the Tribunal as soon as the circumstances requiring the notice become known and, in any event, at least 15 days before the question is to be argued.

18The applicant may be assisted through the Tribunal's Applicant's Guide to Filing an Application with the HRTO and Information on the Process for Resolving Human Rights Applications before the Human Rights Tribunal of Ontario, both of which are publicly available on the Tribunal's website. The Guide includes sources for legal advice or representation, including the Human Rights Legal Support Centre.

next step

19The Tribunal will contact the parties about rescheduling the summary hearing.

Dated at Toronto, this 6th day of October, 2015.

"Signed by"

Mary Truemner

Vice-chair

CORRECTION

The Decision released on October 6, 2015 did not indicate, on the appearances page, that the Toronto District School Board, represented by Gail Geronimo, attended the summary hearing on October 5, 2015. This error has been corrected.