M.F. v. Child and Family Services of Timmins and District, 2009 HRTO 979

Human Rights Tribunal of Ontario

B E T W E E N:

M.F.

Applicant

-and-

Child and Family Services of Timmins and District, Payukotayno James and Hudson Bay Family Services, Earl Cheechoo, Ernest Beck, Marlene Kapashesit, Charlene Linklater, Sharleen Burgess, Rache Hughes and Elizabeth Iserhoff

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: July 7, 2009

Citation: 2009 HRTO 979

Indexed as: MF v. Child and Family Services of Timmins and District

1In her Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges discrimination in the provision of services on the basis of disability, ancestry, family status, association with a person identified by a prohibited ground and reprisal.

2In an earlier Interim Decision, 2009 HRTO 455, I requested that the parties make submissions on whether the allegations in this Application are within the power of the Tribunal to decide. A half-day conference call was held on May 22, 2009, at which time the parties made oral submissions on the Tribunal's jurisdiction over this matter.

3For the reasons that follow, I have concluded that the Tribunal only has jurisdiction over one respondent, Child and Family Services of Timmins and District ("Timmins"), with respect to only one of the allegations made against it by the applicant.

BACKGROUND

4The applicant is the paternal grandmother of two children. Timmins became involved with the family in July 2006 as the agency had some concern about the parents' (i.e., the applicant's son and his spouse) ability to care for their two children. Timmins remained involved with the family until December 2007. The child protection file was briefly transferred to the Nippissing Children's Aid Society before being transferred to Payukotayno James and Hudson Bay Family Services ("Payukotayno") on or about January 15, 2008. The latter transfer occurred because the applicant's son and his spouse had moved to Moosonee.

5The applicant advises that she supported her grandchildren, both financially and as a caregiver, from the outset of Timmins' involvement in the family. She notes that she became concerned with what she perceived as the increasing irresponsibility of her son and his spouse towards her grandchildren, and reported them to Timmins in February 2007.

6On March 29, 2007, her son, apparently with the tacit approval of his spouse, granted the applicant and her husband temporary custody of one of the children. The applicant continued to have custody of that child until February 15, 2008, at which time her son and his spouse assumed responsibility for the child. During this period, the applicant's other grandchild was placed with a number of relatives on the mother's side of the family.

7It is not clear what, if any, involvement the applicant had in the lives of her grandchildren after February 2008, but in August 2008 she viewed pictures of them on Facebook which concerned her. She reported this concern to the child welfare agencies. Payukotayno did an investigation, and reported to the applicant on August 22, 2008, that it had no concerns. Payukotayno's child protection file was closed on October 2, 2008.

CHILD AND FAMILY SERVICES OF TIMMINS AND DISTRICT

8Timmins was not named in the Application as a respondent, but was added as a respondent by Payukotayno because it appeared that some of the allegations against Payukotayno in fact related to Timmins. The applicant's major allegations against Timmins are as follows:

1. After the applicant and her husband assumed custody of her grandchild, a worker from Timmins would make home visits to check on the child's progress. The applicant alleges that the worker did not inform her that the applicant had "the legal right" to deny the worker access into her home. Moreover, the worker did not provide the applicant and her husband with a "Form 14," which the applicant alleges would have protected her confidentiality.

2. The worker asked the applicant questions about her health, as well as questions related to her care of her grandchild. In particular, the worker would ask how, in light of the applicant's disability, she would be able to care for her grandchild.

3. No one from Timmins intervened when the applicant advised the worker of her concern about her other grandchild, who was being moved about from placement to placement.

4. No one from Timmins got back to her when the applicant advised the worker that she and her husband would be willing to take in her other grandchild.

5. The applicant and her husband did not receive compensation during the time they cared for her grandchild.

9The only allegation against Timmins that appears to be in any way linked to a prohibited ground under the Code is allegation 2, which relates to the questions that were allegedly asked by the Timmins worker about her ability to look after her grandchildren in light of her disability and "health issues."

10Such questions, if asked, might constitute a prima facie case of discrimination on the basis of disability. Accordingly, the Tribunal does have jurisdiction over this specific allegation. It is important to note that, at this point, the Tribunal is not making a determination on the merits of this allegation, nor is it determining whether or not any defence applies.

11In her oral submissions, the applicant suggested that some of Timmins' actions might have been the result of the fact that she was the children's grandparent, rather than their parent. However, under s.10(1) of the Code, the term "family status" is defined as "the status of being in a parent and child relationship." That is, the status of being in a grandparent and grandchild relationship is not protected by the Code.

12With respect to allegations 1, 3, 4 and 5, the applicant was unable to identify any link to a prohibited ground under the Code. Accordingly, the Tribunal does not have the jurisdiction to consider these allegations.

ALLEGATIONS AGAINST ELIZABETH ISERHOFF

13Elizabeth Iserhoff, one of the named respondents, is the mother of the applicant's daughter-in-law, and thus the maternal grandmother of the applicant's two grandchildren. (As indicated earlier, the applicant is the paternal grandmother). Ms. Iserhoff is also a Child and Family Intervention Worker for Payukotayno. It is this dual role that appears to have been source of the applicant's concern.

14The applicant is of the view that, as a child welfare professional, Ms. Iserhoff had a higher responsibility to report children in need of protection, including her own grandchildren. Ms. Iserhoff's alleged failure to act is broadly classified as "professional misconduct" by the applicant. Moreover, because she was employed by Payukotayno, the applicant alleges Ms. Iserhoff was in a conflict of interest.

15Specifically, the applicant alleges that Ms. Iserhoff failed in her duty to her grandchildren and/or acted in a conflict of interest in the following manner:

1. In February 2007, when the applicant notified Ms. Iserhoff about what she considered to be an escalating pattern of irresponsibility on the part of her son and Ms. Iserhoff's daughter, Ms. Iserhoff phoned Timmins during business hours and "scapegoated" the applicant rather than supporting her legitimate concerns. Ms. Iserhoff also failed to speak with her daughter about the applicant's concerns at this time.

2. Ms. Iserhoff failed to report the applicant's concerns about their grandchildren's neglect to her employer, but rather informed Payukotayno that it was an issue between the two grandmothers.

3. Ms. Iserhoff left numerous voice mails, emails and MSN messages for the applicant concerning access to their grandchild in December 2007 through to February 2008 thereby "cyber stalking" and "bullying" the applicant. This continued even after the applicant had returned their grandchild to her parents.

4. Ms. Iserhoff stated in an email in February 2007 to the applicant "I hope your life will be fulfill with whatever left [sic]," which was a demeaning reference to the applicant's disability and/or her age.

5. Ms. Iserhoff disparaged the applicant's ability to look after their grandchild because of the extent of the applicant's disability.

6. When Ms. Iserhoff visited their grandchild at the applicant's home, she "presented herself in a formal manner" rather than as a "concerned grandmother."

7. Ms. Iserhoff inappropriately asked the applicant to release their grandchild into her care so she could take the child to see Iserhoff's dying mother. This proposed visit was not in the best interest of the child.

8. Ms. Iserhoff was on the camping trip in August 2008, but did not report the fact that their grandchildren were not being properly looked after to the proper authorities.

16The Tribunal's jurisdiction to hear this Application is based on the Code, which prohibits discrimination on specified grounds in the area of services, goods and facilities, accommodation, employment, contracts and membership in vocational associations. It does not prohibit discrimination in all areas of human interaction, including private or familial relationships.

17On the face of the applicant's allegations, it is clear that Ms. Iserhoff was, at all times, acting in her personal capacity as the grandmother of these children, not as a service provider to either the family or the applicant. Allegations 1-7 concern a time before Ms. Iserhoff's employer had responsibility for the child protection file. Although the applicant perceived Ms. Iserhoff to be conducting herself in a "formal" manner, this does not mean that she was, in fact, acting in her professional capacity.

18Similarly, allegation 8 concerns a family or personal interaction between Ms. Iserhoff and her grandchildren. Ms. Iserhoff's alleged failure to act did not somehow transform the nature of the interaction into a service to the applicant.

19The failure to make allegations against Ms. Iserhoff in one of the areas protected by the Code means that no violation of the Code can be found. Accordingly, Ms. Iserhoff is not properly a respondent to this Application.

PAYUKOTAYNO AND THE REMAINING INDIVIDUAL RESPONDENTS

20In addition to Payukotayno being Ms. Iserhoff's employer, it was also the child welfare agency responsible for the protection of the applicant's grandchildren from mid-February to October 2, 2008. The allegations against this agency are as follows:

1. The applicant's other grandchild was temporarily placed within the geographic jurisdiction of Payukotayno during the period Timmins was involved with the family, but the agency did nothing to protect the child.

2. The applicant wrote numerous letters to Payukotayno concerning Ms. Iserhoff's "professional misconduct" and "conflict of interest," as discussed above. Payukotayno did not properly investigate the allegations, nor did it respond to the applicant in a timely fashion. Moreover, Payukotayno improperly concluded that it was a private matter between two grandmothers, thus failing to protect the applicant from Ms. Iserhoff's harassment.

3. When the applicant reported the allegedly problematic photos of her grandchildren in August 2008, Payukotayno did not respond immediately. Moreover, the investigation of her allegations was inadequate.

21In addition to allegation 1, the applicant makes other allegations against Payukotayno in the mistaken belief that it had jurisdiction over her grandchildren while the protection file resided with Timmins (e.g., Payukotayno did not provide her with a Form 14 when the worker with Timmins entered her premises). The applicant does not dispute Timmins's assertion in response to her Application that it had sole jurisdiction over her grandchildren during the relevant time period.

22Likewise, during the period the applicant was corresponding with Payukotayno about Iserhoff being "out of line" (allegation 2), Payukotayno was not providing services to either the applicant or her grandchildren. Both allegations 1 and 2 are not within the Tribunal's jurisdiction because no social area applies.

23With respect to allegation 3, the applicant does not suggest that Payukotayno's allegedly tardy and inadequate investigation was linked to a prohibited ground under the Code. In the absence of a link between the behaviour and an enumerated ground, the Tribunal has no jurisdiction to address allegation 3. Since none of the allegations against it are within the jurisdiction of the Tribunal, Payukotayno is not a proper respondent to this Application

24The applicant names three individual respondents solely on the basis that she had communicated her allegations against Ms. Iserhoff to them, and they had failed to respond adequately or in a timely manner. Ernest Beck and Charlene Linklater were the Executive Director and Acting Executive Director of Payukotayno respectively, while Earl Cheechoo was the President of the Board. Given that the allegation against them is not within the jurisdiction of the Tribunal (as discussed above), these three individuals are not properly respondents to this Application.

25The remaining three respondents, Marlene Kapashesit, Sharleen Burgess and Rache Hughes, were involved in the August 2008 investigation discussed in allegation 3. There is nothing in the applicant's written materials to indicate what these individuals did (or failed to do) that would bring their actions within the ambit of the Code. During her oral submissions, the applicant acknowledged that she named these individuals only because they were involved, and not because she had specific allegations of discrimination against them. Accordingly, these three individuals are not properly respondents to this Application.

GROUNDS OF ANCESTRY, ASSOCIATION WITH A PERSON IDENTIFIED BY A PROHBITED GROUND AND REPRISAL

26In her Application, the applicant selected the following grounds of discrimination: ancestry, disability, family status, association with a person identified by a ground listed above and reprisal. The grounds of disability and family status are discussed above. Although the grounds of ancestry and "association with a person identified by a prohibited ground" are identified in her Application, the applicant made no further reference to these grounds in the body of her Application, her substantial Replies to the Responses filed on behalf of the respondents or her oral argument.

27The applicant lists reprisal or threat of reprisal as a ground of discrimination in her Application. In her oral submissions, the applicant was asked to give examples of reprisal. In response, she stated that she had sent a webcam to her son so that he could transmit images of her grandchildren to her, but he had not installed it. In her Application, the applicant alleges that her daughter-in-law reported her to the police for kidnapping her grandchild (during the period the applicant had custody of the child). Neither her son nor her daughter-in-law is named as a respondent to her Application. For liability to be established, any acts of reprisal must be attributed to a named respondent.

28Moreover, for an act to be "reprisal," it must be done in response to the applicant having attempted to have claimed or enforced a right under the Code, or refused to have infringed the right of another under the Code. Section 8 of the Code, which prohibits reprisals or threat of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

29The applicant is unable to link the alleged reprisals in her Application to claiming or enforcing a right under the Code. While some of the acts complained of may have related to her attempts to notify officials of her concerns about the well-being of her grandchildren, this is distinct from enforcing or claiming a right to be free from discrimination under the Code.

ORDER

30For the reasons described above, I make the following orders:

1. The Application is dismissed as against Payukotayno Hudson Bay Family Services, Elizabeth Iserhoff, Ernest Beck, Charlene Linklater, Earl Cheechoo, Marlene Kapashesit, Sharleen Burgess and Rache Hughes;

2. The grounds of ancestry, family status, association with others and reprisal shall be removed from the Application.

3. The applicant may pursue the allegation that Timmins discriminated against her on the basis of disability when it questioned her about her ability to look after her grandchild in light of her health issues/disability. All other allegations in her Application as they relate to Timmins are dismissed as outside the jurisdiction of the Tribunal.

31The Tribunal is aware that there is an outstanding Request to Intervene from the Canadian Union of Public Employees ("CUPE"). CUPE must advise the Tribunal of its position on intervention in light of the amendments to this Application resulting from the above orders.

32I am not seized of this matter.