J. B. v. Catholic Children’s Aid Society of Toronto, 2009 HRTO 2098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J. B.

Applicant

-and-

Catholic Children’s Aid Society of Toronto,

Cherry Chan, Enda McNeil, Isabel Santos and Mary McConville

Respondents

AND BETWEEN:

E. B.

Applicant

-and-

Catholic Children’s Aid Society of Toronto,

Cherry Chan, Enda McNeil, Isabel Santos and Mary McConville

Respondents

decision

Adjudicator: Mark Hart

Date: December 3, 2009

Citation: 2009 HRTO 2098

Indexed as: J. B. v. Catholic Children’s Aid Society of Toronto

APPEARANCES AND wRITTEN SUBMISSIONS BY

J. B. and E. B., ) on their own behalf

applicants )

Catholic Children’s Aid Society of Toronto, ) Mark Ellis, counsel

Cherry Chan, Enda McNeil, Isabel Santos )

and Mary McConville, respondents )

1These are two Applications both dated February 27, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), alleging discrimination in respect of employment and services because of disability in relation to the Application filed by E. B. and because of association with a person with a disability in relation to the Application filed by J. B. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on February 22, 2008 by J. B. and on February 26, 2008 by E. B.

2The purpose of this Decision is to address the following preliminary issues raised by the respondents: (1) that the Applications should be dismissed as beyond the jurisdiction of the Code; (2) that the Applications should be dismissed for delay; and (3) in the alternative, that the personal respondents should be removed as parties to the Applications.

3The parties filed written submissions in relation to these issues, and also appeared before me to make oral submissions on September 18, 2009.

BACKGROUND

4The Catholic Children’s Aid Society (“CCAS”) is a child protection agency mandated to protect Catholic children age 16 and under from abuse and neglect. The personal respondents are all CCAS employees.

5The applicants are foster parents who have had children under the care of CCAS placed in their home since 1994. In June 1998, the applicant E. B. was diagnosed with chronic lymphatic leukemia. He also was being treated for depression from September 1999.

6In March 2001, E. B.’s treating psychiatrist (Dr. Elliott) contacted the CCAS and advised that she was treating him for major depression following his diagnosis with cancer. Dr. Elliott reported to the CCAS that E. B. had been placed on probation for 18 months as a result of an assault conviction arising out of a domestic dispute in February 1999. Dr. Elliott stated that she was required under her duty to inform and provide the CCAS with this information.

7The applicants allege that after the CCAS received this information about E. B., the relationship between the applicants and the CCAS and its employees was never the same. In particular, the applicants allege that the personal respondent Isabel Santos, the child protection worker assigned to the care of the foster children in their home, became cold and distant with the applicants and raised issues as to their adequacy as foster parents.

8The applicants allege that in the fall of 2001, the personal respondent Enda McNeil, Head of Placement for the CCAS, asked J. B. why she didn’t give the children up and stop fostering when she found out about E. B.’s illness. Later, at a meeting on November 25, 2002, the applicants allege that Ms. McNeil stated that had the CCAS known about the incident in February 1999, they would have removed the foster children immediately.

9In November 2004, the CCAS made a decision to remove the two foster children in the applicant’s care. This decision was communicated to the applicants at a meeting on November 22, 2004. As a result, the applicants retained counsel and made an emergency application to the court to prevent the removal. On December 17, 2004, the parties appeared before Justice Benotto of the Ontario Superior Court sitting as a single judge of the Divisional Court. In oral reasons released on December 20, 2004, Justice Benotto ordered that the children were to remain in the applicant’s home pending a review to be conducted by the Director of the CCAS, the personal respondent Mary McConville, pursuant to s. 68 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”).

10Following the court proceeding, the applicants had a meeting with an agency called Rockhaven on January 13, 2005. Rockhaven is an outside resource agency that has responsibility for approving foster parents and for placing children in foster care. As will be discussed in more detail below, the CCAS does not have any direct employment or contractual relationship with foster parents. Rather, the CCAS contracts with foster care licensees, such as Rockhaven, which agencies then engage approved foster parents to care for the children. The applicants had been approved foster parents with two other outside agencies prior to the court proceeding, but transferred to Rockhaven as of December 17, 2004.

11At the January 13, 2005 meeting, the applicants allege that they were informed by Rockhaven that CCAS had requested that no further children be placed in the applicants’ home due to E. B.’s health. This is disputed by the respondents, who take the position that it was Rockhaven’s decision not to place any further children in the applicants’ home and that this decision had nothing to do with E. B.’s health.

12The Director’s review was conducted by Ms. McConville, and her report was released on November 15, 2005. The report reviews various difficulties that the CCAS had experienced with the applicants over the course of several years, particularly in relation to the applicants’ response to sexual abuse in the late summer of 2004 by a 12 year old boy in the applicant’s care towards his 7 year old biological sister who was also in their care. As a result of the sexual abuse, the boy was removed from the applicants’ home. The various concerns raised by the CCAS regarding the applicants are fiercely disputed by them. However, in the end, Ms. McConville decided to reverse her earlier decision to remove the remaining two children from the applicants’ care.

13At the hearing, I was provided by the applicants with a detailed rebuttal to the Director’s report. This document is dated January 28, 2007 and may have been prepared for legal counsel. The issue of E. B.’s disability and how it is alleged to have affected the CCAS’s actions in relation to the applicants was not raised or addressed in the Director’s review, and also is not raised or addressed in this rebuttal document.

14In January 2006, the applicants requested that the Ministry of Children and Youth Services undertake a review of services provided by the CCAS pursuant to s. 68(3) of the CFSA. This review resulted in a report that was released by the Ministry on June 6, 2007 and involved extensive interviews and meetings with the applicants, their foster children, various CCAS employees and other interested parties. The Ministry review identified several areas of concern relating to the relationship between the applicants and the CCAS, and recommended a change in the child protection worker and supervisor assigned to the children in the applicants’ care. This recommendation was acted upon by the CCAS, and a new child protection worker was assigned as of August 2007. Apparently, there have been no difficulties as between the applicants and the CCAS since this time.

15The report of the Ministry review makes clear that there are certain issues raised by the applicants that were not addressed, including the applicants’ desire to have the CCAS pay for their legal costs of the court proceeding or the applicants’ concerns about the future placement of other foster children in their home. While the Ministry review does not expressly state that it also would not address the applicants’ allegations that they had experienced discrimination because of E. B.’s disability, the applicants stated before me that they had raised this issue in the context of the Ministry review and had been told that this issue would not form part of the review.

16Apparently, at some point following the release of the Ministry review, the applicants contacted several government agencies, including Ombudsman Ontario. The applicants state that in late 2007 they were informed by Ombudsman Ontario that they may have the right to pursue the discrimination issue by filing a complaint with the Ontario Human Rights Commission (the “Commission”). This resulted in the filing of their complaints with the Commission in February 2008.

JURISDICTION

17The complaint made by E. B. as drafted by the applicants indicates “employment” as the “social area” in which the discrimination is alleged to have occurred. The complaint made by J. B. as drafted by the applicants does not indicate any social area. For both complaints, once they were formally filed with the Commission, the social area was identified as “services” and the Code provision alleged to have been breached is identified as s. 1 of the Code, which prohibits discrimination with respect to “goods, services and facilities”. However, in the complaints as appended to the Applications, the Code provisions which are alleged to have been breached have been amended by hand also to include reference to s. 3 of the Code, which prohibits discrimination with regard to the “right to contract”, and s. 5 of the Code, which prohibits discrimination “with respect to employment”.

18The respondents take the position that these complaints are beyond the Tribunal’s jurisdiction because the CCAS has no direct employment or contractual relationship with the applicants and because the CCAS does not provide any service to the applicants.

19With regard to the issue of contract and employment, it is clear that the direct contractual or employment relationship that the applicants have as foster parents is with Rockhaven and not with the CCAS. However, this Tribunal has held that the term “employment” in s. 5(1) of the Code is to be interpreted broadly and that an infringement of s. 5(1) can occur between an employee and other persons who are not "employers" in the traditional sense. The issue for the Tribunal is whether there is “some nexus or link in the chain of discrimination between the respondent and the complainant”: see Payne v. Otsuka Pharmaceuticals Co. (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 at paras. 34 to 36.

20In the instant case, the applicants’ allegations appear to fall into two broad categories. First, they raise issues about the CCAS’s decision to seek to remove foster children from their home in late 2004 and the CCAS’s alleged direction to Rockhaven in early 2005 not to place any further foster children in their home. In the former instance, the CCAS’s decision to seek removal had a direct potential impact on the applicants’ employment, in that the CCAS was seeking to remove the foster children whose care was the very basis of the applicants’ employment. In the latter instance, the CCAS is alleged to have directed Rockhaven not to place any further children in the applicants’ home, which has had a direct impact on the applicants’ employment in limiting the number of foster children for whom they care and thereby limited the applicants’ income. In both respects, I find that there is a sufficient nexus or link between the alleged actions of the CCAS and the applicants’ employment relationship to bring this matter within the Tribunal’s jurisdiction.

21The respondents have raised an issue about Rockhaven not having been named as a party to this proceeding, despite being the applicants’ direct employer. Rockhaven was identified by the respondents as an affected party to this proceeding and was so notified by the Tribunal, but has declined to participate. In a Tribunal application, it is the applicant’s right to identify the respondents who it alleges has infringed their rights under the Code and against whom a remedy is sought. While the applicants in this case could potentially have chosen to file their complaints against Rockhaven as well as the CCAS, they did not choose to do so. As a result, the issue for the Tribunal is whether the applicants’ allegations as against the CCAS fall within the Tribunal’s jurisdiction and ultimately, if the CCAS or any of its employees were found to have violated the Code, whether any remedy being sought by the applicants is capable of being provided by those named respondents. The possibility that some other party may in fact be responsible for an infringement of the Code or may be better or solely placed to provide a remedy sought by the applicants is of no consequence to the issue of whether the Applications as against the respondents identified by the applicants are within the Tribunal’s jurisdiction.

22The second broad category of allegations raised by the applicants relates to how they allege they were treated by various employees of the CCAS in the context of these employees’ dealings with the applicants as foster parents. There is no question that the services provided by the CCAS and its employees are provided to the children under their protection, and not to the foster parents. However, to the extent that in the context of providing those services to the children, the CCAS and its employees are alleged to have interacted with the applicants as foster parents in a discriminatory manner, I find that this too provides a sufficient nexus or link to their employment as to fall within the Tribunal’s jurisdiction.

23As a result, the respondents’ request that these Applications be dismissed as beyond the Tribunal’s jurisdiction is denied.

DELAY

24Section 34(1) and (2) of the Code provide as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

25Transition applications are applications that relate to complaints that had been filed with the Ontario Human Rights Commission prior to June 30, 2008 and are dealt with pursuant to Part VI of the Code. Essentially, during the first six month period following June 30, 2008, a transition application could be filed with the Tribunal pursuant to s. 53(3) of the Code in order to have access to a particularly expeditious process, or could be filed pursuant to s. 53(5) of the Code during the period from January 1 to June 30, 2009.

26Section 53(6) of the Code states that the new Part IV of the Code applies to an application made under sections 53(3) or 53(5). Section 34 is in the new Part IV of the Code.

27The statutory language makes it clear that section 34 applies to transition applications. In my view, the phrase “apply to the Tribunal” in s. 34(1)(a) and (b) needs to be interpreted in the context of transition applications to refer to the date that the underlying complaint was filed with the Commission in accordance with the then existing human rights system, particularly since all that is required for the initial filing of a transition application is for the applicant to file the underlying complaint together with a brief form that largely contains administrative information.

28As a result, the initial question for me is whether the complaints that underlie these Applications were filed within one year of the last incident in a series of incidents. The applicants take the position that the alleged discrimination is ongoing, because the alleged direction by the CCAS for Rockhaven not to place any more foster children with them continues to impact them to this day. However, that is not what is meant by an “incident” of discrimination, which needs to be distinguished from the ongoing impact of an alleged discriminatory action. To use a simple example, an employee who is terminated for an alleged discriminatory reason may continue to experience the impact of that decision for a lengthy period of time if she remains unemployed. But the incident of alleged discrimination remains the termination decision and does not get refreshed or renewed with each passing day of unemployment.

29In the instant case, the alleged discriminatory action by the CCAS in providing the impugned direction to Rockhaven is alleged to have occurred in January 2005, which is more than three years prior to the filing of the complaints in February 2008. There is no additional or further specific incident of discrimination which is alleged to have involved CCAS in relation to the ongoing situation that no further foster children have been placed with the applicants. This allegedly all stems from the direction that is alleged to have been given in January 2005.

30The applicants submit that the discrimination continued beyond January 2005, specifically in relation to the actions of the personal respondent Isabel Santos, the child protection worker who formerly had responsibility for their foster children. As a result, the applicants allege that the discrimination continued until July 2007, when Ms. Santos was replaced by a different child protection worker as a result of the Ministry review. In their submissions before me, the applicants alleged that Ms. Santos would come to their house every three months for Plan of care meetings and would antagonize them by bringing up incidents that had happened previously. In response to my question as to what specifically occurred at these meetings that is alleged to amount to discrimination, the applicants stated that they could not provide specific dates or details at that time, but could come up with them at a later time.

31The complaints as filed by the applicants with the Commission make no reference to discrimination continuing as a result of Ms. Santos’ conduct. When questioned as to why not, the applicants stated that they ran out of room on the complaint form. However, even in the context of their lengthy reply submissions in response to the respondents’ request to dismiss the Applications for delay, the applicants only make vague allegations that Ms. Santos was “provoking us by saying things to us that Rockhaven had no way of knowing it was her trying to get us upset”, that she “tormented us and taunted us, trying to get us angry and to prove to Rockhaven we were unstable”, and that “we were being harassed and tormented by Isabel Santos until she left”. No specifics or details are provided as to any specific occasions when it is alleged that Ms. Santos engaged in such conduct, what specifically it is that she said or did, or how any such specific conduct amounts to discrimination because of E. B.’s disability in violation of the Code.

32In the absence of any reference to these allegations in the underlying complaints and in the absence even to the day of the hearing of any specifics or details to support these allegations, I am not prepared to find that the Applications as filed encompass allegations of continuing discrimination or harassment by Ms. Santos. As a result, I find that the last incident of alleged discrimination raised in the complaints is January 13, 2005, when the applicants allege that they were informed by Rockhaven that it had been directed not to place any more foster children with them because of E. B.’s health. As noted above, this incident occurred over three years prior to the filing of the complaints in February 2008, and is well beyond the one year period contemplated by s. 34(1) of the current Code.

33Accordingly, I next need to decide whether the delay in filing the complaints was incurred by the applicants in good faith. In this Tribunal’s decision in Lutz v. Toronto (City), 2009 HRTO 1137, the issue of what is meant by “good faith” is addressed as follows (at para. 7 to 8):

As noted above, pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal has no jurisdiction to deal with the Application unless it is satisfied that the delay in filing the Application was incurred in good faith.

In another context, the Ontario courts have had occasion to interpret the phrase “delay that has been incurred in good faith”. To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer 2002 CanLII 44920 (ON C.A.), (2002) 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

34In the instant case, there are two bases upon which it is submitted by the applicants that any delay in filing the complaints was incurred in good faith. First, the applicants state that they were pursuing other avenues, specifically the Director’s review that was released in November 2005 and subsequently the Ministry review that was released in June 2007. While it is accurate to state that these other avenues were being pursued by the applicants, neither one of them addressed the issue of alleged discrimination because of E. B.’s disabilities by the CCAS and its employees. It was apparent in November 2005 that this issue was not addressed in the Director’s review, and the applicants state that they expressly were told that this issue would not be addressed as part of the Ministry review. Accordingly, in my view, the fact that the applicants were pursuing these other avenues provides no explanation for failing to file their complaints of discrimination at an earlier time.

35The second basis upon which the applicants assert good faith is that they say that they were not aware of their right to file a human rights complaint until late 2007, when they were so informed by the Ombudsman Ontario. However, as noted in the Lutz decision, supra, “It is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights”.

36In the instant case, the applicants were represented by legal counsel in the context of the court proceeding at the time of the last incident of alleged discrimination in January 2005, and say that they advised their legal counsel of their allegation that Rockhaven had been directed not to place any more foster children with them because of E. B.’s health. Apparently, the applicant’s legal counsel also was informed of the alleged statement by CCAS that if it had known of E. B.’s disabilities, it would not have placed any more children with them. The applicants state that there was no discussion about their ability to file a human rights complaint at that time because they were so wrapped up in dealing with the issue of not having the foster children removed from their home.

37Even if I accept that the applicants were focused on keeping the foster children in their home at the time, this issue was resolved by the report from the Director’s review, which was released in November 2005, over two years before they filed their complaints. Clearly, the applicants were concerned by the CCAS’s alleged statement about not placing any more children with them because of E. B.’s disabilities and about the alleged direction given by CCAS to Rockhaven, as they say that they raised these issues with their legal counsel and in the context of the Ministry review. What appears to be the case is that the applicants were not expressly informed that these concerns could form the basis of a human rights complaint until late 2007.

38In my view, this situation falls within the principle articulated in the Lutz decision. It is not enough for the applicants merely to say that they were ignorant of their rights. They also need to have had no reason to enquire about their rights. In this situation, they were concerned about the alleged statements and actions of the CCAS in relation to E. B.’s disabilities and had every reason to enquire about their rights. However, they apparently failed to do so until late 2007. This, in my view, is not sufficient to satisfy the applicants’ obligation to establish that the delay in filing their complaints was incurred in good faith.

39As the requirement that the applicants establish that the delay was incurred in good faith has not been satisfied, it is not necessary for me to address the question of whether any substantial prejudice has been caused to the respondents.

40As a result, both Applications are dismissed as a result of delay.

PERSONAL RESPONDENTS

41In light of my disposition of the issue of delay, it is not necessary for me to rule upon the respondents’ request that the personal respondents be removed as parties to this proceeding. However, as this issue was argued before me, there is one aspect of the argument that I wish to address.

42As part of their argument for removal of the personal respondents, the respondents rely upon s. 15(6) of the CFSA, which states:

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 the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.

43The respondents argued before me that this provision prevents an Application from proceeding as against as officer or employee of the CCAS in the absence of any express allegation of bad faith in the performance of their duties.

44In this regard, I am aware of the recent decision of this Tribunal in D.F. v. Children’s Aid Society of Hamilton, 2009 HRTO 1485, in which it was held that this provision does not operate to protect children’s aid societies and their officers and employees in human rights proceedings on the basis of the primacy of the Code over other legislation and in the absence of any express reference to protection from Code violations.

45In the D.F. decision, the respondents argued that the Application should be dismissed in its entirety as against both the personal and the organizational respondents on the basis of section 15(6) of the CFSA. In the instant case, in contrast, the CCAS accepted as an organization that it could be held liable for any actions of its officers and employees that were in contravention of the Code, and only sought removal of the personal respondents. No such argument was advanced in the D.F. case.

46I agree with the result in D.F., supra where section 15(6) of the CFSA is being advanced to try to shield the organizational respondent from liability for the actions of its officers and employees on the basis of the deemed liability provision in s. 46.3(1) of the Code. In my view, to deprive an applicant entirely of any remedy under the Code in the absence of bad faith would be contrary to the Code’s primacy provision and would require an express statutory exception.

47However, where section 15(6), and other similar provisions in a multitude of provincial statutes, are only being relied upon to support the removal of personal respondents in the absence of an allegation of bad faith conduct and not in any way to impair the ability of an applicant to proceed as against an organizational respondent, in my view there is no inconsistency between these types of insulating provisions and the provisions of the Code so as to invoke the primacy provision in s. 47(2) of the Code.

48Indeed, it is important in my view to bear in mind the specific language of s. 47(2) of the Code, which states:

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

49In my view, the type of insulating provision that is exemplified by s. 15(6) of the CFSA does not either require or authorize conduct that is a contravention of Part I of the Code. What they do is to protect individuals from being personally named as parties to a proceeding unless they have acted in bad faith. In my view, in light of the nature of the duties performed by officers and employees of children’s aid societies, by health professionals and by others covered by similar provisions, there is an important policy purpose to ensuring that, as long as these individuals act in good faith, they will not be subjected to legal proceedings. This enables such individuals to act and make decisions by focusing on the relevant considerations relating to their various areas of responsibility and free from the fear of being personally subjected to legal proceedings.

50In my view, in order to proceed with these Applications as against the personal respondents, the applicants are required to establish that they failed to act in good faith. Moreover, in light of s. 15(6) of the CFSA, it is necessary for the applicants in their complaint and other material filed in support of the Applications to have alleged that the personal respondents had acted in bad faith and to have provided specifics or details that substantiate that allegation of bad faith. Given that, in my view, the applicants in this case failed to do so, I would have removed all of the personal respondents on this basis.

ORDER

51The Applications are dismissed.