C.K. v. Ontario (Children and Youth Services), 2010 HRTO 2500

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.K.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services and Judith Wright

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: December 16, 2010

Citation: 2010 HRTO 2500

Indexed as: C.K. v. Ontario (Children and Youth Services)

Written Submissions

C.K., Applicant ) Anne Levesque, Counsel

Her Majesty the Queen in Right ) Sophie Nunnelley, Counsel of Ontario as represented by the ) Minister of Children and Youth ) Services and Judith Wright, ) Respondents )

1The applicant filed an Application on June 29, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the grounds of sex with respect to goods, services and facilities.

2This Decision addresses the respondents’ request for dismissal of the Application as outside the Tribunal’s jurisdiction on the basis that a decision of a Provincial Director of the Ministry of Children and Youth Services (“MCYS”) to refuse a request from a 20 year old to remain in a youth facility is an adjudicative decision and not a service within the meaning of section 1 of the Code.

Background to Application

3The applicant was sentenced under the Youth Criminal Justice Act, 2002 C.1, as amended (“YCJA”). The applicant was 17 at the time of sentencing and was placed in a provincial youth treatment facility for the custodial portion of the sentence.

4Section 93 of the YCJA provides that:

93.(1) When a young person who is committed to custody under paragraph 42(2)(n), (o), (q) or (r) is in a youth custody facility when the young person attains the age of twenty years, the young person shall be transferred to a provincial correctional facility for adults to serve the remainder of the youth sentence, unless the provincial director orders that the young person continue to serve the youth sentence in a youth custody facility.

5When the applicant turned 20 years of age, a case manager applied on behalf of the applicant to the Provincial Director seeking to remain in a youth facility for the remainder of the custodial sentence.

6On June 27, 2007, the Provincial Director refused the request. The basis of the decision is set out in full below:

This is to advise you that pursuant to Section 93(1) of the Youth Criminal Justice Act and as Provincial Director, I have completed a thorough review of your circumstances. The review consisted of:

• A review of all case arrangement documentation;

• A confirmation from an adult representative of the Adult Correctional Services Division of your placement at the Vanier Centre for Women;

• A review of the decision criteria within our Section 92(1) YCJA operating policy.

This review of the information indicates that you are 20 years of age and have a remaining secure custody sentence that terminates June 29, 2010 with conditional supervision that expires June 29, 2016.

After careful and thorough consideration of all the facts related to your situation, I am satisfied that Vanier Centre for Women, a correctional facility for female adults, is able to meet your ongoing custodial reintegration needs.

Your transfer will be effective this date. In recognition of the transition, I have requested that your Case Manger work with staff at Syl Apps Youth Centre and Vanier Centre for Women in advance of your transfer to ensure supports are in place.

7On July 4, 2007, the applicant was transferred to an adult facility.

8The applicant requested a review of the provincial director’s decision by the Custody Review Board. The Custody Review Board held a hearing on August 3, 2007 and confirmed the decision with written reasons.

9The applicant filed a complaint with the Ontario Human Rights Commission alleging that the Provincial Director’s decision amounted to discrimination in the provision of a service contrary to section 1 of the Code.

10On October 12, 2007, a Youth Court Order authorized the transfer of the applicant to a federal penitentiary and the Order was carried out on November 2, 2007. On May 6, 2008 upon the request of the applicant for an optional review of her youth sentence under section 94 of the YCJA, the Youth Court confirmed the applicant’s sentence.

11The essence of the Application is that the Provincial Director discriminated on the basis of sex in refusing to exercise her discretion to permit the applicant to remain in a youth faculty. In the complaint she alleges that two males in similar circumstances to the applicant were permitted to remain in a youth facility.

Respondents’ Arguments

12The respondents submit the Provincial Director’s decision of June 27, 2007 is an adjudicative decision that does not fall within the definition of “services” under section 1 of the Code: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Barker v. Service Employees International Union, 2009 HRTO 1253; Lindberg v. Caron-Adam, 2009 HRTO 463; Dunn v. Wallace, 2009 HRTO 392; Caldeira v. Workplace Safety and Insurance Board, 2009 HRTO 973; Debowska v. Francis, 2009 HRTO 488; Zaki v. Ontario (Ministry of Community and Social Services), 2009 HRTO 1595; McKinnon v. Ontario (Community and Social Services), 2009 HRTO 161; Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 203; Christianson v. Ontario (Information and Privacy Commissioner), 2009 HRTO 69; Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752; Humphries v. General Electric of Canada, 2009 HRTO 1869; Garandi v. Ontario (Human Rights Commission), 2009 HRTO 858.

13To the extent that Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056 takes a different approach the respondents urge the Tribunal not to follow it.

14The respondents submit that the proper avenue to raise the allegations of discrimination was to challenge the Provincial Director’s decision at the Custody Review Board and then in the Divisional Court.

Applicant’s Submissions

15The applicant submits that the fact that the applicant could have raised the allegations of discrimination before the Custody Review Board or upon judicial review is not a basis for dismissing the Application. The amendments to the Code removed any discretion to refuse to deal with an application on the basis that the application could be more appropriately dealt with under another Act: Dyal v. Toronto Transit Commission, 2009 HRTO 60, para 7.

16The applicant asserts that the statutory exercise of discretion by the Provincial Director can be subject to Code scrutiny: Braithwaite v. Ontario (Attorney General), 2006 HRTO 15, upheld in part on appeal Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 88 O.R. (3d) 445 (Ont. Div. Ct.) (“Braithwaite”); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights [1999] 3 A.C.R. 1114 (“Grismer”); Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32 (“Hogan”); HMTQ v. Bolster & BC Human Rights Tribunal, 2005 BCSC 1491 (“Bolster”); Hudler v. London (City) (1997), 1997 CanLII 24809 (ON HRT), 31 C.HR.R. D/500 (“Hudler”); Newfoundland Dental Board v. Human Rights Commission, 2005 NLTR 125 (“Newfoundland Dental Board”) and Rogers v. Newfoundland Department of Culture, Recreation and Youth [1994] N.J. No. 355 (Nfld CA) (“Rogers”).

17The applicant urges the Tribunal to follow the Supreme Court of Canada‘s jurisprudence that invokes the quasi-constitutional nature of human rights legislation and interpret the term services in section 1 of the Code in a broad, liberal and purposive manner: C.N.R. v. Canada (Human Rights Commisison), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114 at para 24.

Analysis and Decision

18I agree that the term “services” in the Code should be given a broad, liberal and purposive interpretation. However, I also recognize that there are limits on the meaning of this term.

19I accept that some exercises of statutory discretion have been found to fall under the jurisdiction of provincial or federal human rights agencies. In Braithwaite, the Tribunal held that the Coroner’s exercise of discretion under the Coroner’s Act to refuse to order an inquest could amount to discrimination in the provision of a service within the meaning of section 1 of the Code. The Tribunal refused to dismiss the complaint until hearing the full factual context. The Tribunal’s final decision did not specifically address the service issue, but this was addressed by the Divisional Court on judicial review. The Court concluded that a coroner’s inquiry is a service within the meaning of section 1 of the Code:

[39] However, even if the primary purpose of the Act is to provide only a public benefit that is not determinative with respect to the interpretation of s. 1 of the Code. Human rights law is concerned with both the purpose and the effect, or impact, of legislation (Entrop, supra, para. 65 ff. and Code, s. 9). Moreover, human rights legislation is to be read in a broad liberal and purposive manner (C.N.R. v. Canada (Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114 at para. 24). Here, the Tribunal found that a Coroner’s inquest has a beneficial impact on the family of the deceased, stating that “service” in the Code “must mean something which is of benefit that is provided by one person to another or to the public” (Appeal Book, Vol. 1, p. 37).

[40] Given that human rights legislation is to be generously interpreted, we are of the view that the Tribunal was correct in finding that a Coroner’s inquest is a service to a person or persons within s. 1 of the Code.

20In Hudler, the Board of Inquiry (predecessor to the Tribunal) concluded that the Mayor’s discretionary power to publicly recognize an association associated with the promotion of the rights of gays, lesbians and transgendered persons was a service within the meaning of section 1 of the Code.

21In Hogan, the Tribunal held that the decision of the Ministry of Health to refuse to pay for the sex reassignment surgery for the applicants who were in the process of transitioning was discriminatory. The issue in Hogan was whether the refusal of the service was discriminatory and there was no dispute that the provision of the surgery was a “service.”

22The cases of Newfoundland Dental Board, Grismer, Bolster and Rogers all involved licensing bodies. In Newfoundland Dental Board, the Newfoundland Supreme Court upheld the Board of Inquiry’s finding that the issuing of a licence to practise dentistry is a service customarily available to the public and must be done in a non-discriminatory fashion. In Grismer and Bolster, the Supreme Court of Canada and the British Columbia Supreme Court respectively acknowledged that the issuing of a driver’s licence by the British Columbia Motor Vehicle Branch is a service customarily available to the public and must be done in a non-discriminatory fashion. And in Rogers, the issuing of a license for an annual moose hunt was found to be a service customarily available to the public and must be done in a non-discriminatory fashion.

23The question before me is whether the decision of the Provincial Director as set out in the June 2007 letter is in the nature of an adjudicative decision (which the Tribunal has held is not a service within the meaning of section 1 of the Code) or in the nature of an exercise a discretion conferred by statute to confer or deny a service which the Tribunal has held in some circumstances falls within the meaning of section 1 of the Code.

24In my view, the decision of the Provincial Director is an adjudicative decision. I recognize that the Provincial Director’s decision is somewhat brief and lacking in substantive reasons. While it may not be a model of adjudicative decision-making, I find that it is nonetheless an adjudicative decision. The fact that the decision involves an exercise of discretion does not lift the decision out of the realm of adjudicative decision making. This Tribunal issues many decisions that involve the exercise of its discretion. For example, this Tribunal exercises its discretion to add parties, remove parties, amend the complaint, etc.

25The factors that persuade me that the Provincial Director’s decision is an adjudicative one are these. While there was no right to appear in person, the applicant was entitled to make direct submissions to the Provincial Director, via her case manager, or legal counsel, on why she should be permitted to remain in a youth facility. A placement application was put before the Provincial Director consisting of a detailed written submission on behalf of the applicant, progress reports, psychological reports, plans of care, the applicant’s goals and plans.

26The applicant testified that she was not aware of her right to call evidence or make submissions to the Provincial Director and that she was unaware that the Provincial Director would be making a decision with respect to her future placement. She agreed that she had prepared the goals and plan which were submitted with the placement application, but she testified that she did not understand that it would be put before the Provincial Director.

27If the applicant did not receive the appropriate notice of the Provincial Director decision that was a matter which could have been challenged on judicial review. It does not undermine my conclusion that the placement decision process before the Provincial Director is an adjudicative one.

28There is a right to appeal to the Custody Review Board. The applicant did exercise her right of appeal and did appear before the Custody Review Board in person, represented by counsel. A number of persons gave evidence, including the provincial director, probation staff, staff from the youth detention centre, the applicant and the applicant’s father.

29I conclude that the opportunity to make submissions and submit evidence to the first level decision maker and the existence of an appeal mechanism to a quasi-judicial tribunal move this situation over the line to an “adjudicative” decision: Ballieram v. Workplace Safety and Insurance Board 2010 HRTO 712(“Ballieram”). I held in Ballieram and I confirm here that the content and reasons of an adjudicative decision to refuse benefits or services is not a “service” within the meaning of the Code. The basis for my reasoning is set out in full in Ballieram.

30In contrast, in Braithwaite and Hudler the decision-maker denying the service did not permit the applicant to make formal submissions or submit evidence prior to the decision. Neither was there an appeal to a quasi-judicial agency.

31In Newfoundland Dental Board there did not appear to be any process of review. In Grismer and Bolster there was an internal process of review including a review by independent medical practitioners. However, it appears that this review board was not a quasi-judicial agency with the obligation to apply the Code.

32The basis of my distinguishing Braithwaite, Hudler, Newfoundland Dental Board, Grismer, Bolster and Rogers is not that there is an alternative forum (Divisional Court) in which to raise the discrimination issues.The basis for the distinction between the Tribunal’s authority to review some and not other decision-making functions exercised pursuant to a statute lies in the definition of services and a recognition of Legislative intention as expressed in the various statutory schemes at issue in the individual cases.

33Where the Legislature has set up a comprehensive scheme of decision making from first level decision-maker with appeal rights to a quasi-judicial tribunal, or where in the case of labour arbitrators and Information and Privacy Commission adjudicators the front line decision-makers perform quasi-judicial functions, the legislative intention is that the Tribunal should not be reviewing that decision-making process: Ballieram.

34However, where as in Braithwaite, the Legislative scheme did not contemplate a review by a quasi-judicial decision-maker, such that the coroner’s refusal to order an inquest denied the applicant access to the benefit of a coroner’s inquest, then the Legislative definition of services appears to encompass the denial of the coroner’s service. Similarly in Hudler, the Mayor’s authority to make declarations is not found within a statutory scheme with an opportunity for a quasi-judicial review. Thus, the Tribunal accepted that the refusal to acknowledge an organization amounted to a denial of a service.

Conclusion

35For the reasons expressed above, I find that the content and reasons of the Provincial Director’s decision of June 2007 is not a “service” within the meaning of section 1 of the Code.

36The Application is dismissed.