ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, LEDERMAN and SWINTON JJ.
B E T W E E N:
DAVID BROCK
M. KATE STEPHENSON, for the APPLICANT
APPLICANT
- and -
ONTARIO HUMAN RIGHTS COMMISSION and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF HEALTH AND LONG-TERM CARE and THE MINISTER OF COMMUNITY AND SOCIAL SERVICES
ANTHONY GRIFFIN, for the RESPONDENT, Ontario Human Rights Commission
ANITA L. LYON, for the Respondent, Minister of Community and Social Services
RESPONDENTS
HEARD: AT TORONTO
26 NOVEMBER 2008
INTRODUCTION
1The applicant seeks judicial review of the decision of the Ontario Human Rights Commission (“the Commission”) dated November 28, 2006 in which the Commission refused to refer the applicant’s complaint to the Human Rights Tribunal of Ontario (the “Tribunal”) and of the reconsideration decision dated June 27, 2007 which upheld that refusal.
2The applicant seeks an order requiring the Commission to refer his complaint to the Tribunal to hold a hearing in relation to the applicant’s human rights complaint.
BACKGROUND
3The applicant has Duchenne’s Muscular Dystrophy, a progressive muscular wasting disease. This condition effectively paralyzes him from the neck down, and he needs constant medical supervision including non-invasive ventilation 24 hours a day. He suffers no mental impairment and is, in fact, academically gifted.
4The applicant has lived with his parents all of his life. As they age, it has become apparent that he will require care that is medically adequate and appropriate for his intellectual, social and emotional needs. The Brock family claims that there is no such care available near his home and family in Newmarket. They claim that such care is available, in their own community, for those who need constant care, such as the applicant, but who are cognitively impaired. It is claimed, therefore, that the provision of that care for the cognitively impaired but not for an individual such as the applicant, who suffers no mental impairment, is discriminatory. The applicant filed complaints of discrimination on the basis of age and disability against the respondents, the Minister of Health and Long-Term Care and the Minister of Community and Social Services.
5The Case Analysis Reports of the Commission staff investigator found that the Brock family had not seriously explored the options available to them and that they rejected appropriate options because the facilities were too far from the community in which the applicant’s family (and emotional supports) live.
6The Case Analyses concluded that there was insufficient evidence of discrimination because, while appropriate services are provided for cognitively impaired persons, there is no guarantee that they will be provided close to the individual’s home community, and that “the evidence does not indicate that David requires an identical model of service to that which is offered to individuals with developmental disabilities”. The staff recommended against referring the complaints to the Tribunal under section 36 of the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”).
7The respondents submitted a response to the Case Analyses that included a list of facilities allegedly capable of meeting all of the needs of a person like the applicant. He replied with letters from an expert explaining why those facilities were not suitable. The expert noted that the Commission investigator did not do an independent investigation of the claims of the applicant. A further response was provided by the respondents.
DECISION OF NOVEMBER 28, 2006 NOT TO REFER
8The Commission decided not to refer the complaint to the tribunal because:
There was insufficient evidence of discrimination because of age or disability.
There are facilities that will meet the applicant’s needs, including group homes.
There is no evidence that the applicant was denied services that he applied for.
The applicant’s comparator group (persons with developmental disabilities) has a different set of needs.
There was insufficient evidence that the benefit sought was a benefit assured by law to the group of persons chosen as the comparator group.
RECONSIDERATION
9The applicant asked for reconsideration on the basis that
(1) There was no investigation of the facilities said to meet the applicant’s needs.
(2) There were no suitable group homes.
(3) A denial of services is not relevant because it is illogical to require a person to formally apply for and be denied services for which they do not quality.
(4) The different needs of the comparator group is not the issue but rather whether the applicant and people similar to him are denied services.
10The applicant provided materials in support of his position. The respondents replied with a dispute as to the content of those materials.
11The reconsideration report considered the grounds raised by the applicant and recommended that the initial decision be upheld.
12The Commission upheld its original decision.
STANDARD OF REVIEW
13This Court has held that the standard of review with respect to the Commission’s discretionary decisions under sections 36 and 37 of the Code is reasonableness. See Howell v. Ontario Human Rights Commission, [2008] O.J. No. 4342. The Court need not determine the standard of review for the procedural fairness issues raised by the applicant; rather, we must determine whether the appropriate level of procedural fairness was accorded to the applicant.
PROCEDURAL FAIRNESS ISSUES
14The applicant raised two issues: the failure to disclose material from the respondents, thus preventing him from making a full response, and the failure to conduct a thorough investigation.
A. OPPORTUNITY TO RESPOND
15The applicant submits that he was not provided with appendices to the respondents’ original letter of response to his complaint, dated March 3, 2006, which provided evidence of types of services provided. However, there was reference to the missing Appendices in the letter, which would have alerted him to the missing material. In any event, the material was summarized in the Case Analyses, which he received, and was reproduced in the respondents’ submissions to the Case Analyses, which he received.
16The applicant also submitted that he was not provided with the respondents’ supplementary response dated July 19, 2006. However, the information and arguments were summarized in the Case Analyses and were reproduced in the respondents’ submissions to the Case Analyses.
17The applicant also submits that he was denied an opportunity to respond to the Ministry response to his expert’s opinion. This expert opinion had been filed by the applicant in response to the Ministry submissions responding to his response to the Case Analyses.
18In our view, there was no denial of procedural fairness. The Ministry submissions respecting the complaint and the Case Analyses were provided to the applicant for comment. He made submissions to the Case Analyses and to the respondents’ submissions. All of the parties’ submissions in response to the Case Analyses and in reply to each others’ submissions were before the Commissioners when they made their decision under section 36 of the Code.
19The applicant had full notice of the facts and arguments upon which the Commission’s decisions were based. In addition, he had the opportunity to make submissions in response. The Commission’s duty of fairness is met when it advises the parties of the “facts, arguments and considerations upon which the decision is to be based” and provides the parties with an opportunity to make submissions. The Commission is not under a duty to disclose every detail, but rather to provide a “fair summary of the relevant evidence”. See Payne v. Ontario Human Rights Commission, [2004] O.J. No. 2987 (C.A.)
20When, pursuant to section 37 of the Code, the applicant requested that the Commission reconsider its decision, the Commission carried out its procedural duty under section 37. It gave the applicant’s application for reconsideration to the respondents and provided them with an opportunity to make written submissions with respect thereto.
21Section 37 of the Code does not contemplate that a respondent’s response to an application for reconsideration be given to an applicant. Section 37 requires the Commission to advise the respondent of the application for reconsideration; permit the respondent to make a written submission; and make a decision on the reconsideration application.
22Here, the Commission went further. It provided the parties with a reconsideration report and allowed them to make submissions in response. This was not a situation similar to that found in Mercier v. Canada Human Rights Commission, 1994 Can LII 3472 (F.C.A.) where, outside the Commission’s time limit, comments were filed without an applicant’s knowledge and the comments contained facts that did not previously appear in the file and which attacked the applicant’s credibility.
23This Court is unable to find that the Commission was in breach of any duty of fairness to the applicant in allowing and obtaining his response (s).
B. INVESTIGATION
24The applicant submits that the Commission investigation was deficient because the investigator failed to make inquiries into the adequacy of alternative placements.
25Deference must be given to the decisions of administrative decision-makers with respect to the probative value of evidence and the need for further investigation. It is only where unreasonable omissions are made, for example, where an investigator failed to investigate obviously crucial evidence, that judicial review and intervention is warranted. See Slattery v. Canada Human Rights Commission, 1994 3463 (FC), [1994] 2 FC 574 (T.D.).
26The applicant rejected the respondents’ position that funded facilities existed that could meet his needs. He asserted that the facilities were not appropriate because of their locations or because of the age of their residents. In response to the Case Analyses, he emphasized those claims in his submissions. It is unlikely that any amount of visiting those facilities by a Commission investigator would have changed the views of the applicant and his family. There was evidence provided to the Commission that long-term care facilities meeting the needs of young adults with physical disabilities, including Duchenne’s Muscular Dystrophy, do exist.
27More importantly, it is not disputed that a facility such as that sought by the applicant does not exist in his own community. That is the essence of his complaint as set out in paragraphs (t) and (u) of that complaint.
t. The government (through the Ministry of Community and Social Services) provides residential group homes for adults with cognitive disabilities, including medically challenged adults with cognitive disabilities who require complex continuous care. The government fails to provide similar care to medically challenged young adults without cognitive disabilities. This is discrimination based on the type of disability.
u. I believe that the government should provide long term care that meets my physical and emotional needs. Young adults like myself, who are mentally competent but medically challenged, should be entitled to appropriate long term care in their own communities just like that provided to other groups. I have friends in my community that I get together with regularly and who provide me with emotional support. I am a big fan of the game of polo and attend the polo matches, including winter (in-door) polo, held only 10 minutes from my home in Newmarket. Moving me out of my community would put an end to my rich and fulfilling life style and the emotional support structure necessary for my happiness and sense of well being.
28This Court is unable to find, in the circumstances of the applicant’s complaint, that any duty of fairness to carry out a neutral and thorough investigation was breached.
DISCRIMINATION
29The Commission concluded that the group of individuals with whom the applicant compared himself – people with developmental disabilities – had additional needs that he did not share. It also concluded that the benefit sought was not one that was assured to the applicant’s comparator group or to any other group.
30The Commission’s decisions were consistent with the observations of the Supreme Court of Canada in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at para.41:
This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter public policy, provided the benefit itself is not conferred in a discriminatory manner.
31The evidence before the Commission indicated that people with developmental disabilities have different needs than people with physical disabilities. The Commission’s decisions were consistent with the principle that it is not discriminatory to implement a program designed to address the specific needs of people with developmental disabilities. See Ontario Human Rights Commission v. Ontario, 1994 1590 (ON CA), [1994] O.J. No. 1732 (C.A.) at paras. 39-41. It is not discrimination for government, on a policy basis, to target a particular disadvantaged group in an effort to ameliorate that group’s condition. See Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950.
32The comparator group utilized by the applicant is a disadvantaged group specifically targeted by the Developmental Services Act, R.S.O. 1990, c. D.11. Given the evidence that people with developmental disabilities have specific and different needs, and that neither people with developmental disabilities nor people with physical disabilities have a right to government-funded long-term group-living residential facilities in their own communities, there was a reasonable basis for the Commission to conclude that the applicant’s claim of discrimination did not warrant an inquiry by the Tribunal.
CONCLUSION
33Therefore, the application for judicial review is dismissed. Neither respondent seeks costs, and none are awarded.
Kent J.
Lederman J.
Swinton J.
Released: January , 2009
COURT FILE NO.: 475/07
DATE: 20090113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, LEDERMAN and SWINTON JJ.
B E T W E E N:
DAVID BROCK
Applicant
- and –
ONTARIO HUMAN RIGHTS COMMISION and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTER OF HEALTH AND LONG-TERM CARE and THE MINISTER OF COMMUNITY AND SOCIAL SERVICES
Respondents
REASONS FOR JUDGMENT
Released: January 13, 2009