Lepine and Lepine (on behalf of A.B.) v. Correctional Service Canada

Parties

Procedural Posture

Human Rights Complaint Under Section 5 of the Canadian Human Rights Act (discrimination in Provision of Services) / Pre Hearing Case Management: Written Motion to Strike Deferred Pending Complainants' Evidence; Hearing of Complainants' Case to Proceed

Legal Issues

1. 1 Whether the Tribunal should decide the respondent's motion to strike allegations prior to hearing any evidence
2. 2 Whether the complainants' SOP pleads sufficient facts to establish a connection between alleged service denials/adverse differentiation and prohibited grounds of discrimination
3. 3 Whether a duty to accommodate has been triggered or is a freestanding obligation

Ratio Decidendi

The Tribunal deferred adjudication of the respondent's motion to strike until after the complainants present their evidence because the case involves multiple intersecting protected grounds and circumstantial evidence may be required to establish the requisite connection under section 5; fairness and proportionality favor hearing complainants' evidence before deciding whether specific allegations have no reasonable prospect of success.

Court Disposition

Respondent's motion to strike allegations is deferred until after the complainants present their evidence; the respondent may reformulate the motion thereafter and the Tribunal will then rule on any allegations that fail to make out a prima facie case.

Orders

• Consideration of the respondent's written motion to strike is deferred until after the complainants have presented their evidence at the hearing
• At the end of the complainants' case the Tribunal will hear submissions on whether any allegations fail to make out a prima facie case and will then issue a ruling identifying allegations requiring responding evidence