Ministry of Community and Social Services v. Robinson-Cooke, 2024 ONSC 2425

CITATION: Ministry of Community and Social Services v. Robinson-Cooke, 2024 ONSC 2425

DIVISIONAL COURT FILE NO.: 501/23

DATE: 20240425

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES, Applicant

AND:

DESTINY ROBINSON-COOKE AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO, Respondents

AND:

INCOME SECURITY ADVOCACY CENTRE, Proposed Intervener

BEFORE: Leiper J.

COUNSEL: Ryan Cookson and Elizabeth Guilbault, Lawyers for His Majesty the King in Right of Ontario as Represented by the Minister Community and Social Services

Megan Maxwell and Kisha Munroey, Lawyers for Destiny Robinson-Cooke

Brian Blumenthal, Lawyer for the Human Rights Tribunal of Ontario

Adrian Merdzan, Lawyer for the Proposed Intervener, Income Security Advocacy Centre

HEARD: In writing on April 25, 2024

ENDORSEMENT

Introduction

[1] The Income Security Advocacy Centre (ISAC) seeks leave to intervene as a friend of the court in this application for judicial review relating to a decision by the Human Rights Tribunal of Ontario which found that Ministry’s refusal of the Guide Dog Benefit was discriminatory because the Ministry relied on strict training and accreditation requirements in its Policy Directive which prevented many persons with mental health disabilities from obtaining a service dog in Ontario.

[2] The application for judicial review is scheduled to be heard on June 12, 2024.

[3] ISAC is a specialty legal clinic with a mandate to advance the rights, interests, and systemic concerns of low-income Ontarians.

[4] ISAC submits that this application for judicial review has implications that extend beyond those of the immediate parties and directly impact the communities they serve, particularly Ontario Disability Support Program recipients.

[5] ISAC proposes to make three arguments if granted leave to intervene: (1) how the purpose of the ODSPA scheme and ODSP policy directives should inform the assessment of the Guide Dog Benefit; (2) what factors the Court should consider at the second branch of the test for prima facie discrimination; and (3) what the scope of HRTO remedies for discrimination caused by government policy should entail.

[6] The parties do not oppose ISAC’s request for intervention.

Analysis

[7] Rule 13.02 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, provides that any person may apply to intervene in a proceeding as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[8] ISAC submits that given the quasi-constitutional status of human rights legislation, the court should apply the criteria outlined in Bedford v. Canada (Attorney General), 2009 ONCA 669, at para. 2 which apply to motions to intervene in constitutional matter. These criteria are:

(a) that the proposed intervener has a real, substantial, and identifiable interest in the subject matter of the proceedings;

(b) that it has an important perspective distinct from the immediate parties; or

(c) that it is a well-recognized group with a special expertise and a broadly identifiable membership base

[9] I am also guided by three criteria, as set out in Peel (Regional Municipality) v. Great Atlantic and Pacific Co of Canada, (1990) 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at para. 10.:

(a) the nature of the case;

(b) the issues that arise in the case; and

(c) the likelihood that the proposed intervener will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[10] I am satisfied that ISAC meets the criteria in Peel and in Bedford and I make the order sought for the following reasons.

[11] ISAC has extensive experience and expertise with respect to social assistance including ODSP benefits, ODSP Policy Directives, and the Human Rights Code. This application involves all of these policies and legislation.

[12] Since 2001, ISAC has successfully litigated numerous cases on behalf of vulnerable and low-income individuals before all levels of Court. This is the population which may be affected by the findings in this application for judicial review. I am satisfied that ISAC has the necessary experience and expertise and has a connection to the issues on behalf of the populations that is serves.

[13] Further, the Court of Appeal has recognized the “unique expertise of ISAC” to assist in a case involving issues of adverse-impact discrimination and substantive equality in the context of low income individuals living with disabilities: Jacob v. Canada (Attorney General), 2024 ONCA 195, at para. 10.

[14] In support of the application to intervene, ISAC taken steps to demonstrate to the parties that its submissions will not duplicate those of the other parties. In March of 2024, ISAC provided all parties with an outline of its proposed submissions and detailed these in its materials in support of this application.

[15] Given that the parties are not opposing the order sought, I will merely note that I have read the motion record and factum and agree on the strength of the material filed, that ISAC will be a helpful addition to the hearing and bring its experience and expertise to the arguments. Its policy and advocacy role beyond the concerns of the immediate parties will make a useful contribution and will not prejudice any of the parties. ISAC does not seek to expand the record. ISAC proposes to work within the court’s timetable and not delay the hearing of the application.

Conclusion

[16] I grant the order sought and grant ISAC leave to intervene in this application as a friend of the court with the following terms:

[17] ISAC is required to

(a) take the evidentiary record as is and will not seek to augment the record;

(b) file a factum not exceeding twenty (20) pages in length;

(c) be permitted to make oral submissions at the hearing not exceeding twenty (20) minutes in length;

(d) adhere to the Court’s timetables as set;

(e) take no position on the merits of the outcome of the application

(f) make reasonable efforts to avoid duplicating the parties’ submissions;

(g) not seek costs or have costs ordered against it.

[20] The Applicant sought leave to file a 10-page reply factum in the event that leave to intervene is granted. Given that ISAC has made full disclosure of the arguments it intends to make, and that it will not be taking a position on the merits, it is unclear to me that that reply factum of this length is necessary. However, in the interest of ensuring that the Court receives all available arguments including from the Applicant in its public interest role, I grant leave to the Applicant to file a 5-page reply factum.

[21] The parties also raised the issue of not losing their “allotted time” because of any order permitting ISAC to make oral submissions. I agree. The time for the hearing of this application shall be extended by twenty minutes to ensure all parties have adequate time to make submissions.

Leiper J.

Date: April 25, 2024