Simon's Megalomaniacal Legal Resources

Disability - Court/Tribunal Accomodation

. Fernandez v. Commonwell Mutual Insurance

In Fernandez v. Commonwell Mutual Insurance (Div Court, 2024) the Divisional Court allowed an appeal from an adjournment denial decision, here on procedural fairness grounds where the court found that the "appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself":

[3] Commonwell consented to the appellant’s request for an adjournment on terms. The adjudicator refused the adjournment on the ground that the factors in favour of proceeding outweighed those that supported an adjournment, namely: the number of previous adjournments, the hearing was marked peremptory and the desirability of having the matter heard on its merits. The hearing proceeded with the appellant unrepresented in regard to thirteen identified issues. The appellant was found not to have met her onus and her claim was dismissed.

[4] While we agree that the LAT has wide authority to control its own process, we allow the appeal because we are not satisfied that the appellant received a fair determination of her matter on its merits.

[5] The appellant demonstrated a complete inability at the hearing to understand the accident benefits scheme and represent herself. She had limited proficiency in English (although an interpreter was provided). It was a complicated claim on which she wished to be represented by a lawyer and quickly retained replacement counsel to seek an adjournment of the hearing so they could properly act for her. The appellant’s inability to meaningfully act for herself was apparent to such an extent that counsel for Commonwell, to her credit, raised fairness concerns during the hearing about the matter proceeding.

[6] The appellant’s prior lawyer did not seem to have subpoenaed witnesses or arranged for witnesses to be present to give evidence on her behalf. A review of the transcript of the hearing does not indicate that the appellant was advised that she could call evidence.

[7] Indeed, LAT concedes that the matter should be remitted back to the LAT for a fair determination on the merits at a new hearing. I make no finding about the weight to be accorded to the tribunal’s position on the outcome of a proceeding in this court.

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[9] In the unusual circumstances of this case, the appeal is allowed. The matter is remitted back to the LAT for a new hearing on the merits with the LAT to determine the appropriate process going forward.

. Davis v. Canada (Royal Canadian Mounted Police)

In Davis v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal considered duties owed by tribunals and court to self-presenters, here a disabled litigant:

VI. The Alleged Failure of the Federal Court to Accommodate Ms. Davis’ Disabilities and her Status as a Self-Represented Litigant

[21] Ms. Davis states that she is cognitively impaired as a result of a brain injury she suffered in infancy, and that she also suffers from chronic fatigue syndrome and fibromyalgia. According to Ms. Davis, these conditions negatively affect her ability to represent herself in legal proceedings.

[22] Indeed, a primary focus of Ms. Davis’ submissions on this appeal was on the challenges and barriers faced by self-represented litigants who suffer from disabilities (particularly those who are cognitively impaired) in accessing the justice system. Noting that many people with disabilities live at, or below, the poverty line, Ms. Davis observed that most of these individuals will be unable to afford legal representation, and will be left trying to navigate the justice system on their own.

[23] Ms. Davis also made submissions with respect to what she says were the shortcomings in the treatment that she received from the Federal Court, and its failure to accommodate her disabilities.

[24] On the advice of the Federal Court Registry, Ms. Davis wrote to the Associate Judge a couple of weeks prior to the hearing of the motion to strike. She stated in her letter that she had a disability that occasionally impeded her "“ability to articulate specific verbal and written words”", explaining that what she sees on paper "“may be significantly different”" from what others see. Ms. Davis went on to state that names were especially difficult for her to pronounce, and that the best that she could do when confronted with a name would be to spell the name for the Court.

[25] Ms. Davis also advised the Associate Judge that it would sometimes take her a few extra moments to find the word she wanted, or she might say the wrong word and need to correct it. Ms. Davis’ letter concluded by asking the Associate Judge to advise" “how you would like these issues to be dealt with during the hearing”". Attached to Ms. Davis’ letter was a note from her doctor that addressed Ms. Davis’ need for certain accommodative measures in the workplace.

[26] The Associate Judge responded by granting Ms. Davis leave "“to be accompanied [at the hearing] by a representative who may assist her as necessary”". When Ms. Davis advised the Associate Judge shortly before the date set for the hearing that she had tested positive for COVID-19 and could not get certain documents sworn as a result, the Associate Judge allowed unsworn documents to be filed. The RCMP’s motion to strike was then heard on the date originally set for the hearing, in accordance with Ms. Davis’ wishes.

[27] In considering the appeal from the Associate Judge’s decision, the Federal Court judge watched the video of the motion hearing. The judge noted that Ms. Davis had not availed herself of the opportunity to bring a representative with her to assist her at the hearing, but that she had nevertheless been able to fully articulate her arguments. The Federal Court judge described the representations made to the Associate Judge by Ms. Davis as being "“coherent, responsive [and] articulate”", stating that Ms. Davis had "“advocated her position admirably for a self-represented individual”".

[28] Ms. Davis gave no indication to the Associate Judge that she was experiencing any difficulties in presenting her case, save on one occasion where she indicated that she had been "“thrown off”" by a question from the Associate Judge. In response, the Associate Judge offered Ms. Davis a break to allow her to re-group, asking Ms. Davis how long she needed to collect her thoughts. Ms. Davis indicated that a 10-minute break would be sufficient, and the Associate Judge granted Ms. Davis’ request.

[29] Ms. Davis asserted before the Federal Court judge and before this Court that the Associate Judge had erred by offering her a break, rather than adjourning the hearing to another day in order to permit her to adequately prepare her submissions. Ms. Davis says that the Associate Judge ought to have offered an adjournment without Ms. Davis having to ask for it.

[30] The Federal Court judge did not err in rejecting this argument.

[31] There is no doubt that the history of disabled persons in Canada is largely one of exclusion and marginalization. Amongst other disadvantages they face, individuals with disabilities have been "“subjected to invidious stereotyping”", and they have often been denied the equal concern, respect and consideration that the law requires: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86 at para. 56.

[32] There is also no doubt that courts are required to accommodate the needs of self‑represented litigants with disabilities: see the discussion of this issue in Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 18-32, leave to appeal to SCC refused, 41047 (6 June 2024).

[33] The search for accommodation is, however, a two-way street. It is the responsibility of the disabled individual to bring the facts relating to the discrimination they are experiencing to the attention of the employer or service provider: Desormeaux v. City of Ottawa, 2005 FCA 311 at para. 19, leave to appeal to SCC refused, 31230 (23 March 2006). There is also an obligation on individuals seeking accommodation to assist in securing the appropriate accommodative measures: Haynes, above at para. 30, citing Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, [1992] S.C.J. No. 75 at para. 43.

[34] In this case, the Associate Judge had no way of knowing, or even surmising, that Ms. Davis needed an adjournment of the hearing. When Ms. Davis stated that she had been "“thrown off”" by the Associate Judge’s questions, the Associate Judge quite reasonably responded by giving her the 10-minute break that Ms. Davis stated would be sufficient to allow her to re‑group. There was nothing unreasonable, unfair or discriminatory in the Associate Judge giving Ms. Davis precisely the accommodation that she sought.

[35] Ms. Davis did not ask the Associate Judge to hold her questions until Ms. Davis had concluded her submissions in order to avoid a disruption to her thought processes. She did ask the Federal Court judge to do so, and the Federal Court judge honoured that request. Ms. Davis’ similar request to this Court was honoured by the panel.

[36] Judges are not clairvoyant, and they cannot be expected to know how a particular individual’s disability may manifest itself in the course of a hearing. To require judges to speculate about a litigant’s disability and the specific measures that the individual may require to accommodate that disability would invite reliance on stereotypes and potentially invidious assumptions as to the abilities of the individual—precisely the things that human rights legislation is designed to avoid: Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 2.

[37] Ms. Davis states that she made numerous attempts to obtain legal advice, but that she was unable to do so. As a result, she says that the Associate Judge should have provided her with advice, including advice as to what information should be included in her statement of claim, and how she could go about challenging the provisions of the FPSLRA.

[38] In support of this contention, Ms. Davis relies on the Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons, (September 2006) online (pdf): [archived version: http: //www.scc-csc.ca/cso-dce/2017SCC-CSC23_1_eng.pdf]. As Ms. Davis noted, the Supreme Court of Canada endorsed these principles in Pintea v. Johns, 2017 SCC 23 at para. 4.

[39] While the Statement of Principles undoubtedly provides useful guidance for participants in the justice system as to the appropriate treatment of self-represented litigants, there are clear limits to a judge’s duty to assist such individuals. In particular, the document recognizes that, in engaging in steps to protect the rights and interests of self-represented persons, judges cannot act in a manner that would compromise their neutrality and impartiality: Girao v. Cunningham, 2020 ONCA 260 at para. 151.

[40] Indeed, the Court of Appeal for Ontario relied on the Statement of Principles at paragraph 51 of Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, to draw a distinction between procedural and legal advice. The Court observed that while it is within a judge’s discretion to control the court process and to grant latitude to a self-represented litigant on procedural issues, that discretion does not extend to rectifying substantive legal deficiencies.

[41] The Statement of Principles also notes that there is a distinction between providing legal information (such as the information that we provided to Ms. Davis at the outset of her hearing in this Court as to the process that would be followed and as to the appropriate content of reply submissions), and providing legal advice.

[42] As noted at page 11 of the Statement of Principles, legal advice includes, "“among other things … advising someone on how to best pursue a case”". The information that Ms. Davis faults the Associate Judge for failing to provide clearly amounts to legal advice, and it would have been inappropriate for the Associate Judge to have provided Ms. Davis with the information in issue.

[43] Ms. Davis also asserts that the Associate Judge erred by failing to appoint a lawyer to represent her at the Court’s expense, submitting that allowing her to bring a representative with her to the hearing was insufficient.

[44] It is not clear from the record that Ms. Davis ever raised this issue before the Associate Judge. She did, however, raise it before the Federal Court judge and before this Court, submitting that a legal representative should have been appointed for her in accordance with Rule 115 of the Federal Courts Rules, S.O.R./98-106, as she is a "“person under a legal disability”".

[45] Rule 115(1)(b) provides that "“[t]he Court may appoint one or more persons to represent ... a person under a legal disability against or by whom a proceeding is brought”". Rule 121 further provides that "“[u]nless the Court in special circumstances orders otherwise, a party who is under a legal disability […] shall be represented by a solicitor”".

[46] It should first be noted that there is nothing in the Rules that would require the Court to pay for a lawyer appointed under these Rules. Moreover, and in any event, as the Federal Court judge correctly advised Ms. Davis, a "“person under a legal disability”" within the meaning of the Rules is a person who lacks the legal capacity to represent themselves: Haynes, above at para. 48. Ms. Davis clearly does not come within this definition. While Ms. Davis (like most self-represented litigants) would no doubt have benefited from legal advice, she was nevertheless able to provide the Court with lengthy, detailed and carefully researched submissions.

[47] Ms. Davis has identified the very real challenges that are faced by self-represented litigants generally, and the even greater challenges that are faced by self-represented litigants who live with disabilities, as they attempt to navigate the judicial process in an effort to seek justice. These challenges have long been recognized by participants in the justice system and have been the subject of much study and commentary: Statement of Principles, above; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, 2013). Regrettably, however, many such litigants remain unable to obtain legal advice.

[48] While I have considerable sympathy for the position in which Ms. Davis finds herself, she has failed to establish that either the Associate Judge or the Federal Court judge erred in law or made a palpable and overriding error in failing to accommodate her disabilities or provide her with legal advice or legal representation.

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[53] I understand that as a self-represented litigant, Ms. Davis may not have appreciated the consequences of her failure to appeal the Associate Judge’s ruling on the issue of bias in a timely manner. Unfortunately, however, the fact that she is self-represented and is unfamiliar with the Court process does not provide her with special dispensation from the application of the law and the Federal Courts Rules: Nowoselsky v. Canada (Treasury Board), 2004 FCA 418 at para. 8; MacDonald v. Canada (Attorney General), 2017 FC 2 at para. 30.

. Pilarski v. Canada

In Pilarski v. Canada (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of an adjournment of a motion to quash the appeal by the respondent made for the purpose of hearing the matter in writing rather than orally, at least partly because of the appellant's disability issues:

[1] The appellant, Joseph Pilarski, appeals the Tax Court of Canada’s April 28, 2022 procedural order (per Bocock, J) in Tax Court File 2015-355(IT)G. That order adjourned the oral hearing of the respondent’s motion to quash the appellant’s appeal, and ordered that the motion be determined based on written representations. That is, the Tax Court’s order changed the oral hearing to a written hearing.

[2] The Tax Court’s order is discretionary, meaning that the Tax Court can decide. When an appellant appeals a discretionary order, such as this one, this Court reviews the order on the appellate standards from Housen v. Nikolaisen, 2002 SCC 33: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 66, 79; Canada v. Preston, 2023 FCA 178 at para. 12. Accordingly, we can interfere with the Tax Court’s order only if it made an error of law or a palpable and overriding error on a question of fact or mixed fact and law. A "“palpable”" error is one that is obvious; an "“overriding error”" is an error that goes to the core of the outcome: Benhaim v. St-Germain, 2016 SCC 48 at para. 38, citing South Yukon Forest Corp. v. R., 2012 FCA 165 at para. 46.

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[6] There is no right to an oral hearing for a motion. The Tax Court of Canada Rules (General Procedure), SOR/90-688a expressly permit motions to be determined based on written representations and without appearance of the parties in person: Rule 69. What is important is that the parties have an opportunity to put their submissions before the decision maker. Here, the parties previously made written submissions, and the Tax Court expressly invited them to file further written materials before it decided the motion.

[7] Before us, the appellant said the Tax Court’s decision to decide the motion in writing prejudiced him because his health conditions limit his ability to deal with written material.

[8] Both the Tax Court and this Court have a duty to ensure that litigants with disabilities are accommodated, to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians: Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 18-32. That said, individuals with disabilities have an obligation to help secure appropriate accommodation: Haynes at para. 30; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, 95 D.L.R. (4th) 577 at 994. There is no evidence before us that the appellant ever advised the Tax Court that it would be difficult for him to process and respond to, or to provide, written representations and other written material.

[9] The Tax Court also has an obligation to act in a manner that secures the just, most expeditious and least expensive determination of every proceeding on its merits: Rule 4(1). When the Tax Court made its order, the respondent’s motion had been before the Court for seven years. It merits a decision. Satisfied the motion was suitable to be decided in writing, and after repeated, but unsuccessful, efforts to hold an in-person hearing, the Tax Court’s decision was well within its discretion. I see no error that would permit us to interfere with it.