HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yunhong He
Applicant
-and-
Sienna Senior Living Inc., previously operating as Leisure World St. George Nursing Home
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: He v. Sienna Senior Living Inc.
Introduction
1This Application, filed August 7, 2013, alleges discrimination with respect to services because of disability, creed, age and association with a person identified by a protected ground contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
background
2This Application against the nursing home of the applicant's mother, and another one filed by the applicant at the same time against employees of the Public Guardian and Trustee ("PGT"), essentially allege that the applicant's mother, Ms. Gan, was prevented from practising her creed with the applicant while Ms. Gan lived in the respondent nursing home.
3As the Applications appeared to be framed, it was not clear to the Tribunal that there was a service relationship between the respondents and the applicant as opposed to between the respondent and Ms. Gan. The applicant did not file the Applications on behalf of her mother pursuant to section 34(5) of the Code. Accordingly, in a Case Assessment Direction ("CAD") issued on October 16, 2013, the applicant was directed to confirm whether or not it was her intention that the Applications were filed on her behalf or on behalf of her mother.
4Submissions were received in response to this Direction, confirming that it was the applicant's intent that the Applications were filed on behalf of herself and her mother. On February 26, 2014, the applicant was directed to file a Form 27, which would need to be signed by the applicant's mother, confirming that the applicant's mother consented to the applicant filing Applications on her behalf.
5The applicant filed a Form 27 that was incomplete because it was not signed by the applicant's mother. The applicant indicated on it that her mother could not keep her eyes open, cannot speak, and does not have the strength to hold a pen. Consequently, on August 25, 2014, the Registrar sent the following directions to the applicant:
Based on the written submissions filed along with the Form 27s, the HRTO also requires written clarification from you, advising whether your mother, Peiyu Gan, is able to complete and sign Section D of the Form 27s. If this is the case, then the Form 27s should to be re-submitted, completed fully, and signed by Peiyu Gan in Section D, as noted above, to the HRTO.
If this is not the case and your mother is unable to complete and sign the Form 27s, you must clarify this in writing to the HRTO and complete and file Form 4B (Litigation Guardian: Mental Incapacity) with the HRTO in the above-noted matters. Form 4B is completed by a person who seeks to be litigation guardian for a person who does not have mental capacity to make decisions in applications before the HRTO. Form 27 and Form 4B and instructions on completing the Forms can be located on the HRTO website at www.hrto.ca.
6On December 29, 2014, the Tribunal received a Form 4B for the applicant's mother completed by the applicant. A Form 4B is to be used by an intended litigation guardian where the applicant lacks legal capacity, but the one filed by the applicant was both incomplete and indicated that her mother actually had capacity.
7On August 12, 2015, the Tribunal issued a CAD with directions that a preliminary hearing would be scheduled to deal with:
whether the Applications should be dismissed, in whole or in part, on the basis that there is no relationship involving services between the applicant and the respondents;
whether the Application in Tribunal File 2013-15301-I should name the corporate respondent for which Sandi Parker and Philippa Geddie work, and whether either Application should continue against the individual respondents; and
whether the applicant's mother may be accepted as an additional applicant making the same allegations as indicated in the Applications filed by the applicant.
Interim Decision resulting from Preliminary hearing
8After the preliminary hearing, an Interim Decision dated May 11, 2016, (2016 HRTO 632), dismissed the other Application (File #2013-15301-I) against employees of the PGT because the Tribunal found that there was no service relationship between them and the applicant.
9With respect to this Application, the Interim Decision removed the employees of the nursing home as personal respondents, but decided to continue against the nursing home itself because the nursing home took the position that it did offer services to the applicant, and it was not clear at that stage of the proceedings whether the nursing home's position could be supported by evidence.
10The Interim Decision noted that there was insufficient time at the preliminary hearing for the parties to deal with the issue of whether the applicant's mother, Ms. Gan, should be added as an applicant. It therefore directed that the parties file submissions within 21 days with respect to whether the applicant's mother, Ms. Gan, should be added as an applicant prior to the Tribunal deciding the issue. Neither the applicant nor the respondent filed submissions, and the time for doing so has long passed.
refusal to add Ms. gan as an applicant
11Even assuming, without finding, that Ms. Gan has capacity as alleged by the applicant, I refuse to allow Ms. Gan to be added.
12My reason for refusing is because the applicant failed to comply with the Tribunal's directions with respect to Ms. Gan's status and capacity, and as such, there is no signature from Ms. Gan to allow the applicant to represent her. There is simply no confirmation from Ms. Gan that she would consent to participate as an applicant, and the applicant is not permitted to add Ms. Gan as another applicant.
13Also, while the applicant herself takes the position that Ms. Gan has capacity, meaning that a signature would be required, I note that the Superior Court of Justice, in The Public Guradian and Trustee v. Gan et al., 2014 ONSC 2145 at para. 3, made the PGT guardian of the person for Ms. Gan, noting that she was "incapacitated, incapable of self-care... and completely dependent on others for all activities of daily living." In light of the findings made by the Court, the Tribunal needs to be sure of Ms. Gan's capacity to consent. Despite requests to the applicant to provide this information, the Tribunal does not have the information or evidence necessary to conclude she does have capacity.
next steps
14The applicant must file within 14 days her confirmation that she wishes to proceed with this Application even though I have refused to add her mother. If she does not file her confirmation, the Application may be dismissed as abandoned.
15If the applicant does file a confirmation within 14 days, then the respondent must respond to the Application by filing a Response (Form 2) within 30 days of receiving any confirmation from the applicant that she wishes to pursue the Application.
Dated at Toronto, this 27th day of September, 2016.
"Signed By"
_________________________
Mary Truemner
Vice-chair