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Appeal-Judicial Review - Fairness - Disability. 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. . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a JR brought by an employee with autism, here of an ESDC staff investigation. As a preliminary matter at the appeal, the appellant/applicant alleged fairness breaches at the Federal Court as the court scheduled only one day for hearing, and the AG moved without notice to strike part of the record - both of which he alleged impacted on his ability to present his case due to his autism.
In these quotes the court cites disability discrimination doctrine, particularly here in the context of court hearing 'services' [see para 32 re 'wokeness']:II. The Courts’ Obligation to Accommodate Litigants with Disabilities
[18] Equality before the law for individuals with disabilities is guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Subsection 15(1) of the Charter provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination […] based on […] mental or physical disability”.
[19] Similarly, section 5 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, makes it a discriminatory practice to discriminate in the provision of services that are customarily available to the general public (such as those offered by the Courts Administration Service) on a prohibited ground of discrimination. Section 3 of the Act identifies “disability” as one of the prohibited grounds of discrimination.
[20] Discrimination does not have to be direct: a rule (such as the time allocated for a hearing) may be neutral on its face, but may nevertheless have an adverse effect on members of protected groups: Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1 at paras. 30-31. For example, individuals with a neurological condition such as autism may require additional time to process information. In either case, however, a service provider is required to accommodate the needs of the individual service recipient to the point of undue hardship: see, for example British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3.
[21] Even if a person with a disability is treated in exactly the same way as others, there may still be discrimination. Indeed, identical treatment may in some cases result in serious inequality: see, for example, Fraser, above at paras. 32-36; Law Society British Columbia v. Andrews, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at para. 26. It is therefore sometimes necessary to treat people with disabilities differently than others, in order to achieve substantive equality: Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, at para. 46.
[22] A simple example illustrates the point: it is no answer to a claim of discrimination from a litigant in a wheelchair to say that everyone is expected to climb the stairs in front of a courthouse to have their day in Court, and that the wheelchair-bound litigant was treated no differently than anyone else. Facially neutral legislation can be discriminatory: R. v. Sharma, 2022 SCC 39 at para. 42. For more on this, see the Supreme Court’s extensive analysis in Fraser at paras. 29-55.
[23] Similar obligations are imposed on service providers (such as Courts Administration Service) by the Accessible Canada Act, S.C. 2019, c.10. This is a relatively new Act designed to proactively identify, remove and prevent barriers to accessibility for people with disabilities, so as to, amongst other things, allow them to fully exercise their rights and responsibilities in a barrier-free Canada. One of the guiding principles underlying the Act is that service providers must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons with disabilities: see section 6(e).
[24] Insofar as judges are concerned, these principles are reflected in the Ethical Principles for Judges (Ottawa: The Canadian Judicial Council, 2021). Part IV of the Ethical Principles provides that judges are to “conduct themselves and the proceedings before them to ensure equality according to law”. Judges are further counselled to carry out their duties with respect for all persons, without discrimination or prejudice.
[25] The Ethical Principles further observe that the law’s commitment to substantive equality seeks to protect individuals from both direct and adverse effect discrimination, and that “this approach to equality seeks to acknowledge the equal worth and dignity of all persons”. Equality, is, moreover, “fundamental to justice and is strongly linked to judicial impartiality and to public confidence in the administration of justice”. Consequently, judges are advised to ensure that their commitment to equality is unwavering, and that their conduct is such that any reasonable and informed member of the public would have confidence in the judge’s respect for and commitment to equality.
[26] Related to this is the judge’s obligation to ensure that those appearing in court receive a procedurally fair hearing. Indeed, counsel for the Attorney General acknowledged at the hearing before us that the duty to accommodate litigants (or counsel) in the courtroom setting finds its voice in the judicial setting through the principles of procedural fairness.
[27] As the Supreme Court of Canada held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, the values underlying the duty of procedural fairness reflect the principle that individuals should have the opportunity to present their case fully and fairly. Moreover, decisions that affect their rights, interests, or privileges should be made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision: Baker, above at para. 28.
[28] The Supreme Court identified a number of factors that can assist a court in determining whether the procedures followed in a specific case respected the duty of fairness. That said, the list of factors relevant to determining whether the common law duty of procedural fairness has been respected in a given set of circumstances is not exhaustive, and other considerations may also be important in a given case: Baker, above at para. 28.
[29] One such consideration is the accommodation needs of litigants with disabilities.
[30] The steps necessary to accommodate a litigant with a disability will obviously depend on the nature of the disability in question and the unique needs of the individual litigant. There is, moreover, an obligation on individuals seeking accommodation to assist in securing appropriate accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 43.
[31] Courts must, however, remain mindful of their duty to accommodate the needs of the disabled so as to ensure that they receive the same level of procedurally fair justice as that accorded to other Canadians.
[32] Lastly, it is perhaps important to state that these principles have nothing to do with political correctness or wokeness. They are not a bow in the direction of what might be trendy or in vogue at the moment. They are about something far more fundamental, far more enduring, far more essential. They are about making our fellow human beings feel included, welcome and empowered in one of the most fundamental institutions of our democratic state.
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