A.D. v. The Children’s Aid Society of Hamilton, 2011 HRTO 2271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.D. Applicant

-and-

The Children’s Aid Society of Hamilton Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: December 19, 2011 Citation: 2011 HRTO 2271 Indexed as: A.D. v. The Children’s Aid Society of Hamilton

APPEARANCES

A. D., Applicant (Self-Represented) Children’s Aid Society of Hamilton, Respondent (Carolyn Jenkins, Counsel)

1This Application was filed on February 11, 2010, pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in the provision of services on the basis of race, ancestry, ethnic origin and reprisal.

2The Application is currently scheduled for a hearing on January 18-20, 2012. On December 7, 2011, a Case Conference Call was held with the parties. During this call I heard submissions from the parties on the respondent’s request to dismiss parts of the Application pursuant to section 45.1 of the Code. There were further discussions about the applicant’s reprisal allegations and the scope of scheduled hearing.

3This Interim Decision addresses the respondent’s requests pursuant to section 45.1, the applicant’s allegations of reprisal and the scope of the allegations in the Application that will be considered at the scheduled hearing.

BACKGROUND

4The applicant and his former spouse have been involved in a long and contentious custody dispute in relation to their two children that has repeatedly involved the courts.

5The respondent was involved with the applicant’s family on a number of occasions prior to 2009. In March 2009, the respondent investigated allegations related to how the applicant was treating his children. In April 2009, the Unified Family Court determined that the applicant would have supervised access. The respondent supervised the applicant’s access time with his children. During the period March 2009 to February 2010, the respondent assigned a number of different workers to work with the applicant and his family.

6The Application alleges that the respondent’s interactions with the applicant since March 2009 are influenced by the applicant’s race, ancestry and ethnic origin, and that when the applicant complained about this, he was subject to reprisal.

7Specifically, the Application alleges that the respondent has ignored the applicant’s requests that it become more familiar with the applicant and family’s Haudenosaunee traditions and culture as prescribed by Part 10 of the Child Family Services Act (“CFSA”) in order to provide more culturally-appropriate service. Part 10 of the CFSA is a section of the CFSA that deals specifically with how services including children’s aid services are to be provided to aboriginal families.

8The Application alleges that the respondent has refused to respect and acknowledge the applicant’s traditions and culture by not notifying and facilitating the involvement of his band as required under Part 10 of the CFSA. It would appear that the applicant’s position is that the respondent’s alleged failure to adhere to part 10 of the CFSA amounts to discrimination on the basis of his race, ancestry and ethnic origin.

9The Application further alleges that the respondent purposely delayed services to the applicant in retaliation for the applicant questioning its judgment and challenging its narrow view of its obligations under Part 10 of the CFSA.

10It would appear that the applicant’s allegation regarding delayed services forms the basis of his allegation of reprisal. This claim remains somewhat unclear and requires further particulars as addressed later in this decision.

11In addition to the broader allegations set out above, the Application makes three specific allegations:

• The Application alleges that on January 25, 2010, an employee of the respondent asked the applicant during a telephone conversation if he was drunk, a question the applicant found to be an offensive racial slur.
• The Application alleges that on January 28, 2010, this employee boasted to another employee, in the applicant’s presence, that she had indeed asked this offensive question.
• The Application alleges that on January 26, 2010, the applicant emailed a letter of complaint to the respondent and received a written response from the respondent on January 28, 2010, stating that the applicant was to stop emailing the respondent and that the respondent would only respond to the applicant’s correspondence once a month. The Application states that the applicant is fearful that he will be subject to reprisal by the respondent as a result of this complaint.

12In its Response the respondent denies the applicant’s allegations. It also makes two requests for the early dismissal of some of the allegations made in the Application. The respondent submits that the allegations that it ignored the applicant’s requests to become more familiar with the applicant and family’s Haudenosaunee traditions and did not involve the applicant’s band and community be dismissed on the basis that these issues were already appropriately dealt with by the Child and Family Services Review Board (“CFSRB”). It is these requests for dismissal that were the principal subject of the Case Conference Call held on December 7, 2011

DECISION

13The Application is dismissed, in part. The allegations that the respondent ignored the applicant’s requests that it become more familiar with the applicant and family’s Haudenosaunee traditions and did not involve the applicant’s band and community are dismissed pursuant to section 45.1 of the Code.

NEXT STEPS

(i) The Hearing

14There was no dispute at the December 7, 2011 Case Conference as to whether the Application’s specific allegations about events in January 2010 should proceed to be heard on their merits. These allegations will be considered at the hearing scheduled for January 18-20, 2012.

(ii) Reprisal Allegation

15The Application’s broad, unparticularized allegation of reprisal needs to be addressed. To this end the applicant is directed to provide particulars about what specific delays in services he is alleging are the result of reprisal. I will hear further submissions at the hearing as to whether these allegations are ones that I should consider. If I am of the view that this allegation of reprisal should be heard, further hearing dates will be scheduled.

(iii) Case Conference Call

16The Case Conference Call scheduled for December 20, 2011, will proceed in order to address outstanding production issues, deadlines for disclosing of documents and witness information and other pre-hearing issue.

RESPONDENT’S REQUEST TO DISMISS PARTS OF THE APPLICATION

17The respondent submits that the allegations in the Application that it failed to involve the applicant’s band and community and to become more familiar with the applicant and family’s Haudenosaunee traditions and culture have been appropriately dealt with in two separate proceedings before the Children and Family Services Review Board (“CFSRB”). The applicant filed a complaint with the CFSRB in June 2009 (Complaint #1) and also in January 2011 (Complaint #2). The details and resolution of each complaint are set out below.

Complaint #1 to the CFSRB

18The applicant filed a complaint with the CFSRB in June 2009 that the respondent had failed to notify and involve his band and community as required under Part 10 of the CFSA. A hearing before the CFSRB was held on August 18-19, 2009 and the CFSRB issued a written decision on September 18, 2009 dismissing this complaint.

Summary of Submissions

19The respondent submits that a proceeding before the CFSRB constitutes a proceeding pursuant to section 45.1 of the Code and that the September 18, 2010 decision of the CFSRB specifically and appropriately dealt with the allegation that the respondent did not involve the applicant’s band.

20The applicant submits that the allegations set out in his Application before the Tribunal are broader than the ones considered by the CFSRB in its September 18, 2009 decision. He submits that the CFSRB considered whether the respondent was obliged to contact and involve his band and community when the respondent was in the process of first investigating the allegations about how he was treating his children in April 2009. However, he submits that the Application further alleges that the respondent failed in its obligation to involve his band and community after its investigation including during the period between when the CFSRB issued its decision in September 2009 and when the applicant filed his Application in February 2010.

Analysis and Decision

21Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

22The Tribunal has held that section 45.1 should be considered in two parts: was there another proceeding and if so, did it appropriately deal with the substance of the application? See Campbell v. Toronto District School Board, 2008 HRTO 62.

23I am satisfied that the proceeding before the CFSRB, a statutorily mandated process intended to resolve disputes between parties, constitutes a proceeding within the meaning of section 45.1. This was not in dispute. I am further satisfied that the CFSRB’s September 18, 2011 decision was made in the context of a specific legislative scheme that dictates under what circumstances a children’s aid society must involve a client’s band and community appropriately dealt with part of the Applicant’s allegations before the Tribunal. The recent Supreme Court of Canada decision issued in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, which deals with a very similar provision to s. 45.1 in British Columbia human rights legislation, only further clarifies, in my view, why the Tribunal has to dismiss allegations before it that have been addressed by other Tribunals.

24That said, I agree with the applicant when he submits that the CFSRB’s September 18, 2009 decision only deals with whether the band was involved during the respondent’s investigation in April 2009 and so does not address the applicant’s further allegation that the respondent did not notify and involve his band and community in the period after the respondent concluded its investigation of his treatment of his children.

25However, I am nonetheless of the view that the applicant is prevented from pursuing any allegations related to whether the respondent involved band and community members by the outcome of the applicant’s second complaint before the CFSRB. I will explain this further later in this decision.

Complaint #2 to the CFSRB

26The applicant filed a further complaint to the CFSRB in January 2011 that the respondent had failed to gain knowledge and an understanding of the importance of the applicant’s Haudenosaunee tradition and culture thus failing to meet its obligations under Part 10 of the CFSA. This complaint was settled on February 23, 2010, at a pre-hearing settlement facilitated by the CFSRB. The key provision of the settlement was that representatives of the respondent and the applicant would participate in a healing circle. A healing circle took place in April 2010.

Summary of Submissions

27The respondent submits that the settlement agreement the respondent and applicant entered into fully resolved the applicant’s complaint before the CFSRB and so appropriately dealt with the allegations in the Application that the respondent ignored the applicant’s request that it gain knowledge and understanding of the applicant and family’s Haudenosaunee traditions and culture. The respondent submits that the Tribunal has determined in such decisions as Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, that settlements before other statutory bodies can meet the requirements of section 45.1 of the Code.

28The applicant submits that he decided to settle for the healing circle as part of his efforts to advocate for change in the respondent’s practices because he was of the view that the CFSRB did not have the authority to order substantive changes to the practices of a CAS. He submits that in choosing to settle he was mindful of the fact that he had already filed his Application with the Tribunal. He further submits that the CFSRB process can not be said to have adequately dealt with his allegations because the healing circle was not fully realized and that the respondent’s staff who participated in the healing circle have not allowed the healing process to be completed.

29The respondent submits that the terms of the settlement were complied with when the healing circle was held and that it is not the Tribunal’s role to look behind the agreed-upon settlement.

Analysis and Decision

30I am satisfied that the settlement agreement signed by the parties on February 23, 2010 before the CFSRB constitutes a proceeding. As the Tribunal states in Dunn:

I find that s. 45.1 may apply to settlements of proceedings under other statutory schemes. This conclusion is supported by both the wording and the purposes of s. 45.1. The provision refers to a “proceeding” having “dealt with” the matter, rather than using narrower words that would only encompass adjudication like “decision” or “reasons”. More important, the purpose of avoiding the duplication of proceedings and ensuring finality in litigation would be severely undercut if the section applied only to decisions. Most litigation ends in settlement. To be effective, settlements must be final, since otherwise the parties would have no incentive to make an agreement to end litigation. An interpretation of s. 45.1 that did not cover settlements would discourage parties from working to resolve human rights proceedings without recourse to litigation. (para. 37)

31In my view the applicant’s complaint to the CFSRB that the respondent has failed to gain knowledge and understanding of his tradition and culture is substantially the same as the allegation in the Application that the respondent has ignored the applicant’s request to become more familiar with the applicant and family’s culture and traditions. It is true that the CFSRB and the Tribunal operate with different statutory schemes and that ultimately the issue before the Tribunal in considering the respondent has ignored the applicant’s request to become more familiar with the applicant and family’s culture and traditions would be whether the respondent discriminated against the applicant and violated the Code. However, in my view this would nonetheless be dealing with the substance of the complaint the applicant made to the CFSRB and which he chose to settle before the CFSRB.

32The applicant voluntarily entered into an agreement with the respondent to settle his complaint before the CFSRB. The fact that the applicant may have entered into a settlement believing that the CFSRB had limited powers does not take away from the fact that he voluntarily chose to settle his complaint before the CFSRB. He does not get to, in my view, now come to the Tribunal, a different forum to re-litigate this issue with a view to getting a different outcome. As stated in Dunn:

Settlement is voluntary, reflecting the will of the parties, and there are many reasons a particular litigant may decide to settle. Every agreement to settle litigation involves fashioning an outcome acceptable to all parties, and a litigant may well not obtain everything sought. To examine whether a settlement was “appropriate” merely by comparing it to remedies that might be obtained if the applicant was successful in litigation would be to ignore this fact, and would not recognize that one of the benefits of settlements is that the solutions parties develop themselves are often different from what a tribunal might have ordered. It would also not be appropriate to examine the reasoning process of the parties. (para. 38).

33The applicant further submits that as the healing circle process has not been completed the terms of the settlement have not been fully implemented. The terms of the settlement were that a healing circle be held. The argument that the healing circle is, in the applicant’s view, a process that needs to continue, does not now, in my view, allow the applicant to pursue the same complaint before a different tribunal.

34I also find that the applicant is precluded from pursuing his allegation that the respondent failed to involve his band and community in the period September 2009 to February 2010 by the settlement he agreed to later in February 2010. I am of the view that the allegation that the respondent failed to respond to the applicant’s interest to involve the applicant’s band and community is, in effect, an example of the applicant’s broader allegation that the respondent ignored his request that it become more familiar with the applicant and family’s culture and traditions. I note the applicant states in his Application that the failure of the respondent to involve his band and community members is evidence of the respondent failing to respect and acknowledge the applicant’s tradition and heritage.

35In summary the applicant’s allegations that the respondent discriminated against the applicant on the basis of his race, ancestry and ethnic origin in failing to meet its obligations under Part 10 of the CFSA to provide culturally sensitive services by becoming more familiar with the applicant and family’s Haudenosaunee traditions and culture and by involving band and community members are dismissed pursuant to section 45.1 of the Code on the basis that these issues have already been appropriately dealt with.

REPRISAL

36The Application makes two reprisal allegations. The specific allegation is that the respondent will retaliate against the applicant for his complaint of January 26, 2010. This allegation will be considered as part of the scheduled hearing. The second allegation, as contained in the Application is that that the respondent purposely delayed services to the applicant as a result of questioning their judgment and challenging their narrow view of their obligations under Part 10 of the CFSA. This allegation was briefly discussed during the Case Conference Call with the respondent submitting that this reprisal allegation was resolved by the parties’ settlement before the CFSRB and the applicant submitting that he was subject to a broad range of retaliatory actions by the respondent.

37I am of the view that I cannot decide, based on the information presently before me, as to whether this allegation or parts of this allegation should proceed or should be dismissed pursuant to section 45.1. I do not have any clear understanding of the particulars of this allegation and do not have, as yet, full submissions on whether this reprisal allegation should be heard, given the parties’ settlement before the CFSRB.

38Under the circumstances I am directing the applicant to provide particulars as to the nature of this reprisal allegation. In his Application he states that the respondent purposely delayed services to his family in retaliation for questioning the respondent’s judgment and challenging the respondent’s narrow views of Part 10 of the CFSA. My expectation is that the particulars will identify what were the alleged delays and why the applicant believes these delays were acts of reprisal. These particulars are to be filed with the Tribunal and disclosed to the respondent at the time the applicant discloses his documents and witness information. I will hear submissions at the hearing as to whether these particularized allegations should proceed. If they do, further hearing dates will be scheduled.

39The Case Conference Call scheduled for December 2011 will address outstanding hearing issues including production issues.