Court File and Parties
COURT FILE NO.: 270/24 DATE: 20240606 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Katarzyna Niang, Applicant -and- Lakeshore Gardens Co-operative Homes Inc. and City of Toronto, Respondents
BEFORE: FL Myers J
COUNSEL: Katarzyna Niang, on her own behalf
READ: June 5, 2024
DIRECTIONS
Background
[1] I will be hearing a case conference in this application on June 28, 2024. The case conference was convened by Shore J. The purpose of the case conference is to deal with scheduling of Ms. Niang’s motion for leave to appeal from the order of Akazaki J. made April 19, 2024 and to deal with accommodations requested by Ms. Niang.
[2] Yesterday, Ms. Niang advised the court that the parties had agreed to the following schedule:
June 28, 2024: Moving party to serve and file motion record, factum, and transcript, if any.
30 days from the date of receipt of the Moving party's materials: Responding parties, Lakeshore Gardens and City of Toronto, to provide their materials.
14 days from the date of receipt of the Responding parties' materials: Moving party to provide a Reply, if any.
[3] I order the parties to comply with this schedule. Changes may be made only with leave of a judge obtained in writing on consent of all parties or at a case conference.
[4] Yesterday, Ms. Niang also wrote to the court to particularize her requests for accommodations for her disabilities. As some of the requests involve procedural rulings that can only be made by a judge, the Registrar provided Ms. Niang’s material to me.
[5] As required by Shore J, Ms. Niang properly provided some medical information as back-up for her accommodation requests. I do not propose to share these personal materials with the respondents. Should the respondents at some point assert a right to see Ms. Niang’s personal health information, their counsel can speak to Ms. Niang and bring a motion if so inclined.
Accommodations
[6] If a litigant’s ability to participate fully and fairly in legal proceedings before this court is impaired by one or more disabilities, as recognized under the Human Rights Code, then he or she is entitled to accommodation to try to ameliorate, as best as possible, the prejudice caused by the disabilities. It is important for the court to accommodate litigants’ disabilities as best as it can to the limit of undue hardship.
[7] People who request accommodation bear a burden to establish that they have disabilities that need specific accommodation. The case law speaks of the accommodation dialogue in which employers and service providers work together with a disabled person to try to understand his or her needs and to accommodate them as circumstances allow.
[8] But people who request accommodation are pursuing only their own interests. They must remember that in legal proceedings, there are two or more parties in a dispute and each is entitled to vindicate their legal rights in a fair process.
[9] The court cannot simply address the needs of one party alone where doing so may prejudice the other parties. Accommodations sought in legal proceedings must take into account that there are other people whose rights might be affected.
Ms. Niang’s Requests
[10] Ms. Niang asks for all hearings to be in-person or in-writing. She asks for a break before she is expected to speak and she asks for questions to be put to her in writing.
[11] The motion for leave to appeal will be dealt with in writing in the ordinary course. The Registrar will assign the motion for leave to appeal to a panel on the first available date after September 1, 2024.
[12] If the case conference remains necessary, it will be held in-person in a courtroom that will be assigned by the Registrar. The respondents do not need to prepare anything in writing. I will deal with printing any questions that are to be put to Ms. Niang at or during the case conference.
[13] Ms. Niang asks for a blanket extension of filing deadlines without penalties. This seems inconsistent with her advice that the parties agreed to the filing deadlines set out above.
[14] While I understand that Ms. Niang finds deadlines challenging, if I extend them all today, I will just be setting new or different deadlines.
[15] There cannot be blanket removal of filing deadlines because the other parties to the litigation are entitled to fair notice of the evidence, law, and arguments that they face in the proceeding.
[16] Filing deadlines exist for the benefit of all parties and the court. Judges too need time before hearings to review materials and prepare themselves. All parties need a fair opportunity to obtain, review and, where appropriate, respond to the others’ written material.
[17] It would be undue hardship to require the responding parties and the court to come to hearings without ensuring a fair process for service and filing of materials in advance. I cannot issue an accommodation direction that would strip the other parties of their rights to a fair hearing.
[18] Neither can the need for fair notice simply be met by automatically adjourning a hearing every time one side files material too late for the other to deal with fairly. Court time is too scarce. Parties incur costs preparing for proceedings for week or months. Adjournments can waste precious time and cause unrecoverable costs to be wasted.
[19] Each side is entitled to their day in court in a fair process. Requests for adjournment of a hearing are considered on their specific facts. The judge will assess whether granting an adjournment is in the interests of justice.
[20] This may mean that Ms. Niang will have to start on her materials now – well before upcoming deadlines. She can always ask for extensions if she finds herself needing more time as a deadline nears. I expect that the responding parties will agree to some brief, fixed extensions if they can do so without prejudicing their own rights. Litigants can face costs penalties if they do not agree to minor process alterations when there is no prejudice or harm to them.
[21] If the respondents do not agree to an extension request, Ms. Niang can seek a case conference to ask a judge for an extension of time to deliver materials. I note however that the effort of seeking, preparing for, and attending a case conference is probably as much or more work than just finishing the subject materials by the due date.
[22] Ms. Niang asks the court to agree to, “adjourn court proceedings if unexpected noises occur or if I am unwell and unable to walk.” Once again, if events arise which Ms. Niang believes necessitates an adjournment, she can ask for one. I would expect that her disabilities will be considered as part of the balancing of factors to be performed by the judge to assess whether an adjournment is in the interests of justice.
[23] Ms. Niang asks for permission to use a computer or phone in court. This is allowed on the terms set out in Part VIII of the Consolidated Practice Direction for Divisional Court Proceedings. I have set out the relevant terms in Appendix “A” to this endorsement for the parties’ convenience. If Ms. Niang requests an accommodation regarding any of the terms of the Practice Direction, that can be considered.
[24] Ms. Niang asks for permission to file all documents at the courthouse in-person. The Registrar advises that the Divisional Court office is able to deal with hard copies of materials filed by parties if need be. This request is granted.
[25] Ms. Niang asks for written directions for all required steps. When directions are made, it is the court’s practice to record them in writing. However, as a self-represented party, it is also Ms. Niang’s obligation to try to inform herself about the court’s processes. The court has previously provided some material to try to help Ms. Niang understand the relevant procedural steps.
[26] There are online sites that provide help as well such as the websites of the Canadian Judicial Council https://cjc-ccm.ca/en/what-we-do/initiatives/representing-yourself-court#:~:text=Self%2Drepresented%20litigants%20are%20persons,without%20representation%20from%20a%20lawyer and The National Self-Represented Litigants Project (NSRLP) https://representingyourselfcanada.com/.
[27] The court cannot take on the responsibility to ensure that Ms. Niang is advised in writing of every single process step required of her or available to her. That would inject the court into the role of her legal advisor. Shore J. previously recommended to Ms. Niang that she consult a lawyer to help her in this lawsuit. I echo that recommendation. The court must remain neutral. It can and will assist where necessary or appropriate. But it is not appropriate to seek to download individual litigant’s responsibilities to the court or its staff.
[28] Finally, Ms. Niang requests that the court avoid penalizing her for any unintentional non-adherence to the Rules of Civil Procedure due to inadvertent omissions. This is the court’s approach to all litigants generally. Good faith efforts to comply with rules and procedural laws are generally appreciated.
[29] But a disability is not a blanket permission to violate the Rules or other laws. Each case is dealt with on its merits in accordance with the facts and applicable law. The facts will include a party’s disabilities where they are relevant. The goal is to try to maintain a level playing field by accommodating a party’s disabilities so as to provide a fair, efficient, and affordable process to all parties.
[30] The parties should advise the Registrar whether they still need the case conference on June 28, 2024.
FL Myers J Date: June 6, 2024
APPENDIX “A”
Consolidated Practice Direction for Divisional Court Proceedings
Effective June 15, 2023 https://www.ontariocourts.ca/scj/practice/div-court-pd/#_Toc133391260
Part VIII: Electronic Devices in the Courtroom
A. Policy on Use of Electronic Devices in the Courtroom
- This section outlines the protocol on how electronic devices may be used in courtrooms of the Ontario Superior Court of Justice by counsel, law students and law clerks assisting counsel, parties, and media or journalists. Note: This section does not apply to persons who require electronic devices (or services requiring the use of electronic devices) to accommodate a disability.
B. Definitions
- For the purposes of this section, a. “electronic devices” include all forms of computers, laptops, and personal electronic devices, such as cell phones and tablets; b. “publicly accessible live communications” are defined as the act of using an electronic device to transmit information from the courtroom to a publicly accessible medium (e.g. via Twitter or live blogs); and c. “judge” means, i. All judges, associate judges of the Superior Court of Justice, and ii. judges of the Small Claims Court and deputy judges.
C. Prohibited Use of Electronic Devices by the Public
- Members of the public gallery observing the hearing are not permitted to use electronic devices in the courtroom unless the presiding judge orders otherwise.
D. Use of Electronic Devices in the Courtroom
Unless the presiding judge orders otherwise, the use of electronic devices in silent mode and in a discreet and unobtrusive manner is permitted in the courtroom by: a. counsel; b. paralegals who are licensed by the Law Society of Ontario; c. law students and law clerks assisting counsel during the proceeding; d. parties; and, e. media or journalists
Where use of electronic devices is permitted under section 4 above, usage is subject to the following restrictions: a. The electronic device cannot interfere with courtroom decorum or otherwise interfere with the proper administration of justice. b. The electronic device cannot interfere with the court recording equipment or other technology in the courtroom. c. The electronic device cannot be used to send publicly accessible live communications where to do so would breach a restriction on publication made in the proceeding. Note: Anyone using an electronic device to transmit publicly accessible live communications from the courtroom has the responsibility to identify and comply with any publication bans or other restrictions that have been imposed either by statute or by court order. d. The electronic device cannot be used to take photographs or videos unless the judge has granted permission to do so, in accordance with s. 136 of the Courts of Justice Act. e. Counsel, parties, the media, and journalists must seek leave of the court for permission to audio record a proceeding. Any audio recording that has been approved by the court is for the sole purpose of supplementing or replacing handwritten notes. f. Talking on electronic devices is not permitted in the courtroom.
E. Enforcement
- Anyone who uses an electronic device in a manner that is inconsistent with this practice direction or any order of the presiding judge or that the presiding judge determines to be unacceptable may be: a. subject to prosecution for a breach of s. 136 of the Courts of Justice Act, a citation and prosecution for contempt of court, or prosecution for other offences; b. ordered to turn off the device; c. ordered to leave the device outside the courtroom; d. ordered to leave the courtroom; and/or e. ordered to abide by any other order the presiding judge may make.