T.A. v. Children’s Aid Society of Toronto, 2009 HRTO 882

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.A.

Applicant

-and-

Children’s Aid Society of Toronto and Hillary Whyte

Respondents

Interim decision

Adjudicator: Michelle Flaherty

Date: June 23, 2009

Citation: 2009 HRTO 882

Indexed as: T.A. v. Children’s Aid Society of Toronto

1The applicant filed an Application with the Tribunal pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which he alleges discrimination in the provision of goods and services on the basis of creed and family status. He also alleges reprisals or threats of reprisal. The essence of the alleged discrimination is that the respondents unreasonably and without proper investigation sought to remove the applicant’s child from his care.

2In its Response, the Children’s Aid Society of Toronto (“CAS”) asked that the Tribunal dismiss or, in the alternative, defer the Application because of an ongoing protection application before the Ontario Court of Justice.

3In an Interim Decision, 2009 HRTO 234), the Tribunal asked the parties to file submissions regarding the CAS’s Request. The purpose of this Interim Decision is to determine whether the Application should proceed or be dismissed or deferred.

Background

4This Application arises out of tragic circumstances. In September of 2008, the applicant’s newborn baby passed away. At the time, the baby was being treated in hospital by the personal respondent (a licensed physician) and other health care providers.

5The baby was identified as suffering from ricketts, although I understand that the specific cause of death has not been determined. It is not clear what, if any, role the ricketts might have played in the baby’s death.

6While treating the baby, the personal respondent noticed that one of the applicant’s other children, A, appeared to be bowlegged. She suggested to the applicant that A be tested for ricketts.

7The personal respondent states that the applicant was resistant and unresponsive to her suggestion. She submits that as a service provider within the meaning of the Child and Family Services Act, R.S.O. 1990 c.. C.11, as amended, she has a statutory duty to report to the CAS any reasonable concern that a child requires medical treatment to cure, prevent or alleviate physical harm of suffering and the child’s parent or the person having charge of the child does not provide.

8The personal respondent reported her concerns to the CAS. On November 14, 2008, the CAS initiated a protection application in the Ontario Court of Justice. The CAS has asked the Court to:

a. make a finding that A requires medical treatment to cure, prevent or alleviate physical harm or suffering, which the parent does not or refuses to provide; and

b. issue an order placing A with the parents for six months, subject to specific terms and conditions as well as the supervision of the CAS.

9On April 6, 2009, the Court was advised that A had been tested and diagnosed with ricketts. The Court made a temporary supervision order leaving A in the care of the parents, with the following conditions:

a. the parents are to arrange treatment for A for ricketts and provide the CAS with documentation regarding the treatment; and

b. the parents will authorize the CAS to communicate with A’s treating physician and will communicate with the CAS periodically in order that the CAS may monitor treatment.

10The Court adjourned the matter to September 11, 2009. In its submissions regarding the Request to defer or dismiss, the CAS has stated that the civil proceedings appear to be close to a resolution. The applicant has not disputed this.

Request to Dismiss

10The CAS asks the Tribunal to dismiss the Application pursuant to section 45.1 of the Code because, it argues, another proceeding has in whole or in part appropriately dealt with the substance of the Application.

11Section 45.1 of the Code states:

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.

12In my view, since the child protection proceeding is ongoing, it would be premature for the Tribunal to determine at this stage whether that proceeding has appropriately dealt with the substance of the Application. The Request is therefore denied without prejudice to the respondents’ right to renew its Request when the child protection proceeding is finally determined.

Request to Defer

13Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules of Procedure (“Rules”).

14Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as

it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

15A deferral is not ordered automatically when parties are involved in other legal proceedings. However, deferral of an application is often appropriate to ensure that proceedings dealing with the same issues do not run concurrently, raising the possibility of inconsistent findings of fact.

16Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

17In this case, the child protection proceeding does not appear to raise human rights issues or provide for any human rights remedies. However, the same underlying events give rise to both the child protection proceeding and the Application. The facts relating to this Application and those relied upon in the child protection proceeding are substantially the same. Further, the child protection proceeding appears to be nearing its conclusion.

18In the circumstances, I find that it is appropriate to defer consideration of this Application pending the conclusion of the child protection proceedings. The parties may wish to refer to Rules 14.3 and 14.4, which outline how the Application may proceed once the child protection proceedings have concluded.

19I am not seized of this matter.