Tribunal delays and privacy rules impacting clients with disabilities

Recent changes might make it harder for people with disabilities to sue a landlord or employer, lawyers say.

People with disabilities — who may already need accommodation or be facing violations of their human rights — are now confronting new challenges at administrative tribunals, according to lawyers who spoke at the Law Society of Ontario on June 5.

“These [tribunals] are critically important to just ordinary folks,” said Karen Andrews, staff lawyer at Advocacy Centre for Tenants Ontario and acting director of the Tenant Duty Counsel Program. One emerging problem for lawyers and clients is the shift in how tribunals are treating the idea of open courts, said Andrews.

She pointed to a 2018 Ontario court decision that said tribunals are infringing on Canada’s Charter of Rights and Freedoms when people — particularly reporters from the Toronto Star — are not able to get adjudicative records.  ARCH Disability Law Centre and the HIV & AIDS Legal Clinic Ontario were also involved in that case, she said, as people sometimes disclose their personal medical and employment histories when requesting accommodations for a disability.

“It’s not like the old days…if you wanted to see [the decision] you had to go the courthouse, and that slowed it down. They couldn’t scan it send it out the world,” said Andrews. “These cases are much more available to the public.”

Andrews said there may be a “chill” in people requesting accommodation of their disabilities due to fear that the disabilities will be made public in small communities. Even complaining to the Landlord and Tenant Board can land someone on a “bad tenant list” that gets distributed to other landlords and leaves complainants unable to rent, said Andrews.

“It’s a real problem for vulnerable people,” she said.

Ross & McBride LLP lawyer Wade Poziomka said that so-called troll farms allegedly take names from human rights decisions and make them highly searchable on Google — and the trolls will only remove the Google listing for a fee. It raises questions over whether tribunals should anonymize more decisions, he said.

Another recent issue for tribunals has been a backlog of cases, amid delays caused by not renewing adjudicators, said Poziomka. When a sitting adjudicator is not renewed, the process starts over and that costs more for clients, he said.

“I think the delays are exacerbating disabilities in some cases,” said Poziomka. “There are those with anxiety disorders who were geared up for a hearing and it gets rescheduled a week before, or those with pressing needs.”

The Human Rights Tribunal of Ontario announced earlier this spring that it would hold a mediation blitz for 800 cases. Poziomka said that the announced mediations may relieve the backlog, but they could include cross-appointments from other tribunals that don’t focus as much on human rights.

“Having expert adjudicators there who really know their materials …. is one of the benefits of having the administrative tribunal as opposed to a court,” he said.

Ena Chadha, chair of Human Rights Legal Support Centre Board of Directors, said that hosting so many mediations at once might compromise clients’ abilities to have private breakout spaces.

The new rules around privacy, as well as the recent delays, are not the only legal problems faced by people with disabilities. Chadha said that more human rights cases in Canada stem from disability issues than issues with race or gender. She also said that employers are the most likely to receive the complaints.

One ongoing issue for clients with disabilities is a tight one-year timeline for making complaints in some tribunals — compared to the two-year window allowed in some civil cases.

“They are held to a higher standard than anyone else in the civil context,” said Poziomka. “These groups of people are alleging Code-protected grounds and they are being treated differently …. I will bring a Charter case [on this] when I have the right set of facts.”

Chadha acknowledged the one-year timeline “is a magnified issue for people with disabilities” and presents a systemic, compounding disadvantage.

Andrews said that a lawyer might advise clients to put in a “placeholder” complaint to get their case in the tribunal’s queue before the end of the one-year period, even as they also try to resolve the dispute with other non-legal remedies.

But, she said, many people who come before the tribunals may not be represented by a lawyer or paralegal at all. They might not know that they need to seek accommodation for a disability during a hearing, she said.

More than a third of people surveyed by the Advocacy Centre for Tenants Ontario in 2016 said they or someone in their household had a disability. But, Andrews said, the disabilities rarely came up in the Landlord and Tenant Board’s decisions, in part because the lawyers interviewing tenants didn’t know to ask about disabilities. She noted that when prompted, people would sometimes reveal that the reason they missed a hearing date was because they were in hospital or their TTC Wheel-Trans never showed up.

Andrews said there are different levels of sensitivity to disability accommodations at the different tribunals, with the HRTO being one of the most accommodating. Poziomka said he has mostly been successful getting accommodations for clients with disabilities at HRTO hearings.

Chadha said if people let the HRTO’s administrative coordinator know well in advance, the HRTO can sometimes provide accommodation during a hearing without telling the opposing party. The tribunal has accommodated issues such as special rooms for electromagnetic hypersensitivity, respite rooms with beds for chronic exhaustion or pain, more frequent breaks for anxiety, and more windows for claustrophobia, she said.

A vice chair might need to be informed, or there might be a request for medical evidence, especially if the request to be accommodated during a hearing addresses the same disability that’s addressed in the human rights complaint, Chadha said.

Chadha noted that it’s not only clients that can need accommodations — lawyers and adjudicators can and should request them as well. One member of the audience asked whether lawyers should request accommodation for anxiety disorders during hearings, and she said they should.

Andrews called on benchers to consider lawyers with disabilities in an upcoming board meeting of the Law Society of Ontario.

“[Anxiety] is an issue for the profession – it’s about the LSAT, law school,” said Andrews, who ran for bencher but was not elected. “We have elected a Convocation who wants to do revisions to the statement of principles. We need to be active in letting them know our concerns.”