Beasley v. Sunnyside Garden Daycare Centre of Toronto, 2010 HRTO 711

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Beasley by his litigation guardian, Nancy Scott

Applicant

-and-

Sunnyside Garden Daycare Centre of Toronto, Judith Malcolm-Barnes and Sheila Thomas

Respondents

A N D B E T W E E N:

Sage Beasley by her litigation guardian, Nancy Scott

Applicant

-and-

Sunnyside Garden Daycare Centre of Toronto, Judith Malcolm-Barnes and Sheila Thomas

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 30, 2010

Citation: 2010 HRTO 711

Indexed as: Beasley v. Sunnyside Garden Daycare Centre of Toronto

1The applicant ("son" or "brother") in Tribunal File TR-0084-09 is a child who attended the respondent daycare from July 2006. The applicant in Tribunal File TR-0085-09 ("sister" or "daughter") is the sister of the applicant in TR-0084-09. The applicants' mother ("litigation guardian") acts as litigation guardian for both applicants.

2As a result of behavioural issues, the son was suspended from the respondent daycare on various occasions and eventually refused further admission in November 2006. The litigation guardian asserts that his behaviour was related to his disability and that the daycare did not adequately accommodate her son's needs. The respondents allege they were not provided with sufficient information to enable them to accommodate the son's needs. They also assert that they were unable to safely provide daycare services for him in light of the behavioural issues related to his disability.

3The daughter is a child who was on the daycare's waiting list. After the litigation guardian refused a position in June 2006, her daughter remained on the list until September 2007 when the daycare advised that they had removed her name from the waiting list. The litigation guardian believes that her daughter was refused a place in the daycare because of her son's behaviour and that this amounts to discrimination on the basis of association with a person with a disability. The respondents assert that the daughter was removed from the waiting list because of the litigation guardian's inappropriate conduct toward staff.

4The Tribunal has decided to hear both Applications together.

5The purpose of this Interim Decision is to determine whether the son's Application was filed in a timely manner. A hearing was held on March 29, 2010, to hear the evidence and arguments of the parties.

Delay

6Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") allows the Tribunal to consider applications alleging infringements of the Code brought within one year after the alleged breach.

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Evidence

7Between July and November 2006, the son's daycare services were suspended periodically due to behavioural issues. The respondents consulted with the City of Toronto Daycare consultants and the City provided support to the respondent daycare through the Child Development Institute to enable the son to return to the respondent daycare. Following an incident on November 24, 2006, in which the son ran out of the daycare and into the street, the respondents advised the litigation guardian in writing that her son would not be receiving further daycare services, due to their belief that they could no longer safely provide daycare services for him, in light of their responsibilities to the other children in their care.

8The litigation guardian immediately contacted the City of Toronto special needs consultants services to seek advice and assistance about her son's loss of daycare.

9The litigation guardian testified that she had several discussions with Jill Harvey, a special needs consultant with the City, between November 27 and 29, 2006. The litigation guardian sought advice on how to obtain the minutes of the respondent daycare's meetings. Jill Harvey advised the litigation guardian that the City had no right to obtain the minutes of the respondent daycare's Board of Director's meetings and advised her to seek legal advice on how to obtain such minutes. The City's notes of these conversations also indicates that Jill Harvey expressed the view that that respondent daycare had acted in compliance with its contract with the City and that the City would offer assistance in finding alternative daycare arrangements.

10The litigation guardian testified that around November 29 or 30, 2006, she spoke with Deborah Young, District Director with the City. Ms. Young explained the relationship between the City and the licensed daycare facilities. Ms. Young explained that while the City was responsible for supervising licensed daycare facilities, including the corporate respondent, it had no authority to direct the daycare to admit a particular child. If the daycare was not acting in compliance with the City's policies, the City's only power over the daycare was to revoke the licence. The litigation guardian testified that she did not ask the City to pursue this option. Ms. Young also advised the litigation guardian that if she wanted to have her son re-admitted to the respondent daycare, she would have to take legal action directly against the respondent daycare, in the form of a civil action or a human rights application.

11The litigation guardian testified that she did not immediately file a human rights complaint because she thought that this approach would be overly drastic and litigious. She had hopes that she could convince the respondent daycare to change its mind. She did however consult with a lawyer through her employee assistance program. This lawyer did not have expertise in human rights or daycare issues, but recommended either going to the media or seeking political help.

12On March 28, 2007, the litigation guardian wrote a detailed letter to the respondent daycare's Board of Directors stating that she believed that they had not provided adequate care to her son from July to November 2006 and had not complied with the City's policies in withdrawing daycare services from her son. She noted that her son might seek to be re-admitted and asked as a remedy that the Chair of the Board of Directors be asked to resign immediately because of her involvement in having her son withdrawn.

13On May 8, 2007, the Board of Directors responded to the effect that they believed that the Chair had handled the matter appropriately and the matter was now closed.

14The litigation guardian did seek political assistance through the office of her local Member of Parliament ("MP") which resulted in a letter from the MP's office being sent to the City of Toronto to encourage them to look into the son's situation. This letter was not sent to the respondent daycare at the time.

15On May 26, 2007, the litigation guardian contacted the respondent daycare to inquire about her daughter's outstanding application for a place in the daycare. In June 2007, the litigation guardian and the respondents spoke about her daughter's place on the waiting list. The parties agree that at no time during these conversations was the son's situation discussed.

16On September 28, 2007, the respondent daycare wrote to the litigation guardian advising that her daughter would not be admitted in part because space was not available and also because of the unpleasant disputes between the litigation guardian and staff concerning both children. The letter stated that the Board of Directors was of the opinion that the children would be better served elsewhere.

17The litigation guardian testified that it was only upon receipt of the September 2007 letter that she realized that she had no hope of getting either of her children into the respondent daycare and that the time should not begin to run until then.

18From September 2007, the litigation guardian testified that she was busy with the challenges of dealing with a child with special needs, the Christmas season and the illness and death of her mother in January 2008.

19On January 30, 2008, the litigation guardian wrote to the Ontario Human Rights Commission seeking to file a complaint with respect to the events surrounding both children. Upon the advice of the Commission, the litigation guardian filed two complaints, dated February 18, 2008.

The last incident or series of incidents

20The respondents assert that the last incident is the withdrawal of the son from daycare, which occurred on November 24, 2006. The son's litigation guardian first contacted the Commission on January 30, 2008, a period of 14 months after the last incident, which is beyond the 12-month statutory deadline.

21The litigation guardian submits that from November 2006 to September 2007, she was seeking the reinstatement of her son to the respondent daycare and therefore the time should not begin to run until September 2007.

22I cannot accept this submission. I agree that the litigation guardian was in contact with the City after November 2006, but according to her own evidence, the City officials had told her plainly at the end of November 2006 that they could not assist her to obtain re-admission for her son and that if she sought re-admission she would need to take legal action. In any event, the respondent's letter of November 24, 2006 was clear on its face that her son had been denied services and that this is crux of the incident of which the litigation guardian now alleges is discriminatory.

23Whatever the litigation guardian's personal hopes about seeking her son's reinstatement to the respondent daycare, she made no verbal or written attempt to seek re-admission of her son or any attempt to seek further resolution of the dispute with the respondent daycare or the personal respondents until the filing of the human rights complaints.

24The only communication she made to the daycare with respect to her son from November 2006 to the first contact with Commission was her letter of March 2007 in which she demanded the resignation of the Chair of the Board of Directors. She does mention the possibility that she may seek re-admission of her son in the future, but the letter does not have the flavour of attempting to seek the re-admission of her son to the respondent daycare. The reference to possible future re-admission does not alter the fact that the crux of the alleged discrimination is the treatment her son received up to and including November 24, 2006.

25While I note the litigation guardian's insistence that the respondent daycare's September 2007 letter does state that the Board has determined that her "children" would be better served elsewhere, this reference is taken out of context. It is clear that the purpose of the letter was to address the issue of her daughter and not her son.

26The litigation guardian also submitted that she alleged in her complaint that she had been seeking re-admission for her son and asked for re-instatement as a remedy. However, the wording of the complaint cannot be used to artificially establish the date of the last incident.

27I find that the crux of the alleged discrimination was the treatment of the son from July to November 2006 and culminated in the ultimate withdrawal of the son from the respondent daycare on November 24, 2006. Thus the last incident occurred on November 24, 2006, and this is the date from which the issue of timeliness must be considered.

28Nor do I consider the fact that the litigation guardian was engaged in ongoing discussions from June to September 2007 regarding her daughter as amounting to a series of incidents within the meaning of section 34(1) of the Code.

29The two Applications are distinct. I accept that the daughter's Application, alleging that she was denied admission to the daycare because of association with her brother, a person with a disability, is connected to the treatment of her brother. However, the converse is not true. The son was withdrawn in November 2006 and the litigation guardian only began inquiring about her daughter's place on the waiting list in June 2007. That inquiry does not extend the final incident relating to the son.

Was the Delay incurred in Good Faith?

30The litigation guardian explained that she was reluctant to take the drastic step of litigation immediately, and that she was exploring other options, such as intervention by the City or by her local MPP. The desire for a period of reflection and consideration of options may be reasonable, but it cannot be used to overcome a statutory limitation period: Carter v. Northeast Mental Health Centre, 2009 HRTO 1670. The litigation guardian had a period of one year to consider her options and decide whether to pursue a human rights application. She did not act within that time.

31The Legislature had determined that human rights applications are best addressed in a timely fashion and has set the limitation period at one year, absent a good faith reason for a delay. The Tribunal has no authority to condone even brief delays beyond the 12-month mark, unless good faith has been established: see Carter, supra.

32I am not satisfied that the reasons expressed by the litigation guardian amount to a good faith reason for not raising the alleged failure to accommodate her son for over one year. As the Tribunal has previously stated the onus on an applicant to establish a good faith explanation for the delay on under section 34(2) requires more than proving the absence of bad faith: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24.

33I conclude that the last incident giving rise to the son's Application occurred on November 24, 2006, and that the delay over 14 months in filing the complaint with the Commission was not incurred in good faith. This Application is dismissed pursuant to section 34(1) of the Code.

34The daughter's Application will proceed by way of a conference call on April 19, 2010 at 10:00 a.m.