Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 521

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 Minister of Health and Long-Term Care

Respondent

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: April 23, 2015

Citation: 2015 HRTO 521

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

Sunil Gurmukh, Counsel

Canadian Association for Community Living, Community Living Ontario and People First of Canada

Katharine Montpetit, Counsel

Bazelon Centre for Mental Health Law

Jennifer Mathis, Counsel

Introduction

1The issue before the Tribunal in this case is whether a cap on nursing services pursuant to Ontario Regulation 386/99 made under the Home Care and Community Services Act, 1994 contravenes the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). As a result of the cap, the applicant does not have funding for a fifth catheterization that he requires.

2The Ontario Human Rights Commission (the “Commission”) was added as an intervenor pursuant to section 37(2) of the Code.

3This Interim Decision addresses the applicant’s request to amend the remedial portion of the Application and two intervention requests.

Request to Amend

4The applicant is seeking to amend the Application by requesting remedies from Her Majesty the Queen in Right of Ontario instead of the Minister of Health and Long Term Care. The remedies requested from the applicant have not changed from those set out in the Application.

5The respondent submits the amendment requested by the applicant is not necessary because the legal entity is Her Majesty the Queen in right of Ontario. The respondent submits that adding the words “Minister of Health and Long-Term Care” does not change the identity of the respondent.

6The amendment is allowed. While it may not be necessary given the respondent’s submissions that there is only one legal entity, the amendment makes clear that the relief sought is from the government as a whole as opposed to the specific Ministry named.

Requests to Intervene

7The Tribunal is in receipt of two intervention requests.

8The first intervention request is from the Canadian Association for Community Living, Community Living Ontario and People First of Canada (the “Coalition”). The Coalition has sought leave to intervene in the proceeding to address the following issues:

1. The ability of individuals with disabilities to live in the community with appropriate supports;

2. The detrimental effects of undue segregation of individuals with disabilities;

3. The benefits of community living to individuals with disabilities in the areas of self-determination, health and well-being, personal relationships, access to needed supports, educational and economic integration and community access and participation; and

4. The recognition of the rights of persons with disabilities to live in the community in Canadian and International law.

9The second intervention request is from the Bazelon Centre for Mental Health Law (the “Bazelon Centre”) in Washington D.C. It has sought leave to intervene in the proceeding to provide information about how U.S. anti-discrimination laws have defined the right to community integration. The Bazelon Centre submits this information will provide a valuable perspective in interpreting the Code and the U.N. Convention of the Rights of Persons with Disabilities.

10The applicant consents to the intervention requests.

11The respondent opposes the intervention requests. The respondent submits the proposed intervenors will not offer a distinct perspective, they will not provide assistance to the Tribunal that cannot be provided by the applicant or the Commission, and they will unduly delay, disrupt or prejudice the determination of the rights of the parties. The respondent submits in the alternative, that if the proposed intervenors are granted leave to intervene, their interventions should be strictly restricted.

12In accordance with Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may allow an organization to intervene in a case on such terms as the Tribunal may determine. The Tribunal has set out a number of factors to consider when assessing a request for intervention:

1. Whether the intervenor has a significant interest or special contribution to make on the issues;

2. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

3. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

4. If intervention is appropriate, should conditions be placed on the intervention?

See D.R. v. Upper Grand District School Board, 2011 HRTO 1187 and Carasco v. University of Windsor, 2011 HRTO 630.

13The applicant alleges that the funding limit discriminates against people with complex disability-related needs because they are denied access to the community services that they require to remain outside of institutionalized care. The applicant asserts that the cap fails to recognize that people with disabilities are entitled to be provided with services in a manner that respects their dignity and that maximizes their inclusion and participation in society. The context relied upon by the applicant is the history of institutionalization and the importance of community living for those living with intellectual disabilities.

14The Coalition is comprised of national and provincial organizations who have worked to advance the human rights and inclusion of persons with intellectual disabilities. It has specialized expertise in disability issues, including the effects of institutionalization on persons with intellectual disabilities. Many of the agencies providing community living facilities and supports throughout Ontario are affiliated with Community Living Ontario, one of the members of the Coalition. The Coalition has acted as intervenor, either independently or in coalition, in a number of cases before the courts, including the Supreme Court of Canada.

15The Coalition has sought leave to intervene on a limited basis. It asks that it be served with all of the material filed with the Tribunal and copied on all written communication with the Tribunal, that it be permitted to participate in any dispute resolution processes and case management conferences, and that it be granted to the right to call evidence with respect to the detrimental effects of institutionalization and the benefits to persons with disabilities of living in the community. It also seeks to cross-examine any witnesses whose testimony is responsive to the evidence that it intends to call.

16The Coalition’s intervention will not unduly lengthen the proceeding, nor will it prejudice the parties. The evidence to be called by the Coalition would be called by the applicant in any event. In my view, it is more efficient that the Coalition, as the entity with the specialized expertise in this area, call the social context evidence. Issues with respect to the scope of this evidence will be determined at the case management stage of this proceeding.

17The Coalition’s request to intervene is granted. Its intervention is subject to the following terms:

1. The Coalition will be permitted to call evidence on the context of community living/deinstitutionalization of persons living with intellectual disabilities.

2. The Coalition will be permitted to cross-examine the respondent’s witnesses, if any, who give evidence that is responsive to the Coalition’s evidence.

3. The Coalition must be served with all materials filed with the Tribunal and copied on all written communications with the Tribunal.

4. The Coalition will be permitted to participate in case management teleconferences.

5. The ability of the Coalition to participate in any dispute resolution processes conducted by the Tribunal will be determined at the time those processes take place.

18The second intervention request is from the Bazelon Centre. The Bazelon Centre works to ensure that people with mental disabilities can exercise their own life choices and participate fully in their communities. The Bazelon Centre files strategic lawsuits designed to advance the rights of people with mental disabilities, to correct abuses by public service systems of adult and children with mental disabilities, and to end the segregation of these individuals.

19The work of the Bazelon Centre is described in its intervention request. It has focused on ensuring that persons with mental disabilities are able to live, be educated, work and participate in their communities. The Bazelon Centre has litigated these issues in a number of cases, most notably in a U.S. Supreme Court case Olmstead v. L.C., which involved the right of two women with psychiatric and intellectual disabilities who were institutionalized in a state psychiatric hospital to live and receive services in the community. The court held that unjustified institutional isolation is a form of disability discrimination prohibited by the Americans with Disabilities Act as it perpetuates stereotypes about people with disabilities and limits their ability to participate in community life. The applicant refers to the Olmstead decision in the Application.

20The Bazelon Centre seeks leave to intervene to provide a comparative perspective on how U.S. anti-discrimination laws have defined the right to community integration. It believes this information will provide a valuable perspective in interpreting the Code and the U.N. Convention on the Rights of Persons with Disabilities. It requests permission to make final argument, and leaves open the possibility that it may seek the Tribunal’s permission to file evidence prior to the hearing and to make final oral submissions via telephone. It has not indicated what that evidence might be.

21I decline to grant the Bazelon Centre intervenor status. The assistance provided by the Bazelon Centre can be provided by the parties. Assuming, without deciding, that U.S. case law is relevant to the issues before the Tribunal, the parties can rely on this jurisprudence. It is not necessary to add an intervenor to bring this jurisprudence to the Tribunal’s attention. While the Bazelon Centre suggests that it could play a role with respect to the types of remedies that have been effective in preventing needless institutionalization, that assistance would result in a significant expansion of the issues before the Tribunal. It is for these reasons that the intervention request is denied.

Order

22The applicant’s request to amend the Application is granted.

23The intervention request of the Coalition is granted on the following terms:

1. The Coalition will be permitted to call evidence on the context of community living/deinstitutionalization for persons living with intellectual disabilities.

2. The Coalition will be permitted to cross-examine the respondent’s witnesses, if any, who give evidence that is responsive to the Coalition’s evidence.

3. The Coalition must be served with all materials filed with the Tribunal and copied on all written communications with the Tribunal.

4. The Coalition will be permitted to participate in case management teleconferences.

5. The ability of the Coalition to participate in any dispute resolution processes conducted by the Tribunal will be determined at the time those processes take place.

24The intervention request of the Bazelon Centre is denied.

25The Tribunal will schedule a two-hour case management call with the parties and the intervenors to set a timetable for pre-hearing disclosure and dates for the hearing.