Beasley v. Sunnyside Garden Daycare Centre of Toronto, 2010 HRTO 871

HUMAN RIGHTS TRIBUNAL OF ONTARIO

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: April 22, 2010

Citation: 2010 HRTO 871

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

1The purpose of this Interim Decision is to address the continuation of this Application. A hearing has been scheduled to proceed in June 2010.

2The applicant’s mother acts as litigation guardian in this proceeding. She filed separate Applications with the Tribunal in respect of her two children: TR-0084-09 in respect of her son, the applicant’s brother, and this Application TR-0085-09. In Interim Decision 2010 HRTO 711, the Tribunal dismissed TR-0084-09 on the basis of delay and determined that only this Application could proceed. The purpose of this Interim Decision is to make directions regarding the fair, just and expeditious hearing of this Application.

3The applicant is a child who was on the Daycare’s waiting list from June 2006 until September 2007 when the Daycare advised that they had removed her name from the wait list. The applicant’s mother believes that her daughter was not offered a place in the Daycare from June 2006 to September 2007 because of her brother’s behaviour (allegedly related to disability) and that this amounts to discrimination on the basis of association with a person with a disability.

4The respondents assert that the applicant was not offered a place in the daycare because of a mistake regarding her age (caused by the applicant’s father writing the wrong date of birth on the enrolment application). By the time the mistake was corrected, there were no spaces in the respondent daycare. Eventually, the applicant was removed from the wait list because of the mother’s allegedly inappropriate conduct toward staff.

5A conference call was held on April 16, 2010 to address the manner in which this Application of the applicant daughter would be conducted. At the conference call the litigation guardian advised that she wished to call evidence to establish the respondents had discriminated against her son, because she understood that she must do so in order to establish a breach of the Code as against the applicant.

6Having dismissed the son’s Application on the basis of delay I have no authority to determine whether the respondents discriminated against the applicant son.

7The issue in the present Application is whether the respondents refused to admit the applicant to their day care because of association with a person with a disability, namely her brother. The litigation guardian has advanced the theory that the respondents did not admit the applicant to the daycare because they perceived that the applicant might have a disability similar to her brother and the respondents did not want to face the obligation involved in accommodating the applicant.

8In order to make that determination, I do not need to determine whether the applicant’s brother was treated contrary to the Code. On the contrary, it is sufficient for me to consider the documentary evidence, already filed as evidence in the joined proceedings, which establishes that that the applicant’s mother and the respondents had ongoing discussions and disagreements relating to the needs of applicant’s brother.

9For the purpose of determining the present Application, I accept that the evidence presented in the Application of the applicant’s brother should be considered for the purpose of assessing whether the applicant’s brother’s behaviour may have influenced the respondents’ decision with respect to accepting the applicant into the respondent daycare. If so, the applicant may be able to establish a breach of the Code, if I find that applicant was refused admission to the respondent Daycare because of her association with her brother, a person with a disability or who was perceived to have a disability.

10In order to make such a finding, I would need to find that the applicant’s brother was a person with a disability or was perceived as a person with a disability who required accommodation. I would also need to find that the applicant was denied admission to the Daycare because the respondents perceived that the applicant, the sister of a person with a disability, might have a similar need for accommodation.

11Therefore, it is unnecessary for me to determine whether the applicant’s brother’s rights under the Code were breached, and as stated above, I have no authority to embark upon such an inquiry.

12Accordingly, and as directed at the telephone conference in this matter, I will not hear any evidence solely related to the issue of whether the applicant’s brother experienced discrimination under the Code.

13On the conference call, I proposed that it would be more helpful to me to hear the respondents’ evidence relating to the treatment of the applicant’s application for daycare, before hearing from the applicant. The applicant agreed to this procedure but the respondents expressed their objection. Nonetheless I have determined that the most fair just and expeditious manner of proceeding is to hear the evidence of the respondents’ first, followed by the evidence of the applicant, followed, by reply evidence of the respondents if required.

14My reasons for proceeding in this manner are as follows. The respondents have in their possession information why they did not admit the applicant to their daycare prior to September 2007 and information why they advised the litigation guardian that the applicant would not be offered a place in the future. Part of the respondents’ anticipated evidence, based on their pleadings, is that the litigation guardian’s behaviour was the reason for their removal of the applicant from the Daycare waiting list.

15The applicant indicated an intention to call six witnesses to challenge, in advance, the respondents’ allegation that the litigation guardian behaved in an inappropriate manner. In my view, it would be more fair, just and expeditious to hear first from the respondents why they took the action they did, so that witnesses need not be called unnecessarily to rebut anticipated evidence that may never be introduced.

16Accordingly, I find that it is fair, just and expeditious to direct that the respondents proceed to call their evidence first, followed by the applicant’s evidence, and if necessary, reply evidence by the respondents.

17This does not alter the burden of proof of establishing a breach of the Code, which remains on the applicant.