COURT FILE NO.: CV-19-00614989
DATE: 20210607
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
Background
[1] In my Endorsement of March 31, 2021 I reviewed the history of this proceeding, of which I am the case management judge, and sought submissions from the parties on how to move forward, including providing the plaintiff, Jean-Marie Dixon, the opportunity to seek accommodation due to her assertion of a disability. To that end I scheduled a case conference to be held by Zoom on April 28, 2021: Dixon v. Ontario, 2021 ONSC 2418.
[2] Following the release of my Endorsement, on April 14, 2021 Ms. Dixon forwarded to me a brief letter from her physician, Dr. Jessamy, stating that "[d]ue to symptoms of her ongoing disability [Ms. Dixon] is unable to attend any court proceedings at this time." The physician's letter provided no details of Ms. Dixon's condition, when she might recover, nor did it propose any accommodations that could be made.
[3] After receiving submissions from the defendants, in an Endorsement dated April 23, 2021 I adjourned the April 28 case conference until June 8, 2021 in order "to provide Ms. Dixon the opportunity to provide evidence of her disability and to propose any reasonable accommodations sought by her, recognizing that the case cannot be delayed indefinitely": Dixon v. Ontario, 2021 ONSC 3057.
The plaintiff's position
[4] Since releasing my April 23, 2021 Endorsement I have received emails from Ms. Dixon dated April 23, April 27, April 30, May 4, May 7 and May 21.
[5] The emails of May 4 and May 19 included additional letters from Dr. Jessamy. The May 4 email attaches a letter dated April 29, 2021 which states, in full:
The above patient was reassessed today. Due to symptoms of her ongoing disability she is unable to attend any court proceedings at this time. The restrictions and limitations are those which have been clearly outlined in medical reports (from Ms. Anu Lala, Dr. Natasha Williams, Dr. Amy Wai) that Ms. Dixon has provided to her employer. It is my understanding that her association and the court also have copies of these reports.
[6] The May 21 email attached a medical note from Dr. Jessamy dated May 19, 2021 which states, in full:
Ms. Dixon was reassessed in the clinic today. She has been diagnosed with PTSD, hypertension, adjustment disorder, acute stress disorder, depression and anxiety. Current symptoms include panic attacks, depressed/low mood, sadness, periods of severe depression, isolation, chronic fatigue, rumination, worry, memory impairment, lethargy, impaired sleep and appetite, nightmares, hypervigilance, fear, mistrust, disorganization, intrusive negative thoughts and images, cognitive difficulties, frustration, irritability and anger.
Due to the symptoms outlined above, she is unable to represent herself in court and will need appropriate accommodations for this.
[7] The medical reports referred to in Dr. Jessamy's April 29 letter are from healthcare professionals prepared in 2017, 2018 and 2019, including Ms. Dixon's previous family doctor, a psychologist and a psychotherapist, all of whom confirmed that Ms. Dixon was suffering from a disability arising from her workplace which affected her ability to return to work as a civil litigation lawyer. Those reports are contained in a package of materials that was sent to me in September 2019, referred to in my Reasons on Injunction Motion at para. 35: Nelson et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5415.
[8] Dr. Jessamy's reference to PTSD, or post-traumatic stress disorder, in her letter of May 19 echoes what was reported in 2019. However, Ms. Dixon has not filed any recent reports discussing her limitations beyond the May 19 letter from Dr. Jessamy, nor has Dr. Jessamy provided any information that would assist the court in considering potential accommodations.
[9] Ms. Dixon's email of May 21 is headed "Restrictions, Limitations and Accommodations." It addresses her disability resulting from the workplace conduct set out in her statement of claim and other pleadings which she describes as, among other things, racist, discriminatory, and harassing against her as a Black woman, and that this has had a "severe negative effect not only on my physical, psychological, and mental wellbeing, social, familial wellbeing, it has also had a severe effect on my financial wellbeing, which compounds the trauma, anxiety, distress, and depression I am feeling."
[10] In her May 7 and May 21 emails, Ms. Dixon advised me that she is now receiving long-term disability benefits from her employer's insurer, Canada Life.[^1] She is also receiving the Canada Penson Plan Disability benefit, which I am told is only available for a person with a "severe and prolonged" disability. Ms. Dixon points out that the amount of the CPPD benefit is deducted from the payments by Canada Life. She also states that her disability payment is used to make interest payments on her debts, as she is unable to pay her property taxes and is facing "financial ruin."
[11] Ms. Dixon has also copied me on a number of emails she has exchanged with counsel for the defendants regarding a continuing dispute over payment for a medical report in 2019.
[12] The May 21, 2021 email states that WDHP Reports filed with the court by the Crown in September 2019, which she describes as "vile and racist, anti-Black, and white supremacist," have compounded the symptoms of her disability and made her unable to prepare an amended statement of claim, proceed with other applications/motions, and represent herself in court.
[13] Ms. Dixon refers to the medical reports of 2019 that described her disability and its impact on her ability to work as a civil litigator which, she states, "requires the same skill sets, functionalities, concentration etc. that litigating my civil action requires of me as a self-represented party," and therefore she says she is unable to proceed with this action without accommodation.
[14] Ms. Dixon's May 21 email also makes allegations of anti-Black racism and abusive conduct against counsel for Ontario and against me. As I noted in my March 31, 2021 Endorsement, in February 2020 Ms. Dixon provided me with a draft notice of motion seeking my recusal as the case management judge on the basis of an alleged reasonable apprehension of bias. She now goes further and states that my conduct as case management judge has affected her "mental, psychological, physical, social, and familial wellbeing," and that she no longer has the capacity to deal with me.
Accommodation requests
[15] Ms. Dixon submits that she is not able to proceed with her action at this time based on her "limitations and restrictions." However, she proposes accommodations which she says are necessary for her to proceed with her lawsuit. Those accommodations are, in summary:
That I must recuse myself as case management judge;
That the judge assigned to the case have training in and commitment to human rights law and principles, and be a judge from outside Ontario who does not have any direct or indirect connection to the law firms representing Ontario and ALOC, or to individuals identified in the Statement of Claim, her Human Rights Applications or the WDHP Reports;
That Ms. Dixon have legal representation by counsel with expertise "in individual/systemic anti-Black racism, misogynoir, white supremacy, civil and Charter litigation, and going up against large organizations, like the Ontario government, and a commitment to racial equity and justice," and that the defendants provide the funds for her to retain counsel for this proceeding and a bad faith representation proceeding, if necessary; and
That Ms. Dixon's pay be reinstated so that she "can pay for the necessities of life, including appointments with my psychologist, and reduce the harm to my psychological, mental, physical, familial wellbeing."
[16] Ms. Dixon addresses these issues in her email of May 21, 2021. She attaches two documents dealing with accommodation: (1) a summary and comment on a decision published by Lancaster House on May 18, 2016 about a Public Service Labour Relations and Employment Board adjudicator's decision in Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4; and (2) a decision of the Grievance Settlement Board in Ontario Public Service Employees Union (Lupiani) v Ontario (Transportation), 2019 CanLII 21740 (ON GSB). Both of these cases dealt with workplace accommodation.
[17] Ms. Dixon also quotes at length from the Ontario Human Rights Commission's website on disability and accommodation, including the need for a person seeking accommodation to provide sufficient information so that organizations can assess and determine how to meet their duty to accommodate.
Defendants' positions
[18] Counsel for Ontario has responded to Ms. Dixon's position by letter dated May 31, 2021, arguing that her proposed accommodations are not appropriate accommodation requests. Ontario argues that there is no evidence that the conditions she seeks are required to ensure that Ms. Dixon has "equal access to Court services," that granting the accommodations "would circumvent important procedural and substantive steps necessary to obtain the significant remedies sought by Ms. Dixon," and that she has not provided sufficient evidence of her disability. Counsel for Ontario also submits that it is open to Ms. Dixon to retain counsel or seek the appointment of a litigation guardian.
[19] Ontario requests that I schedule a date for its proposed motion to strike the action on similar grounds to those raised by it in the Nelson matter[^2] by August 1, 2021.
[20] Counsel for ALOC also responded to me by letter dated May 31, 2021. ALOC "accepts that Ms. Dixon has a disability and may require certain accommodations in order to proceed with this action as a self-represented litigant," but argues that the accommodations sought "do not flow from the nature of her disability and the medical evidence she has submitted." ALOC states that "[m]any of the measures she seeks could only be determined on a motion, with the benefit of a complete evidentiary record."
[21] Counsel for ALOC expresses its concern that "the plaintiff is seeking to delay this action indefinitely," and observes that the earlier medical reports relied upon by Ms. Dixon all pre-date her representing herself on the injunction motion in September 2019. ALOC observes that the medical notes from 2019 and earlier "do not explain any inability to attend and represent herself at a case conference." ALOC also notes that the recent letters provide no indication as to whether Ms. Dixon's condition may improve, and "little information that would allow the parties or the court to assess the measures necessary to accommodate the plaintiff's disability."
[22] ALOC submits that "the plaintiff's disability can be accommodated in order to allow the case conference to proceed by providing the plaintiff with adequate time to prepare and the ability to take breaks as may be necessary." Alternatively, "ALOC is content to proceed with the case conference in writing considering that the plaintiff has demonstrated an ability to advocate through such means" and that the parties be directed to make written submissions regarding a timetable for the progress of the action.
Conclusions and directions
[23] The evidence provided by Ms. Dixon supports the conclusion, accepted by ALOC, that she has a disability which may impair her ability to conduct this litigation as a self-represented litigant. The current evidence from Ms. Dixon's physician, Dr. Jessamy, which I have quoted above, indicates that Ms. Dixon is unable to attend and represent herself in court at this time.
[24] Dr. Jessamy does not address Ms. Dixon's claim that she cannot continue with the action while I remain the case management judge, nor does she address any of the other proposed accommodations and how they relate to Ms. Dixon's functional limitations. Dr. Jessamy makes no recommendations at all on how Ms. Dixon may be accommodated in the litigation process. As ALOC points out, Ms. Dixon has provided little information that would allow the court to assess what may be required to provide reasonable accommodation for Ms. Dixon's disability in moving the action forward, nor has she provided any indication as to when her condition may improve.
[25] The difficulty with Ms. Dixon's proposed accommodations is that they are, as Ontario notes, "significant remedies" which can only be considered on a motion or motions based on evidence.
[26] The demand for my recusal is already the subject of draft notice of motion prepared by Ms. Dixon just prior to the COVID-19 pandemic. It is a matter that must be considered on a motion, based on evidence. The request for an out-of-province judge with training in and commitment to human rights law and principles is not supported by the medical evidence and, in any event, is an extraordinary request that should also be addressed on a motion.
[27] Ms. Dixon was attempting to retain counsel prior to the onset of the pandemic. But she has not done so, nor has she appointed a litigation guardian, assuming that avenue is open to her as suggested by Ontario.[^3] I appreciate that Ms. Dixon has financial limitations which may well make retaining counsel a challenge, but an order that a defendant fund a plaintiff's case is also extraordinary and, if such an order were to be issued, it could only be made following a motion.
[28] The request for reinstatement of Ms. Dixon's pay was addressed on the injunction motion in September 2019, and any revisiting of that issue must also be by way of a motion.
[29] As I have stated, this action cannot be delayed indefinitely. Ms. Dixon has commenced a lawsuit and the defendants are entitled to have it determined. Ms. Dixon says she cannot participate in court proceedings in the absence of accommodation, but the accommodations she seeks are substantive remedies that must be sought by way of a motion or motions.
[30] While Ms. Dixon notes that her disability prevents her from working as a litigation lawyer for the Ministry of the Attorney General, preparing motion materials on her own case is quite different. Ms. Dixon does not need to return to the workplace, interact with colleagues or face the hostile work environment about which she complains in this action nor, at this stage, must she attend court. Dr. Jessamy does not say Ms. Dixon cannot prepare materials, and Ms. Dixon has made written submissions to me over the past several weeks demonstrating that she is able to present legal and factual positions in writing. At this stage, that is all that is required of her.
[31] Once bias is alleged, the court should be cautious about taking any further steps or making any orders until that issue is determined. The motion for recusal must therefore be addressed first.
[32] Accordingly, I will provide Ms. Dixon with time to prepare and deliver a revised notice of motion and a motion record containing any evidence she intends to rely on in support of the recusal motion. I will then provide the defendants with time to prepare responding evidence and for Ms. Dixon to prepare any reply materials. The timelines shall be generous to Ms. Dixon.
[33] Once materials have been exchanged, Ms. Dixon is requested to provide updated evidence respecting her functional limitations so that the Court and the parties have sufficient information to consider any reasonable accommodations that may be necessary to complete the further steps involved in having the motion heard and determined.
[34] Accordingly, I direct as follows:
(a) Ms. Dixon shall file her notice of motion for recusal, with supporting evidence, by August 31, 2021;
(b) The defendants shall file any responding materials by September 30, 2021;
(c) Ms. Dixon shall file reply materials, if any, by November 15, 2021;
(d) Ms. Dixon shall provide any additional evidence and submissions relating to accommodation and next steps in the motion by November 15, 2021;
(e) On or before November 30, 2021 the defendants shall provide me with their positions regarding accommodation and next steps in the motion; and
(f) Ms. Dixon may, if she wishes, provide me with a brief reply to the defendants' positions on accommodation and nest steps by December 10, 2021.
[35] It follows from this Endorsement that the case conference scheduled for June 8, 2021, is cancelled.
Paul B. Schabas J.
Date: June 7, 2021
[^1]: Ms. Dixon's receipt of disability insurance is a change in circumstance from September 2019, when she moved for injunctive relief: Reasons on Injunction Motion, para. 5.
[^2]: Nelson v. Her Majesty the Queen in Right of Ontario, et al., 2020 ONSC 2147; aff'd., Nelson v. Ontario, 2020 ONCA 751.
[^3]: Although Ms. Dixon has a disability, it may not be the type of disability defined in the Rules of Civil Procedure that would give rise to the appointment of a litigation guardian: see Rule 7 and the definition of "disability" in Rule 1.03(1).