HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
K. M. by her litigation guardian, S. M.
Applicant
-and-
North Simcoe Muskoka Community Care Access Centre
Respondent
Interim decisiON
Adjudicator: Kaye Joachim
Indexed as: K. M. v. North Simcoe Muskoka Community Care Access Centre
WRITTEN SUBMISSIONS
K.M., Applicant ) Ellie Venhola, Counsel
North Simcoe Muskoka )
Community Care Access ) Cindy Clarke, Counsel
Centre, Respondent )
1This is an Application filed on December 31, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision clarifies the scope of the Application.
2In the human rights complaint forming in the subject matter of this Application, the applicant alleges that the Community Care Access Centre (“CCAC”) discriminated against her on the basis of her disability.
3The applicant self-describes as a child diagnosed with a moderate to severe form of autism. She was born in 1994. She has been receiving occupational therapy services through the respondent since 2001. She received augmentative communication support from CCAC by a registered speech and language pathologist (“SLP”) from October to May 2002. The respondent proposed a change in service provider whereby the augmentative communication support would be provided by a non SLP. The applicant was not happy with the proposed change of service providers and it appears that no communication support was provided for some time after May 2002.
4In November 2004 the applicant asked for an assessment to see if she was eligible for CCAC speech services.
5An SLP conducted an assessment of the applicant in January 2005 and determined that her primary need was for language therapy, in particular augmentative communication therapy through the school board. The applicant did not want this therapy as it was not provided by an SLP. However, by May 2005 she did accept the therapy.
6In January 2007 the applicant called CCAC again to complaint about not receiving speech therapy. A case conference was held in March 2007 but the applicant did not attend. The parents met with CCAC in November 2007 and a list of their concerns was drawn up. One of the concerns identified was the adequacy of the speech and language therapy provided. The parents wanted speech therapy by a licensed SLP and not augmentative communication therapy.
7In December 2007 the applicant filed the present human rights Application.
Timeliness and/or Scope of the Application
8Following an Interim Decision, 2010 HRTO 1397, the applicant provided particulars of the alleged discrimination. The applicant clarified that she was alleging discrimination since 2004 for the denial of speech language services
9The applicant alleges that the denial of speech therapy is discriminatory because the applicant was denied the service but those who do not share the applicant’s specified disability-related personal characteristics were offered the service
10The applicant alleges that the eligibility criteria fails to recognize her unique needs and excludes her from access to the service.
11The applicant alleges that she was denied the service because she has autism and the respondent did not believe she would realize any gains from the service because of the severity of her autism.
12The applicant alleges that the respondent staff lacked the requisite autism training to appropriately assess the applicant.
13The applicant alleges that she was not provided with sufficient explanation for the refusal for an appropriate assessment, copies of CCAC policies, copies of documentation regarding CCAC staff training, a meaningful opportunity to appeal decision of the CCAC.
14In my view, the allegations in paragraph 12 and 13 do not fall within the scope of the Code as they do amount to discrimination on the basis of disability.
15The applicant further clarified that although she is framing her complaint from 2004, she is not seeking any remedial relief with respect to the period prior to November 2006.
16The respondent submits that any allegations prior to November 2006 are out of time and should be dismissed. I agree.
17Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:
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.
18Section 34 of the Code allows applications alleging discrimination under the Code to be made within one year of the incident (or last incident) of alleged discrimination. While the original complaint underlying the present Application was filed when the old section 34 of the Code was in force, the Tribunal has found that the provisions of the current section 34 are applicable to applications, such as this one, filed under the transition provisions of the Code. See, for example, Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566, 2009HRTO 566; and, Chinatman v. Toronto District School Board, 2009 HRTO 1225, 2009HRTO 1225.
19I find that the pre-November 2007 events do not form a series of incidents. Rather, the change in services in 2002 was a discrete event as was the November 2004 request for speech services. The refusal to provide the requested services is more than one year old and does not form the basis of the present Application
20Accordingly, the scope of the present Application is limited to the November 2007 complaint about the nature of the services being received. I also accept (as do the parties) that the 2009 screening/assessment also forms part of the present Application.
Cooper decision
21The Respondents sought the early dismissal of the Application on the basis that the case of Cooper v. Ontario, August 28, 2009 (On. Div. Ct) (unreported), has dealt conclusively with the issue raised in this Application.
22It is important to understand the background related to the funding of speech and language therapy in Ontario in order to understand the respondent’s arguments with respect to the Cooper decision.
The delivery of speech and language services is complex. Some services are offered by the CCAC (under the auspices of the Ministry of Health) and other services are offered by the appropriate school board (under the Ministry of Education) when the child is in school.
Some services can only be offered by licensed SLPs while other services like augmentative communication can be offered by a variety of specially trained professionals.
The CCAC is responsible for providing speech therapy as a health service if the primary speech concern is articulation (moderate to severe), fluency or voice quality.
The school board is responsible for providing language therapy as an education service if the primary concern is language, hearing impairment, mild articulation or augmentative communication. Augmentative communicate is a therapy that is recommended to those who are unable to meet functional face to face communication through speech alone.
The Ministry of Health funds the services offered by the CCACs, including the respondent CCAC. Children assessed as experiencing a speech or articulation impediment are eligible to receive speech services from a CCAC speech and language service provider. Children assessed as having a language disorder are provided with language services from a school board speech and language service provider.
The type of speech and language services provided to a particular child, including the applicant, are dependent on an assessment of the child’s speech and/or language needs. Pursuant to the government’s Guidelines, the nature of the child’s assessed speech and/or language needs dictates whether the services will be provided by a CCAC (and funded by the Ministry of Health) or a school board (and funded by the Ministry of Education).
The applicant has been assessed as having autism which includes, in her particular case, a language disorder. In accordance with the Guidelines, the applicant has been referred to the school board for speech and language service to address her language disorders.
23In Cooper, two children who attended private schools, argued that they should be entitled to speech and language services funded by the CCAC (Ministry of Health). They had been assessed as having language issues, which fell within the Ministry of Education. At that time the Ministry of Education did not provide language therapy to children in private schools.
24They submitted that the inter-ministerial guideline is contrary to the Charter and discriminated against them because they did not have the type of health problem that is funded by health services. The Charter application was denied by the Ontario Divisional Court and leave to appeal to the Court of Appeal was dismissed. At paragraph 19 of its decision, the Divisional Court confirmed that there is a rational basis for the provincial regime which distinguishes between which speech and language disorders should be treated as a health issue and which should be treated as an education issue. Thus, the Province’s decision to treat the applicants’ conditions as an education issue was not open to challenge. Accordingly, the Province’s decision not to fund language therapy for children in private schools was not open to challenge
25The respondent submits that the Cooper decision forecloses the applicant’s claim of discrimination under the Code. I disagree. I do not understand the applicant to be claiming that the treatment of some speech and language disorders as a health issue and others as an education issue is discriminatory under the Code. Rather I understand her claim to be that respondent assessed her as requiring augmentative communication therapy rather than speech and language therapy because the respondent did not believe she would realize any gains from the speech and language service because of the severity of her autism.
26In this sense she is challenging the CCAC assessments. If she were merely alleging that the assessment was incorrect, then this would not be an appropriate basis for a human rights claim, but would have to be appealed to the Health Services Appeal and Review Board. However, as the basis of her challenge to the assessment is that the respondent undervalued her as a person with autism, this challenge may be brought to the Human Rights Tribunal.
27The respondent’s submission that the Application should be dismissed at the outset on the basis that the issues raised in the human rights Application have been conclusively determined by the Cooper decision is denied.
Next steps
28In light of this description of the issue, it is important to revisit the scope of the Application. The crux of the applicant’s Code challenge relates to the assessment of the applicant by the respondent as primarily in need of augmentative communication therapy. I have previously stated that the applicant may not raise any claims against the respondent prior to November 2006. However, the applicant was not assessed by the respondent between November 2006 and June 2009. Therefore, the only assessment within the scope of the present Application is the June 2009 assessment.
29The respondent suggested that if the challenge is to an alleged discriminatory 2009 assessment, then the appropriate respondent should be the SLP who conducted the assessment, not the corporate respondent who retained the SLP. While I am prepared to hear further from the respondent on this issue, it is well established that a corporate respondent is liable for some of the actions of its agents.
30The onus rests on the applicant to establish that the respondent discriminated against her on the basis of disability because they undervalued her need for speech and language therapy because of the severity of her autism. It appears to me that the only evidence I need to hear at this stage is the evidence of the applicant’s parents, any speech and language assessment commissioned by the applicant’s parents relevant to the 2009 assessment and the evidence of the SLP who conducted the 2009 CCAC assessment. After hearing this evidence, I will hear from the parties whether any further evidence is required.
31The hearing will resume as scheduled.
Dated at Toronto this 25^th^ day of January 2011.
“Signed By”
Kaye Joachim
Member```