M.F. v. Child and Family Service Timmins and District, 2010 HRTO 18

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.F.

Applicant

-and-

Child and Family Service Timmins and District

Respondent

-and-

Ontario Human Rights Commission

Intervenor

RECONSIDERATION DECISION

Adjudicator: Naomi Overend

Date: January 5, 2010

Citation: 2010 HRTO 18

Indexed as: MF v. Child and Family Service Timmins and District

1The Tribunal issued an Interim Decision, 2009 HRTO 979, addressing the scope of the applicant’s Application under Part IV of the Human Rights Code R.S.O. 1990 c. H.19 as amended, (the “Code”). Specifically, the Interim Decision dismissed the Application against eight of the nine named respondents and removed four of the five grounds listed in the Application, including the ground of family status.

2On August 4, 2009, the applicant filed a Request for Reconsideration of the Tribunal’s Interim Ruling asking that the ground of family status be included in her Application. The applicant also asks that the Ontario Human Rights Commission (the “Commission”) be allowed to intervene in her Request for Reconsideration.

3On August 8, 2009 the Commission filed a Notice of Commission Intervention under Section 37(2) of the Code – Intervention as a Party with Consent of the Applicant (Form 6). The Commission seeks to intervene only on the issue of the definition of family status, and takes no position on the facts or merits of the Application.

4For the reasons that follow, the Request for Reconsideration is dismissed.

RECONSIDERATION REQUEST

5Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision in accordance with the Tribunal Rules. It also allows the Tribunal to reconsider its decision on its own motion, again in accordance with the Tribunal Rules.

6Rule 26.1 of the Rules of Procedure provide that a party may request reconsideration of a final decision of the Tribunal. The Interim Decision may be seen as a final decision with respect to the eight respondents against whom the Application is dismissed, as well as with respect to the four grounds on which the applicant is prohibited from proceeding. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34).

7Pursuant to Rule 26.5, a party’s request for reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

8The basis on which the applicant asks the Tribunal to reconsider is that its decision with respect to the ground of family status is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general importance. In her Request for Reconsideration, the applicant left the section in which she was to provide detailed reasons and representation in support of the Request blank, making it difficult to ascertain the basis for her Request.

9The Commission’s Notice of Commission Intervention contains somewhat more information, stating that its position is that, in some circumstances, the relationship of a grandparent to a grandchild will fall within the scope of the term, ”family status” and that the statement in paragraph 11 of the Interim Decision concerning the definition of that ground, therefore, requires clarification or correction. At paragraph 11, the Interim Decision states:

… 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.

10The Commission states that it relies on its Policy and Guidelines on Discrimination because of Family Status, 2007 for the Commission’s interpretation of family status. The Policy elaborates on the definition of “family status” as follows:

The Code defines “family status” as “being in a parent and child relationship.” This can also mean a parent and child “type” of relationship, embracing a range of circumstances without blood or adoptive ties but with similar relationships of care, responsibility and commitment. Examples include parents caring for children (also by adoption, fostering and step parenting), adults caring for aging parents or relatives with disabilities, and families headed by lesbian, gay, bisexual or transgendered persons.

11While the definition of family status may well extend to care relationships other than that between a biological/adoptive parent and child, it is not necessary to determine this issue given the facts of this case. The applicant’s allegations of differential treatment (summarized in the Interim Decision) do not suggest that any of it arose because she was the primary caregiver to her granddaughter for a 10 ½ month period. Rather her allegations under this ground relate to the fact that as the children’s grandmother:

• her offers to look after her other grandchild were ignored,
• her complaints about the quality of care her grandchildren were receiving while in other people’s care were improperly disregarded; and
• she did not receive compensation during the time she and her husband looked after her granddaughter.

These allegations, as made by the applicant, are not based upon a parent and child type of relationship but allege discrimination merely because of her status as a grandparent. This is not covered by the ground of family status.

12The applicant also alleges that a worker from Child and Family Services of Timmins failed to inform her that she had the “legal right” to deny the worker access to her home (during the period she was the primary caregiver to her granddaughter) and failed to provide her with a “Form 14” which she alleges would have protected her confidentiality. Whether or not the legal requirements of other legislation were violated is not properly within the purview of the Tribunal unless there is an allegation that this amounts to differential treatment on the basis of a protected ground. No such link is made by the applicant.

13The Request for reconsideration is denied. The applicant and the Commission have not established that the Interim Decision is in conflict with established case law or raises principles of general importance.

14The Commission’s submissions seek to ensure that the Tribunal’s definition of family status is “clarified or corrected.” These reasons have taken those submissions into account.