Barber v. South East Community Care Access Centre, 2010 HRTO 581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carrie Barber by her litigation guardian Sheila Barber

Applicant

-and-

South East Community Care Access Centre and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long-Term Care and the Minister of Community and Social Services

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: March 17, 2010

Citation: 2010 HRTO 581

Indexed as: Barber v. South East Community Care Access Centre

BACKGROUND

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination in goods, services and facilities and in contracts. The applicant is a 29-year-old disabled woman, who has received various publicly funded health care services from the respondents. The Application is brought on her behalf by her mother as litigation guardian, who is represented by counsel.

2The lengthy narrative in the Application alleges that the respondents have not implemented "a suitable funding arrangement that would provide for Carrie's unique medical and professional service and support requirements". It details various ways in which it alleges that the respondents have caused the applicants harm by failing to serve Carrie properly. These include the alleged termination of all CCAC services to Carrie in July, 2009. It alleges various violations of legislation, agreements, and sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The applicants seek $10 million in damages. Although the applicants' Form 1-C states that the applicant alleges discrimination in the South East Community Care Access Centre's (the "CCAC") policies, the Community Care Access Corporations Act, 2001, S.O. 2001, c. 33, the Long-term Care Act, 1994, S.O. 1994, c. 26, the Health Insurance Act, R.S.O. 1990, c. H.6, and the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11., the narrative provides no details about how these policies or pieces of legislation are alleged to violate the Code.

3Together with the Application, the applicant filed a Request to Expedite. It states that "Carrie's treating physicians are concerned that the Respondents' failure to provide ongoing funding and to deliver necessary services, equipment, supplies and supports which enable her to live within the community has caused significant harm and personal injury to Carrie and continues to put her life at significant risk". There is, however, no medical evidence filed.

4The respondents both oppose the Request to Expedite. The Crown argues, among other things, that the claims made are "vague and fail to enumerate with any specificity the nature of the alleged discrimination". Both respondents note that the claims of Charter violations are raised without any notice to the Attorney General as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Both respondents note that it has been approximately seven months since the last alleged event of discrimination and the CCAC notes that the current situation in terms of services and supports provided by the CCAC to Carrie has been in place since March of 2008.

REQUEST TO EXPEDITE

5The Request to Expedite is denied, as the circumstances that led to filing it arose a considerable time ago. In Kwan v. Hospital for Sick Children, 2009 HRTO 621, the Tribunal held as follows:

Except in the rarest of circumstances, a party who has delayed in filing his or her Application without explanation will not be given the priority for Tribunal resources of an expedited proceeding.

Given that the last event referred to by the applicant is in July of 2009, and it appears that the same situation has been in place since March of 2008, the Request to Expedite is denied on the basis of delay.

SCOPE OF THE APPLICATION

6Having reviewed the Application, I share the concerns of counsel for the respondent Crown that it is unclear how the applicant alleges that the Code has been violated and that many of the allegations appear to be outside the Tribunal's jurisdiction. The Tribunal is not a court of general jurisdiction. It has power only to apply the Code, which prohibits discrimination in various social areas on the basis of prohibited grounds.

7The Tribunal has no jurisdiction to determine whether the respondents have violated the applicants' Charter rights, unless there is an allegation that the Code itself is unconstitutional. The Tribunal has no jurisdiction to determine whether the respondents violated their agreements, or various pieces of legislation. The Tribunal does not have the general power to oversee the distribution of government benefits related to disability, or to determine whether government benefit programs are sufficient to meet the needs of persons with disabilities.

8The nature of the analysis of allegedly discriminatory benefit programs is discussed, for example, in Ball v. Ontario (Community and Social Services), 2010 HRTO 360. It is not sufficient to allege that an applicant has been mistreated or that benefits are insufficient.

9The applicant is directed to file, within 30 days of this Interim Decision, a revised summary of allegations that makes clear the applicant's theory of discrimination under the Code. In the revised summary, the applicant should explain clearly which laws, policies or actions violated the Code, and how these actions were discriminatory on the basis of disability as opposed to a violation of the respondents' statutory, constitutional or tort obligations. The deadline for the respondents to file a response is suspended, and the Tribunal will give further directions following the receipt of the revised summary of allegations.

10I note that the respondent has raised issues about disclosure of the first Application filed with the Tribunal and about Sheila Barber's ability to act as litigation guardian. These issues will be addressed by the Tribunal at a later stage in the process, if necessary.

11I am not seized.