COURT FILE NO.: CV-19-00614989

DATE: 20210331

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JEAN-MARIE DIXON, Plaintiff

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and ASSOCIATION OF LAW OFFICERS OF THE CROWN, Defendants

BEFORE: Paul B. Schabas J.

COUNSEL: Jean-Marie Dixon on her own behalf T. Curry and D. Contractor, for Her Majesty the Queen in Right of Ontario C. Donovan and G. Philipupillai, for Association of Law Officers of the Crown

HEARD: In writing

ENDORSEMENT

[1] I was assigned to case manage this matter in the spring of 2019. At that time, there were two applicants, Jean Marie Dixon and Hentrose Nelson, who were represented by the same counsel.

[2] The plaintiffs alleged serious and ongoing anti-Black discrimination in the workplace. Both plaintiffs had worked for many years in professional positions in the Ontario government.

[3] After being assigned the matter I convened a meeting with counsel and was advised that the respondent, Her Majesty the Queen in Right of Ontario (“Ontario”) and the Association of Management, Administrative and Professional Crown Employees (“AMAPCEO”), wished to bring a motion to strike the action on jurisdictional grounds based on the decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (the “jurisdiction motion”). I set a schedule for that motion.

[4] Not long after, Ms. Dixon and her counsel parted company.

[5] At a case conference on August 2, 2019, Ms., Dixon said she intended to bring a motion for injunctive relief arising from the discontinuation of her income and benefits. I set a schedule for the exchange of materials and heard that motion on September 13, 2019. The jurisdiction motion in both actions was postponed in light of the change in representation and the request for injunctive relief.

[6] On September 13, 2019, I heard Ms. Dixon’s motion. On that date, I also permitted Ms. Nelson, who remained represented by counsel, to issue a separate action so the matters could move forward as separate proceedings with different pleadings. However, I remained case management judge on both matters.

[7] I released Reasons dismissing Ms. Dixon’s motion on September 23, 2019: Nelson et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5415.

[8] Ms. Nelson, who is a lawyer, represented herself on that motion and continued to represent herself at subsequent case conferences in 2019 and early 2020.

[9] A case conference was held by telephone on October 25, 2019, at which time Ms. Dixon indicated that she had not yet retained counsel and was not in a position to set a hearing date for the jurisdiction motion. In order that the Nelson matter not be delayed, I directed that the jurisdiction motion in that case be heard on March 10, 2020.

[10] On the Dixon matter, I directed another case conference to be held on November 15, 2019. As I stated in my endorsement of October 25, 2019:

With respect to the Dixon matter, a case management call shall be convened on Friday, November 15, 2019 at 9:00 am. It is hoped that by then Ms. Dixon will have retained counsel or otherwise be in a position to set a schedule for the hearing of the jurisdiction motion in that matter. I have also left open the possibility of having the jurisdiction motion in the Dixon matter heard at the same time or immediately after the motion in the Nelson matter.

On the call today, Ms. Dixon raised concerns about her current status with Ontario following her return to work and that she may wish to bring further motions to the court for relief. If so, I suggested that she provide a notice of motion or other document in advance of the November 15 call, so that those issues can be addressed at that time.

[11] The November 15 case conference did not proceed due to the unavailability of a court reporter. At a case conference on December 16, 2019, Ms. Dixon advised that she had not yet been able to retain counsel, and that she was seeking to appeal my decision of September 23, 2019. She also requested that I recuse myself and she asserted that there was a reasonable apprehension of bias.

[12] I adjourned the matter to February 14, 2020 in order for Ms. Dixon to provide me with the grounds for her allegation of bias, either in the form of a letter or a notice of motion. I also requested an update on the status of the appeal and whether that would have any impact on the progress of the case. I concluded my Endorsement of December 16, 2019 stating:

Also on February 14, 2020, whether Ms. Dixon is represented by counsel or not, the parties shall be in a position to address a schedule for the further exchange of materials and a hearing date for the defendants’ motion to strike the claim.

[13] On February 14, 2020, a telephone case conference was convened. However, as Ms. Dixon was disconnected from the call twice, she expressed concern about holding case conferences by telephone. I agreed, and adjourned the matter to March 9, 2020 for an in-person meeting. However, that date had to be postponed and the COVID-19 pandemic intervened.

[14] In the meantime, Ms. Dixon has provided me with a notice of motion seeking to have me recuse myself on the grounds of a reasonable apprehension of bias.

[15] The jurisdiction motion proceeded on the Nelson matter which I heard on March 10, 2020. On April 7, 2020 I released my Reasons for Judgment holding that the action should be struck out for lack of jurisdiction: Nelson v. Her Majesty the Queen in Right of Ontario, et al., 2020 ONSC 2147. The decision was upheld by the Court of Appeal on November 30, 2020: Nelson v. Ontario, 2020 ONCA 751.

[16] Due to Ms. Dixon’s request for in-person meetings, and the pandemic, no further case conference has been held since February 2020.

[17] In November 2020, through my assistant, I asked if Ms. Dixon would be willing to hold a case conference by Zoom in order to address next steps. Ms. Dixon responded by email on December 10, 2020 stating that she was “unable to proceed with a case conference at this time.” She provided a number of reasons arising from the discriminatory conduct she has alleged and the psychological and financial impact it has had on her. She stated, however, that “when able I will be proceeding with an amended Statement of Claim, applications, motions and the appeal.”

[18] Following this, counsel for Ontario continued to press for a case conference.

[19] On March 15, 2021, my assistant wrote to Ms. Dixon and counsel for the defendants proposing a case conference during the weeks of March 22 or March 29, 2021, to be held by Zoom.

[20] Counsel for both defendants, Ontario and the Association of Law Officers of the Crown (“ALOC”), promptly proposed March 26, 2021. However, Ms. Dixon responded by stating that she has a disability caused by the conduct of the defendants which “prevents me from proceeding with the civil proceeding at this time.” Nevertheless, her email went on to state:

However, as requested many times, the Employer & ALOC whom exclusively control the grievance proceeding, are requested once again, by me, to forthwith proceed with the outstanding grievances (which per ALOC's desires do not cover the substantive abuse I have been subjected to).

[21] In light of Ms. Dixon’s response, I sought the positions of the defendants.

[22] ALOC’s counsel responded as follows:

ALOC is interested in moving the litigation along. If, due to Ms. Dixon’s health, she requires more time, we are prepared to look at a later date for the case conference. We are concerned, however, about indefinite delays and if Ms. Dixon is saying that there is no reasonable prospect of her being able to advance this case in the foreseeable future then that is a matter that in ALOC’s view should also be addressed.

[23] Ontario, after reviewing the chronology of events, stated:

The Crown appreciates that the pandemic has resulted in challenges and delays. It has, however, been over a year since the last case conference. The defendants are entitled to see this matter advance. The Crown respectfully request that a case conference be scheduled to proceed on March 29 at 9:00. At this case conference, the Crown will seek a motion date.

[24] Ms. Dixon responded at some length to the Crown’s position. She stated, among other things, that she has been “subjected by OPS staff/management to 18 years of anti-Black racism/white supremacy, racial violence, misogynoir, tortious conduct, discrimination, harassment with the Employer doing nothing to create a safe and healthy work environment for me as a Black female OPS employee,” and that as a result she now has a disability and is in receipt of long-term disability benefits. Consequently, Ms. Dixon concludes:

As a person with a disability, I am not able to proceed at this time with my civil suit, and the HRC, Charter; AODA; and human rights principles govern the issue of my attendance on any case conference being that is currently being pushed by the Crown, despite my having a disability (resulting from its conduct).

[25] At the last case conference, over 13 months ago, Ms. Dixon had been seeking to retain counsel to represent her and it was anticipated that dates would be set for the next steps in this matter in March 2020. For the reasons set out above that did not happen.

[26] Now, Ms. Dixon is asserting a disability as a result of the conduct of the defendants as a reason the matter should not go forward. The same conduct of the defendants, however, is also the subject of her lawsuit. On the other hand, she is pressing to have ALOC proceed with outstanding grievances.

[27] If a party is disabled and requires an adjournment or additional time, as counsel for ALOC has noted that may be appropriate. The Court has an obligation to accommodate a litigant who has a disability; however, that accommodation only extends to the point of undue hardship, and must be balanced against the rights of other litigants, including defendants who have a right to have an action determined. The Court also has an obligation to ensure that lawsuits are determined in a timely way. An adjournment or delay, therefore, should not be unlimited or indefinite.

[28] In short, one cannot commence proceedings, and then put them on hold indefinitely. The Rules contain procedures that may be followed, if necessary, where a party is under a disability. Usually, however, there is medical evidence of the disability to support that process.

[29] In these circumstances, I accept ALOC’s suggestion that Ms. Dixon be provided with a limited period of time to consider her position, including whether to request accommodation, retain counsel, or seek to have someone pursue the action on her behalf if she is unable to do so.

[30] I will therefore schedule a case conference to be held on Monday, April 28, 2021, at 9AM, by Zoom. My assistant will send out the coordinates for the case conference. I shall expect the parties, including Ms. Dixon or her representative, to address further steps in this proceeding at that time.

Paul B. Schabas J.

Date: March 31, 2021