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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Jennifer Bowen
Applicant
-and-
Chatham Kent Children’s Services
Respondent
-and-
Ontario Public Service Employees Union
Intervenor
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INTERIM DECISION
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Adjudicator: Sheri Price
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Date: February 9, 2016
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Citation: 2016 HRTO 185
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Indexed as: Bowen v. Chatham Kent Children’s Services
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[1] This Interim Decision addresses the respondent’s September 17, 2015 Request for an Order During Proceedings, in which the respondent takes the position that the applicant lacks the mental capacity to participate in this proceeding and seeks an order suspending the Application until the applicant either has capacity to participate in the proceeding or a litigation guardian has been appointed.
[2] Having considered the parties’ submissions with respect to the Request, including a January 5, 2016 letter from the applicant’s doctor which speaks directly to the applicant’s capacity to participate in this proceeding, I find that the respondent’s Request should be dismissed.
[3] As explained in the Tribunals’ Practice Direction on Litigation Guardians:
> Everyone 18 years of age and over is presumed, unless there is a reason to believe otherwise, to have legal capacity to make decisions. This includes the decisions to start a case before a tribunal and to decide what to do during the case. If someone does not have the capacity to bring or respond to a case then they may need a litigation guardian to do so for them.
[4] The respondent submits that the Tribunal should find that the applicant lacks capacity to bring and/or pursue the Application based on three medical notes, which were provided to it from the applicant’s health care professionals, indicating that the applicant is and/or was incapable of making decisions about her financial and professional future. The respondent submits that the applicant cannot “credibly” argue that she has the capacity to manage what the respondent submits is complex litigation before this Tribunal, while simultaneously maintaining that she is incapable, because of disability, of dealing with employment issues in the workplace.
[5] Although I understand the respondent’s point on this, in my view, the medical notes in question, are insufficient to rebut the presumption that the applicant has capacity to bring and participate in this proceeding, particularly when considered alongside the applicant’s doctor’s January 5, 2016 letter, which expressly confirms that the applicant is capable of participating in this proceeding.
[6] In addition, the written submissions made by the applicant in the course of this proceeding satisfy me that the applicant is capable of understanding and participating in this proceeding. In particular, based on the applicant’s participation in this proceeding to date, I am satisfied that the applicant can understand information that is relevant to making decisions about issues in the litigation and that she is capable of appreciating the reasonably foreseeable consequences of her decisions or lack of decisions in the proceeding.
[7] In coming to this conclusion, I am mindful of the fact that a person who lacks capacity with respect to particular decision-making may not lack capacity with respect to other issues: [Collier v. Freeland, 2011 HRTO 399](https://www.minicounsel.ca/hrto/2011/399). The Tribunal has to determine whether the applicant lacks capacity to participate in this proceeding, based on the information before it.
[8] As for the respondent’s challenge to the credibility of the applicant’s medical notes, to the extent that this is relevant to an issue to be determined in the Application, it may be addressed at the hearing of the Application.
[9] In sum, given that I am not persuaded that the applicant lacks the capacity to participate in this proceeding, there is no basis for the Tribunal to deny the applicant access to its process. The respondent’s September 17, 2015 Request is denied accordingly.
[10] The Tribunal will convene an in-person hearing to address the other outstanding preliminary issues in this case, and to offer the parties an opportunity to participate in the Tribunal’s mediation/adjudication process.
[11] Pursuant to the Tribunal’s mediation/adjudication process, the Vice-chair assigned to adjudicate the case may, with the parties’ consent, step into the role of mediator to assist the parties in exploring whether the case can be settled on mutually agreeable terms. In the event that the case is not settled through mediation, the hearing proceeds before the adjudicator, who bases his or her decision solely on the evidence and arguments presented during the hearing and not on anything said during mediation. Mediation/adjudication is a voluntary process.
[12] A copy of the Tribunal’s mediation/adjudication agreement is available on the Tribunal’s website. The parties may also wish to review Rule 15A of the Tribunal’s Rules of Procedure, which deals with mediation/adjudication. These are also available online.
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Dated at Toronto, this 9th day of February, 2016.
“signed by”
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Sheri D. Price
Vice-chair
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minicounsel