2004 BCSC 1536 HMTQ v. Cheryl Hutchinson and Philip Hutchinson

Before: The Honourable Mr. Justice Ralph

Reasons for Judgment

Counsel for the petitioner	Diane Roberts
Counsel for the respondents Cheryl Hutchinson and Philip Hutchinson	Frances Kelly
No One Appearing for B.C. Human Rights Tribunal
Date and Place of Trial/Hearing:	October 8, 2004
	Vancouver, B.C.

[1] On June 28, 2004, the British Columbia Human Rights Tribunal (“the Tribunal”) made a finding that the Province was discriminating against the complainants, Ms. Hutchinson and her father, Mr. Hutchinson, in the manner in which it was applying its Choices in Supports for Independent Living (“CSIL”) policy. The Tribunal ordered the Ministry of Health and Ministry Responsible for Seniors (the “Ministry”) to develop a set of criteria to allow for the hiring of family members on a case-by-case basis under its policy. The Tribunal also made an order requiring the Province to pay the respondents, Ms Hutchinson and her father, Mr. Hutchinson, a total of $118,340, including an amount for injury to dignity, feelings and self respect.

[2] The Province has filed a petition to this court for judicial review of the decision, and in the present application seeks an order to stay that part of the Tribunal’s order requiring payment to the Hutchinsons pending a decision of this court on the judicial review. The Tribunal takes no position with respect to the relief sought by the Province in this application.

[3] Ms. Hutchinson, who is now 34 years old, has suffered from cerebral palsy since she was 13. Paragraph 8 of the Reasons for Decision of the Tribunal describes her condition as follows:

As a result of her medical condition, Ms. Hutchinson requires assistance in all aspects of daily living and uses a wheelchair for mobility. She requires the assistance of a personal caregiver with all of the intimate activities of daily life including: bathing, dressing, toileting, transfers, mobility, and meal preparation. Ms. Hutchinson’s father, Phillip Hutchinson, has been her primary caregiver since she was 13 years old.

[4] Under the provisions of the Continuing Care Act, R.S.B.C. 1996, c.70, the Ministry established its CSIL program. Briefly put, the program provides funds for persons with disabilities to self-manage the hiring of service providers to assist them with daily living needs such as bathing and dressing. One of the program’s policies, however, bars the hiring of family members to provide the services. It is the Ministry’s view that the policy is intended to supplement, but not replace, the care provided by family members.

[5] In 1998, Ms. Hutchinson was accepted as a client of the CSIL program. She sought suitable caregivers but encountered difficulties in doing so and therefore did not move away from her father. As a result, Mr. Hutchinson continued to be her primary caregiver without being paid.

[6] Ms. Hutchinson filed a human rights complaint alleging that the policy prohibiting the hiring of family members under CSIL is discriminatory on the grounds of disability and family status and contrary to s.8 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210.

[7] In its decision of June 28, 2004, the Tribunal found that Ms. and Mr. Hutchinson had made out their respective claims of discrimination. At ¶230 it stated:

After careful review of the evidence presented, I find that the Ministry has not proven on the balance of probabilities that allowing for exceptions to its rule and thereby accommodating people like the Hutchinsons under CSIL would amount to undue hardship.

[8] The Tribunal’s order contained seven provisions. Among the provisions were requirements that within nine months the Ministry develop a set of criteria to allow for the hiring of family members on a case by case basis, and that Mr. Hutchinson be given the opportunity to be hired as his daughter’s caregiver under CSIL as of the date of the order. In addition, the Tribunal awarded Ms. Hutchinson $8,500 to compensate her for injury to her dignity, feelings and self-respect. It awarded Mr. Hutchinson $4,000 to compensate him for injury to his dignity, feelings and self-respect and $105,840 plus interest to compensate him in respect of lost wages.

[9] It is the payment of the three monetary awards that the Province seeks to stay pending the judicial review. The Province has, however, paid the funds into the trust account of counsel for the Hutchinsons.

[10] The law relating to applications for stays is the same as the law applying to interlocutory injunctions and is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4^th) 385. The Province is only entitled to the relief sought if it can show that there is a serious question to be tried, that it would suffer irreparable harm if the stay is not granted, and that the balance of convenience favours a stay.

[11] In seeking an order to stay the Tribunal’s order, the Province says that there is a serious issue to be tried because the Tribunal exceeded its jurisdiction and erred in law by refusing to apply the principles of Crown immunity. The applicable principle, as I understand the submission, is said to be that, notwithstanding the Tribunal’s general authority to award damages under the Human Rights Code, the Tribunal must approach this matter differently where it is dealing with an issue of the validity of a government policy rather than an issue where there is fault or a negligent act. In support of this position the Province cites Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789, 2004 SCC 30.

[12] The Province also says that the Tribunal erred in choosing the wrong comparator group when determining whether the Province had acted in a discriminatory manner. In its submission, the result of that error is that it effectively pre-empts the stated purpose of the CSIL program, which is to supplement care provided by family members rather than to replace it. In its submission the Province states:

In essence, the Tribunal has determined that family members must be allowed to provide full time paid care as a matter of preference.

[13] The Province submits further that the Tribunal should not set public policy as recognized by the Tribunal itself. The Tribunal therefore ordered the Ministry to develop a set of criteria which would allow for exceptions that would overcome the discriminatory effects of its present policy. The Province says that despite this recognition, the Tribunal awarded retroactive compensation to Mr. Hutchinson before reasonable exceptions had been established, which in their effect, might fairly exclude him from entitlement. In the Province’s submission, the Tribunal did not have jurisdiction to make this determination.

[14] On the issue of irreparable harm, the Province says that preserving the quantum of the award in trust preserves the status quo and avoids the prospect of irreparable harm to both parties: the petitioner does not risk losing the money and the respondents have the security of the trust. It submits further that prudence would counsel against releasing the funds under circumstances where it is reasonably foreseeable that recovery is unlikely.

[15] Counsel for Ms. and Mr. Hutchinson has submitted that the issues identified by the Province are pure issues of public law and, as the factual record is largely settled, it is appropriate for the court to conduct a more detailed examination of the merits when determining if there is a serious question to be tried. As to the merits, it is argued that the appropriate institutional division between the role of the Tribunal and the role of government has been made by the Legislature in its enactment of the Human Rights Code. For that reason, and given the unambiguous language of the Code, there is not a serious question that should lead to a stay of proceedings.

[16] The respondents further say that the record shows that the government was making “routine exemptions” to other individuals who received payments for family members, which constitutes evidence that exceptions to the policy are required. It is submitted therefore, that the Province cannot in good faith say there is a serious issue to be tried in relation to the discrimination question.

[17] Counsel for Ms. and Mr. Hutchinson says that the government has provided no evidence to show that it will suffer irreparable harm if it complies with the order of the Tribunal. It is argued as well that impecuniosity is not a determinative factor and that the money for past wages would have been paid to a caregiver in any event.

[18] In considering the test of the balance of convenience, counsel for Ms. and Mr. Hutchinson says that it is in the public interest that the government comply with the order of the statutory body created to enforce such legislation, and that a stay will deny Mr. Hutchinson compensation for the low income on which he has lived for many years in order to care for his daughter. Therefore, on balance, both the individual and public interest are served by not staying the order.

Analysis

[19] The threshold on the first test is not a high one. In RJR-MacDonald Inc., supra, the court adopted the language of the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, [1975] 1 All E.R. 504 that an applicant could satisfy the test if “the claim is not frivolous or vexatious”. In my view the Province has at least met that test, and I am satisfied that there is a serious question to be considered in the judicial review application.

[20] On the second test, there are two concerns as I see it. The first is whether the Province would be able to recover the funds paid to Ms. and Mr. Hutchinson should it succeed in its application for judicial review. In RJR-MacDonald Inc. the court stated at ¶59:

The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration.

[21] Mr. Hutchinson is 73 years old. Because of his caregiving responsibilities to his daughter, he has mainly subsisted on social assistance. His present source of income is Old Age Security and Canada Pension Plan benefits. I recognize that there is a reasonable chance Mr. Hutchinson would not be able to repay the award of damages should the Province ultimately be successful in its judicial review application.

[22] The second concern is whether there is a risk of harm to the public interest. In my view, it is significant that the Province is not seeking a stay of that part of the Tribunal’s order that requires it to amend its CSIL policy by developing criteria which would allow for the hiring of family members on a case by case basis.

[23] In my opinion the public interest in the issues raised in this case primarily relates to the broad question of whether the present CSIL policy is discriminatory and whether the Province can be compelled to alter it. The opportunity for the Province to advance its position on this issue is not limited or impeded by the absence of the stay order it seeks in the present application.

[24] The third test relating to the balance of inconvenience was described by Beetz J. in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 at ¶35, 38 D.L.R. (4^th) 321 as:

…a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

In RJR-MacDonald Inc. the court recognized that it is at this stage that harm to the respondent and to the public interest are more appropriately dealt with.

[25] Despite the risk to the Province that it may not recover from Ms. Hutchinson or Mr. Hutchinson some or all of the damages paid should it succeed in its Petition, I have concluded that the Hutchinsons will suffer the greater harm if the stay order is granted. The balance of convenience in my opinion favours declining to make the stay order. As a result the Province’s application is dismissed.

“Bryan F. Ralph, J.”
The Honourable Mr. Justice Bryan F. Ralph

Citation:	*HMTQ v. Cheryl Hutchinson and Philip Hutchinson,*
	2004 BCSC 1536