Human Rights Tribunal of Ontario
B E T W E E N:
K. M. by her litigation guardian, S. M.
Applicant
-and-
North Simcoe Muskoka Community Care Access Centre
Respondent
Interim Decision
Adjudicator: David Muir
Indexed as: K. M. v. North Simcoe Muskoka Community Care Access Centre
1This is an Application filed on December 31, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with Requests for Order During Proceeding (Requests) filed by the respondents.
2In the human rights complaint forming in the subject matter of this Application, the applicant alleges that her right to be from discrimination in the provision of goods and services was infringed by the respondents, a Community Care Access Centre (“CCAC”) and several of its employees or agents.
3The respondents’ Requests include the following:
a. Dismissal of the Application pursuant to section 45.1 of the Code on the basis that the substance of the Application has been appropriately dealt with in a recent decision of the Ontario Divisional Court;
b. Dismissal or deferral of those aspects of the Application concerning the quality of services and assessment offered to the applicant by the CCAC as the Health Services Appeal and Review Board, a specialized tribunal having the jurisdiction to consider the subject matter raised in the Application;
c. An Order defining the scope of the Application. The respondents state that aspects of the Application appear to be untimely. The respondents also seek an Order that the applicant provide particulars of alleged violations of the Code;, and
d. An Order removing all individual respondents to the Application.
Removal of Individual Respondents
4The applicant has consented to the removal of the individual respondents if the corporate respondent acknowledges: 1) that each of them are or were employed by the corporate respondent; 2) that the corporate respondent accepts liability for any conduct on their part while in the course of their employment; and, 3) there is no issue of the corporate respondent’s ability to provide a remedy.
5The corporate respondent states that at all material times the individual respondents, Hillier, Webb, Groom and Mott were employed by the corporate respondent and based on the allegations in the Application were acting in the course of their employment. The corporate respondent accepts that it is responsible for the conduct of its employees or former employees for acts performed during the course of their employment. The corporate respondent states, and the applicant does not suggest otherwise, that it is the only respondent that can respond to the financial and public interest remedies being requested by the applicant.
6In light of the parties’ submissions and considering the factors outlined in Persaud v. Toronto District School Board, 2008 HRTO 31 and other decisions, I am satisfied that it would be fair, just and expeditious in these circumstances to remove the individual respondents and the style of cause is amended accordingly.
Other Issues
7The corporate respondent seeks the early dismissal or deferral of those aspects of the Application that relate to the eligibility for services offered or arranged by the CCAC on the basis that the applicant could have appealed that issue to the Health Services Appeal and Review Board (“HSARB”). The respondent states that the HSARB is the administrative body granted the authority to evaluate concerns regarding CCAC services. It is a specialized tribunal created to resolve the type of issues raised in the Application. The respondent states that it would be consistent with the principles of fairness and judicial economy to dismiss the Application out of deference to the authority and jurisdiction of HSARB.
8The respondent does not state that the HSARB has exclusive jurisdiction over the issues raised. There is no suggestion that the applicant has commenced an application to the HSARB. The Tribunal has yet to determine that an application ought to be dismissed or deferred merely because an applicant might have taken the issues raised in an application elsewhere for resolution. I am not satisfied that the Application should be dismissed or deferred on this basis. This aspect of the Request is dismissed.
9The corporate respondent also seeks an Order dismissing that part of the Application which it claims is related to the applicant’s access to CCAC services. The respondent states that the eligibility criteria for CCAC services, including speech and language services, are set by the provincial government. The respondent states that the Ontario Divisional Court has recently considered the eligibility criteria for speech and language services for children in the context of an application seeking a declaration that the criteria are discriminatory and a violation of the Charter of Rights and Freedoms. The Court upheld the allocation of service responsibility between the CCACs and the school boards and concluded that the approach to speech and language services in Ontario is not discriminatory.
10The respondent relies on the following background:
The Ministry of Health funds the services offered by the CCACs, including the respondent CCAC. Children assessed as experiencing a speech or articulation impediment are eligible to receive speech services from a CCAC speech and language service provider. Children assessed as having a language disorder are provided with language services from a school board speech and language service provider.
The type of speech and language services provided to a particular child, including the applicant, are dependent on an assessment of the child’s speech and/or language needs. Pursuant to the government’s Guidelines, the nature of the child’s assessed speech and/or language needs dictates whether the services will be provided by a CCAC or a school board.
The applicant has been assessed as having autism which includes, in her particular case, a language disorder. In accordance with the Guidelines, the applicant has been referred to the school board for speech and language service by a speech and language pathologist (“SLP”) to address her language disorders.
11The respondent states that the substance of the Application is that the applicant has experienced discrimination contrary to the Code because she has been told that she does not meet the eligibility criteria set out in the Guidelines for speech and language services from the CCAC and that it is discriminatory that the CCAC does not provide speech and language services to the applicant.
12The applicant self-describes as a child diagnosed with a moderate to severe form of autism. The applicant states that as a result of her disability, she is:
a vulnerable and disadvantaged individual. She is entitled, by law, to individual accommodations in service delivery that respect her dignity and promote her well-being and equal participation in society. The latter is highly dependent on the ability to communicate with others in a meaningful way. Teaching the Applicant how to communicate properly is essential for her in order that she enjoy the opportunity to reach her full potential.
13The applicant characterizes the issues in this Application as follows:
a. Whether the respondent failed to consider the applicant’s individual Speech Pathology needs - unrelated to her public education services - relating to her disability, constituting discrimination based on disability;
b. Whether the respondent failed to accommodate the applicant’s individual SLP needs relating to her significant disability, constituting discrimination based on disability;
c. Whether the respondent unlawfully excluded the applicant from a government-funded program, thus denying the applicant a benefit afforded to others.
14More concretely the applicant states the respondent failed in the following way:
The applicant disputes that the only service [K.M.] requires is language therapy at school. Rather, the applicant asserts that – as a result of her diagnosis - she also requires the delivery of direct CCAC speech pathology services at home or at a CCAC centre to ameliorate the detrimental effects of substandard articulation, echolalia and aparaxia/dyspraxia.
They (CCAC) have never conducted a comprehensive speech and language communication assessment of the applicant.
15The complaint underlying the Application appears to be self-drafted by the applicant’s litigation guardian. Two central claims appear to be advanced in the complaint. First, it is alleged that the services provided to the applicant by the Bloorview-MacMillan Centre were an inadequate substitute for SLP services to which the applicant claims entitlement. Second, the applicant alleges that she has been on a waiting list for speech and occupational therapy since an undisclosed date and that the services she has been receiving since that date were sporadic or non-existent.
16If the essence of this Application is that the services provided to the applicant were inadequate or that services were improperly denied her, there are no particulars provided in support of those claims. In this regard the respondent has requested particulars with respect to the claim that the CCAC has violated the Code. The applicant is directed to provide particulars of her claim as outlined above.
17The Tribunal’s Rules provide that no application within the Tribunal’s jurisdiction will be dismissed without affording the parties an opportunity to make oral submissions. As the respondent’s request could result in the dismissal of all or substantially all of the Application and neither party has waived their right to make oral submissions, the Tribunal will hear the oral submissions of the parties on the remaining issue raised by the respondent’s Requests on the date set for the Case Resolution Conference.
Delay
18The respondent makes reference to aspects of the Application being filed in an untimely manner. Reference is made in the material to events that post-date the complaint. The applicant made no submissions in respect of the timeliness issues.
19On the face of the complaint as outlined above, it is not clear what aspects of the complaint might be out of time as the only dates associated with any of the allegations are within one year of the complaint having been filed. There are references to earlier time periods but no dates are specified. If the respondent wish to pursue this request the issue may be addressed at the hearing date scheduled.
20The Tribunal makes the following Directions:
a. The applicant will provide particulars of the allegations that the respondent failed to provide her with appropriate or adequate services to which she was entitled, other than educational services, within 30 days of the date of this Interim Decision.
b. The respondent will clarify its position with respect to the timeliness and scope of the Application. The respondent will provide its submissions in this regard within 20 days of receipt of the particulars required by paragraph a) above.
c. The applicant will deliver and file her written submissions in response to the timeliness issues, if any are raised, within 20 days of receipt of the respondent’s submissions.
d. The Tribunal will hear the parties’ oral submissions on the outstanding issues at the Case Resolution Conference.
Dated at Toronto, this 22nd day of June, 2010.
“Signed by”
David Muir
Vice-chair