HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dana Lowry on behalf of Devin Lowry

Applicant

-and-

Thames Valley District School Board

Respondent

INTERIM DECISION

Adjudicator: Eva Nichols

Date: November 17, 2015

Citation: 2015 HRTO 1554

Indexed as: Dana Lowry v. Thames Valley District School Board ______________________________________________________________________

WRITTEN SUBMISSIONS

Dana Lowry on behalf of Devin Lowry, Applicant

Self-represented

Thames Valley District School Board, Respondent

Lorraine Por, Counsel

1This Interim Decision is issued in response to the Form 10 Request for Order during a Proceeding (“RFOP”) submitted by the respondent school board to the Tribunal on October 27, 2015, and the applicant’s Form 11 reply, received on November 4, 2015.

2The Application is scheduled to be heard on March 23 and 24, 2016, in London, Ontario.

3The respondents request that the Tribunal remove Dana Lowry as Litigation Guardian for Devin Lowry, the applicant. They cite two principal grounds for this request. Firstly, the respondents claim that Devin Lowry has the capacity to bring this Application before the Tribunal and he does not require his mother to act as his Litigation Guardian. They acknowledge that, as a person with a disability, Devin Lowry may need some accommodations during the Tribunal proceeding. Further, that he may choose to be represented by his mother at the hearing. Secondly, the respondents claim that Dana Lowry has a conflict of interest with regard to the Application before the Tribunal. The supposed conflict of interest relates to her apparent hostility towards the respondents and the fact that she has a significant personal interest in the applicant receiving the financial damages claimed in the Application.

4Ms. Lowry’s response to the respondents’ request is that agreeing to the request would be “highly problematic” for the applicant. She states that the applicant, who is on the Autism Spectrum and has a “mental health issue”, does not have the mental capacity to either represent himself or participate in this legal matter himself. Further, since the family is not in a financial position to hire a lawyer, she is the only person available to advocate for her son.

5Ms. Lowry relies on the psychological assessment for her son that was included in the original Application, as the grounds for her submission.

ANALYSIS

Considering the status of this Application

6In considering the merits of the request, I note that the original Application was filed with the Tribunal under Section 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). That section of the Code states the following:

“Application on behalf of another

A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) Would have been entitled to bring an application under subsection (1); and

(b) Consents to the application.”

7The original Application included a Form 27, which is the consent form for an Application under this section of the Code. This form was signed by Devin Lowry and it appoints his mother, Dana Lowry, to bring the Application on his behalf.

8It is apparent from the Registrar’s file that there was some discussion between Ms. Lowry and the HRTO Registrar’s office, following which, Ms. Lowry filed a Form 4B, appointing herself as Litigation Guardian for her son. I note that she wrote the following regarding this matter on April 26, 2015:

“While I am not entirely certain that I completely understand the differences between the two (Forms 27 and 4B), I am not particularly comfortable with Form 4B. However, this could just be because it is introducing my son as “less than” and not just as someone who is different.”

9In spite of her reservations, she completed Form 4B and was thereafter deemed to be her son’s Litigation Guardian. While it is unclear whether she was advised or merely discussed which was the most appropriate and effective route for her and her son to follow with regards to this Application, it is not surprising that she now opposes the respondents’ request that she be removed from the position of Litigation Guardian.

10The Tribunal’s Practice Direction on filing applications on behalf of another person under section 34(5) of the Code clearly sets out the intent of this section in accommodating the needs of a person who, while generally having the capacity to bring an Application to the Tribunal, benefits from having another person acting as the applicant on his or her behalf, while retaining the status of claimant for himself or herself. In other words, section 34(5) applications are an act of choice on the part of an individual who wishes to delegate the role of applicant to someone else. In this regard they are different from someone for whom the appointment of a litigation guardian is required by law, because they lack capacity either as result of age or disability.

11The Practice Direction clarifies that a claimant need not have the capacity to make all decisions in the litigation in order to have the capacity to consent to an application being brought on his or her behalf. The HRTO has found that claimants need only have capacity to make the decision to commence the application, to delegate the power to pursue it to someone else, and to terminate it through a withdrawal, if and when appropriate. The claimant must provide written consent through the filing of a completed and signed Form 27. The claimant must appoint the applicant and delegate to him or her the authority to take all the steps in the human rights process on his or her own behalf.

12I note that in Kacan v. OPSEU, 2010 HRTO 795, (“Kacan”) Interim Chair Wright set out the apparent purpose of the inclusion of this approach in the human rights process. He wrote that:

“..the purpose of s. 34(5) is to promote the accessibility of the Code’s processes. It allows an individual to delegate to another individual or organization the ability to take the steps in the Tribunal’s process on his or her own behalf, for whatever reason he or she believes that this is the best way of pursuing his or her Code rights.”

13The first question that I must answer is whether there is any basis for this Application to continue under a Litigation Guardian. An individual is presumed to have capacity. On its face, the declarations contained in the Form 4B filed would provide a basis to rebut that presumption. However, in addition to the submissions received from the parties regarding this RFOP, I have also considered the correspondence on file with the Tribunal; the fact that the Application was initially filed with consent to proceed by way of a section 34(5) Application and the psychological assessment data submitted with the original Application. Considering all of these factors, I find that there is insufficient basis to conclude that Devin Lowry does not have the capacity to consent to a section 34(5) Application being filed on his behalf. Given this conclusion, it is not possible for this Application to continue under s. 34(1) with a Litigation Guardian.

14However, given that this Application was initially filed as a section 34(5) Application and Devin Lowry gave his written consent for the Application and appointed his mother, Dana Lowry, as the applicant, while retaining the status of claimant for himself, I believe that this Application should be converted to a section 34(5) Application instead of merely a s. 34(1) Application with Mr. Lowry as the applicant and Dana Lowry as his Litigation Guardian.

The status of Dana Lowry in this Application

15Further, in accordance with the Code and relying again on the above decision in Kacan, Dana Lowry will be able to participate in the scheduled hearing as “the applicant”, rather than a representative, while Devin Lowry will participate as “the claimant”. I concur with paragraph 9 in Kacan, in which Interim Chair Wright commented that:

The Legislature must have intended that the role of a person making an application on behalf of another be different from that of a representative.

And

The Legislature chose to provide that a person or organization could make an application on behalf of another person and participate in accordance with the Tribunal’s rules. The inclusion of this provision and the language used, suggests a different role as a participant in the process that that of a representative. (emphasis added)

16There is further instructive guidance in the Kacan decision at paragraphs 13 and 14 outlining the roles of participants under a section 34(5) Application:

The Code specifically provides that the consent must be given in a form specified by the Tribunal Rules and can be revoked. In specifying these particular actions by the claimant, it is implicit that other steps in the process can be taken on the person’s behalf by the applicant. The claimant remains the “party”, among other reasons because remedies can only be ordered under s. 45.2 in favour of a “party” to the application whose rights are found to have been infringed.

In my view, the applicant under s. 34(5) may take any steps in the application, subject to the right of the claimant to withdraw the application or request that the applicant no longer pursue the application on his or her behalf. The claimant has delegated to the applicant the power to make the decisions in the Tribunal process. Where appropriate, decisions should be made by the applicant together with the claimant and with respect for his or her wishes, which is how [the claimant] and [the applicant] intend to conduct this application. Moreover, the claimant may well need to appear at the hearing and testify. However, the section provides for a general delegation of the power to conduct the application, and the person bringing the application on the claimant’s behalf takes on the obligations of the applicant under the Tribunal’s process. ‘

17Having regard to some of the concerns raised by Ms. Lowry in her submissions with respect to her son’s participation in this hearing, if there are any accommodations which either the applicant (Ms. Lowry) or the claimant (Mr. Lowry) believe would be of assistance to Mr. Lowry’s participation, those suggestions or requests can be made directly to the Tribunal’s Registrar. While this decision meets the respondents’ request to remove Ms. Lowry as her son’s Litigation Guardian, it does not support their expectation that Devin Lowry will participate as the applicant, possibly with accommodations, and Dana Lowry will act as his representative.

18Since the decision to convert this Application to a section 34(5) proceeding is based on the previously filed section 34(5) consent, the applicant has 10 days from the date of the Interim Decision to object to this aspect of this decision. Any such objection must be filed with the Tribunal and the respondents. If an objection is received, the respondents will have a further ten days to submit their response to this objection. If no written objection is received from the applicant within this time frame, then this Interim Decision will form the basis of the Application and the way it will be heard in March 2016.

Regarding the allegations of conflict of interest by the respondents

19The respondents’ allege that Dana Lowry has a conflict of interest and should therefore be removed as Litigation Guardian. It is evident from my decision above that Ms. Lowry will no longer act as Litigation Guardian in this Application. It is unclear at this stage whether the respondents’ allegations of conflict of interest would continue under a section 34(5) proceeding. If so, the respondents may renew their request and the issue will be determined at the scheduled hearing.

ORDER

20Unless the applicant files an objection within 10 days of receiving this Interim Decision, I order that this Application be converted to a section 34(5) Application with Devin Lowry as the claimant and Dana Lowry as the applicant.

Dated at Toronto, this 17th day of November, 2015.