Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1746

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: December 30, 2015 Citation: 2015 HRTO 1746 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

introduction

1The applicant has filed two Requests for Orders During Proceedings (“RFOP”). The first RFOP is for the production of documents. The second RFOP is for an order precluding the respondent from asserting an undue hardship defence and from presenting evidence on alternative programs and services that could have provided the applicant with nursing services in the community. The applicant submits the production request is not necessary if the respondent’s alternative services and undue hardship defences are restricted by the Tribunal.

2The respondent responded to the first RFOP. The respondent was directed not to respond to the second RFOP until it could be reviewed by the Tribunal. Having reviewed the second RFOP, I do not require submissions from the respondent in order to make a decision on this request.

analysis

Production Request

3The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The applicant has the burden of demonstrating a nexus between the information or document sought and the issues in dispute before the Tribunal.

4The applicant has sought production of the following information/documents:

a. The cost of home care services as compared to the cost of institutionalization, as this is relevant to an undue hardship argument;

b. The alternative programs and services the respondent has suggested could meet the applicant’s need for a fifth daily nursing visit; and

c. All documents, including supporting documentation, prepared and submitted to Cabinet that are relevant to levels of nursing services, including the documents regarding the Cabinet Submission package, a Cabinet Minute in 2015 and any other arguably relevant Cabinet documents with the exception of the Approval Form for the Regulation on Service Maximums for Nursing, Homemaker and Personal Support Services dated March 3, 1999, which has already been produced.

5The respondent has consented to providing the information requested in subparagraph 4(a). It has advised that this information will be provided in the form of an expert’s report.

6The information sought in subparagraph 4(b) is arguably relevant and should be included in the particulars that I have ordered below.

7The applicant has sought production of all documents, including supporting documentation, prepared and submitted to Cabinet that are relevant to the levels of nursing services, including the documents regarding the Cabinet Submission package, a Cabinet Minute in 2015 and any other arguably relevant Cabinet documents.

8The respondent has claimed public interest immunity privilege over the 2015 Cabinet documents.

9In my Interim Decision dated November 26, 2015, 2015 HRTO 1604 (the “Interim Decision”), I held this Application is about the cap on nursing services in Regulation 386/99. As such, documents pertaining to the creation of this Regulation in 1999 are arguably relevant to the issues in this proceeding. The respondent has produced the Cabinet document relating to the enactment of that Regulation.

10The respondent has not produced Cabinet documents relating to amendments to the Regulation between 1999 and October 2015. Those amendments do not relate to the daily cap or levels of nursing services and as such, are not relevant to the issues in this proceeding. They also do not fit within the applicant’s production request.

11The Regulation was amended on October 1, 2015 and the cap on nursing visits was increased from four to five nursing visits per day.

12In the Interim Decision, I held the applicant has no standing to challenge the 2015 amendment. In light of this Decision, it is not clear to me how the Cabinet documents relating to the 2015 amendment are arguably relevant to the issues before me. If the documents are not arguably relevant, they do not have to be produced and the issue of public interest immunity privilege does not have to be decided.

13Because it is not clear to me how the 2015 Cabinet documents are arguably relevant, I am not prepared to order their production at this time. This Decision does not prevent the applicant from renewing his request for production as the hearing progresses.

Restricting the Respondent’s Defences

14The applicant asserts the respondent should be precluded from presenting evidence or making submissions on the alternative programs and services that allegedly could have provided the applicant with nursing services in the community. He submits this defence is beyond the scope of the Application as defined in the Interim Decision and has no reasonable prospect of success.

15The applicant asserts further that the respondent should be precluded from raising an undue hardship defence on the basis that it has failed to sufficiently plead or particularize this defence. He submits further that this defence has no reasonable prospect of success.

16The test of no reasonable prospect of success is part of the Tribunal’s summary hearing process. It applies to applications, not responses. In my view, the summary hearing process cannot be used to restrict defences on the basis that they have no reasonable prospect of success. See Merkail v. Mersen Canada Toronto Inc., 2014 HRTO 1444 at para. 19

17In addition, the applicant relies upon the Tribunal’s power to define and narrow the issues before it under Rule 1.7 of the Tribunal’s Rules of Procedure to preclude the respondent from being able to rely upon these defences. It is premature at this stage of the proceeding to prevent the respondent from asserting particular defences.

18Although I have refused to restrict the respondent’s ability to rely on certain defences, the applicant is entitled to particulars from the respondent on whether it is relying on alternative services and undue hardship and if so, how. This would include reliance on these claims to disprove discrimination and/or as a defence to a finding of discrimination, if made.

order

19The Tribunal orders the respondent to do the following within 21 days of the date of this Interim Decision:

a. Provide particulars on whether it is relying upon alternate services and undue hardship and if so, how;

b. Provide the cost of home care services as compared to the cost of institutionalization. This information can be provided in the form of an expert report.

20If the respondent cannot meet the deadline for the 19(b), it should advise the Tribunal and indicate when this information can be provided.

21In the Interim Decision, I raised the issue of whether the Application should be bifurcated. There is no agreement to bifurcation. As such, the case will not be bifurcated.