can bring an application on behalf of that person to the Human Rights Tribunal of
Ontario.^18
The Human Rights Tribunal of Ontario has had occasion to consider an
alternative to finding a person incapable of proceeding with a human rights
application. In its Interim Decision in Lynn Korevar on behalf of Barbara Kacan v.
Ontario Public Service Employees Union^19 the Tribunal had an opportunity to
explore the implications of s. 34(5) of the Human Rights Code.
In order for s. 34(5) to be operative, a person with a disability must have the
capacity to commence an application, delegate the power to pursue it and
terminate it. Other steps in the process, such as conducting the litigation, are the
responsibility of the person to whom authority has been delegated. The Tribunal
found that:
“...the Legislature must have intended that the role of the person making
an application on behalf of another be different from that of a
representative... the purpose of s.34(5) is to promote the accessibility of
the Code’s processes. It allows an individual to delegate to another
individual or organization the ability to take the steps in the Tribunal’s
process on his or her own behalf...”^20Because the person who experienced the discrimination must have a very basic
capacity to commence, delegate and withdraw an application, it is also important
that where or when it is appropriate, both the person with the disability and her
delegate jointly make decisions.
B. Litigation Guardians(^18) Human Rights Code, R.S.O. 1990 c H-19
(^19) Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795 (CanLii)
(^20) Ibid. at paras. 9 - 14