D.F. v. Children’s Aid Society of Hamilton, 2009 HRTO 1485

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.F.

Applicant

-and-

Children’s Aid Society of Hamilton, Andrea Nicol and Judy Blair

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: September 15, 2009

Citation: 2009 HRTO 1485

Indexed as: D.F. v. Children’s Aid Society of Hamilton

Written submissions BY

D.F., Applicant ) Self-represented

Children’s Aid Society of Hamilton, )

Andrea Nicol and Judy Blair, Respondents ) Sarah A. Eaves, ) Counsel

1Rule 5.11 of the Rules of Procedure for Transitional Applications under section 53 (3) and 53 (5) of the Human Rights Code, provides that “The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so”. Given the nature of the allegations contained in this Application and their connection to Child and Family Service Act processes, out of an abundance of caution, I have determined that the applicant’s name should be anonymised and I rely on my authority pursuant to Rule 5.11 to make this order.

2This is an Application under section 53(3) of the Human Rights Code R.S.O. 1990, c. H-19, as amended (the “Code”). This Interim Decision deals with a Request by the respondents that an order issue dismissing the Application as barred from being the subject matter of a complaint under the Code. The Tribunal received written submissions from both parties.

3The underlying complaint to the Ontario Human Rights Commission, filed in February 2008, alleges discrimination in services on the grounds of disability, sex and family status. The applicant complains that the Children’s Aid Society ( “CAS”) and the personal respondents who are employees of the CAS discriminated against him and destroyed his relationship with his children. The respondents deny all allegations set out in the Application, and allege that the personal respondents have acted fairly and respectfully toward the applicant at all times, in accordance with the scope of their duties in accordance with the provisions of the Code.

4The respondents ask the Tribunal to dismiss the Application for two reasons:

• An internal complaint process at the Hamilton CAS and the Child and Family Services Review Board has jurisdiction to deal with the applicant’s complaints; and
• The Child and Family Services Act, R.S.O. 1990, c. C.11 as amended (the “CFSA”), bars the Application;

Is the Application barred by virtue of a Statutory Complaint Process?

5The respondents submit that the subject matter of the Application "falls under the jurisdiction of the statutorily mandated complaint processes at the Hamilton CAS and the Child and Family Services Review Board” pursuant to sections 68 and 68.1 of the CFSA. The respondents submit that these statutorily mandated processes "fill any gap created by the statutory bar" under section 15(6) of the CFSA.

6The Code addresses the question of other fora at section 45.1 as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

7Section 68 of the CFSA provides a mechanism for making complaints to a CAS relating to the service sought or received by an individual in accordance with the regulations under the CFSA. Complaints can be made to the society directly or complaints may be brought for review to the Child and Family Services Review Board.

8The respondents submit that these provisions constitute a comprehensive scheme for addressing complaints. They note that the applicant has declined to pursue his complaint before a scheduled Internal Review Panel meeting, and they state that this was due to the fact that he was advised that tape recording of these meetings was not permitted. They further argue that given his decision not to participate, he was advised of his right to pursue the matter with the Child and Family Services Review Board. They submit that the proper forum for the applicant’s concerns regarding the respondents' actions is either before the Internal Review Panel or the Child and Family Services Review Board.

9The applicant submits that even if the internal complaints process is very comprehensive, it is not the proper venue for issues such as negligence, conspiracy, Code violations, malicious prosecution, libel/slander, or other torts or criminal offences. He submits that the internal complaints process is not all encompassing.

10The applicant submits that the Tribunal is the appropriate venue to adjudicate the issues he raises he seeks damages. He argues that the Child and Family Services Review Board does not have the jurisdiction to award damages, and accordingly he turns to the Tribunal.

11By way of reply, the respondents argue that the fact that the Child and Family Services Review Board does not have jurisdiction to award damages, is further evidence of the Legislature's intention to preclude civil remedies being sought against Children’s Aid Societies and their employees.

Analysis

12According to the provisions of section 45.1 of the Code, the existence of another forum is not sufficient for dismissal by the Tribunal. Rather, the Tribunal may only dismiss if another proceeding has appropriately dealt with the substance of the application. Here, the respondents simply assert that the applicant had the opportunity to have his matter dealt with elsewhere. It is not argued, however, that any other proceeding has appropriately dealt with the substance of the Application, and I do not find that the availability of the statutorily mandated complaint process can be equated with appropriately dealing with the substance of the Application. Further, while the Tribunal may defer to another proceeding, in the matter at hand, there is no other proceeding to which the Tribunal may defer. Therefore, the Tribunal does not have the option of dismissing this matter on the grounds that another process would have been available. The request to dismiss the Application on this basis is denied.

Does the CFSA prevent the applicant from proceeding at the HRTO?

13The respondents submit the CFSA provides them with significant protection from legal liability, including protection from this Application. Section 1 of the CFSA states:

The paramount purpose of this Act is to promote the best interests, protection and well-being of children.

14Section 15(3) delegates certain functions to the CAS:

The functions of a children's aid society are to,

(a) investigate allegations or evidence that children who are under the age of 16 years or are in the society's care or under its supervision may be in need of protection;

(b) protect, where necessary, children who are under the age of 16 years or are in the society's care or under its supervision;

(c) provide guidance, counselling and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;

(d) provide care for children assigned were committed to its care under this Act;

(e) supervise children assigned to its supervision under this Act;

(f) place children for adoption under Part VII; and

(g) perform any other duties given to it by this or any other Act.

15Section 15(6) provides:

No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of a person's duty or for an alleged neglect or default in the execution in good faith of the person's duty.

16At all relevant times, the personal respondents were employees of the CAS and were authorized child protection workers carrying out the statutory mandate of the CAS. The respondents argue that the definition of "action" is large enough to include an application under the Code. Further, they argue that as violations of the Code are actionable in Ontario Courts when brought in conjunction with another civil claim, and as section 46.1 of the Code gives Ontario Courts the same jurisdiction as the Tribunal to hear claims and order damages for violations of the Code, because such an action would be barred by section 15(6) of the CFSA, to avoid an absurd result the same bar must apply at the Tribunal. Otherwise, the respondents argue, applicants could avoid the statutory bar by simply choosing the Tribunal as a forum to determine the matter. Further, the respondents argue that no contrary intention appears in the CFSA to exclude applications at the Human Rights Tribunal from the bar.

17Finally, the respondents submit that to overcome the statutory bar, the applicant must demonstrate that the individual respondents and the CAS did not perform their statutorily mandated functions "in good faith". The applicant does not make any "specific allegations…[of] bad faith". The applicant "simply disagrees with the decision taken by the CAS in furtherance of the interests of the applicant’s children". They argue that the applicant’s claim is, at heart, an allegation of negligence against the CAS and its employees and is therefore statute barred. D.W. v. D.W. [1998] O.J. No. 2917 (Gen. Div.), R.L.H. v. Ontario (Attorney General), [2002] O.J. No. 3262 (SCJ) and Lanpensee v. Societe de l’aide a l’enfance de Prescott Russell, [2006] O.J. No. 5230 (SCJ) were cited in support of this position.

18The applicant argues that he has accused the respondents of acting in a malicious manner, and that therefore he has claimed that they did not act in good faith. He argues that their assertion that they acted in good faith cannot be sufficient to bar his Application. He alleges that discrimination against him commenced in earnest in September 2006, right after the respondents became aware that he had Multiple Sclerosis (“MS”). His application concerns discrimination on the basis of a disability, as well as on the basis of sex and family status. It is not a negligence action.

Analysis

19The Code, which enumerates our most fundamental rights and responsibilities, has been described as having quasi-constitutional status, and section 47(2) provides that it has primacy over other Acts:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act prevails and unless the Act or regulation specifically provides that it is to apply despite this Act.

20In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, at paragraph 19, the Tribunal found:

The Code is a quasi-constitutional statute and it is intended that it supersede all other statutes when conflict arises. As stated by the Supreme Court of Canada in Insurance Corporation of British Columbia v. Heerspink and Director, Human Rights Code, 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at pp. 157–8, (1982) 3 C.H.R.R. D/1163):

10302 When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

The primacy of the Code is also enshrined in the legislation itself in s.47(2). The Supreme Court of Canada recently confirmed the importance of this provision in finding that two provincial adjudicative bodies, the Human Rights Commission and the Social Benefits Tribunal, had concurrent jurisdiction to make a determination on a human rights issue. In Tranchemontagne v. Ontario (Director, Disability Support Program, 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 38, Mr. Justice Bastarache, for the majority, wrote with reference to s.47(2):

This section [s.47(2)] provides not simply that the Code takes primacy over other legislative enactments, but that this primacy applies “unless the [other] Act or regulation specifically provides that it is to apply despite this Act [the Code]”. Thus the legislature put its mind to conflicts between the Code and other enactments, declared that the Code will prevail as a general rule, and also developed instructions for how it is to avoid application of Code primacy. [Emphasis in original]

21There is no provision in the CFSA specifically providing for the application of the statutory bar despite the Code. In my view, for s.15(6) of the CFSA to insulate conduct which may be contrary to the Code, such a specific provision would be required. As the Code has primacy over other Acts and as there is no such specific provision as contemplated by s.47(2) of the Code, s.15(6) of the CFSA cannot be said to provide protection from conduct which may be found to be contrary to the Code. In light of this conclusion, I do not find it necessary to determine whether applying principles of statutory interpretation, an “action” also includes an application to an administrative Tribunal.

22The respondents have provided several cases where s.15(6) of the CFSA operated so as to protect the conduct of its employees against claims of negligence. While public policy reasons exist for such protections, different considerations apply where, as here, the applicant has alleged discriminatory treatment on grounds prohibited by the Code.

23While the respondents assert that the Application is in fact a claim of negligence, the applicant has alleged that the actions of the personal respondents were discriminatory according to grounds enumerated in the Code. That he also alleges that their actions have been negligent does not negate the fact that he has alleged discrimination contrary to the Code. I am satisfied that s.15(6) of the CFSA does not insulate the actions of the CAS and its workers from application of the Code. Of course, the Tribunal has no jurisdiction to consider any claim of negligence the applicant may make, but to the extent that his allegations relate to violations of the Code, the Tribunal has jurisdiction to consider these allegations.

24The applicant and respondents disagree on a number of matters, such as whether there was a requirement that the applicant’s, but not his wife’s, home be assessed, whether the applicant’s ability to raise his children in light of his MS was questioned, and the circumstances surrounding a request that the applicant undergo a medical assessment. I find it is not possible at this point to determine which version of events to prefer and whether there was or was not discrimination contrary to the Code. Given the fact that there are conflicting versions of events and given the fact that in considering a number of allegations, it is not possible at this point to determine whether the respondents’ actions were or were not discriminatory, I find that this matter should proceed to a hearing.

25It is important that the parties appreciate that this interim decision is not a finding that there has been a violation of the Code. Very simply, this interim decision means that there are allegations of discrimination which, if proven, may lead to such findings. Among other things, there are issues of credibility to be determined. Such matters are best left for a hearing, with the applicant being able to put forward his evidence in support of the complaint and the respondents being given full opportunity to put their case to the Tribunal.

Other

26The applicant further requests in his reply submissions that the Tribunal issue a ruling against the respondents, finding the respondents to have violated the Code, and awarding damages. Failing such an award, he submits that the Tribunal does have jurisdiction to hear the matter and requests that the Application be heard and adjudicated by the Tribunal.

27By way of reply, the respondents submit that the request for a finding of discrimination and a remedial order is not proper reply, but rather goes to the merits of the Application. They submit that should the applicant seek an award without hearing it the merits, he must make such request in accordance with the Tribunal's Rules of Procedure.

28With regard to the applicant's request for a ruling at this time on the merits of his Application, as determined above, the merits of this matter are best left to hearing. His request is denied.

ORDER

29For all of the above reasons, the preliminary objections are denied.

30For all of the above reasons, the applicant’s request for a ruling on the merits at this point is also denied.

31I am not seized of this matter.