HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E.M. and
L.M. by his litigation guardian E.M.
Applicants
-and-
Centre for Early Learning Inc.,
c.o.b. as Denton Place Centre for Early Learning,
Julie Cuss and Patricia London
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as : E.M. v. Centre for Early Learning Inc.
APPEARANCES BY
E.M. and L.M., Applicants ) E.M. on her own behalf and as ) litigation guardian for L.M.
Centre for Early Learning Inc., Julie Cuss ) Timothy Lawson, Counsel and Patricia London, Respondents )
1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), both dated June 24, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on September 15, 2006.
2The applicant L.M. is a minor child, who was six years old at the time of the events at issue in this Application. He alleges that he experienced discrimination in respect of services because of his First Nations ancestry and because of disability contrary to s. 1 of the Code, arising out of bullying that his mother E.M. states he experienced while attending the respondent child care program and from the discontinuance of child care services as of March 16, 2006.
3The applicant E.M is L.M.’s mother. She alleges that she experienced discrimination in respect of services because of her First Nations ancestry, disability and family status contrary to s. 1 of the Code arising out of the same events.
4The hearing in this matter was held on March 3 and May 13, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. At the hearing, I heard from E.M., P.P. (E.M.’s mother), and the two personal respondents. L.M. was not called to testify before me.
Background
5Denton Place Centre for Early Learning (“Denton Place”) is owned by Centres for Early Learning Inc. and is an early years child care facility located in Toronto. It is licensed under the Day Nurseries Act, R.S.O. 1990, c. D.2, and operates under the monitoring of the City of Toronto. The personal respondent Julie Cuss was the Supervisor at Denton Place at the material times. The personal respondent Patricia London was a Director for Centres for Early Learning Inc. at the material times and was Ms. Cuss’ supervisor.
6L.M. was initially enrolled in child care at Cambridge Place Centre for Early Learning commencing April 1, 2004 when he was almost five years old. Due to high enrolment, Cambridge split internally and as a result L.M. was transferred to Denton Place (which is located in the same building as Cambridge) in September 2004 to the Senior Preschool Program.
7In May 2005, L.M. moved to the School Age Program at Denton Place. At the material times, approximately 30 children were registered in this program ranging in age from 6 to 12 years old. As of September 2005, L.M. attended grade one at a nearby public school. He would sometimes be dropped off at Denton Place in the morning before school, would return to Denton Place for lunch, and then would return again after school until he was picked up.
8During the time when L.M. attended the School Age Program at Denton Place, his mother, E.M., raised concerns with the respondents that L.M. was being bullied in the program by an older male child (Child A). The underlying context of the two Applications before me arises out of E.M.’s concerns regarding bullying and her view that the respondents were not taking sufficient steps to address this situation.
Preliminary ruling at outset of hearing
9At the outset of the hearing, I observed that I have no general jurisdiction to deal with issues of “bullying” or termination of services by a child care centre, and that I only have jurisdiction under the Code if the allegations about bullying or termination of services relate to one of the prohibited grounds of discrimination identified under the Code, which in this case are allegations of discrimination because of First Nations ancestry, disability and family status.
10Having carefully and thoroughly reviewed all of the material that had been submitted to the Tribunal by the parties, I advised the parties that I required clarification from E.M. as to the specific manner in which the allegations raised in this proceeding fall within my jurisdiction under the Code.
11Having heard and considered the submissions of the parties, I determined that there was no prima facie case to support the allegations of discrimination because of disability and family status.
12With regard to the issue of disability as it relates to L.M., there is no evidence before this Tribunal that L.M. had or was perceived to have had a disability within the meaning of the Code at the relevant time, or that any of the incidents that form the basis of the applicants’ allegations in this matter relate to or arise out of any such actual or perceived disability. The only evidence regarding L.M. having a disability that was brought forward by E.M. was a psychological assessment report that E.M. states was issued in April 2006 (there is no date on the copy of the report filed in evidence before me), after child care services for L.M. were discontinued. This report finds that, although the assessment results appear to be similar to those of a student with a learning disability, a diagnosis at that time was premature given L.M.’s young age, ongoing social-emotional adjustment and behaviour difficulties and the instructional time that he had missed. As a result, there is no actual diagnosis of a disability in the evidence before me, nor were the findings of this report available to the respondents at the material time. Nor is any allegation raised that L.M. was being bullied because of any actual or perceived disability, that E.M. raised to the respondents any such allegation, or that the respondents believed L.M. had a disability and that any such belief played any role in the events at issue. Accordingly, I determined that there was no sufficient basis to proceed with the allegation that L.M. had experienced discrimination by the respondents because of disability.
13With regard to E.M. and her allegation that she experienced discrimination because of disability, there is simply no evidence before me to establish that E.M. had a disability at the material time or that any disability she may have had played any role in the events at issue. E.M. states that at the material time, she was receiving disability benefits and that this was known to the respondents. However, no medical or other evidence was disclosed to the respondents in the context of this proceeding or filed with the Tribunal to support that E.M. had or has a disability. Where an allegation of this nature is raised, it is the applicant’s responsibility to bring forward evidence to support that she or he had a disability at the material time or times. Such evidence should have been available to the applicant, but was not disclosed or filed. No allegation was raised that E.M. experienced discrimination because of any perceived disability. Accordingly, I determined that there was no sufficient basis to proceed with the allegation that E.M. had experienced discrimination by the respondents because of disability.
14With regard to the allegation of discrimination because of family status, this allegation was raised only in the complaint filed by E.M. This alleged ground of discrimination appears to have been added to E.M.’s complaint by the Commission. In response to my questions as to the basis for this allegation, the applicant stated that it had to do with being a single parent and her ongoing disability and that it also had to do with socio-economics. She alleges that if she had a husband, her concerns would have been taken a little more seriously. Under the Code, “family status” is defined as being in a parent – child relationship and has been interpreted in the caselaw as extending to the specific identity of an applicant’s parent or child. In this case, the applicant raises an allegation regarding her socio-economic status, which is not a ground protected under the Code. In her submissions, the applicant also raises her marital status of being single, which is a separate ground from family status and which was not alleged as a ground of discrimination in her complaint. And she raises a connection to disability, which for the reasons stated above I have found not to be supported by evidence. The only potential aspect of the applicant’s allegations that may fall within the alleged ground of family status is her allegation that she was not taken seriously by the respondents because she was a single parent. No such allegation was articulated either in the complaint or in the applicant’s statement of additional facts. Nor did the applicant indicate that she had evidence to support such an allegation beyond mere speculation. Accordingly, I determined that there was no sufficient basis to proceed with the allegation that E.M. had experienced discrimination by the respondents because of family status.
15As a result, the only allegations that proceeded before me were the allegations that L.M. and E.M. had experienced discrimination because of their First Nations ancestry. As I have observed above, I do not have general jurisdiction to deal with alleged bullying, unless any such bullying is related to a prohibited ground under the Code. Further, in this case, Child A is not a named respondent, and as a result, the issue before me is not whether Child A bullied L.M. because of his First Nations ancestry. Instead, the only respondents before me who are alleged to have violated the rights of the applicants under the Code are the child care centre and two of its management personnel. In these circumstances, the issue before me is whether these respondents knew or should have known that Child A was bullying L.M. because of his First Nations ancestry and, if so, whether the respondents failed to take reasonable steps to address any such Code-related bullying.
16In addition, the applicants’ allegations of discrimination because of ancestry relating to the discontinuance of child care services for L.M. arise from E.M.’s belief that these services were discontinued because the respondents did not want to address the Code-related bullying. As will be discussed in greater detail below, the respondents’ position is that services for L.M. were discontinued because of E.M.’s conduct on March 16, 2006, and her violation of the respondents’ policies.
17In light of these issues, I focused the evidence at the hearing on whether E.M.’s belief that L.M. was being bullied in part because of his First Nations ancestry or indicia of his First Nations ancestry such as long hair or earring were brought to the attention of day care management at a meetings in November 2005 relating to a serious occurrence report made by E.M. and/or at a meeting with day care management on February 8, 2006, and if so whether the respondents took reasonable steps in response to any such concerns as were raised.
18I also focused the evidence on whether the respondents’ decision to terminate services was as a result of not wanting to address issues of discrimination, as alleged by E.M., or for some other non-discriminatory reason.
19As a result, I advised the parties that I wanted to hear evidence about three things:
any meeting that may have occurred in or about November 2005 arising out of the serious occurrence report filed by E.M. and whether E.M.’s belief that L.M. was being bullied in part because of his First Nations ancestry was raised at that meeting;
the meeting on February 8, 2006, and whether E.M.’s belief that L.M. was being bullied in part because of his First Nations ancestry was raised at that meeting; and
the events of the morning of March 16, 2006, and the respondents’ decision to discontinue services.
Did E.M. raise an allegation that L.M. was being bullied because of his First Nations ancestry?
20I will first address the issue of whether the evidence supports that the allegation was raised by E.M. that L.M. was being bullied in part because of his First Nations ancestry.
21E.M. states that she raised this issue with teachers who were responsible for the child care program. With one exception, no particulars or specifics were provided by E.M. as to when she raised any such allegation, with whom, or in what specific context. At the hearing, for the first time, E.M. raised an allegation that on one occasion when she dropped L.M. off at the child care, Child A was pretending to be “Indian” and saying “woo woo woo” and that she discussed the inappropriateness of this with one of the teachers. As no such allegation was raised in the complaint or in the applicants’ statement of additional facts or at any time prior to the hearing, I ruled that this allegation was beyond scope of the complaint as filed.
22On November 15, 2005, E.M. called the serious occurrence line to complain that L.M. was being bullied at the day care program. E.M.’s evidence is that when she spoke to the person on the serious occurrence line, who was not identified, she either used the word “discrimination” or “racism” in making her complaint.
23When a parent calls the serious occurrence line to make a complaint, the complaint is reported to the day care program and the program is required to complete a serious occurrence report which then gets reviewed and filed. The serious occurrence report arising out of E.M.’s complaint on November 15, 2005, is in evidence before me. In this report, the nature of the complaint is described as the parent reporting a concern that not enough was being done by the day care program with regard to her son being bullied. No issue of alleged discrimination or racism is recorded in this report.
24Ms. Cuss’ evidence is that the concern that was reported to her by the serious occurrence line related to alleged bullying of L.M. and that no issue of alleged discrimination or racism was reported to her. Ms. Cuss states that if such a concern had been raised, it would have been reported to her and she would have needed to record this concern in the serious occurrence report. She also states that the serious occurrence report is reviewed, and if an allegation of discrimination or racism had been raised by E.M. but was not recorded or addressed in the report, this would have been raised with her, which it was not. Further, the evidence before me indicates that if an allegation of racial discrimination is raised by a parent, the respondents’ policies require the completion of a racial incident report. No such report was prepared by Ms. Cuss arising out of E.M.’s complaint to the serious occurrence line.
25A meeting was held on November 16, 2005, between Ms. Cuss and E.M. to discuss E.M.’s concerns about bullying. E.M. states that at this meeting, she raised a concern that the day care teachers had told her that racial slurs were being used by Child A in relation to L.M. No specific evidence was provided to me regarding the precise nature of these alleged racial slurs, when they are alleged to have been made, or in what context. Nor was any direct evidence called by the applicants to support that Child A made any racial slurs towards L.M. I do have in evidence before me excerpts from the School Age Room journal relating to L.M. for the period from April 28, 2005, to March 16, 2006. None of these entries record Child A using racial slurs towards L.M. nor is there any entry recording any bullying by Child A towards L.M. related to L.M.’s First Nations ancestry.
26E.M. also states that at this meeting, she raised the issue of Child A making fun of L.M.’s long hair and earring, which she states are typical of dress and appearance of young men and boys in First Nations culture. She states that she raised this as an example of a racial slur being made by Child A towards L.M. Ms. Cuss’ evidence is that, while there was a general discussion about bullying at this meeting and what could be done to address it, no mention was made by E.M. of bullying being related to L.M.’s First Nations ancestry or of Child A making fun of L.M.’s long hair or earring. There is no entry in the School Age Room journal indicating that Child A made fun of L.M.’s long hair or earring while in the child care program.
27Indeed, the only specific reference to the issue of Child A making fun of L.M.’s long hair and earring is recorded in E.M.’s reply to the response to her complaint filed by the respondents with the Commission, in which she refers to such an issue as having occurred at the public school attended by L.M. and states that this issue was addressed by the Vice-Principal at that school. While E.M. states in this document that Denton Place was made aware of this issue having occurred at the school, there is no mention of any such incident having occurred at the child care centre.
28A further meeting was held on February 8, 2006, to discuss the issue of bullying. This meeting was attended by Ms. Cuss, Ms. London, E.M. and P.P. I heard E.M.’s evidence about what was discussed at this meeting, which covered a range of topics related to bullying and the possibility of having someone come in to the program to observe L.M. and the classroom. In recounting this evidence, E.M. made specific reference to a point in the meeting where she alleges that the question was raised either by Ms. Cuss or Ms. London as to whether this was a racial issue, as Child A is a member of a racialized group. P.P.’s evidence supports that this question was raised, while both Ms. Cuss and Ms. London deny raising any such issue.
29In her initial recounting of this meeting, E.M. did not provide evidence that she had raised at this meeting that she believed L.M. was being bullied because of his First Nations ancestry. After hearing E.M.’s evidence about this meeting, I expressly asked whether E.M. recalled raising any issue about L.M.’s First Nations ancestry at this meeting. It was only at this point in her evidence that E.M. stated that she recalled raising with Ms. Cuss and Ms. London the issue about L.M.’s long hair and earring, which she then stated got “flipped around” by Ms. Cuss or Ms. London raising the issue of whether there was any racial issue relating to Child A’s status as a member of a racialized group.
30I also heard evidence from P.P. about this meeting. Overall, I found P.P. to be a credible witness, in the sense that she believed in the truth of what she was saying and she tried to be very careful about what she could actually remember from this meeting. It has been observed, however, that there is a distinction between the credibility of a witness and the reliability of that witness’ evidence, particularly where, as in this case, the witness is struggling to recall precisely what was said at a meeting that took place over five years prior to her testimony. I greatly appreciated P.P.’s candour in sharing with me and the parties the things that occurred at this meeting about which she has a specific memory and other aspects of the meeting where her recollection is more clouded.
31In hearing P.P.’s evidence, I first asked what she could recall from this meeting, and she could recall the discussion about bullying and what could be done about it as well as the possibility of having someone come in to observe the program. She also gave evidence about the issue of using a healing circle to address and try to resolve this issue (to be discussed below) and that the question was raised as to whether the issue was racial because Child A was a member of a racialized group. No mention was made by P.P. in her initial recounting of this meeting that she or E.M. had raised any issue that the bullying towards L.M. was related to his First Nations ancestry.
32In follow-up, I then asked P.P. to try to recall as specifically as she could what was said by her or E.M. about the bullying, to which P.P. replied that she could not recall the specifics but just that they wanted it to stop and felt that not enough was being done by the child care centre. I then asked whether she could recall anything being said about the nature of the bullying or why it was going on. It was only at this point that P.P. responded that she could now recall that something had been said about L.M. being teased about his long hair, and she felt that Ms. Cuss and Ms. London tried to deflect the behaviour onto L.M. by saying that he had instigated some of the incidents. P.P. then said that this was the extent of what she could recall, and that otherwise she would just be trying to dredge things up out of her memory.
33I then asked whether P.P. could recall anything being said at this meeting about L.M.’s earring, to which P.P. initially responded that she thought her daughter (E.M.) had raised that issue. P.P. then qualified her evidence by saying that she knew that L.M.’s long hair and earring had been an issue and that this issue had been raised, but she could not specifically say that this issue had been raised at the February 8, 2006 meeting.
34I then asked specifically whether P.P. recalled either her or E.M. raising at the February 8, 2006 meeting a belief that L.M. was being bullied by Child A because of his First Nations ancestry. In response, P.P. was quite candid and forthright in sharing with me the thought process that was going on for her in trying to respond to my question. Her answer was that there was a part of her that recalled something like that, but that she was not sure whether what she was recalling was factual or as a result of prompting by me. As I already have stated, I greatly appreciated P.P.’s candour in how she responded to my questions. I well appreciate the difficulty in differentiating between what was actually said at the meeting on February 8, 2006, as opposed to discussions about these issues that may have occurred on other occasions not involving the respondents, particularly where evidence is being given over five years later.
35The evidence of both Ms. Cuss and Ms. London is that there was no issue raised at the February 8, 2006 meeting that E.M. or P.P. believed that L.M. was being bullied because of his First Nations ancestry. I have in evidence before me Ms. Cuss’s handwritten notes from this meeting which, while admittedly not a complete or verbatim record of everything that was said at this meeting, do not record that any such issue was raised.
36In the end, it is the applicants’ legal onus or burden to establish that the respondents knew or ought to have known that L.M.’s First Nations ancestry was a factor in any bullying by Child A. In my view, I do not have sufficient reliable evidence before me to establish that the applicants have satisfied this legal onus or burden. I have no specific evidence before me regarding alleged incidents of racial bullying by Child A towards L.M. at the child care centre. No evidence was provided to me regarding what specifically Child A is alleged to have said or done towards L.M. at the child care centre that is related to L.M.’s First Nations ancestry, specifically when any such incidents are alleged to have occurred, or in what context. With regard to Child A making fun of or teasing L.M. about his long hair and earring, the only specific evidence that I have is that such an incident occurred at the public school attended by L.M. and not at the child care centre. There are no journal entries from the School Age Program that indicate that any incidents involving L.M. were related to his First Nations ancestry or to his long hair and earring.
37I also find that I do not have sufficient reliable evidence to support that any such issue was raised by E.M. or P.P. with the respondents. If in fact E.M. had referred to discrimination or racism when she complained to the serious occurrence line, I would have expected that such a serious allegation would have been reported to the child care centre and noted in the serious occurrence report. I further find that the evidence of E.M. and P.P. about this issue having been raised either at the November 16, 2005 meeting or at the February 8, 2006 meeting not to be sufficiently reliable for me to base a finding that this issue was indeed raised with the respondents. For both E.M. and P.P., their evidence about this issue having been raised at these meetings came forward after an initial recounting of what had been discussed at the meeting and only after specific questions by me to prompt them to address this issue. In making this finding, I am not suggesting that either E.M. or P.P. may not now believe that L.M.’s First Nations ancestry was a factor in the bullying or may not now believe that they raised this issue at the time with the respondents. However, memories of past events can become encrusted with and impaired by subsequent events, particularly where there has been a significant passage of time and where the involved parties are looking back on past events through the lens of an allegation of a violation of the Code.
38In the end, I simply am not satisfied that I have sufficient reliable evidence to support a finding that the respondents knew or ought to have known that L.M. was being bullied by Child A because of his First Nations ancestry. As a result of this finding, there is no basis under the Code to support an allegation that the respondents were under an obligation to take reasonable steps to address alleged Code-related bullying. I did hear evidence from the respondents regarding the steps they took to address bullying in general in the context of the child care program and specifically in relation to L.M. I also appreciate that E.M. remains critical of the actions taken by the respondents in this regard, and believes that not enough was done. However, in the absence of sufficient reliable evidence to support a link between the alleged bullying and a protected ground under the Code, I simply have no jurisdiction to address the sufficiency of the steps taken by the respondents to address bullying in general.
39Before leaving this section of the evidence, I wish to address the evidence I heard regarding a suggestion that E.M. and P.P. state was made at the February 8, 2006 meeting about potentially using an Aboriginal healing circle as a means to address and resolve the issues between L.M. and Child A. The evidence of E.M. and P.P. is that Ms. Cuss and Ms. London were dismissive of this suggestion, citing concerns about confidentiality and the need for Child A’s parents to consent if such a course of action were to be taken. Ms. Cuss and Ms. London deny that any such suggestion was made at the February 8, 2006 meeting.
40In my view, it is not necessary for me to resolve this conflict in the evidence. The fact is that no allegation was raised in the applicants’ complaints or in the applicants’ statement of additional facts relating to any suggestion about using an Aboriginal healing circle. While mention of this suggestion was made in the applicants’ reply filed with the Commission in September 2007, no such allegation was made or disclosed to the respondents as part of this Tribunal’s process under its Rules. Under s. 53(5) of the Code and the Tribunal’s Rules for Transitional Applications, transitional applications such as those addressed in this proceeding are restricted to the scope of the allegations raised in the complaint as filed with the Commission. This Tribunal’s Rules for Transitional Applications also afford an applicant with a further opportunity in the statement of additional facts to set out any further material facts upon which the applicant intends to rely in support of the allegations raised in the complaint. In the instant case, no allegation was raised in the complaints or in the statement of additional facts relating to the suggestion of an Aboriginal healing circle. Mere reference to this issue in the context of subsequent disclosure of documents made by the applicant is insufficient to bring such allegation within the scope of the subject-matter of the complaint. As a result, in my view, any issue regarding the respondents’ response to a suggestion about using an Aboriginal healing circle is simply beyond the scope of this proceeding and is not a proper basis upon which I can make a finding of a violation of the Code.
The events of March 16, 2006 and the discontinuance of child care services
41The applicant’s evidence is that on the morning of March 16, 2006, she attended at Denton Place to drop off L.M. and went to the School Age Program room. Her evidence is that while she was there, she observed Child A kick L.M. under a table. The applicant states that at this point, she said to Child A, “you don’t speak or touch or even look at each other”. She states that Child A responded disrespectfully to her, to which she replied by saying, “if you keep up with that behaviour, that is the type of behaviour that will end you up in jail as an adult”.
42I did not hear direct evidence from the teacher who was in the room at that time. There was in evidence before me, however, a note that the teacher had been asked by Ms. Cuss to prepare relating to this incident in the classroom. In the absence of the teacher’s direct evidence on this point, this note is hearsay evidence as to what actually occurred in the room. However, as it was reported to Ms. Cuss, this note does provide direct evidence as to the basis of the respondents’ decision to discontinue services.
43This note records that E.M. shouted at Child A when she told him not to watch L.M., hit him or talk to him, that the shouting by E.M. then escalated, and that the teacher stepped in to ask E.M. to stop shouting in front of the children. E.M. denies that she was shouting, although she acknowledges that she was upset and that her voice was raised. E.M. also denies that the teacher asked her to stop shouting in front of the children. The note also records that E.M. used words like “ass” and “brat” to refer to Child A. While E.M. denies using the word “ass”, she allows that she may have said that Child A was “acting like a brat”.
44E.M. took L.M. and left the classroom and went to the office to speak with Ms. Cuss. As she walked down the hallway, she was accompanied by another teacher at the child care centre. This teacher also did not testify before me, but again provided a note at Ms. Cuss’ direction as to what E.M. said. This teacher’s note records that E.M. said, “I going to kill that fucking kid”. E.M. denies that she said this.
45E.M. states that another parent walked into the classroom at the end of the altercation with Child A, and that this parent followed E.M. out of the room and accosted her. E.M. states that this parent followed her down the hallway, screaming, yelling and cursing at her. E.M. states that she went into the office to speak with Ms. Cuss, and Ms. Cuss suggested that they go to a room across the hallway. E.M. states that when she and Ms. Cuss left the office, the other parent was still in the hallway and was still yelling at her. E.M. states that Ms. Cuss had to step in and ask this parent to stop.
46Ms. Cuss’ evidence of this encounter is markedly different. She states that E.M. came to her office with L.M. and was visibly upset. She states that E.M. was swearing while she was telling Ms. Cuss what had occurred. This is denied by E.M. Ms. Cuss further states that she asked E.M. to stop swearing because of the children across the hall, to which E.M. responded, “what are you going to do, suspend me?” This also is denied by E.M.
47Ms. Cuss agrees that she asked E.M. to meet with her in a room across the hallway, and that when they exited the office they encountered another parent in the hallway. However, Ms. Cuss’ evidence is that E.M. became extremely angry and started screaming in this other parent’s face, telling her that she didn’t know what E.M. had been through. Ms. Cuss states that she had to step in between E.M. and this parent, and that she asked E.M. to stop. This is denied by E.M.
48It is undisputed that Ms. Cuss, E.M. and L.M. went into the other room, and that E.M. asked that L.M. be immediately transferred to another child care. There was some discussion about E.M. taking L.M. home right then, but the class was going on a bowling trip and Child A had been precluded from attending, so in the end L.M. remained at the child care and E.M. left. E.M. does acknowledge that she swore in this meeting, saying that she was “fucking fed up with this shit”, but that she then realized that L.M. was in the room and did not continue using this kind of language.
49Following this incident, Ms. Cuss spoke with City of Toronto staff about whether the respondents would be justified in discontinuing child care services as a result of E.M.’s conduct. Reference was made to the centre’s policies as communicated to the parents, including E.M., and specifically to a provision stating: “In keeping with the premise that children learn through example, verbal and/or physical altercations will not be tolerated. Anyone displaying unacceptable behaviour will be subject to possible loss of child care services at our centres or to being prohibited from our premises.”
50After consulting with Ms. London and City of Toronto staff, the respondents state that a decision was made to discontinue child care services on the basis of E.M.’s conduct, and a letter to this effect was prepared. This letter was provided to P.P. when she came to pick up L.M. at the end of the day on March 16, 2006.
51E.M. questions, if the respondents believed that she had threatened to kill Child A, why it took them so long to contact the police about this alleged threat. Police records before me indicate that at 11:53 a.m. on March 16, 2006, police were contacted by P.P. to report that L.M. had been kicked by Child A. These records indicate that police attended Denton Place in response to this report at 2:13 p.m. that afternoon. Police records also indicate that Denton Place contacted the police at 3:46 p.m. that day to report that E.M. had threatened Child A and that the police attended Denton Place in response to this call at 4:15 p.m.
52Based on this evidence, it was some six or seven hours after the incident that Denton Place called the police to report the alleged threat. Ms. Cuss’ explanation for the delay in contacting the police was that the incident with E.M. had given rise to a need for her to make a number of phone calls to discuss and decide how this incident should be addressed and that she also was involved in her regular duties in supervising the child care centre. In my view, if the respondents had seriously believed that E.M. actually intended to kill Child A, contact with the police would have been made at a much earlier time. Given that this didn’t happen, it is my view that the respondents regarded the statement that was reported to them as having been made by E.M. as a figure of speech used by her in anger and frustration. However, after having the police appear at Denton Place in response to P.P.’s complaint about Child A, it appears to me that a decision was made to contact the police about E.M.’s statement, perhaps in order to have a record that this step was taken.
53Saying that, however, does not take away from the fact that it was reported to Ms. Cuss by the classroom teacher that E.M. had conducted herself inappropriately in the classroom by shouting and using pejorative terms towards Child A, and by another teacher that E.M. had made a highly inappropriate statement that she was “going to kill that fucking kid” (which even if being used as a figure of speech is nonetheless highly inappropriate conduct). Ms. Cuss also had her own direct observations about E.M.’s inappropriate conduct on that morning.
54There is no doubt that there are significant factual disputes as to precisely what occurred on the morning of March 16, 2006. In my view, it is not necessary for me to make findings as to precisely what occurred on that morning or precisely what E.M. said or did. The allegation before me is that the respondents made a decision to discontinue child care services because they did not want to deal with the allegations of discrimination that had been raised in relation to bullying by Child A. The problem with this allegation is that I already have found that there is not sufficient reliable evidence before me to establish that the respondents actually knew or ought to have known that L.M.’s First Nations ancestry was a factor in any bullying by Child A. As a result, even if I were to accept the premise that the respondents decided to exclude L.M. from the program rather than try to continue dealing with bullying issues (to be clear, I am not making any such finding), such a decision would not be linked or connected to any prohibited ground of discrimination under the Code and therefore could not form the basis for a finding of a violation of the Code within my jurisdiction.
55Further, in order to support the allegation before me, the applicants would need to establish that the explanation provided by the respondents for their decision is not credible and is a pretext for discrimination. This has not been established by the applicants before me. At a minimum, Ms. Cuss acted on the basis of written reports from two child care teachers documenting highly inappropriate conduct by E.M. In my view, what is reported in these documents lends credence to Ms. Cuss’ own direct observations regarding E.M.’s conduct on that morning. In my view, this evidence provided a credible basis to support the respondents’ decision to discontinue providing child care services and was not a pretext for discrimination.
56As a result, I find that the evidence does not support that E.M. and/or L.M. experienced discrimination because of their First Nations ancestry arising out of the respondents’ decision to discontinue child care services.
57For all of these reasons, the Applications are dismissed.
Dated at Toronto, this 25^th^ day of October, 2011.
“Signed by”
Mark Hart
Vice-chair