The courts’ duty to accommodate litigants with disabilities: The Federal Court of Appeal states best practices to ensure procedural fairness

Par Marilyn Ménard, avocate

What does “equality before the law” mean for litigants with disabilities? While the duty to accommodate principle resonates more widely in the Labour and Employment field, it also applies to courts which must accommodate the needs of the disabled to respect procedural fairness. In Haynes v. Canada (Attorney General), 2023 FCA 158, the Federal Court of Appeal (“the Court”) states best practices to ensure litigants are not discriminated against in the courthouse because of their mental or physical disabilities.

Context

The Appelant filed complaints under his employer harassment policy based notably on his superior’s alleged failure to accommodate his autism. An investigation concluded that the complaints were substantiated in part and otherwise not well-founded. These findings were then accepted by the employer’s designated official as their decision. The Appelant had sought judicial review of this decision before the Federal Court, which ultimately dismissed his application. He appealed this decision before the Court mainly arguing breaches of procedural fairness by the Federal Court in denying his disability and accommodation requests.  

Decision

Standard of review

First and foremost, the Court reiterated its appellate role. It must determine whether the Federal Court identified the correct standard of review and properly applied it in reviewing the administrative decision in issue. Consequently, it does not have to decide on the fairness of the first instance hearing. Indeed, “any procedural unfairness that may have occurred in the Federal Court process […] can be cured by” the Court’s review of the impugned administrative decision[1].

Despite what has been said, the Court also reminded courts of their obligations when dealing with litigants with disabilities[2].

Legislative framework

The Court first set the legislative framework of the courts’ duty to accommodate litigants with disabilities. It specified that courts administration services are service providers for anti-discrimination legislation’s purposes[3].

Equality before the law for individuals with disabilities is guaranteed by subsection 15(1) of the Canadian Charter of Rights and Freedoms[4]: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on […] mental or physical disability”[5].

Moreover, pursuant to sections 3 and 5 of the Canadian Human Rights Act[6], “disability” is a ground of discrimination prohibited in the provision of services that are customarily available to the general public. Similarly, under section 6(e) of the Accessible Canada Act[7], which came into effect in 2019, service providers “must take into account the disabilities of persons, the different ways that person interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons with disabilities”[8].

The Court also noted that discrimination does not have to be direct[9] as facially neutral legislation can be discriminatory[10]. Therefore, it may be necessary to treat people with disabilities differently than others to achieve substantive equality. The courts’ duty to accommodate extends up until undue hardship[11].

At last, it is to be noted that the reference to a party “under a legal disability” at Rule 121 of the Federal Courts Rules[12] refers to someone who does not have the legal capacity to represent themselves and not to anyone with a physical or mental disability: “[u]nless the Court in special circumstances orders otherwise, a party who is under legal disability […] shall be represented by a solicitor”[13].

Judges’ duty to accommodate and procedural fairness

Regarding the judges’ particular obligations, they are required to commit to substantive equality and carry out their duties without discrimination, in accordance with the Ethical Principles for Judges[14].

More importantly, their duty to accommodate is closely related to their duty of procedural fairness. As per the analysis grid set out in Baker[15], the accommodation needs of litigants with disabilities falls into the “other considerations” relevant to determining whether the duty of procedural fairness has been respected.

The Court noted that the types of accommodation are subject to the nature of the disability and the unique need of the litigant (par. 26-30).

Best practices

The Court stated that the principles applicable to the duty to accommodate litigants with disabilities are fundamental rather than just a mere trend:

[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.

It reports on the steps it had taken to ensure the Appelant received a fair hearing. It strives for the following to serve as an example of the type of measures that may be necessary to accommodate litigants with a neurological condition such as autism:

[33][…]

a) Steps Taken in Advance of the Hearing

1. An appeal such as that of Mr. Haynes’ would ordinarily be set down for a two-hour hearing. However, after consulting with the parties with respect to Mr. Haynes’ needs, the Court allocated a full day for the appeal.
2. In response to a request from Mr. Haynes, he was advised that his mother could sit with him at the counsel table.
3. On their own initiative (and to their credit), Registry staff took steps to avoid disruptive and distracting noises during the hearing by modifying recording and sound equipment to avoid auditory distractions.
4. Information technology staff completed their setup before the parties arrived, and were asked to ensure that communication or troubleshooting necessary during the hearing was done quietly.
5. The Registry Officer and Usher were asked to speak clearly but not excessively loudly during the hearing.
6. The panel assigned to the appeal reviewed information relating to autism in advance of the hearing to educate ourselves as to how to best ensure that Mr. Haynes received the fair hearing to which he was entitled.

b) Steps Taken During the Hearing

1. As would be the case with any self-represented litigant, the hearing process was explained to Mr. Haynes at the outset of the hearing by the Court, albeit in somewhat greater detail than would ordinarily be the case, so as to avoid any process-related surprises for him.
2. We advised Mr. Haynes that his mother could assist him in organizing his submissions, that he could consult with her whenever he wanted to, and that she could speak on his behalf if he wanted her to do so at any point in the hearing.
3. We asked counsel for the respondent to estimate the time that he required for his submissions. After advising the Court that he would need approximately 45 minutes to an hour to make his case, the remainder of the day was allocated to Mr. Haynes for his submissions (with the agreement of counsel for the respondent).
4. We advised Mr. Haynes that he could take a break whenever required, and that he should let us know how long a break he needed on each occasion.
5. Mr. Haynes was given the option of sitting at counsel table during his submissions or standing at the podium.
6. In framing its questions and engaging with Mr. Haynes, the Court endeavoured to respond to his stated need for clear and unambiguous communications.
7. We asked Mr. Haynes to advise us if any of our questions needed clarification, or to ask us to repeat or re-phrase any questions that he did not understand. He was also asked to let us know if he needed additional time to answer any of our questions or if he required a break before doing so.
8. Again, as would be the case with any self-represented litigant, procedural issues raised by counsel for the respondent were explained to Mr. Haynes in layman’s terms.
9. We checked in with Mr. Haynes on a regular basis to see if he had any questions regarding the proceedings, and to respond to any questions that he may have had in this regard.

Conclusion

The Court dismissed the appeal, without costs. It concluded that the Appelant has not established that the administrative decision in issue was unreasonable nor that he had been treated unfairly by the investigator during the administrative process[16].

Commentary

This decision is a good reminder of other noteworthy administrative law principles:

Regarding documents issues: 1) A discretionary decision dealing with documents admissibility cannot be set aside on appeal unless the court committed a “palpable and overriding error”[17]; and 2) Judicial reviews are intended to be summary proceedings. Documents issues ought to be raised in the memorandum of fact and law and dealt with at the commencement of the hearing on the merits, to ensure cost and time efficiency, rather than by way of preliminary motions[18].

Regarding decisions resulting from investigation reports: 1) The standard of review of decisions accepting findings of an investigator is reasonableness in fact-driven matters, this is all in accordance with Vavilov[19]; 2) When a decision is cursory, simply adopting the findings of an investigator, the investigation report must be read as the reasons for the decision[20]; and 3) Reviewing courts must defer to the investigators’ assessment of the evidence and findings of facts[21].

The full decision can be found here.

Les propos tenus dans cet article sont propres à Me Ménard et ne sauraient être attribués à son employeur.

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[1] Par. 13-16.

[2] Par. 17.

[3] Par. 19 and 23.

[4] Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[5] Par. 18.

[6] RSC 1985, c H-6.

[7] SC 2019, c 10.

[8] Par. 19 and 23.

[9] Par. 20 citing Fraser v. Canada (Attorney General), 2020 SCC 28 at paras 30-31.

[10] Par. 22 citing R. v. Sharma, 2022 SCC 39 at para 42 and Fraser v. Canada (Attorney General), 2020 SCC 28 at paras 29-55.

[11] Par. 20-22; citing British-Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 SCR 3.

[12] SOR/98-106.

[13] Par. 47-48.

[14] (Ottawa: The Canadian Judicial Council, 2021); Par. 24-25.

[15] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

[16] This summary does not report on the Court’s analysis on the merits of the case.

[17] Par. 37-43.

[18] Par. 43-46; citing David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 FC 588 at page 600 and Rosianu v. Western Logistics Inc., 2021 FCA 241 at paras. 23, 27-30.

[19] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Par. 49-53.

[20] Par. 55; citing Sketchley v. Canada (Attorney General), 2005 FCA 404 at para 37.

[21] Par. 78; citing Slattery v. Canadian Human Rights Commission, [1994] FCJ No. 181 at para. 56.