Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1604

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ian Cole, by his litigation guardian, Audrey Cole

Applicant

-and-

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

Respondent

-and-

The Canadian Association for Community Living, Community Living Ontario and People First of Canada (the “Coalition”) and the Ontario Human Rights Commission

Intervenors

INTERIM DECISION

Adjudicator: Jennifer Scott Date: November 26, 2015 Citation: 2015 HRTO 1604 Indexed as: Cole v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Ian Cole, by his litigation guardian, Audrey Cole, Applicant David Baker, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent Hart Schwartz, Counsel

Ontario Human Rights Commission, Intervenor Tony Griffin and Sunil Gurmukh, Counsel

Canadian Association for Community Living, Community Living Ontario and People First of Canada, Intervenors S. Priya Morley, Counsel

introduction

1The respondent has asked the Tribunal to dismiss the Application on the basis of mootness. This is the Tribunal’s decision on that request.

the facts

2The following facts are taken from the Application, filed on December 12, 2013.

3At the time the Application was filed, the applicant was a 49-year-old man with Down Syndrome. He has a severe intellectual disability and is aphasic: he does not speak, read, write or understand most language. The applicant lives in the community. He is represented by his mother, who is his litigation guardian.

4In order to live in the community, the applicant depends on the assistance and services from individualized support staff, registered nurses, registered practical nurses and his mother. The primary sources of funding for these services are the Brockville and District Association for Community Involvement and the applicant’s local Community Care Access Centre (“CCAC”).

5An eligible person such as the applicant may receive from his local CCAC: (i) homemaking and personal support services and/or (ii) nursing services. The maximum funding for each service is set out in Regulation 386/99 made under the Home Care and Community Services Act, 1994 (the “Regulation”). At the time the Application was filed, the maximum funding available for nursing services was 120 visits in a 30-day period or four visits per day.

6In or around late 2001, the applicant developed a neurogenic bladder which required a number of catheterizations per day. The number of catheterizations has varied over time. After the applicant developed his neurogenic bladder condition, his local CCAC assumed responsibility for funding nurses to perform the catheterizations.

7A number of years ago, the applicant required an increase from three to four catheterizations per day.

8In or around September 2012, the applicant’s doctor determined that the applicant required a fifth catheterization. The applicant’s request for a fifth catheterization was denied by the local CCAC because of the funding limit of four nursing visits per day set out in the Regulation.

9Since October 2012, the applicant’s mother has been paying privately for the applicant’s fifth daily catheterization.

10The applicant alleges that the funding limit in the Regulation discriminates against him and other people with complex disability-related needs because they are denied the level of services that they require to remain outside of institutional care. The applicant asserts the government would provide him with medical necessary nursing services if he was institutionalized and the failure to provide those services in the community is discriminatory.

11The Regulation was amended on October 1, 2015 (the “amended Regulation”). The amended Regulation now permits a CCAC to arrange a maximum of 150 nursing visits in a 30-day period or five nursing visits per day. As a result, the applicant’s need for five catheterizations per day is being met.

analysis

Nature of the Application

12The issue of mootness must be determined on the basis of the allegations of discrimination that have been made in the Application.

13The respondent asserts the Application is a challenge to the cap on nursing services in the Regulation, the effect of which may force the applicant into an institution.

14The applicant submits the respondent has over-simplified the allegations. He states the Application relates to the discriminatory effect of the provision of provincially- funded nursing services at a community level. The applicant asserts a right to receive necessary nursing services in the community up to the level of nursing services that would be available to him in an institution. The applicant submits the Application was never specifically or solely about the regulatory cap, but rather, it was about the provincial scheme in place for the provision of community nursing services.

15In reviewing the Application, it is clear to me that the allegations of discrimination relate to the old cap on nursing services in the Regulation and the alleged impact of the old cap on the applicant. The Application repeatedly talks about the funding limit in the Regulation and the applicant’s need for a fifth catheterization. In three paragraphs summarizing the alleged discrimination, the applicant pleads:

The funding limit for nursing services in the Regulation discriminates against people with complex disability-related needs such as Mr. Cole as they are denied the benefit of access to the (level of) community services they require to remain outside institutional care, as compared to other beneficiaries who have less complex disability-related needs…. (para. 28)

The exclusion of Mr. Cole’s disability-related medical needs from the provision of community services does not accord with his needs or with the purposes of the regulatory scheme…. Yet it is the regulatory limit on nursing services that puts Mr. Cole at serious risk of unnecessary institutionalization. By imposing this limit, the community health system offers Mr. Cole no alternatives to institutional care. (para. 29)

Mr. Cole’s needs fall directly within the scope of government provision of nursing services. The government would provide Mr. Cole with medically necessary nursing services if he was institutionalized, including five daily catheterizations. Its failure to provide such services in the community amounts to unjustifiable discrimination. (para. 30)

(emphasis added)

16In the Application, the applicant seeks an order from the Tribunal directing the respondent to cease imposing the maximum limit on nursing services in the Regulation where the effect of applying the maximum is discriminatory.

17It is important to stress at this point that the Application is not a broad challenge to the institutionalization of persons with disabilities in relation to the provision of government services. While the applicant filed a request to amend the Application to seek a new remedy requiring the respondent to provide funding for all other services that are necessary to prevent an individual from unnecessary institutionalization, subject only to the limit of undue hardship, he withdrew that amendment request by letter dated December 16, 2014. The only amendment to the Application that was granted related to the entity against whom the remedial orders were sought. That entity is now the government as a whole as opposed to the named Ministry.

18It is clear from the allegations set out in the Application that this case is about the old cap on nursing services in the Regulation.

Dismissal Request

19The Regulation setting out the cap on nursing services was amended on October 1, 2015. The amended Regulation permits five nursing services per day. As a result of the increase in the cap, the respondent asserts the applicant is now receiving the number of nursing visits that he requires and asks the Tribunal to dismiss the Application because it is moot.

Mootness

20Under the doctrine of mootness, the Tribunal may decline to decide a case which raises a hypothetical or abstract question. The general principle applies when a decision will not have the effect of resolving some controversy which affects or may affect the rights of the parties. Where the live controversy between the parties has been eliminated by subsequent events, the issue is moot. See Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 (“Borowski”).

21The respondent argues the case is moot because the applicant is no longer subject to the old cap on nursing services under the Regulation. It states that where a party’s challenge is to legislation that has been subsequently changed or repealed, the substratum of the litigation has disappeared and the case is moot.

22The applicant argues the Application is not moot because the amendment does not alter the scheme that is currently jeopardizing the applicant’s right to community nursing services. The applicant asserts that other limits still exist, including the discretion of the CCAC to deny services within the cap and the prospect that the Regulation will again limit the applicant’s needs if he requires a sixth catheterization in the future.

23The Coalition supports the applicant’s position. It submits a live controversy continues to exist between the applicant and the respondent. It submits the applicant’s complaint of discrimination has not been addressed by the increase in the cap, the Tribunal can still make a finding on whether it is discriminatory to effectively promote institutionalization by providing necessary health care benefits only to institutionalized individuals, and the applicant is entitled to a determination of his remedial claims.

24The Ontario Human Rights Commission (the “Commission”) also agrees with the applicant that the Application is not moot. The Commission submits the increase in the cap on nursing services does not remove the substratum of the case. It submits concrete issues remain in dispute, which will have an impact on the applicant and others in circumstances similar to his. The Commission submits further that systemic and personal remedies remain to be addressed, including what can be ordered against the respondent.

25In order to make a finding of mootness, it is necessary to find that a live controversy no longer exists between the parties.

26In my view, the doctrine of mootness is a difficult concept to apply in the human rights context where complaints are always made about past conduct or past controversies. The human rights system does not require that the controversy between the parties be ongoing. The Tribunal will remedy discrimination, if found, based on what happened in the past. As stated by the Tribunal in D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 1332 (“D.L.T.”) at para. 10, “Litigation about the legal consequences of and potential liability for events that happened in the past does not mean that a matter is moot”.

27For example, an employee can file a human rights application against his or her employer claiming discriminatory harassment in the workplace and subsequently resign from their employment. One could say that the “live controversy” has been eliminated by the resignation. However, the issue before the Tribunal is whether the employee was discriminated against based on what occurred in this past. We do not say that this complaint is “moot”.

28The respondent relies on a number of cases before the courts involving a challenge to legislation that is subsequently repealed. Borowski is the most well-known example. In that case, the impugned abortion provisions of the Criminal Code had been struck down in the Supreme Court’s earlier decision in Morgentaler and were no longer in effect. The Supreme Court held Mr. Borowski’s constitutional challenge to the abortion provisions was moot.

29The difficulty with the application of Borowski and other cases involving the repeal of legislation is that the legislation at issue in this case has not been repealed. The Regulation remains in place: it is only the level of the cap that has changed.

30The respondent also relies on Oatway v. Canada (Wheat Board), 1945 CanLII 43 (SCC), 1945 SCR 204 and Coca Cola Co. of Canada v. Mathews, 1944 CanLII 9 (SCC), [1944] SCR 385. The central finding in both of these cases is that courts will not decide abstract questions of law. Again, it is difficult to apply this finding to the case before me. It is not an abstract question of law as to whether the applicant was discriminated against during the three years that he was subject to the old cap.

31The respondent relies on a number of cases where the Tribunal has applied the doctrine of mootness. These cases are distinguishable from the case before me. In Burrows v. Ontario (Community and Social Services), 2004 HRTO 6 and Pennington v. Peterborough (City), 2012 HRTO 1851, the Tribunal declined to hear the applications because the applicants had already received a full remedy for the alleged discrimination. In this case, the applicant has received no remedy for his complaint.

32In J.C. v. Canadian Hockey Association, 2011 HRTO 385, the Tribunal declined to hear the case on the basis of mootness because it was a theoretical claim. In this case, the applicant was denied funding for the fifth catheterization for three years because of the old cap. This is not a theoretical claim.

33This case is more analogous to the case of D.L.T., which involved a challenge to the government’s funding regime for the treatment of children’s psychological disabilities. The applicant alleged the government discriminated against him because of disability by not funding treatment for his psychological disabilities in the same way as it funded treatment for children’s physical disabilities. The applicant also alleged that the funding regime and actions taken discriminated against him because of family status, by encouraging or forcing the rupture of the parent-child relationship in order to obtain needed treatment.

34After filing the Application, the applicant in D.L.T. received funding for the treatment of his disabilities. The Tribunal denied the government’s request to dismiss the Application for mootness and stated the following at para. 11:

While the applicant now has the funding he seeks, he is entitled to argue that as a result of the funding regime and the actions taken by the respondents, he experienced discrimination and damages. It is a live controversy whether there was a discriminatory funding regime, and whether because of that or the respondents’ actions, an application was made asking that the applicant’s grandmother lose custody of him and he be made a Crown ward. The issue of whether that caused the applicant injury to dignity, feelings and self-respect and whether policy changes should be awarded as a result of any discrimination are also live issues.

35In my view, the doctrine of mootness does not apply in this case because a live controversy continues to exist between the parties. That controversy relates to the period of time when the applicant was subject to the old cap and any remedy that may flow to the applicant, should it be found to be discriminatory. The decision of the Tribunal will resolve this controversy.

36The finding that the Application is not moot relates to the old cap. The question arises as to whether the applicant can challenge the new cap in the amended Regulation.

Standing

37The Application is clear that the applicant requires five catheterizations per day. The applicant is now receiving funding for the fifth catheterization. As a result, his claim of adverse treatment ends at the point the Regulation was amended.

38The applicant suggests that the number of catheterizations he requires varies between five and six. This assertion is not supported by the facts contained in the Application. The Application clearly states the applicant requires five catheterizations per day.

39The applicant suggests that he may require a sixth catheterization in the future. The applicant did not file medical evidence on the respondent’s dismissal request to support this assertion. While the applicant filed an affidavit from an articling student purporting to depose to this fact, the articling student has no expertise to give this opinion.

40In any event, it is speculative as to whether the applicant’s needs may change in the future, including the medical treatment that he may require. The fact of the matter is the applicant does not require six catheterizations today. A challenge to the amended Regulation cannot proceed on the basis of a speculative assertion that the applicant may be subject to it in the future.

41Similarly, the applicant’s assertion that CCAC may exercise its discretion in the future and deny the applicant nursing services below the cap is also speculative.

42Because the applicant is no longer adversely affected by the amended Regulation, he has no standing to challenge the new cap: the Code does not permit him to challenge it on behalf of others. The Tribunal’s jurisprudence is clear that the Code does not permit an individual to bring a public interest application, either on his own, or in conjunction with an individual case. See Carasco v. University of Windsor, 2012 HRTO 195 at para. 14 and D’Orazio v. Ontario Human Rights Commission, 2014 HRTO 111 affirmed 2014 ONSC 7007 (Div. Ct.).

43The applicant suggests that this case is really about the provincial scheme in place for the provision of community nursing services. The applicant cannot make this broad-based complaint. In order to file an application before the Tribunal, an applicant must allege specific adverse treatment that he has been subject to. The role of the Tribunal is to determine whether the applicant has experienced adverse treatment and whether a ground of discrimination is a factor in that treatment. While the Tribunal may rely upon social context or systemic evidence to determine whether the applicant has been discriminated against in relation to the nursing cap at issue, it has no jurisdiction to undertake a broad inquiry into community health care in Ontario. See Moore v. British Columbia (Education), 2012 SCC 61 at para. 64.

44Rather, it is the role of the Commission to identify and promote the elimination of discriminatory practices more broadly. Pursuant to sections 29 and 35 of the Code, the Commission has the statutory authority to initiate inquiries and file public interest applications before the Tribunal.

45In conclusion, the applicant has no standing to challenge the amended Regulation because he is not adversely affected by it and because he has no public interest standing to challenge it on behalf of others. The Tribunal does not have jurisdiction to undertake a broad inquiry into the provision of community health care in this Application. The applicant’s standing is to challenge the old cap because that is the cap that he was affected by.

Summary Hearing

46The respondent argues the Tribunal should not deal with the applicant’s complaint about the old cap because even if successful, the applicant cannot be awarded damages. This is really akin to a summary hearing request in that the respondent is essentially asserting the Application has no reasonable prospect of success.

47The respondent relies on the Supreme Court of Canada’s decision in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 (“Mackin”), which held courts will not award damages for the harm suffered as a result of the enactment of law that is subsequently declared to be unconstitutional absent conduct that is clearly wrong, in bad faith or an abuse of power. The courts and the Tribunal have held that the Mackin principle applies to a finding at the Tribunal that legislation is inconsistent with the Code. See for example XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 at para. 275.

48The applicant submits the respondent’s request to dismiss the special and general damages in this case should be denied because it is premature. The applicant states the question of damages is a free-standing issue that should be determined on the basis of evidence. He submits further that the principles in Mackin do not apply in this case and that the applicant’s request for special damages is synonymous with a claim for retroactive benefits.

49The Commission submits remedies are not rendered superfluous by the amended Regulation. It states there is a live controversy as to whether systemic and personal remedies should be ordered against the respondent.

50I am troubled by the respondent’s damages argument for a couple of reasons. One, it presumes that if monetary compensation is not paid, the Tribunal should not proceed to hear a case. I disagree. There are many reasons why individuals file applications with the Tribunal, the main one being that they want an acknowledgement that their human rights have been violated. They may seek systemic remedies for a violation of their individual rights. It may be important to them that jurisprudence is developed in a particular area. Obtaining compensation at the end of the day may be the least important reason for filing an application: it is certainly not the only reason.

51Two, it is unclear to me whether the jurisprudence relied upon by the respondent applies to the facts of this case and if so, whether it applies to all of the damages sought by the applicant. In my view, it would be premature to make this determination at this stage in the proceeding.

52Finally, the respondent argues that because it does not provide a service, it is not liable for damages for the way that the service was provided. It is not necessary for me to determine this issue at this time. The respondent does not argue that the Tribunal lacks jurisdiction to hear this matter because the Application is not “with respect to services” under the Code. The issue of whether the respondent is liable for the damages claimed by the applicant is best left for another day.

53The summary hearing process is relied upon by the Tribunal when it appears an application has no reasonable prospect of success. The determination of reasonable prospect of success refers to the merits of the allegations of discrimination. In my view, it is not appropriate to dismiss applications that may have a reasonable prospect of success simply because monetary compensation may not or perhaps cannot be ordered to an applicant if a finding of discrimination is made.

54For these reasons, the respondent’s request to dismiss the Application is denied and the allegations set out in the Application will be heard by the Tribunal. The issue before the Tribunal is whether the old cap Regulation discriminated against the applicant.

55After reviewing the parties’ extensive submissions filed on the mootness issue, it is clear that there are a number of difficult and complex issues regarding remedy in this matter. It is for this reason, that I am proposing that the case be bifurcated into liability and remedy, and that we proceed to hear liability first. If discrimination is found, the hearing can proceed on remedy, if the parties are unable to resolve that issue directly.

next steps

56Within ten days of the date of this Interim Decision, the parties are to provide brief submissions on whether this case should be bifurcated.

57Within twenty-one days of the date of this Interim Decision, the respondent should respond to the applicant’s production request dated September 30, 2015.

58If the parties wish another case management conference call, they should advise the Tribunal.