Court File and Parties

CITATION: Lepofsky v. Cho, 2021 ONSC 6466

DIVISIONAL COURT FILE NO.: 364/21

DATE: 2021/10/01

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: David Lepofsky, Applicant

AND:

Raymond Cho, the Minister for seniors and accessibility, Respondent

BEFORE: Sachs, R. D. Gordon and Kristjanson JJ.

COUNSEL: David Lepofsky, on his own behalf

Michael J. Sims and Wan Yao Chen, for the Respondent

Dianne Wintermute, for the Intervenor, Citizens with Disabilities, Ontario

HEARD at Toronto by videoconference: September 27, 2021

Endorsement

[1] The Applicant initially sought an order in the nature of mandamus compelling the Respondent to make public proposed accessibility standards the Minister had received from three committees ( the “Reports”). The Reports have now been made available. The Applicant amended his application to seek a declaration that the Respondent breached his duty to make the Reports public upon receipt, as is required by s. 10(1) of the Accessibility for Ontarians with Disabilities Act, 2005 ( the “Act”).

[2] We agree with the Respondent that the Application’s application is moot. The live controversy between the parties, namely, the failure to make the Reports available to the public, has now disappeared.

[3] The Applicant argues that even if we find that the application is moot, we should proceed to hear it as to do so would provide guidance to the parties for future cases. We agree with the Applicant that accessibility for Ontarians with disabilities is an urgent issue and that the deadline provided for in the Act for achieving the purpose of the Act is fast approaching. Thus, anything that can be done to eliminate delay in achieving the goal of accessibility should be done. We disagree that issuing a declaration in this case to the effect that the Respondent breached its duty to make the Reports public upon receipt would meaningfully advance this goal.

[4] Issuing a declaration that would have a meaningful effect in the future requires adopting an interpretation of the term “upon receipt” used in the English version of s. 10(1) of the Act ( the term does not appear in the French version) that is not dependent on the analysis of a particular set of circumstances. Yet, neither the Applicant nor the Respondent is advocating such an interpretation. Both agree that the Reports are required to be released only after the Respondent has taken the reasonable steps necessary to prepare the Reports for public release. Where they disagree is on the question of which steps were reasonably necessary in this particular case and how much time was reasonably required to take those steps. For example, the Respondent asserts that it was necessary to brief the government about the content of the Reports and to make sure that the Reports did not exceed the mandate of the committees who issued them and that the language in the reports is appropriate. The Applicant counters by stating that these steps were not necessary since in this case the Respondent had representatives on the committees that prepared the Reports, which should have obviated the necessity for any more review. Both parties agree that before the Reports could be released they had to be “coded” and translated into French.. Where they disagree is on the question of how long this process should have taken. The Respondent states that part of the delay in this case was due to COVID 19. The Applicant disputes this explanation. Determining whether the requested declaration should be issued would require this Court to assess the evidence about the circumstances in this particular case. If we were to conclude that in this case the Respondent breached its duty, this would say nothing about what a subsequent court might decide in a different case. The analysis is an individual and contextual one and will necessarily vary in each case. For the court to engage in this exercise when the desired objective ( the release of the Reports) has been achieved would not be an appropriate use of its resources.

[5] The Applicant argues that failing to hear his application would be deny him a remedy in the face of the Respondent’s breach of its statutory obligation. Again, we disagree. The Applicant’s remedy in this situation was to seek an order requiring the Respondent to comply with its obligation and make the Reports available. Due to the fact that the Reports have now been made available, there is no further need for court intervention.

[6] For these reasons the application is dismissed. The parties agree that there should be no order as to costs.

Sachs J.

I agree _______________________________

R. D. Gordon J.

I agree _______________________________

Kristjanson J.

Date: October 1, 2021