T.A. v. The Children’s Aid Society of Toronto, 2011 HRTO 189

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.A.

Applicant

-and-

The Children’s Aid Society of Toronto and Hillary Whyte

Respondents

DECISION

Adjudicator: David A. Wright

Date: January 26, 2011

Citation: 2011 HRTO 189

Indexed as: T.A. v. The Children’s Aid Society of Toronto

APPEARANCES

T.A., Applicant ) Self-represented

The Children’s Aid Society of Toronto ) Landon P. Young, Respondent ) Counsel

Hillary Whyte, Respondent ) Sally P. Bryant, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Decision follows a summary hearing held by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure.

2The applicant alleges that the respondents discriminated against him on the basis of creed and family status. The individual respondent Dr. Hillary Whyte, he alleges, discriminated against him by making a report to The Children’s Aid Society of Toronto (“CAST”) regarding his child under the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (“CFSA”). CAST, he alleges, discriminated against him as a result of its actions in investigating and pursuing child protection proceedings under the CFSA.

3By Interim Decision dated June 23, 2009, 2009 HRTO 882, the Application was deferred pending the conclusion of the child protection proceedings. Those proceedings concluded in February of 2010. The applicant then filed a request to reactivate the Application. The respondents took the position that the Application discloses no facts that could lead to a finding of discrimination, and that the Request to reactivate was filed outside the relevant time period in the Tribunal’s rules.

4On July 12, 2010, the Tribunal issued a Case Assessment Direction directing that a summary hearing would be held by teleconference on whether the Application has a reasonable prospect of success. The Tribunal also asked the parties to be prepared to address the issue of the timing of the filing of the request for reactivation.

DECISION

5The Application has no reasonable prospect of success. Accordingly, it is dismissed.

FACTUAL BACKGROUND

6The individual respondent, Dr. Whyte, was involved in treating the applicant’s infant child, who was admitted to the Hospital for Sick Children without vital signs and eventually passed away. In the course of meeting with the applicant and his spouse, she made observations and had a discussion with a worker with the CAST about the applicant’s three-year-old child. This conversation, together with other information, was relied upon by the CAST in making an application to the Ontario Court of Justice for supervision under the CFSA that the three-year-old was in need of protection because he required medical treatment that the parents were not providing. It sought an order that the three-year-old be assessed and treated for rickets.

7The Application filed in the Ontario Court of Justice in support of the CAST’s position in the child protection proceedings includes the following:

7. On September 5, 2008, the worker received a telephone call from Dr. Au informing that [the baby] was diagnosed with Ricketts [sic]. Dr. Au indicated that the staff was also concerned that [the three-year-old] had Ricketts. Dr. Au said that the parents were spoken to and advised of the need of assessment and follow up.

8. On September 19, 2008, the worker received a telephone call from Dr. Hillary Whyte informing that she had concerns about [the three-year-old]. Dr. Whyte reported that she believed that [the three-year-old] had Ricketts. Dr. Whyte said she addressed this with [the applicant and his spouse] but they told her to mind her own business. Dr. Whyte said that the family is vegan and that poor nutrition could have lead [sic] to Ricketts. Dr, Whyte indicated that [the three-year-old] needed to be assessed but parents were refusing to do this. Dr. Whyte believed that this was a serious problem and that [the three-year-old] required immediate intervention and that the Society should apprehend him if parents refused to get him assessed. Dr. Whyte also said that [the baby] could have died as a result of having Ricketts and explained that the heart failure could have been caused from having Ricketts.

8During the child protection proceedings, the applicant and his spouse consented to the testing of the three-year-old for rickets.

ANALYSIS

9I deal first with the Application as against Dr. Whyte. I find that it has no reasonable chance of success because it is barred by s. 72 (7) of the CFSA.

10Section 72(1) of the CFSA imposes a duty on a person to make a report to a children’s aid society in certain circumstances, including if he or she has reasonable grounds to suspect that a child requires medical treatment that a parent refuses to provide. It reads in relevant part as follows:

Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

5. The child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.

11It is an offence for a person who performs professional or official duties with respect to children, including a physical, to fail to make a report if he or she has reasonable grounds to suspect the child is in need of protection: s. 72 (4).

12Section 72(7) provides as follows:

This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [emphasis added]

13It my view it is immaterial that the institution of a proceeding in the Tribunal is called an “Application” rather than an “action”. Statutes must be interpreted in a purposive manner, in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. It is evident that the intention of s. 72(7) is that a person who acts in accordance with their statutory duty cannot be subject to legal proceedings for having made a report required by statute except if they acted maliciously or without reasonable grounds for the suspicion.

14Section 72(7) of the CFSA applies in this case. There is no reasonable possibility, in my view, that Dr. Whyte could be found to have acted maliciously or without reasonable grounds to suspect that the three-year-old needed medical attention. I note that there must only be reasonable grounds to suspect in order for the bar to be triggered. Although the applicant takes issue with the evidence Dr. Whyte had and the extent of the inquiries she made, this is not the basis for the bar in s. 72(7). Her medical treatment of the baby, together with her observations of the three-year-old, the parents’ reaction to her and her medical expertise gave her reasonable grounds to suspect that the child may be in need of protection. This Application cannot be maintained against her as a result of s. 72(7). The Application against Hillary Whyte is dismissed.

15Moreover, I find that there is no reasonable prospect that the applicant can succeed in linking any of the CAST’s actions to a ground in the Code. The approach to be applied was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 9:

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

16The Tribunal does not have the power to inquire into general claims of unfairness or violations of statutes. It has no power to examine the applicant’s theory that the respondents were frustrated with him based on his refusal to remove his infant son from the ventilator or any of his other arguments about what he says were generally improper actions by the CAST.

17The Tribunal’s power is based on the Code, which prohibits discrimination on certain listed grounds. To have a reasonable prospect of success, an applicant must do more than assert a belief that one of several prohibited grounds may or must have been a factor in an action which can have other explanations. There must be a reasonable basis to believe, given the evidence and surrounding circumstances, that a violation of the Code may have taken place.

18The applicant has given no reason to believe that any of the CAST’s actions were influenced by any factors other than the information given to it by medical professionals. The applicant suggests that his “creed” is vegetarianism, and that Dr, Whyte’s report made reference to this fact. Assuming vegetarianism falls within the meaning of “creed”, there is no reasonable basis on which a finding of discrimination could be made. The CAST had information from physicians that suggested the applicant’s child could have a serious illness affected by nutrition. The fact that the reports referred to the nature of his diet does not mean that a prohibited ground was a factor in the decision. There is no reasonable basis on which the applicant suggests that the ground of family status or creed was a factor in the CAST’s actions.

19I conclude that there is no reasonable prospect that the applicant could show that the CAST discriminated against him on either of the grounds cited.

20Having concluded that there is no reasonable prospect of success on the merits, there is no need to consider the arguments regarding the timing of the reactivation request or s. 45.1 of the Code. There is also no need to determine the applicant’s request for a Tribunal-ordered Inquiry.

21The Application is dismissed.