Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265

Human Rights Tribunal of Ontario

B E T W E E N:

Roshika Williams Applicant

-and-

Children’s Aid Society of Toronto, Carol Manak and Pam Dawe Respondents

AND B E T W E E N:

Roshika Williams Applicant

-and-

Alliance Youth Services Inc., Steve Catney and Ed Barron Respondents

DECISION

Adjudicator: Mark Hart

Date: February 8, 2011

Citation: 2011 HRTO 265

Indexed as: Williams v. Children’s Aid Society of Toronto

APPEARANCES BY

Roshika Williams, Applicant ) Self-represented )

Children’s Aid Society of Toronto, ) Ryan Conlin, Counsel Carol Manak and Pam Dawe, ) Respondents )

Alliance Youth Services Inc., ) Robert Fernandes, Counsel Steve Catney and Ed Barron, ) 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 February 19, 2009. The underlying complaints were both filed with the Ontario Human Rights Commission (the “Commission”) on March 2, 2007 and were subsequently amended on September 9, 2008.

2The applicant alleges that she experienced discrimination with respect to services or her right to contract because of her creed or her perceived association with a person identified by a prohibited ground contrary to ss. 1, 3, 9 and 12 of the Code.

3As against Alliance Youth Services (‘AYS”), Steve Catney and Ed Barron (collectively the “AYS respondents”), the applicant alleges that she was treated adversely in relation to her contract with AYS as a foster parent and that her contract with AYS was ultimately terminated either directly because of her Christian faith or because of her perceived association with a Christian faith-based youth program called Freedom Village.

4As against the Children’s Aid Society of Toronto (“CAST”), Pam Dawe and Carol Manak (collectively the “CAST respondents”), the applicant alleges that these respondents interfered adversely with her contractual relationship with AYS either directly because of her Christian faith or because of her perceived association with Freedom Village and directly discriminated against her for these same reasons by failing to take steps to keep her foster children in her care.

5As against the AYS respondents, the applicant further alleges that she experienced reprisal, contrary to ss. 8 and 9 of the Code, on the basis that part of the reason for terminating her contract was because she and/or her husband raised issues about racial comments and discrimination because of creed.

6The hearing in this matter commenced on November 23, 2009 and continued on March 25 and 26 and April 27, 28 and 29, 2010. On consent, the parties filed their closing submissions in writing, with the last of these submissions received by the Tribunal on July 15, 2010.

7The hearing was conducted 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. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant, her spouse and three further witnesses called by the applicant, the four personal respondents, and one additional witness called by the CAST respondents. On consent, cross-examination of all party witnesses and the applicant’s spouse was deferred until I had completed my questioning of all witnesses. Cross-examination of other non-party witnesses proceeded in the normal course.

Background

8CAST is a non-profit, child welfare organization established under the authority of the Child and Family Services Act. CAST’s legal mandate is to protect children from harm. CAST is licensed to provide foster care either directly or through a licensed provider (known as an Outside Purchased Resource or “OPR”). The personal respondent Carol Manak is a Placement Supervisor employed by CAST, and was employed in that capacity at all relevant times. The personal respondent Pam Dawe is a Children’s Services Worker employed by CAST, and was employed in that capacity at all relevant times.

9AYS is a provider of residential foster care services on behalf of and for the benefit of children and youth, and is a licensed OPR. The personal respondent Steve Catney is and was at all material times the owner and directing mind of AYS. The personal respondent Ed Barron was a Program Manager employed by AYS at the material time, but resigned from his position in May 2007 and is no longer employed by AYS.

10In February 2006, the applicant and her husband entered into a contract with AYS to provide a foster home for children placed with AYS. The applicant and her husband self-identify as being of Christian faith.

ANALYSIS OF EVIDENCE AND FINDINGS OF FACT

Assessment of Credibility

11Given that I have heard conflicting evidence on a number of points, I have made assessments of credibility as required in order to resolve such conflicting evidence. In making such assessments, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) and particularly the following comments at pp. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

12In some cases, it is appropriate at the outset to make a global assessment of the credibility of certain parties or witnesses, and I have been invited to do so in the parties’ submissions. In my view, I do not think that such global assessments of credibility are appropriate in this specific case. In this proceeding, I did not find one set of witnesses were entirely credible and another set were entirely lacking in credibility. Most legal proceedings are much more nuanced than that. Rather, in my view, the evidence of each witness in this proceeding needs to be considered and examined in the context of the specific issue to which it relates, as my assessment of credibility necessarily relates to the specific circumstances pertaining to that issue.

Sexual Orientation Issue

13On April 4, 2006, an AYS Resource Worker, who was also a foster parent for AYS, attended at the applicant’s home and met with one of the foster children in their care, Youth 1. This Resource Worker was not called to testify before me. The evidence of the applicant and her husband is that Resource Worker expressed to them that she wondered whether Youth 1 was gay, based on her observations and Youth 1’s mannerisms. The applicant and her husband were both firmly of the view that Youth 1 was not gay, and expressed this to the Resource Worker.

14The applicant’s husband states that this Resource Worker took him aside and said, “Aren’t you guys Christians? Don’t you have concerns and would you have concerns that [Youth 1] is homosexual?” The applicant’s husband states that the Resource Worker was very conclusive about that statement. His evidence is that the Resource Worker asked whether Youth 1 would be safe in their home. The applicant’s husband states that he replied that, if anything, as a homosexual child, Youth 1 would be even safer in their home.

15The applicant states that on the same day or the next day, she received a telephone call from the respondent Ed Barron, in which he said that the Resource Worker had gone back to the AYS office and had raised some concerns about whether Youth 1 was gay. The applicant’s evidence is that she believes that Mr. Barron raised a safety concern about Youth 1 in relation to their Christian faith, but she acknowledges that she cannot specifically recall her conversation with Mr. Barron. She states that Mr. Barron asked questions about their Christian faith and beliefs on homosexuality, and she states that Mr. Barron’s tone was aggressive and accusational. She states that she told Mr. Barron that it didn’t matter in her home what the child was, and that he wouldn’t be treated any differently for any reason. Mr. Barron denies that he raised any issue regarding the applicant’s Christian faith, and was simply asking whether there was any issue with the ability of the applicant and her husband to continue working with Youth 1 if he was gay, as he would with any foster parent.

16The applicant and her husband subsequently attended a meeting with Mr. Catney and Mr. Barron at which this issue was discussed. There appears to be no dispute between the parties that at this meeting, the question was raised by either Mr. Catney or Mr. Barron as to whether the applicant and her husband would have any problem continuing to work with Youth 1 if he was gay. There is some dispute in the evidence as to whether a direct question was asked at this meeting as to whether it would pose a problem for the applicant and her husband because of their Christian faith if Youth 1 was gay. The evidence of the applicant’s husband is that Mr. Barron asked this question. This is denied by Mr. Barron, who was adamant in his evidence that no issue was raised in relation to the religious beliefs of the applicant or her husband. However, Mr. Catney candidly acknowledged that he raised this issue at the meeting. He states that as a Roman Catholic, he is aware that there is some conflict on the issue of homosexuality in that faith, and he wondered whether this would pose a problem for the applicant and her husband because of their Christian faith. Mr. Catney’s evidence is that he posed the question, “if [Youth 1] was gay, would that be in conflict with your religious beliefs?” Mr. Catney states that the response from the applicant and her husband was that in no way, shape or form would this cause them not to care for Youth 1. He states that he was completely satisfied with their answer, and the issue was never raised again. It is not disputed by the applicant or her husband that this issue was never raised again following this meeting.

17It is clear that an issue was raised, at least by Mr. Catney, as to whether the applicant’s Christian faith would pose a problem if a child in their care was gay. In the absence of any evidence from the Resource Worker, I also accept the evidence of the applicant’s husband that this same issue was raised by her in their home on April 4, 2006. While there is no dispute that Mr. Barron followed up on the question of whether the issue of Youth 1’s sexual orientation would pose a problem for the applicant and her husband, I am not prepared to make a finding that Mr. Barron raised this issue in relation to the applicant’s Christian faith given the applicant’s acknowledgement that she does not have a specific recollection of her telephone conversation with Mr. Barron.

18In my view, it was not inappropriate for Mr. Catney or the Resource Worker simply to raise a question as to whether the applicant’s Christian faith or beliefs would pose a problem if a child in their care was gay. In their evidence, particularly on cross-examination, the applicant and her husband both acknowledged that AYS had the right to ask this question. Rather, the applicant’s allegation is that the issue was raised in an accusational way based on stereotypical beliefs about their Christian faith. Based on the evidence before me, I do not see it that way. The evidence of the applicant’s husband is that the Resource Worker posed a question about whether they would have concerns related to their Christian faith if Youth 1 was gay and whether he would be safe in their home. While he states that the Resource Worker was “very conclusive” with her statement, I find that this is not supported by the evidence given by the applicant’s husband as to what the Resource Worker actually asked.

19Similarly, at the meeting, Mr. Catney’s evidence is that he posed the question whether it would conflict with the religious beliefs of the applicant and her husband if Youth 1 was gay. Once again, I do not regard this question as accusational, but rather as simply posing the question. Once the applicant and her husband responded that there would be no issue, the matter was dropped and never raised again. Nor do I see, as the applicant alleges, any link between this issue and the subsequent issues raised in this proceeding.

20As a result, I find that this issue does not support a finding of a violation of the Code in relation to the applicant’s creed.

The “Freedom Village” Issue

21On March 23, 2006, a plan of care meeting was held at the applicant’s home for Youth 2, a foster child in the care of the applicant and her husband. The respondent Pam Dawe was the Children’s Services Worker assigned by CAST to Youth 2 and was in attendance at this meeting.

22There was discussion at this meeting regarding Youth 2’s religious faith. This is standard and in accordance with CAST’s statutory mandate, and no one takes issue with this. During this discussion, the question was raised as to how the applicant and her husband became interested in being foster parents. This led the applicant and her spouse to discuss their Christian faith and ministry, and their involvement with a Christian charity that operates out of a rural property south of Hamilton. The applicant and her husband also shared about their desire to develop and operate a Christian faith-based camp on this property in order to assist troubled and/or drug-addicted youth.

23The description by the applicant and her husband of their aspiration to operate such a camp caused Ms. Dawe to raise an organization called “Freedom Village”, which operates a Christian faith-based camp for troubled and/or drug-addicted youth on rural property in the United States. This was raised by Ms. Dawe because, a short time prior to this meeting, Ms. Dawe had become aware of a negative experience by a youth with Freedom Village, where this youth is said to have been administered unknown drugs while at Freedom Village and returned to Toronto in a disoriented state.

24The precise manner in which the matter of Freedom Village was raised at the March 23, 2006 meeting is unclear in the evidence. It appears that after hearing the description by the applicant and her husband about their proposed youth camp, Ms. Dawe raised Freedom Village in some manner that prompted a response by the applicant and her husband. The evidence of the applicant and her husband is that they told Ms. Dawe that their proposed camp was “like” or “similar to” Freedom Village, as they had some general knowledge of Freedom Village through radio broadcasts. This in turn prompted Ms. Dawe to share with the applicant and her husband the negative experience of the youth of which she was aware. A discussion ensued during which the applicant and her husband said that the negative experience described by Ms. Dawe did not accord with their understanding of Freedom Village and its work in getting youth off drugs as opposed to administering drugs. The applicant and her husband state that they told Ms. Dawe at this meeting that they were not involved or affiliated with Freedom Village.

25During her evidence, I asked Ms. Dawe what caused her to raise Freedom Village at all at this meeting, and she responded that it was due to the similarity between the youth camp described by the applicant and her husband and the youth program operated by Freedom Village. When probed as to the nature of the similarity perceived by her, Ms. Dawe stated that it was because both were camps that dealt with troubled or drug-addicted youth. When I asked her whether one of the similarities was that both were Christian faith-based camps, Ms. Dawe acknowledged that she was aware that both were Christian faith-based camps but stated that this was not one of the things that sounded similar to her and that the similarity was more related to the type of youths being serviced.

26I do not accept this evidence. The similarities between Freedom Village and the youth camp proposed by the applicant and her husband are threefold: (1) they both dealt with troubled or drug-addicted youth; (2) they both were located on rural property; and (3) they both were Christian faith-based. Each of these three similarities was known to Ms. Dawe at the time of the March 23, 2006 meeting, and it strains credulity that she would raise Freedom Village at this meeting solely on the basis of the nature of the youth being served without also noting the other similarities between the two camps. Accordingly, I find that one of the reasons that Ms. Dawe raised Freedom Village at the March 23, 2006 meeting was because both it and the youth camp proposed by the applicant and her husband were Christian faith-based.

27In cross-examination by the applicant, Ms. Dawe testified that due to the similarities between Freedom Village and the youth camp proposed by the applicant and her husband, she left the March 23, 2006 meeting with a concern about their potential affiliation with Freedom Village. When asked why she didn’t raise this concern at the meeting, Ms. Dawe stated that it was not the time or the place, as the meeting was intended to deal with Youth 2’s plan of care.

28Ms. Dawe states that the day after the meeting, she spoke to her supervisor about her concern over the potential affiliation with Freedom Village, and he directed her to raise the issue with the then Placement Supervisor (who was Ms. Manak’s predecessor), which she did that same day. Ms. Dawe’s evidence is that the then Placement Supervisor contacted AYS to have them inquire about the possible affiliation between the applicant and her husband with Freedom Village, and the response came back that the inquiry had been made and that the applicant and her husband stated that they had no affiliation with Freedom Village. Ms. Dawe’s evidence is that this was the end of the matter as far as she was concerned, and that she never raised Freedom Village again.

29There is considerable evidence to the contrary. Ms. Dawe’s notes of the March 23, 2006 meeting record the statement “involved with Freedom Village”. When asked about this note, Ms. Dawe testified that it may have been a question in her mind or an item for follow-up. However, her own notes do not record any question mark or indication to follow up after this statement. In their submissions, the CAST respondents encourage me to accept Ms. Dawe’s notes as the best evidence of what she was told by the applicant and her husband on March 23, 2006. I do not agree. There is no evidence before me to indicate that in fact the applicant and her husband or their proposed youth camp were in any way involved, associated or affiliated with Freedom Village. In fact, the evidence before me is to the contrary. In light of this, while Ms. Dawe may have left the March 23, 2006 with the impression or suspicion that the applicant’s proposed youth camp was “involved with Freedom Village” as recorded in her notes, I do not find that this was stated to her by the applicant or her husband.

30In addition, in an email dated February 7, 2007 from Mr. Barron to a Ministry of Community and Social Services (“MCSS”) representative, Mr. Barron addresses the Freedom Village issue. In this email, Mr Barron records Ms. Dawe’s concern as being that at a plan of care meeting, the applicant’s husband had stated that “they were affiliated with Freedom Village”. Mr. Barron records that AYS had a meeting with the applicant and her husband to discuss the issue, at which the applicant and her husband stated that Ms. Dawe must have misunderstood their words. This is immediately followed in Mr. Barron’s e-mail by the statement “[Ms. Dawe] was quite certain”.

31When confronted with this email on cross-examination, Ms. Dawe first stated that she did not say to Mr. Barron that the applicant’s husband had told her that they were affiliated with Freedom Village, but then qualified this by saying that she didn’t believe she said that. She then testified that she didn’t recall the applicant’s husband saying that they were affiliated with Freedom Village, followed by a statement that she didn’t believe he said that. Ms. Dawe then testified that her concern arose out of the similarity between Freedom Village and the youth camp proposed by the applicant and her husband, and then qualified all of this evidence by adding “to the best of my knowledge”. Ms. Dawe did unequivocally deny having a conversation with anyone at AYS at which she stated that she was “quite certain” that the applicant’s husband had told her that they were affiliated with Freedom Village.

32Another oddity in this tale is that, some two months later, the applicant and her husband were asked by AYS to write a letter confirming that they had no affiliation, connection or association with Freedom Village. While this letter is dated June 7, 2006, the second line of the letter refers to concerns that were brought to the applicant’s attention on Tuesday, July 5, 2006. Neither June 5 nor July 5 fell on a Tuesday in the 2006 calendar year. As a result, it is unclear to me whether this letter was written in June or July 2006. There is no dispute in the evidence that sometime in either June or July 2006, Mr. Catney and Mr. Barron had a meeting with Ms. Dawe to discuss concerns relating to the applicant and her husband arising out of a website that the applicant had set up detailing their plans for the development of a youth camp (issues relating to this website other than the Freedom Village issue will be addressed below). Mr. Barron’s evidence was inconsistent as to whether the letter was requested before or after the meeting with Ms. Dawe. At one point in his evidence, Mr. Barron stated that the letter was requested after the meeting with Ms. Dawe and that he had no discussion with Ms. Dawe or anyone else at CAST after the letter was provided. Subsequently, when being cross-examined by the applicant, Mr. Barron stated that the letter was requested and then was presented to Ms. Dawe at the meeting. Ms. Dawe’s evidence is that she never saw a copy of the letter and that Freedom Village was only discussed “in general” at her meeting with Mr. Catney and Mr. Barron. Mr. Catney’s evidence is that the letter was requested due to concerns raised by CAST and so that AYS would have it on record that the applicant and her husband were not affiliated with Freedom Village. Mr. Catney believes that the letter was faxed to the former Placement Supervisor at CAST, although there is no documentary evidence to confirm this.

33Here’s what doesn’t make sense to me. According to Ms. Dawe’s evidence, she raised her concern about the potential affiliation with Freedom Village with her supervisor the day after the March 23, 2006 meeting. She was then directed to raise her concern with the then Placement Supervisor for follow up with AYS, which she says that she did that same day – which would have been on March 24, 2006. Mr. Catney recalls being contacted by the former Placement Supervisor about this issue, and making inquiries of the applicant and her husband. The statement Mr. Catney gave to the Commission during its investigation states that he did this in April 2006. Ms. Dawe’s evidence is that shortly after she raised the issue, she was re-assured by AYS that the applicant and her husband had no affiliation with Freedom Village and that was the end of the issue. Why then was the applicant asked to provide a letter to this effect some two months later, if the issue had already been addressed and resolved?

34In my view, the totality of the evidence indicates that, notwithstanding that the applicant and her husband had re-assured AYS in April 2006 that they had no affiliation or involvement with Freedom Village, Ms. Dawe continued to harbour suspicions that they were in fact affiliated with Freedom Village and shared these suspicions with AYS. In my view, that is the only reasonable explanation for why the June 7, 2006 letter was requested from the applicant some two months later. If the issue had already been addressed and resolved back in April and there was no further concern, there is no reason why the letter would have been requested. The fact that the letter was requested and refers to concerns raised with the applicant and her husband two days before the letter was written supports that concern about affiliation with Freedom Village was raised again with AYS either by Ms. Dawe directly or by someone else at CAST at Ms. Dawe’s behest. In making this finding, I am cognizant of Mr. Barron’s evidence that he is “absolutely certain” that the Freedom Village issue was not raised with AYS by CAST on more than one occasion; however, given the inconsistencies in Mr. Barron’s evidence as noted above, I do not accept this evidence in the face of the documentary record and other evidence before me.

35Nor does it appear from the evidence that suspicions about the affiliation with Freedom Village ended there. As a result of a request for production made by the applicant, I ordered CAST to disclose relevant records or notes made by certain of its employees in relation to the matters at issue in this proceeding. One of these notes, dated January 29, 2007 and shortly after the termination of the applicant’s contract with AYS, records a telephone discussion that a CAST Children’s Services Worker (“CSW”), Eileen McConnell, had with another CSW, Gail O’Hearan. This note records Ms. O’Hearan as stating that AYS was concerned about the applicant and her husband’s camp, that “another worker” (there is no dispute this refers to Ms. Dawe) had told AYS and Mr. Barron that their camp was part of Freedom Village, and that the applicant and her husband said no. This note then goes on to say “but refused to give details of camp to Alliance staff – camp for youth”. Ms. McConnell testified before me and stated that she had no knowledge of the Freedom Village issue apart from what Ms. O’Hearan had shared with her. Her evidence was that she “didn’t think” that it was an issue for her or her colleagues that the applicant and her husband were involved with Freedom Village, which she then qualified by saying “if I recall”. Her evidence was that the issue was more around the applicant and her husband not sharing the details and location of where the foster children were going on weekends.

36In my view, Ms. McConnell’s notes and evidence need to be placed in the context of notes made by Ms. O’Hearan of a telephone discussion she had three days earlier with Mr. Barron, on January 26, 2007 at 4:10 p.m. While Ms. O’Hearan was not available to testify before me, no issue was raised as to the authenticity of her notes and I accept them as recording her understanding of her conversation with Mr. Barron at that time. Ms. O’Hearan’s notes record Mr. Barron as stating that Ms. Dawe was concerned about the applicant and her husband’s “Christian camp” and that Ms. Dawe “thought they were involved with Freedom Village”. The notes go on to record Mr. Barron as stating that “they couldn’t find anything about Freedom Village – but they lie about it”. Mr. Barron was questioned by me about these notes, and states that he doesn’t think that he would have used the word “lie”. His evidence is that he would have said that the applicant and her husband were “sketchy” about their camp, by which he meant that they were unwilling to share details about or the location of their camp. His evidence is that he “absolutely” is not suggesting that the applicant and her husband were lying about their affiliation with Freedom Village.

37There is also the matter of the termination letter provided by AYS to the applicant and her husband and dated January 24, 2007. In this letter, as the second reason in support of the decision to terminate, it is stated:

Your blatant refusal to disclose the address and plans of having one of the residents of your foster home attend you(sic) “Christian camp” (Bethesda Christian Center) which we clearly discussed during our meeting, which was raised by a MCAS social worker who had concerns about your affiliation with this camp and/or Freedom Village.

38Mr. Barron and Mr. Catney both testified that the reference to Freedom Village in this paragraph was only intended to be a reminder to the applicant and her husband of the context of the meeting at which they had agreed not to take any of the children in their care to the camp. In my view, however, the statement in the termination letter needs to be read in conjunction with Mr. Barron’s subsequent email dated February 7, 2007 to the MCSS representative, the record of his conversation with Ms. O’Hearan, and the totality of the other evidence. When viewed in this surrounding context, it is my view that the reference to Freedom Village in the termination letter is yet another piece of evidence that suspicions about the affiliation of the applicant and her husband with Freedom Village continued to linger up to and beyond the termination of their contract with AYS.

39One final piece of the puzzle relates to an alleged telephone conversation between the applicant’s husband and Ms. Dawe following the termination of the contract by AYS. The evidence of the applicant’s husband is that he called Ms. Dawe on her cellphone sometime between January 24 and February 2, 2007. He states that Ms. Dawe said she was at home because she was feeling under the weather. He states that he asked Ms. Dawe if she realized that their contract with AYS had just been terminated based on what she had said to AYS and he asked her what she had said to them. He states that in response, Ms. Dawe said that she knew what kind of church he and the applicant went to and that their beliefs were “way out there”. He states that Ms. Dawe also said the she understood that Freedom Village had a facility in Burlington, and then said sarcastically, “aren’t you guys out that way too?” The applicant’s husband states that Ms. Dawe also made a comment that she knew they got foster children to work at the camp. He states that Ms. Dawe said she was feeling under the weather and didn’t have her notes in front of her, and that was the end of the conversation.

40The applicant’s evidence is that this discussion took place on January 30, 2007 and that she was present with her husband when he made the call and could hear what Ms. Dawe said. I note, however, that the applicant did not say that she had any direct knowledge of this conversation when I questioned her in chief, and her evidence that she could hear what Ms. Dawe said came out only very late in the hearing during cross-examination. I place no reliance on the applicant’s evidence in this regard.

41Ms. Dawe gives a very different version of this call. First, she states that she was still at work and in a meeting when she received a call from the applicant’s husband. She states that he was very angry and upset on the phone about being terminated and was blaming Ms. Dawe for having their foster home closed, and she directed the applicant to discuss the matter with Mr. Catney. She states that this was the end of the conversation. Ms. Dawe states that she received several further calls from the applicant and/or her husband that day, but did not answer them because she had been told by her supervisor not to do so as she already had referred them to Mr. Catney. However, later that day, Ms. Dawe states that she did pick up a call from a private number and the applicant was on the line. Ms. Dawe states that the conversation was very short and she simply told the applicant to call Mr. Catney.

42Ms. Dawe denies making any statement about knowing what kind of church the applicant and her husband go to or that their beliefs are “way out there”, which she states is not language that she uses. In her evidence in chief, Ms. Dawe initially stated that she didn’t recall making any statement about Freedom Village having a facility near Burlington, although she acknowledges knowing this from the Freedom Village website. Subsequently, on further questioning by her counsel, Ms. Dawe stated that she didn’t say the things alleged “to the best of her knowledge” before concluding that she denied saying these things. Ms. Dawe denies having any knowledge of the camp that the applicant and her husband proposed to operate. Ms. Dawe also stated that she would not have said that she knew the applicant and her husband got their foster children to work at the camp, because she had no knowledge of this. However, in earlier evidence, Ms. Dawe had stated that when she was involved with Youth 2, there was talk about the foster children going to help out at the camp and she believes that this may have been raised with her by Youth 2.

43Counsel for CAST took issue with the applicant and her husband on cross-examination as to why, if the telephone call with Ms. Dawe had occurred as they alleged, they did not raise this in letters to CAST and to the Child and Family Services Review Board (“CFSRB”), which were sent shortly afterwards. Their evidence in response is that at that stage, they were trying to address issues with CAST in the hope of getting their assistance to keep the children with them and did not raise what they described as a disciplinary issue relating to Ms. Dawe. With regard to their submission to the CFSRB, the applicant’s evidence is that she guesses that she should have raised the issue, but acknowledges she didn’t. I note, however, that the applicant did expressly raise the allegations about the phonecall with Ms. Dawe when her complaint was filed with the Commission on March 2, 2007, just over one month after the call is alleged to have taken place.

44By the time this call took place, Ms. Dawe no longer had a foster child in the care of the applicant and her husband, and hadn’t for over six months. There is no evidence that she played a direct role in the ultimate decision by AYS to terminate the applicant’s contract or in the actions of CAST following the termination. So in some respects what transpired during this conversation is not critical to the determination of the issues before me. However, in my view, this conversation provides yet another piece of evidence that suspicions about the affiliation or involvement of the applicant and her husband with Freedom Village continued even beyond the termination of their contract.

45In saying this, I prefer the evidence of the applicant’s husband over the evidence of Ms. Dawe about this conversation. I say this for several reasons. First, the applicant’s husband states that he was told by Ms. Dawe that she was at home sick. On Ms. Dawe’s evidence, she took the first call while she was at work and in a meeting. She did not testify that she told the applicant’s husband that she was going home sick, although she acknowledges doing so. She then testified that she had a subsequent very brief discussion with the applicant, but again did not testify that she told the applicant that she was at home sick. This begs the question as to how the applicant’s husband would know that Ms. Dawe was at home sick unless she told him as he alleges in his evidence.

46Second, Ms. Dawe has acknowledged her awareness of at least two of the things she is alleged to have said. She knew that Freedom Village operated a facility near Burlington. Once again, the applicant’s husband would not have known that Ms. Dawe was aware of this unless she told him so. And she was in fact aware that there was talk about the foster children going to help out at the camp. Third, I frequently found Ms. Dawe to be rather equivocal in her evidence, qualifying her evidence with statements like “I think” or “I don’t recall” or “to the best of my knowledge”. However, on this point, she later firmed up her evidence when being questioned by her own counsel to categorically deny the alleged statements, which I find to be lacking in credibility. Previously, in response to my questions, Ms. Dawe had no difficulty testifying that she did not make the “way out there” comment, but was then equivocal about the rest until questioned by her counsel, and even then stayed equivocal until pressed. Finally, as canvassed above, I already have found Ms. Dawe’s evidence regarding the similarities between Freedom Village and the youth camp proposed by the applicant and her husband to be lacking in credibility, as I also have found her evidence that her concern regarding their potential affiliation with Freedom Village was not raised again following the initial AYS response after the plan of care meeting on March 23, 2006.

47Accordingly, for all these reasons, I accept the evidence of the applicant’s husband regarding his telephone conversation with Ms. Dawe on or around January 30, 2007, and find that she did make a comment that suggested an affiliation between Freedom Village and the applicant and her husband.

48There is no dispute that following the plan of care meeting on March 23, 2006 and the follow-up regarding the Freedom Village issue, Ms. Dawe advised AYS that she did not want the youth for whom she was responsible, Youth 2, to attend the applicant’s camp without her permission. The applicant and her husband both agreed on cross-examination that it was reasonable for Ms. Dawe to make this request. Ms. Dawe states that she made this request because she didn’t have sufficient details about the camp, such as its location, and also because she didn’t know whether the camp was accredited. However, for all of the reasons articulated above, I find that one of the factors behind her request was Ms. Dawe’s continued suspicion that the applicant and her husband were affiliated with Freedom Village.

49There also is no dispute that at some point around the time that the June 7, 2006 letter was written, there was a meeting involving Mr. Catney, Mr. Barron, the applicant and her husband where they were directed not to take any of the foster children in their care to their camp without the approval of a CAST social worker. The evidence is clear that this direction was given to the applicant and her husband because of the concerns about the camp that had been raised by Ms. Dawe, but was extended by AYS to encompass all foster children in their care and continued to apply even after Youth 2, who was the only foster child for whom Ms. Dawe had responsibility, left their care in June 2006. As will be discussed in detail below, this directive set the stage for the events of January 19, 2007 which led to the termination of the contract.

50Finally on this issue, I note that the applicant and her husband have been clear and consistent in their evidence that they did not have any affiliation with Freedom Village, and there is no evidence to contradict this. I find that the raising of Freedom Village by Ms. Dawe at the plan of care meeting on March 23, 2006 was based upon tenuous similarities that included the fact that both Freedom Village and the applicant’s proposed youth camp were Christian faith-based. I further find that Ms. Dawe harboured unreasonable and unsupported suspicions that the applicant and her husband were affiliated with Freedom Village based in part of their Christian faith, and that these suspicions were not allayed by the denials of affiliation made by the applicant and her husband and in fact continued to be held by Ms. Dawe up to the time of her telephone conversation with the applicant’s husband on or around January 30, 2007. I find that Ms. Dawe shared her suspicions with Mr. Barron, and as will be discussed in detail below, that these suspicions became a factor in subsequent events.

51In her submissions, the applicant relies upon an email from an individual named Jason McDonald, who was employed by another agency, to the effect that in June 2006 he was questioned about whether the applicant’s proposed youth camp was connected to Freedom Village. In making my findings, I have not referred to or relied upon this evidence in any way, as Mr. McDonald was not called to testify as a witness before me. I further note that on the face of the email itself, Mr. McDonald expressly states that the document is not to be used in place of a sworn statement.

The applicant’s website

52At some point in June 2006, a website for Bethseda Christian Centre – Youth I.N.C. [In Need of Christ] came to Ms. Dawe’s attention. This website included pictures of children, and one initial concern was whether Youth 2 was one of the children whose picture appeared on the site. It was clarified by the applicant and her husband through AYS that this was not the case, and this issue was resolved.

53A more significant issue arose as a result of a section of the website called “The Williams’ Testimony”, which described the struggle that the applicant’s husband had with Hodgkin’s lymphoma, a form of cancer. The website states that in the summer of 2005, the applicant and her husband had noticed a bump on the applicant’s husband’s neck which was left unchecked until it had grown into two large noticeable lumps on either side of his neck. While the website states that the applicant’s husband was diagnosed with Hodgkin’s lymphoma on February 28, 2006, the evidence of the applicant’s husband is that this was when the diagnosis was confirmed by biopsy and that he had been diagnosed by his doctor some weeks previously. The website states that from the first appearance of the lump, people have only 8 to 12 months to live without treatment, which meant that from the time of the diagnosis the applicant’s husband was given only one to four months.

54The applicant’s husband was treated with chemotherapy and radiation. The website states that with the applicant’s husband beginning treatment, he “sold off most of his business clients, as he would not be able to work during the treatment period”. While the applicant’s husband confirmed on cross-examination that the content of the website was accurate, in his other evidence he stated that his treatment did not affect his ability to work. The website states that the applicant’s husband was “always strong in enduring the side effects of the treatment”, that he shaved his head to cover the fact that his hair was falling out, and that he spent “sleepless nights”. This was confirmed in the evidence of the applicant’s husband, who also stated that he would be tired after receiving chemotherapy and would need to rest during the day afterwards.

55The website testimonial goes on to record that the applicant through her faith “cried out to the Lord” for help, and that she was “surrounded by an overwhelming presence of the Lord” who spoke to her and told her that the cancer was finished. The following week, on May 31, 2006, the applicant’s husband went for a test and the following day they were told that the results of the test revealed that the cancer was no longer there. The website attributes the absence of cancer to the “miraculous healing power” of the Lord and their faith.

56Prior to entering into the service agreement with AYS in the latter part of February 2006, the applicant and her husband were required to provide a Foster Parent Medical Form to confirm that there were no health concerns that might interfere with their ability to provide foster care. This document was completed by their family doctor on February 13, 2006 and does not disclose the fact that the applicant’s husband had Hodgkin’s lymphoma, even though the evidence of the applicant’s husband is that there had been a preliminary diagnosis at this time. Nor was the applicant’s husband’s cancer disclosed to AYS or CAST after the diagnosis was confirmed on February 28, 2006 or at any time prior to this information coming to the attention of AYS and CAST through their website. The evidence of the applicant’s husband is that he specifically discussed with his doctor whether his condition would affect his ability to provide foster care and was told that it would not, which is why this was not disclosed. There is no medical documentation before me to confirm this.

57Upon becoming aware of the applicant’s husband’s condition through the website, Ms. Dawe was directed by her supervisor to advise the then Placement Supervisor, who in turn advised Mr. Catney at AYS. The concern at that time was whether AYS was aware of this condition and what they were doing to support the applicant and her husband as foster parents. This resulted in a meeting involving Mr. Catney, Mr. Barron, the applicant and her husband which is believed to have taken place sometime in July 2006.

58There appear from the evidence to have been three issues of concern for AYS at this point. The primary concern was whether the applicant and her husband required support as a result of this medical condition. By this time, the cancer was in remission and no support was required. A second issue, at least for Mr. Barron, was that “at first” he didn’t believe that the applicant’s husband had cancer because it had not been disclosed and because he appeared to be healthy. A third issue, at least for Mr. Catney, was the fact that the condition of the applicant’s husband had not been disclosed previously. Mr. Catney saw the medical condition of the applicant’s husband as a serious issue that may affect the ability of both him and the applicant to provide foster care and felt that it should have been raised. The applicant and her husband disagree, stating that the cancer was a private issue and that, based upon the assurance of their family doctor, this would not affect their ability to be foster parents.

59There is no allegation in the amended complaint that any of the AYS respondents discriminated against the applicant because of her husband’s cancer on the ground of disability. However, one way in which this issue becomes relevant is that it speaks to the relationship of trust between AYS and the applicant and her husband as foster parents, and Mr. Catney’s view that this was one example of where that relationship of trust had been violated. In my view, Mr. Catney’s concerns are legitimate. I accept that a person’s medical condition is a private and personal matter and need not be disclosed where it does not affect their ability to perform their duties and responsibilities. At the same time, the role of foster parents is not the same as a normal employment or contractual relationship, both because of the special nature of the relationship with the children under their care and because this is a relationship where the children reside with the foster parents and their duties and responsibilities extend around the clock on a daily basis. In the context of this unique relationship, I find that the nature of the applicant’s husband’s medical condition and the impact upon him as set out in the testimonial and in his evidence was significant enough that it ought to have been disclosed to AYS and perhaps also to CAST. As a result, I find that it was legitimate for Mr. Catney and AYS to view the failure of the applicant and her husband to do so to be a violation of the trust that is inherent and necessary to the relationship between foster parents and the agency which has ultimate responsibility for the children under its care.

60The issue, however, does not end there. As previously mentioned, on February 7, 2007, Mr. Barron wrote an email to a MCSS representative to clarify the circumstances resulting in the termination of the applicant’s contract with AYS. As part of that e-mail, Mr. Barron addresses the issue of the applicant’s husband’s cancer and their failure to disclose such a serious health situation. He also adds the following statement: “Not to mention that we had some very disappointed social workers who had lost family and friends to cancer and were offended that the Williams family had used this cancer testimonial to further their religious camp on their website”.

61In his evidence, Mr. Barron disclosed that his father had had cancer, but stated that he wasn’t disappointed or concerned except with the fact that the applicant’s husband’s medical condition had not been disclosed. He could not remember who the social workers were that he referenced in his email, or specifically what they were disappointed or concerned about. He adamantly denied that he had any concern that the applicant was using her husband’s cancer to further their religious camp. I do not accept this evidence, both because it is at direct odds with what Mr. Barron stated at the time in his email and because of Mr. Barron’s complete failure to recall who expressed these concerns to him or what they were about. In contrast, in Mr. Catney’s evidence, he recalls an AYS worker, whose name he could not recall, expressing to him that this person regarded the testimonial as “exploitive”. In my view, this evidence provides further support for the conclusion that in fact workers had expressed disappointment and concern to Mr. Barron that the applicant had used the cancer testimonial to further their religious camp, and I so find.

Solicitation of professionals

62There were two issues raised with the applicant and her husband around solicitation of professionals. The first related to the MCSS representative, who attended at the home of the applicant and her husband as part of the licensing review process for AYS. While at their home, the applicant’s evidence is that the MCSS representative asked why they had become involved in fostering children, and the applicant states that they were very open about their faith and ministry and shared information about their aspiration to open a camp for troubled and/or drug-addicted youth. The applicant states that the MCSS representative offered to provide them with some material regarding institutions for youth and group homes that might be of assistance to them, and went to his car and retrieved this material.

63Mr. Barron did not accompany the MCSS representative into the applicant’s home, but was driving him around during his review. Mr. Barron states that after the visit to the applicant’s home, the MCSS representative told Mr. Barron that the applicant and her husband were very entrepreneurial and were trying to open some kind of group home or camp for youth, and had asked him for information that would further their ability to do so. Mr. Barron states that the MCSS representative expressed that he felt it was inappropriate and unprofessional for the applicant and her husband to ask him for such information while acting in their capacity as foster parents for AYS. The MCSS representative was not called to testify before me.

64The second issue relates to a psychologist to whom the applicant’s husband had taken Youth 2 for an appointment. Following the appointment, the psychologist contacted Ms. Dawe at CAST and told her that the applicant’s husband had made some comments about opening a facility for youth and that they were looking for a psychologist to assist them. Ms. Dawe raised these concerns with AYS, which were addressed at a meeting with the applicant and her husband in June 2006. The applicant’s husband states that he told Mr. Catney and Mr. Barron that the psychologist must have misunderstood him, and that he in fact was asking her whether she was able to assist them with two other foster children in their care, Youth 1 and Youth 3.

65Both of these incidents were addressed at a meeting involving Mr. Catney, Mr. Barron, the applicant and her husband in June 2006 at which they were told that Mr. Catney and Mr. Barron would appreciate it if they did not solicit for their own business while working for AYS. There was no evidence or allegation before me that these concerns bore any relation to the applicant’s Christian faith. Rather, I find that they were legitimate issues and sources for concern that were addressed by AYS and CAST, and that later became part of the reasons underlying the decision by AYS to terminate the contract with the applicant and her husband.

Allegations of racism

66There were three incidents in relation to which the applicants state that they raised allegations of racial discrimination or racism with AYS.

67The first incident relates to Youth 1, who is Black and has a mild intellectual disability. He was attending a high school for students with special needs while in the care of the applicant and her husband. The applicant’s evidence is that Youth 1 frequently would be sent home by the school on informal suspensions for relatively minor offences, such as wearing his ball cap while at school. She states that she felt that this was unfair and discriminatory because of Youth 1’s race and disability, and felt that the school should not have been administering informal suspensions and sending Youth 1 home.

68Mr. Barron’s evidence is that some time in the fall of 2006, he was contacted by the Vice-Principal at the high school attended by Youth 1. He states that he was asked by the Vice-Principal if the applicant had a supervisor or Resource Worker, because the applicant had told her that she didn’t. Mr. Barron states that he advised the Vice-Principal that the applicant did have a Resource Worker, and that the school could contact AYS at any time. Mr. Barron also states that the Vice-Principal told him that the applicant had said that because Youth 1 was a Crown ward, he could not be sent home. Mr. Barron states that this is not correct, and that he was concerned that the applicant had made untrue statements to the Vice-Principal.

69The applicant alleges that because of this, she was removed from the school’s contact list and the school would contact AYS when Youth 1 was suspended and then AYS would contact her. She also alleges that it was around this time that she was asked by AYS to stop attending meetings with AYS, and that they would only meet with her husband. The applicant cites both of these issues as reprisal for having raised issues of discrimination.

70There are several problems with these allegations of reprisal. First, they are not articulated in the amended complaint and are therefore not allegations that are within the scope of this proceeding. Second, Mr. Barron’s evidence is that AYS played no role in any decision by the school as to whom they would contact, and there is no evidence to contradict this. Third, with regard to meetings with AYS, the evidence of both Mr. Barron and Mr. Catney is that their meetings with the applicant and her husband would often descend into yelling and accusations which they largely attributed to the applicant’s presence. As a result, they expressed that they wanted to deal with only one foster parent from the home, and particularly wanted to deal with the applicant’s husband.

71Fourth, and more fundamentally, there is no cogent evidence before me to establish that the applicant or her husband ever raised an issue of discrimination because of race or disability with AYS in relation to Youth 1 and his issues at school. There is certainly no documentary evidence to this effect. While the general issue about Youth 1 being sent home from school on informal suspensions and the applicant’s concern about Youth 1’s future at the school was expressed in a Progress Report prepared sometime in late December 2006 or early January 2007, there is no statement that the applicant or her husband believed that Youth 1 was experiencing discrimination because of his race or disability. The evidence of the applicant’s husband is that he raised concerns that Youth 1 was being “targeted”, but he acknowledged that he did not explicitly state that he felt that Youth 1 was being targeted because of his race or disability.

72The applicant’s evidence in relation to raising an issue of discrimination because of race or disability in relation to Youth 1 is, in my view, unreliable. When first questioned about this, the applicant’s evidence was that she believed that she had raised this issue with a Resource Worker for AYS. She then stated that she had a specific recollection of raising this issue with the Resource Worker on more than one occasion, but could not remember when she had done so. She then gave evidence about her recollection of a specific conversation she had had with the Resource Worker, in which she talked about how Youth 1 was being treated because of wearing his ball cap and that she felt that this was unfair and that the school should have understood Youth 1’s condition. Even if I were to accept this latter evidence, this does not in my view provide a sufficient basis for me to conclude that the applicant raised with AYS that she believed that Youth 1 was experiencing discrimination because of his race or disability, which is a necessary pre-condition for any allegation of reprisal.

73Accordingly, in relation to the incidents involving Youth 1 and his school, I find that the evidence does not support that the applicant or her husband raised with AYS that they believed that Youth 1 was experiencing discrimination because of his race or disability or that the applicant experienced any reprisal as a result.

74The second incident relates to the Malvern community. The applicant’s husband states that, as the foster children were not allowed to use the internet at home, they would go to the Malvern public library and community centre after school and he would pick them up about an hour later. There is no dispute that the applicant’s husband was called to a meeting with Mr. Catney and Mr. Barron to discuss this in or about October 2006.

75The evidence of the applicant’s husband is that Mr. Catney said he had some concerns about the foster children being dropped off at the Malvern library and that he was concerned about the area and that it was not safe. The applicant’s husband states that in this context, Mr. Catney made reference to “these types of areas”. The applicant’s husband states that he questioned Mr. Catney as to what he meant, and Mr. Catney replied, “you know what I mean”. The applicant’s husband states that he again asked Mr. Catney to explain himself, and Mr. Catney said that it was because of the violence. The applicant’s husband states that he then gave them a demographic breakdown of the area, namely that Malvern is a predominantly ethnic area in terms of South Asian and Black youth, and said that Mr. Catney had made a racial comment. He states that the meeting got heated after that. He states that he can’t recall whether it was at this meeting or a later meeting, but at some point Mr. Catney said, “don’t pull the race card on me”.

76Mr. Catney acknowledges that the issue was addressed with the applicant’s husband, but states that the issue from AYS’s perspective had to do with the level of supervision that the foster children were receiving after school before they were picked up. He states that his understanding was that the children were being dropped off at the library but were spending a good deal of their time at the Malvern Town Centre, and were unsupervised for an hour or an hour and a half. He states that his concern about lack of supervision was increased because one of the children had a mild intellectual disability and the other children had needs as well, and he was concerned that they were vulnerable and could possibly get into trouble or get hurt. Mr. Catney states that the applicant’s husband asked him if he was racist, and said that he had grown up in that neighbourhood and that there was nothing wrong with that neighbourhood. Mr. Catney states that he replied that he wasn’t racist, and that this was about the safety of the children and the level of supervision they required. Mr. Catney states that the applicant’s husband was very upset and the meeting ended shortly afterwards. Mr. Catney denies making any statement about the applicant’s husband “playing the race card”.

77The third incident relates to comments alleged to have been made by a Resource Worker for AYS about First Nations persons. The evidence of the applicant’s husband is that sometime in late October or early November 2006, the Resource Worker was attending at their home for a meeting with a foster child in their care, Youth 4, who is a First Nations person. Youth 4 had been placed in the home of the applicant and her husband after the school year had started and continued to attend the same school, which was some distance away from their home. The meeting was scheduled for 4:30 p.m., but Youth 4 was late. The applicant’s husband states in this context the Resource Worker said, “Native people have no sense of time and no sense of value”. The applicant states that she was present when this comment was made, but her evidence is that the Resource Worker said, “Natives have no sense of time”. The applicant’s husband states that he said that this was a pretty harsh statement to make, to which the Resource Worker responded that this was a fact.

78After Youth 4 arrived home, the applicant’s husband states that the Resource Worker asked Youth 4 whether life in Toronto was different than life on the reserve. The applicant’s husband states that Youth 4 replied that he had lived in downtown Toronto his entire life. The applicant’s husband states that the Resource Worker then asked if Youth 4 found eating the food in the foster home different than eating deer and bison. The applicant’s husband states that Youth 4 looked at him as if he didn’t know what to say, and then just laughed it off.

79The applicant’s husband states that he called Mr. Barron and told him that the Resource Worker had made racial comments in his home, and that he was then asked to attend a meeting at least with Mr. Catney. Mr. Barron states that he has no recollection of this incident, denies that he was contacted by the applicant’s husband about it, and does not recall being at the meeting. Mr. Catney believes that Mr. Barron was at the meeting, but he is not certain.

80There is no dispute that there was a meeting involving at least the applicant’s husband and Mr. Catney at which this incident was discussed. Mr. Catney’s recollection of the meeting is that he was informed that the Resource Worker had said, “Natives have no sense of time”. The applicant’s husband states that he believes he called the Resource Worker racist. Mr. Catney states that after the meeting, he spoke to the Resource Worker about the comment, and he believes that the Resource Worker acknowledged that he may have made that statement and tried to put it in the context of him having previously worked on reserves in Alberta. Mr. Catney states that he told the Resource Worker that this kind of comment was unacceptable, and that there were no further issues after that. The Resource Worker in question was not called to testify before me.

81In their submissions, the AYS Respondents urge me to re-consider an earlier Interim Decision, 2010 HRTO 658, in which I had ruled that I would consider the allegations raised in relation to the Malvern and “Native” comments. I see no basis to re-consider this Interim Decision and confirm the reasons for this Interim Decision as already stated. However, it is important to understand the nature of the allegation being raised in relation to these comments. The allegation arising out of these comments is not framed in the amended complaint as an allegation that the applicant experienced racial discrimination as a result of these comments. That, I would agree, is an allegation that the applicant could and should have raised at the time she filed her original complaint.

82Rather, the allegation is framed as an allegation of reprisal for having raised issues of racial discrimination, and is premised upon the statement made by Mr. Barron in his February 7, 2007 email to the MCSS representative that “The Williams would end up yelling and accusing the resource workers and man[a]ger, director of being racist and attacking their religious beliefs if Alliance management didn’t agree with the Williams family”. Given the context in which this email was written, in response to a request for clarification of AYS’s decision to terminate the applicant’s contract, the allegation is that the raising of allegations of racism by the applicant and her husband was a factor in AYS’s decision to terminate the contract and thereby constitutes reprisal. That is the allegation that I found to be within the scope of the amended complaint and that is the allegation that I declined to dismiss for delay, as the February 7, 2007 email, which forms the basis for the allegation, only became known to the applicant in September 2008.

83As a result, the issue before me is not whether the Malvern or Native comments in and of themselves amount to racial discrimination, but whether the issue of racial discrimination was raised by the applicant or her husband and whether this was a factor in the decision to terminate their contract with AYS. I will address AYS’s decision to terminate the contract and make my findings as to the reasons for that decision at a later point in this Decision. At this point, it suffices for me to find that an allegation that Mr. Catney made a racial comment about Malvern was raised by the applicant’s husband at a meeting sometime in or about October 2006. I also find that an allegation that the Resource Worker had made a racial comment was raised at least with Mr. Catney in or about late October or early November 2006. I further find, based on Mr. Catney’s evidence, that the concern raised by the applicant’s husband in relation to the racial comment about “Natives” was discussed by Mr. Catney with the Resource Worker in question.

Vacation issue

84The applicant and her husband planned a trip to Sri Lanka for December 2006 for five weeks. The applicant’s evidence is that she discussed this plan with Mr. Barron sometime in August 2006, and informed him that that they planned to have an individual named Andrew Clarke, who was a college student and who had been providing relief at their foster home, cover the foster home during their absence. There is documentary evidence before me to indicate that this plan was discussed at least by August 21, 2006. The applicant’s evidence is that this plan was approved by Mr. Barron.

85Subsequently, sometime in November 2006, Mr. Barron raised a concern with the applicant and her husband that he was not comfortable with Mr. Clarke, as a college student, assuming full responsibility for the foster home while the applicant and her husband were away. The evidence indicates that this led to heated interactions between Mr. Barron, the applicant and her husband. From the perspective of the applicant and her husband, Mr. Barron was making a last minute change to an arrangement that he had already approved and which was placing their vacation plans and arrangements, including travel bookings, in jeopardy. From Mr. Barron’s perspective, he felt that his concern about having a college student assume full responsibility for the foster home was legitimate and felt that the applicant and her husband were holding AYS “hostage” by threatening to close down the foster home if AYS did not agree to the arrangement. The applicant denies that they threatened to close down their home.

86This issue led to a meeting in November 2006 involving the applicant’s husband, Mr. Catney and Mr. Barron, at which Mr. Catney played a role in trying to seek out a resolution to the problem. This discussion resulted in the applicant’s husband proposing that another individual, named Jason McDonald, assume primary responsibility for the foster home and work together with Mr. Clarke. This arrangement was acceptable to AYS and the applicant and her husband proceeded to go away on their planned vacation.

87The evidence of Mr. Barron and Mr. Catney is that their understanding of the arrangement that was finally worked out was that Mr. McDonald would be the primary person responsible for the foster home, and that Mr. Clarke would provide relief of approximately 10 to 15 hours per week. The evidence indicates that this is not what happened, and that in fact Mr. Clarke lived in the foster home during the vacation period and Mr. McDonald was not as present in the home as AYS expected.

88The evidence of Mr. Barron and Mr. Catney is that they met with Mr. Clarke and he indicated that he felt pressured by the applicant and her husband to provide more hours than had been arranged. Mr. Barron and Mr. Catney testified that they felt misled by the applicant and her husband about the actual arrangements for coverage of the foster home while they were away on vacation, and this was cited as another example of the erosion of trust in their relationship with the applicant and her husband as foster parents.

89The evidence of the applicant and her husband is that Mr. Clarke and Mr. McDonald were hired by AYS to provide coverage, and it was up to AYS to make appropriate arrangements. From their perspective, if Mr. McDonald was not sufficiently present in the foster home, this was an issue for AYS to address with its employee. They also note that they were monitoring the situation in the foster home by e-mail while they were away, and that there were no issues with the foster children and no incident reports during the time they were gone.

90I understand and appreciate the perspective of all parties on this issue. I note that there is no allegation and no evidence to suggest that the issue regarding the applicant’s vacation bore any relation to her creed, her race, colour or ethnic origin or reprisal. Rather, as I see it, this was yet another issue of dispute between the parties in terms of their contractual relationship. In the absence of an allegation or evidence of a link to a protected ground, it is not my jurisdiction under the Code to make a determination as to which party’s position is right. What I will say, and I find, is that from AYS’s perspective, they provided evidence in relation to the vacation issue in support of a non-Code related concern about their contractual relationship and level of trust with the applicant and her husband as foster parents that I find to be credible, in the sense that it was sincerely held and was not a pretext for discrimination.

The January 19, 2007 incident

91The applicant and her husband made plans to attend a leadership seminar on the weekend of January 19-21, 2007, which they were facilitating. At this time, the applicant and her husband had three foster children in their care. Arrangements were made for two of the foster children to spend the weekend on family visits, and attempts were made to make similar arrangements for the third child (Youth 1) which had not been successful. As a result, the applicant and her husband made plans for Mr. Clarke to provide relief over the weekend and take care of Youth 1.

92As a result of the issues that arose when the applicant and her husband were on vacation, AYS did not feel comfortable with Mr. Clarke continuing to provide relief in their home. Mr. Barron and Mr. Catney state that arising out of the vacation issue, they met with Mr. Clarke and he expressed to them that he did not feel comfortable continuing to work in the applicant’s home due to his close personal relationship with her and her husband and his felt inability to stand up to them. While this is disputed by the applicant and her husband, I did not hear any evidence directly from Mr. Clarke to contradict this.

93At some point in January 2007, there was a meeting involving Mr. Catney, Mr. Barron and the applicant’s husband at which the applicant’s husband was advised that they could no longer use Mr. Clarke to provide relief in their home. Mr. Catney’s evidence is that this meeting may have occurred early in the week leading up to the leadership seminar. As a result, the plans of the applicant and her husband to have Youth 1 stay at the foster home that weekend under the care of Mr. Clarke were no longer viable. The applicant and her husband were very concerned about how late they were advised of this change, and that this gave them very little time to make alternate arrangements.

94The applicant’s evidence is that at some point relatively early in the week leading up to the leadership seminar, they discussed this issue with their AYS Resource Worker, Dan Carruthers, and asked him if there was alternative relief available to provide coverage for Youth 1 over the weekend. The applicant states that Mr. Carruthers said that if they couldn’t find relief, then they would need to take the child along with them to the leadership seminar. Mr. Carruthers was not called to testify before me and there is no evidence to contradict this.

95At some point later in the week leading up to the leadership seminar, Mr. Carruthers sent an email to the applicant and her husband stating that they were supposed to send him a schedule for the weekend, as he needed to know what was happening if there was a breakdown on any of the family visits. Mr. Carruthers stated that if one of them was staying home, he needed to know. Alternatively, if both of them were going to the leadership seminar, Mr. Carruthers stated that he needed to know “where you are staying, phone numbers, etc.” The email from Mr. Carruthers that was tendered into evidence is part of a chain and does not have a date and time indicating when it was sent, but from the chain it appears that it was sent either late on Thursday, January 18, 2007 or very early on the morning of January 19, 2007.

96An email response was sent by the applicant’s husband (or at least from his email account). Once again, this email does not state the date and time it was sent, but it appears to have been sent early on the morning of January 19, 2007. This email provides contact information for the two foster children who would be on family visits, and advises that the third child (Youth 1) would be with the applicant and her husband. The email states that the other two foster children and AYS could reach them on the applicant’s husband’s cellphone in an emergency, and states that they would only be an hour away. The email does not state where the applicant and her husband would be staying or where the leadership seminar was being held. At 9:50 a.m. on Friday, January 19, 2007, Mr. Carruthers asked that this email be forwarded to Mr. Barron, which was done at 10:18 a.m.

97Mr. Barron’s evidence is that some time later on the morning of January 19, 2007, Mr. Carruthers spoke to him and said that he was still not satisfied with the information provided by the applicant and her husband about their plans for the weekend, as no location or phone number had been provided for where the leadership seminar was being held and thus where Youth 1 would be. There also was a concern about supervision of Youth 1 during the weekend, as AYS understood that both the applicant and her husband would be facilitating or chairing the seminar.

98At this point, Mr. Barron states that he understood from Mr. Carruthers that the leadership seminar was taking place at a hotel in Guelph. This may have been a misunderstanding. The evidence of the applicant’s husband is that they were driving to Guelph to pick up relatives and then heading down to the leadership seminar, which was being held at a property in Cayuga near Port Dover. This is the same rural property where the applicant and her husband had aspirations of opening a youth camp, which was not operational at this time. The rural property was privately owned by the leader of the Bethesda Christian Centre, and included a retreat centre.

99Mr. Barron’s evidence that he understood that the leadership seminar was being held in Guelph is supported by the evidence of Mr. Catney, who says that this is what he was told by Mr. Barron when contacted later that afternoon. I accept Mr. Barron’s evidence as supported by Mr. Catney and find that, prior to contacting the applicant later on the afternoon of January 19, 2007, Mr. Barron understood that the leadership seminar was being held at a hotel in Guelph.

100Mr. Barron’s evidence is that Mr. Carruthers had other home visits to make on the afternoon of January 19, 2007, and Mr. Barron was asked to follow up with the applicant and her husband to find out more information about their plans for the weekend. Mr. Barron’s evidence is that he attempted unsuccessfully to reach the applicant earlier in the afternoon, and then ultimately reached her on her cellphone at about 3:00 p.m. There is no dispute that Mr. Barron reached the applicant on her cellphone at that time. The applicant’s evidence is that she and her husband were at a supermarket picking up food for the leadership seminar at that time, and were planning to leave for the weekend about an hour later.

101I note that at the time of this call, I have found that Mr. Barron understood that the leadership seminar was being held in Guelph. I find that at the time the call was initiated, Mr. Barron simply wanted details as to the location and contact information for the seminar and clarification regarding the applicant’s plans for supervision of Youth 1 while they were attending the seminar.

102Much time was spent at the hearing about whether foster parents are required to advise their agency if they are taking a foster child on an overnight trip in Ontario. There is no dispute that if the child is being taken outside of Ontario, approval must be obtained from the CAST worker. But where the child is staying in Ontario, the situation is less clear. Despite initially asserting that they had a policy on this issue, AYS ultimately conceded that there was no written policy. Both sides cited limited examples of situations where overnight trips were permitted. The applicant’s husband had taken two of the foster children on a camping trip to Algonquin Park the previous summer where the only contact information was his cellphone, although it appears that AYS was notified and approval was obtained from the CAST workers for each child. AYS cited an example of where a foster parent had been permitted to take a foster child to a cottage for a period of time, and a land line was installed to ensure that there was a reliable means of communication.

103In any event, for me this is a non-issue from the perspective of my jurisdiction under the Code. As I have previously found, at the time he made the call to the applicant on the afternoon of January 19, 2007, Mr. Barron understood that the leadership seminar was being held in Guelph. At that time, there was no issue related to the applicant’s creed, her race, colour or ethnic origin or reprisal. Whether required or covered by a policy or not, I find that it was not unreasonable for AYS to want to know where Youth 1 was being taken, to have a reliable means of communication with the applicant and her husband in the event of an emergency, and to receive clarification as to how Youth 1 would be supervised while the applicant and her husband attended the leadership seminar.

104It was only after Mr. Barron reached the applicant on her cellphone that it became clear to Mr. Barron that the applicant and her husband were planning to take Youth 1 to the property on which they aspired to operate a youth camp. I find that it was at this point that the exchange became heated. While Mr. Barron denies raising his voice or becoming angry during this call, I prefer the evidence of both the applicant and her husband that voices were raised on all sides. I make this finding based on the candid admission by the applicant’s husband that his own voice was raised as well as that of Mr. Barron, and also based upon the nature of the exchange and the matters discussed, including a reference by Mr. Barron to “kidnapping” and Mr. Barron’s evidence that the applicant and her husband were threatening to drop Youth 1 off at Mr. Barron’s personal residence or at the AYS offices if they were not allowed to take him to the leadership seminar.

105Upon learning that the applicant and her husband intended to take Youth 1 to the property where they aspired to open a youth camp, Mr. Barron referenced the meeting that had taken place the previous June in which, as a result of the concerns raised by Ms. Dawe, it had been agreed that the applicant and her husband would not take any foster child to their youth camp without approval by the CAST worker. At the time of the call, no approval by the CAST worker for Youth 1 (Ms. O’Hearan) had been obtained. While efforts were made by both the applicant and Mr. Barron to contact Ms. O’Hearan later that day, she was not available. The applicant’s evidence is that she reached Ms. O’Hearan the following Monday and that Ms. O’Hearan said that her permission was not required as Youth 1 was not travelling outside Ontario. This, however, was not known to any of the parties at the time of the phonecall on January 19, 2007.

106The applicant’s evidence is that when she advised Mr. Barron that the leadership seminar was being held at the Bethesda Christian Centre camp, Mr. Barron said that she knew that AYS had “serious concerns” about their camp. Mr. Barron denies making this statement. However, Ms. O’Connell’s notes of a telephone discussion she had with Mr. Barron on January 29, 2007 about the January 19, 2007 incident records Mr. Barron as stating that AYS had “very grave concerns” about the camp. As a result, I prefer the applicant’s evidence and find that during his telephone call with the applicant on January 19, 2007, Mr. Barron did say that AYS has “serious concerns” about their camp.

107There is no dispute that at some point during the conversation with either the applicant or her husband, Mr. Barron stated that they would be “kidnapping” Youth 1 if they took him to their camp without approval by his CAST worker. The issue was raised by the applicant as to whether AYS would provide them with emergency relief if they were not allowed to take Youth 1 to the leadership seminar. Mr. Barron replied that emergency relief was only available for serious situations, such as illness or death, and was not available merely to allow the applicant and her husband to attend the leadership seminar. Mr. Barron also noted that the applicant and her husband had just returned from five weeks of vacation, and should not require emergency relief.

108There also is no dispute that at some point during the conversation, a statement was made by the applicant or her husband about dropping the child off to Mr. Barron or AYS. The applicant and her husband frame this as being part of their efforts to find a solution to the problem, given that AYS had deprived them of the relief that they had arranged with Mr. Clarke and was not providing them with alternative relief. Mr. Barron’s perspective is that the applicant and her husband were threatening to drop Youth 1 off at his home or at the AYS office if they didn’t get their way.

109Ultimately, the applicant’s husband agreed that he would stay at home to look after Youth 1 while the applicant went to the leadership seminar. Then, after concluding the telephone call with Mr. Barron, the applicant made a final and this time successful attempt to contact Youth 1’s family member, who agreed to look after him for the weekend. The applicant’s evidence is that this individual said that her answering machine had been broken all week, and she hadn’t received the applicant’s previous calls. The applicant then called Mr. Barron back to advise him of the new arrangements. There is no dispute that Mr. Barron asked for the family member’s contact information, and then proceeded to contact her directly. The applicant states that Mr. Barron accused her of lying about this new arrangement, and that he then accused Youth 1’s family member of lying. Mr. Barron denies this, and states that he merely wanted to contact this family member to ensure that Youth 1 would be adequately supervised over the weekend. Youth 1’s family member was not called to testify before me.

110The applicant sent an email to Mr. Barron and Mr. Carruthers confirming the plans for Youth 1 for the weekend and provided a contact number for where Youth 1 would be staying. Mr. Carruthers sent an email in response at 5:20 p.m. on January 19, 2007 acknowledging the confirmation, but stating that AYS still needed to know where the applicant and her husband were staying that weekend and to have an alternate way to reach them besides their cellphone. Mr. Barron’s evidence is that this information also had been requested by him during his telephone discussions with the applicant and her husband earlier that afternoon.

111There is no dispute that this information was not provided to AYS by the applicant or her husband. Their evidence is that, while they knew the directions to get to the property, they did not know its exact address. I do not accept this as a sufficient explanation for failing to provide the address. The applicant knew the address at the time of the hearing, and if she and her husband didn’t know the exact address on January 19, 2007, presumably this information could have been obtained by them from the owner of the property. The applicant further testified that the retreat centre did not have its own phone line, and the only phone number at the property was the private phone of the property owner. However, once again I do not find this to be a sufficient response, as there is no evidence that the applicant or her husband made any effort to seek the property owner’s consent to provide the number to AYS for use in an emergency.

112A more accurate explanation for the applicant’s refusal to provide this information is her belief that AYS’s request was unreasonable. She believed that AYS did not need to know the precise location where she and her husband were going, and were only seeking this information because they were suspicious about their camp. She also believed that their cellphone number was an adequate means of reaching them in an emergency.

113In contrast, Mr. Barron’s evidence is that their cellphone had not proven to be a reliable means of contacting the applicant or her husband in the past, that he was concerned about whether there was adequate cellphone coverage in the rural area where they said they would be, and that he wanted to have a more reliable means of reaching them in the event of an emergency. Mr. Barron further states that he wanted to know the address for the property in the event that AYS couldn’t reach the applicant and her husband by phone in the event of an emergency, and had to seek out some other means of reaching them.

114Late on the afternoon of January 19, 2007, Mr. Barron contacted Mr. Catney to apprise him of the situation and to express concern about the refusal by the applicant to provide the location and phone number for where she and her husband would be that weekend. This incident led to a more fulsome discussion the following Monday, January 24, 2007 between Mr. Barron and Mr. Catney about the January 19, 2007 incident and AYS’s relationship with the applicant and her husband and was the final issue that caused Mr. Catney to decide to terminate the contract. The reasons for AYS’s decision to terminate the contract will be discussed in the next section below.

115At this point, I will make findings only in relation to the January 19, 2007 incident itself. As I have already found above, at the time the call to the applicant was initiated by Mr. Barron, it was not unreasonable for him to request the location where the leadership seminar would be held, a phone number, and clarification about Youth 1’s supervision. I also have found that at that time, none of these requests related to any of the protected grounds under the Code alleged by the applicant in her complaint.

116However, once Mr. Barron ascertained that the leadership seminar was being held on the Betheseda Christian Centre property, I find that the applicant’s Christian faith and her suspected affiliation with Freedom Village became a factor in the escalation of this incident. I make this finding for several reasons. First, as I already have found above, Ms. Dawe’s unreasonable and unsupported suspicions about a potential affiliation between Freedom Village and the youth camp that the applicant and her husband aspired to operate were based in part upon the applicant’s Christian faith and its role in the proposed youth camp. I also have found that this suspicion, whether in whole or in part, formed the basis of Ms. Dawe’s request that the foster child to whom she was assigned (Youth 2) not be taken to the camp without her permission. I have found that Ms. Dawe’s suspicion and her request to AYS formed the basis of AYS’s direction to the applicant and her husband that no foster child was to be taken to their youth camp without the permission of the CAST worker. I also have found that, as a result of Ms. Dawe’s suspicions, AYS itself harboured suspicions about the potential affiliation between Freedom Village and the applicant’s proposed youth camp, and I find that these suspicions formed part of the “serious” or “very grave” concerns that Mr. Barron expressed about the applicant’s youth camp.

117When Mr. Barron found out that the leadership seminar was being held on the Bethesda Christian Centre property, I find that his and AYS’s suspicions about a potential affiliation with Freedom Village, as fuelled by Ms. Dawe, and the direction not the take any foster child to the youth camp, which resulted from Ms. Dawe’s suspicions, combusted in an escalation of the situation with the applicant.

118I find that it was unreasonable for Mr. Barron to take the position that the applicant and her husband were barred from taking Youth 1 to the leadership seminar without approval by the CAST worker. While Ms. Dawe may have been entitled to require approval in relation to the child to whom she was assigned, there is no evidence that any such approval requirement had been imposed by the CAST workers for the other foster children in the applicant’s care. Further, Youth 1 was not being taken to any youth camp. As the applicant repeated in her evidence, at this time there was no youth camp in operation. As known to Mr. Barron and AYS, the applicant and her husband were taking Youth 1 along while they attended a leadership seminar. That this leadership seminar was being held at a retreat centre on property where the applicant and her husband hoped one day to operate a youth camp is not sufficient, in my view, to reasonably support viewing a leadership seminar as a “youth camp”. As a result, I find that Mr. Barron’s position that the applicant and her husband were not allowed to take Youth 1 to the leadership seminar was unreasonable, and I further find that this position resulted from suspicions of a potential affiliation with Freedom Village that was based in part on the applicant’s creed or Christian faith.

AYS decision to terminate the contract

119On Monday, January 22, 2007, the first work day following the January 19, 2007 incident, Mr. Barron met with Mr. Catney and a decision was made by AYS to terminate its contract with the applicant and her husband. Mr. Barron prepared a termination letter, which was reviewed and approved by Mr. Catney. The termination letter was provided to the applicant and her husband at a meeting on January 24, 2007, and gave them 7 days notice of the termination or at such date as was agreed upon by AYS and the foster parents.

120The termination letter sets out three reasons in support of AYS’s decision to terminate the contract. The first reason is stated as “the continual inability [of the applicant and her husband] to work effectively and co-operatively with each resource worker assigned to [their] home, as well as the management of [AYS]”. Mr. Barron’s evidence is that over the course of the less than one year that the applicant and her husband were providing foster parent services for AYS, there had been four Resource Workers assigned by AYS to work with their home (including himself) and the applicant and her husband had difficulties with each one of them. Mr. Barron’s evidence is that there wasn’t a comfortable business relationship between the resource workers and AYS management with the applicant and her husband, and that the relationship was consuming a great deal of resource time.

121Mr. Barron’s evidence is that the AYS Resource Workers were frustrated with the applicant and her husband, that they were concerned that the applicant and her husband were rude with them, and that they would be accused of lying to Mr. Barron or to the applicant and her husband when there were disagreements. Mr. Barron testified that he personally had concerns when the applicant and her husband threatened to close their foster home if they weren’t given 5 weeks of vacation, and was concerned that they had threatened to drop a foster child off at his home if AYS didn’t provide relief coverage for the January 19-21, 2007 weekend. He stated that this was conduct that he personally didn’t want to oversee or manage anymore, and that he didn’t want the possibility or fear that the foster home would be closed if the applicant and her husband didn’t get what they wanted.

122Mr. Catney’s evidence on this point is that it had become increasingly difficult for AYS staff to work with the applicant and her husband, that the relationship had become combative, and that he decided that it just needed to end. While there were no issues as to the quality of care being provided to the foster children in their care, Mr. Catney testified that the communication between AYS staff and the applicant and her husband had become increasingly difficult, in a way that was different from the relationship AYS had with other foster parents. He states that there was a degree of tension in discussions with the applicant and her husband that was not present in AYS’s relationship with other foster parents. Mr. Catney testified that there needs to be a relationship of trust and cooperation between his agency and its foster parents that just wasn’t happening with the applicant and her husband, and that became an issue that caused him to be concerned about the agency’s potential liability. He cited the failure by the applicant’s husband to disclose his cancer as one example where he felt that they were not being open and forthright with him and the agency.

123The applicant’s husband gave telling evidence on this point when being cross-examined by counsel for the AYS respondents. His evidence was that he would address issues when they arose, that he wouldn’t be submissive to AYS, and that he wasn’t willing to just “stand by and listen to their stuff”. He stated that discussions would get heated because he would accuse them of not being right and instead of apologizing, they would get defensive. He described meetings with AYS management as a “Clash of the Titans type of thing”, where he would stand up for the foster children while AYS management was more concerned about the business side of the agency. This is a theme that is repeated in numerous documents submitted into evidence by the applicant, whereby the applicant and her husband viewed their role as being advocates for the foster children while they perceived that AYS management was more interested in the agency as a business.

124Having heard and considered all of the evidence on this point, I find that there was a difficult and conflictual relationship between AYS and the applicant and her husband, which was largely not related to any of the allegations of a violation of the Code asserted by the applicant in this proceeding. Rather, in my view, the relationship became combative largely due to the view of the applicant and her husband of their role as advocates for the foster children and their desire to “stand up” for what they viewed as being right, and their resistance to AYS management and staff whom they perceived as being more interested in the business side of the agency.

125It is not my role or jurisdiction in this proceeding to make a determination as to whether the applicant and her husband were right in how they viewed their role or how they conducted themselves, or to make a determination regarding their perception of AYS management. Rather, in this proceeding, my role and jurisdiction is only to decide whether the determination by AYS management that the applicant and her husband were unable to work effectively and cooperatively with the agency and its staff was credible and not a pretext for discrimination and whether any protected right under the Code was a factor in this determination. With two exceptions, I find that the determination by AYS management that the applicant and her husband were not able to work effectively and cooperatively with AYS management and staff was credible and was not a pretext for discrimination.

126The first exception to this finding relates to statements made by both Mr. Barron and Mr. Catney about the applicant and her husband raising issues of racism and discrimination against their religious faith. On January 24, 2007, Mr. Catney called Ms. Manak, the CAST Placement Coordinator at that time, to advise her that the contract with the applicant and her husband had been terminated, and he reviewed the reasons for the decision to terminate. Ms. Manak’s notes of this discussion were entered into evidence before me. As part of this discussion, Mr. Catney referenced that the agency had three Resource Workers as well as Mr. Barron overseeing the foster home and that “discussions deteriorated into Alliance consistently being called racists”. This statement was made by Mr. Catney in the context of describing the larger issue of the lack of cooperation by the applicant and her husband with AYS staff and management.

127Mr. Catney is further recorded as stating that AYS management “have never been able to have a meeting without them screaming . . . that Alliance are racists and are not allowing them to practice their religious beliefs”. Ms. Manak goes on to record Mr. Catney as stating that if the applicant and her husband didn’t get their way, they would give ultimatums.

128A similar theme appears in the email sent by Mr. Barron to the MCSS representative on February 7, 2007. In this email, Mr. Barron describes the difficulties encountered by AYS staff in their relationship and communications with the applicant and her husband. In this context, Mr. Barron states that during meetings with AYS management, the applicant and her husband “would end up yelling and accusing the resource workers and man[a]ger, director of being racist and attacking their religious beliefs if Alliance management didn’t agree with [them]”.

129Mr. Barron’s evidence is that, while this is stated in his email, this was not part of the reason for the termination of the contract. I do not accept this evidence for several reasons. First, Mr. Barron’s email was written in response to a request from the MCSS representative, in response to a complaint filed by the applicant and her husband, for specific clarification of the reasons set out in the termination letter. Second, the statements made by Mr. Barron in his email correspond with the statements made by Mr. Catney to Ms. Manak, in which he informed her of the termination decision and the reasons for that decision. Third, in my view, the allegations of accusations of racism and infringement upon the applicant’s religious beliefs were expressed by both Mr. Barron and Mr. Catney in the context of explaining what was meant by the failure of the applicant and her husband to work effectively and cooperatively with the agency, its management and its staff, as cited in the termination letter as one of the reasons for termination.

130Accordingly, I find that the issues raised by the applicant’s husband relating to racism and issues raised by the applicant and her husband regarding infringement of their religious beliefs was a factor in the decision to terminate. More specifically, I find that the issue raised by the applicant’s husband that Mr. Catney’s comments about Malvern, which were expressly characterized by the applicant’s husband as being racist, and the issue raised by the applicant’s husband regarding the comment about “Natives” made by Mr. Carruthers, an AYS employee, being racist, formed a factor in the termination decision.

131With regard to infringement of religious beliefs, the only evidence I heard about this being raised by the applicant was in relation to the incident on January 19, 2007 and the assertion that interfering with the ability of her and her husband to attend the leadership seminar at the Bethesda Christian Centre property was an infringement of their religious beliefs. I find that this too was a factor in the decision to terminate the contract. While the applicant in her submissions states that she and her husband complained to AYS that they were uncomfortable being questioned about their faith in relation to the sexual orientation issue, this was not evidence that was given before me in their testimony.

132While I have found that assertions of racial and religious discrimination by the applicant or her husband formed a factor in the termination decision in relation to not working effectively or cooperatively with AYS management or staff, I do not find that it was a determinative or decisive factor in this conclusion being reached by AYS. In other words, I find that there were other credible and non-discriminatory reasons for AYS to reach the conclusion that the applicant and her husband were unable to work effectively and cooperatively with agency management and staff which were unrelated to the allegations of racial or religious discrimination. Nonetheless, I find that the allegations of racial and religious discrimination were a factor in reaching this conclusion.

133The second exception to my general finding above arises from Mr. Barron’s email to the MCSS representative, in which he makes reference to the cancer testimonial on the applicant’s website and that there were “disappointed social workers who had lost family and friends to cancer and were offended that [the applicant and her husband] had used this cancer testimonial to further their religious camp on their web site”. The evidence in relation to the cancer testimonial has been reviewed at length above, and I have found that at least some AYS staff expressed concern that the applicant and her husband were being “exploitive” by using this cancer testimonial in furtherance of their Christian ministry. On the basis of this evidence, I find that the view that the applicant and her husband were being “exploitive” in using the cancer testimonial in this way was another factor that contributed to the strained relationship between AYS staff and the applicant and her husband, which formed one of the reasons for the termination decision. Once again, though, I do not find that this was either a determinative or a decisive factor in AYS reaching the conclusion that the applicant and her husband could not work effectively or cooperatively with AYS staff and management.

134The second reason for termination cited in the termination letter references the “blatant refusal [of the applicant and her husband] to disclose the address and plans of having one of the residents of [their] foster home attend [their] “Christian camp” (Bethesda Christian Center) which [AYS] clearly discussed during [a] meeting, which was raised by a MCAS social worker who had concerns about [their] affiliation with this camp and/or Freedom Village”. There is no dispute that this second reason references the January 19, 2007 incident, discussed at length above. As I already have found above, it was not unreasonable or discriminatory for AYS to request the location and contact information for where the applicant and her husband proposed to take Youth 1 that weekend. However, as I also have found, the escalation of this issue after Mr. Barron found out that the applicant and her husband planned to take Youth 1 along while they attended a leadership seminar at the property owned by Bethesda Christian Centre was linked to the unreasonable and discriminatory suspicion about a potential affiliation between Freedom Village and the youth camp proposed by the applicant and her husband, based in part on the fact that both Freedom Village and the proposed youth camp were Christian faith-based.

135While the evidence of Mr. Barron is that the reference to Freedom Village in the termination letter was only included to refer back to the meeting where this issue was discussed with the applicant and her husband in June 2006, I have found based on the totality of the evidence that Ms. Dawe and AYS continued to have suspicions about the potential affiliation with Freedom Village up to and after the termination, for all of the reasons reviewed above. In this regard, I note again that in the email to the MCSS representative, written in response to a request for further clarification of the reasons for termination, Mr. Barron references Ms. Dawe’s concern that the applicant and her husband had said that their proposed youth camp was affiliated with Freedom Village, that the applicant and her husband said that Ms. Dawe must have misunderstood, and that Ms. Dawe “was quite certain”.

136Accordingly, I find that concerns about the youth camp proposed by the applicant and her husband and their plan to take Youth 1 to the property where they proposed to operate this youth camp while they attended a leadership seminar was a factor in AYS’s decision to terminate, resulting from suspicions about a potential affiliation between this proposed youth camp and Freedom Village. Once again, while I find that this was a factor underlying the January 19, 2007 incident which formed the second reason for termination, I also have found that there were other credible and non-discriminatory reasons for AYS to have concern about this incident.

137The third reason cited by AYS for terminating the contract is as a result of “concerns raised by professionals in the field of your conduct while representing Alliance Youth Services”. Part of the evidence in support of this reason relates to the solicitation of the psychologist and the MCSS representative for assistance in relation to the proposed youth camp. I already have reviewed the evidence regarding these incidents above and have found that, while the parties have different perspectives on what happened in relation to these incidents, I accept that AYS had a credible basis for its concern that was not a pretext for discrimination.

138Mr. Barron and Mr. Catney also cited the issues relating to the Vice-Principal at the school attended by Youth 1 as another example of this conduct. This too has been addressed above, though in relation to the applicant’s allegation that she raised an issue of discrimination because of race and disability regarding Youth 1, which I have found to be unsupported by the evidence. AYS’s concerns about the conduct of the applicant and her husband in relation to the Vice-Principal include that their conduct towards the Vice-Principal was confrontational and conflictual, that they misrepresented to the Vice-Principal that she couldn’t send Youth 1 home on informal suspensions because he was a Crown ward, and that they were not supervised by any Resource Worker that the Vice-Principal could contact. Once again, while I have heard differing evidence about the interactions of the applicant and her husband with the Vice-Principal, I nonetheless find that the understanding of the nature of this interaction by AYS management was credible and not a pretext for discrimination.

139Concern also was raised in relation to two incidents involving CAST. The first incident relates to information provided by Ms. Manak to AYS that the applicant’s husband had solicited a CAST social worker to have a foster child, who was currently in the care of a foster family with another agency, placed in his home. This was not the appropriate procedure to follow regarding the placement of a foster child. The second incident relates to a request by CAST for an emergency placement of a foster child with AYS, which AYS requested be handled by the applicant and her husband. The CAST worker contacted the applicant to arrange for the emergency placement, and was told that the applicant would meet with the CAST worker and child in either a library or a restaurant to discuss the placement. Once again, this was not the appropriate procedure to follow regarding an emergency placement, where the placement meeting is to take place in the foster home. The foster child was placed elsewhere. While I have heard the applicant’s evidence that she did not believe this to be an appropriate placement in her home, she did not dispute that she requested that the placement meeting occur somewhere other than the foster home. Neither of these incidents relates to any of the grounds of discrimination alleged by the applicant, and I find AYS’s concerns about these incidents to be credible and not a pretext for discrimination.

140In the end, I find that AYS has provided credible reasons for the termination of the contract that are not a pretext for discrimination, with the following three exceptions: (1) I have found that allegations of racism and infringement of their religious beliefs as raised by the applicant or her husband formed a factor underlying the termination decision; (2) I have found that concerns that the cancer testimonial was “exploitive” and being used in furtherance of the applicant’s religious ministry formed a factor underlying the decision to terminate; and (3) I have found that continued suspicion about a potential affiliation between Freedom Village and the youth camp proposed by the applicant and her husband, which was based in part on the fact that both programs were Christian faith-based, was a factor underlying the escalation of the January 19, 2007 incident and became part of the reason for termination of the contract.

141Despite these findings, and based upon my consideration of the totality of the evidence regarding the other reasons for the decision by AYS to terminate its contract with the applicant and her husband, I find as a matter of fact that a decision would have been made by AYS to terminate the contract even apart from consideration of the three factors I have set out above.

Post-termination actions of CAST

142There is no evidence before me that any of the CAST respondents played a direct role in the decision made by AYS to terminate its contract with the applicant and her husband. The impact of AYS’s decision to terminate the contract was that the foster home being operated by the applicant and her husband would no longer be licensed, and as a result, the foster children could no longer continue to be placed there beyond the effective date of the termination of the contract. The applicant and her husband had formed strong bonds with the foster children in their care, and very much wanted to continue caring for these children in their home. All parties are in agreement that there were no issues as to the quality of care provided by the applicant and her husband to these foster children, and the CAST workers assigned to these children were supportive of trying to continue their placement in the applicant’s home if possible.

143There were three options available to continue the placement of these foster children in the applicant’s home. The first option was that the applicant and her husband could enter into a contract to be foster parents for another licensed agency, and CAST could agree to transfer the foster children from AYS to the new agency. The applicant’s evidence is that there was another licensed agency that was willing to take them on as foster parents, but that CAST and more particularly Ms. Manak refused to agree to the transfer of the foster children. This allegation is not based upon direct evidence, but is based upon hearsay evidence from the owner of the other agency, whom the applicant states told her that he had spoken with Ms. Manak. Ms. Manak denies having spoken to this person in this context. In the absence of direct evidence from this individual, I am not prepared to base any finding on the applicant’s hearsay evidence.

144The second option was for CAST to directly enter into a contract with the applicant and her husband to operate a foster home. While CAST largely places foster children with foster homes operated through licensed agencies, CAST itself also does directly enter into contracts with foster parents and places children there. There is, however, a review process that needs to take place before CAST will agree to directly enter into a contract with foster parents. In the applicant’s case, as she and her husband had been foster parents for a licensed agency, the first step in this process was for CAST to obtain a copy of the file maintained by AYS in relation to the applicant and her husband. In order for that to happen, the applicant and her husband first needed to fill out a form giving AYS consent to share this information with CAST.

145The evidence indicates that there was considerable confusion about this in the short period of time between receiving the termination letter on January 24, 2007 and the effective date of termination some 7 days later. The applicant understood that the form (which she referred to as a “disclaimer form”) was to be completed by AYS, and she followed up with Mr. Catney to have this form sent to CAST. In a letter from CAST to the applicant and her husband dated February 2, 2007, CAST’s Client Services Manager references the applicant’s desire to become a foster home for CAST and states that the applicant had been asked to forward written consent for AYS to release information to CAST in order to have this request considered. It is noted that, to the date of that letter, no such consent to release information had been received by CAST. The applicant was directed to contact CAST’s Supervisor, Foster Care Resources if she wished to pursue this.

146Notwithstanding receipt of this letter, the applicant and her husband continued to believe that it was AYS’s responsibility to provide the “disclaimer form” required by CAST. Accordingly, they wrote to Mr. Catney on February 6, 2007 stating that they were still waiting for him to send in the form to CAST. Mr. Catney responded by letter dated February 7, 2007 to state that he had not received any requests from CAST for any such form, did not know what information was being requested by the applicant, and did not have a document of the nature requested.

147On February 7, 2007, the applicant sent a further letter to CAST about the required “disclaimer form”. CAST replied by letter dated February 9, 2007, clarifying that it required a signed consent to disclosure of information form in order to consider the applicant’s request to foster with CAST. This letter enclosed a copy of the Consent to Disclosure of Information form to be signed by both the applicant and her husband and sent to CAST if they wanted to continue with their application to foster directly with CAST. This form was signed by the applicant and her husband on February 19, 2007 and sent to CAST. On February 21, 2007, CAST forwarded the forms to AYS and requested disclosure of its records relating to the applicant and her husband. The applicant’s human rights complaint against CAST was filed shortly afterwards on March 2, 2007. I have no evidence before me to indicate that the applicant’s application to foster directly for CAST was pursued further.

148While it certainly is regrettable that there was such confusion around the consent form that needed to be filed by the applicant and her husband as an initial step in the process of being considered to foster directly for CAST, in my view this was an unfortunate misunderstanding unconnected to any alleged discrimination against the applicant. I further find that, even if the misunderstanding over the consent form had not occurred, it was unrealistic for the applicant to expect that the process for CAST to consider whether to allow her and her husband to foster directly for CAST could have been completed in such a short timeframe. In any event, there is no evidence as to the extent to which this option was pursued further by the applicant and there is no evidence of any actual denial by CAST of an application by the applicant to foster directly for it.

149The third and final option was for CAST to designate the foster home operated by the applicant and her husband as a “place of safety” in order for the foster children to remain in their care. The extent to which this third option was actively considered by CAST is unclear from the evidence before me. Ms. Manak testified that such a designation was not within her role as Placement Coordinator, but rather was within the purview of the Client Services Manager. That individual did not testify before me.

150The evidence before me indicates that on February 1, 2007, a meeting was held at CAST involving Ms. Manak, the Client Services Manager, the workers assigned to the foster children in the applicant’s care, and other CAST employees. The purpose of this meeting was to discuss the termination of the contract by AYS and the arrangements that needed to be made regarding the foster children’s placement. Ms. Manak does not recall whether there was any specific discussion or decision at this meeting about designating the applicant’s home as a “place of safety”. Two CAST workers who were in attendance for part of this meeting were not able to provide any evidence on this issue. While I have handwritten notes from two participants in the meeting, neither records a discussion or decision about a “place of safety” designation.

151There are two notes made by CAST employees that speak generally to this issue. The first is a note made by a CAST worker, Ms. O’Hearan, regarding a telephone discussion she had with her supervisor on January 26, 2007. Ms. O’Hearan records her supervisor as attributing to Ms. Manak a statement that “from what they know, they wouldn’t make [the applicant and her husband] one of [CAST’s] foster parents”. Ms. Manak does not recall making such a statement to Ms. O’Hearan’s supervisor and denies that she would have been that definitive, because it was not her role to make such a decision. The second note was made by another CAST worker, Christian Chereches, of the February 1, 2007 meeting. As his final note from the meeting, Mr. Chereches records, “ongoing issues with this family therefore cannot be considered to foster for CAS”.

152Neither of these notes speaks directly to the “place of safety” issue; rather they each speak to the second option, namely allowing the applicant and her husband to foster directly for CAST, which I have found was not ripe for consideration at the time. However, on the basis of this evidence, I find that views were expressed by Ms. Manak and others at CAST that the applicant and her husband would not be considered to foster for CAST based on the information that had been shared by AYS, and I further find that this necessarily would preclude consideration of the applicant’s home as a “place of safety”.

153In any event, as will be discussed below, I find that the designation of a foster home as a “place of safety” is a service for the benefit of the foster children and not for the benefit of the applicant as a foster parent, and thus such a designation does not fall within the scope of “services” in respect of which the applicant as a foster parent can claim a violation of her rights under the Code.

154Before leaving this area, I wish to comment on two further matters. First, I heard evidence that at some point after receiving notice of the termination of the contract by AYS, a CAST employee in the Placement Department made an anonymous call to the phone number for the proposed youth camp on the Bethesda Christian Centre website and reached the applicant directly. The purpose for which this call was made is unclear to me. However, at the end of the day, I find that this call is not legally relevant to my findings in this proceeding, as I have found that the option of the applicant fostering directly for CAST was not ripe for consideration as of the time of the February 1, 2007 meeting and there is no evidence before me to indicate the extent to which this option was pursued further by the applicant and as I have found that the designation of the applicant’s home as a “place of safety” is not a service to her for which she can claim a Code violation.

155Second, I heard disputed evidence about what Mr. Chereches told Youth 3 and his mother about why Youth 3 was being removed from the applicant’s home. Mr. Chereches’ evidence is that he told Youth 3 and his mother that there were concerns about the applicant’s refusal to disclose the location and contact information for the youth camp. While the evidence of Youth 3’s mother was less clear, Youth 3 was clear in his evidence that he also was told by Mr. Chereches that another part of the reason he was being removed related to the website operated by the applicant’s ministry. This is denied by Mr. Chereches.

156At the end of the day, I do not need to resolve this conflict in the evidence. This evidence is not legally relevant to the issue of the options considered by CAST post-termination for the reasons articulated above. This evidence also is not particularly helpful in elucidating AYS’s reasons for terminating the contract, as it is at best double hearsay from the mouth of Youth 3. I have direct oral and documentary evidence of AYS’s reasons for terminating the contract, and I have preferred and relied upon that evidence to make my findings.

LEGAL FINDINGS RE LIABILITY

Liability of AYS Respondents

Reprisal allegation

157It is alleged by the applicant that she experienced reprisal by the AYS respondents as a result of the fact that allegations of racism and interference with her religious beliefs were raised and played a role in AYS’s decision to terminate its contract with her and her husband as foster parents.

158The right to be free from reprisal is addressed in s. 8 of the Code. Section 9 of the Code makes it a violation of the Code for someone to infringe this right, whether directly or indirectly. These provisions state as follows:

8. Every person has the right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

159As stated above, I have found find that the issues raised by the applicant’s husband relating to racism and issues raised by the applicant and her husband regarding interference with their religious beliefs was a factor in the decision to terminate. More specifically, I have found that the issue raised by the applicant’s husband that Mr. Catney’s comments about Malvern, which were expressly characterized by the applicant’s husband as being racial, and the issue raised by the applicant’s husband regarding the comments about “Natives” made by Mr. Carruthers, an AYS employee, being racist, formed a factor in the termination decision. I further have found that the assertion by the applicant on January 19, 2007 that interfering with the ability of her and her husband to attend the leadership seminar at the Bethesda Christian Centre property was an infringement of their religious beliefs also was a factor in the decision to terminate the contract.

160In my view, by raising allegations that the Malvern comment by Mr. Catney and the comments about “Natives” made by Mr. Carruthers were racist, the applicant’s husband was “claiming” his right under the Code to be free from racial discrimination in the context of the contractual relationship with AYS, which is a right protected under s. 3 of the Code. With regard to the comment about Malvern, the applicant’s husband is a racialized person who is himself a member of the Malvern community and grew up in that community, and he regarded Mr. Catney’s comments about the Malvern community in the context in which they were made as being racial. In order to constitute reprisal under s. 8 of the Code, it is not necessary for a person to establish or prove that she or he experienced racial discrimination; it is sufficient for a person to have “claimed” an infringement of her or his rights. I can appreciate that it is uncomfortable for a person in the position of Mr. Catney to face an allegation that a comment he has made is racial. Nonetheless, under the Code, a person is entitled to raise such allegations without fear of experiencing or being threatened with reprisal as a result.

161With regard to the comments by Mr. Carruthers about “Natives”, I also find that the applicant’s husband was claiming his right to be free from racial discrimination in the context of the contractual relationship with AYS. Mr. Carruthers was an employee of AYS and was attending at the home of the applicant and her husband for a work-related purpose, namely meeting with Youth 4, and the comments were made in that context. While the comments were directed at the racial group of which Youth 4 was a part and while the applicant and her husband are not First Nations persons, this Tribunal has held that exposure to racial comments about another racial group can poison the environment for a person who is not a member of that group: see Lee v. T.J. Applebee’s Food Conglomeration (1987) 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781.

162While it was the applicant’s husband, and not the applicant herself, who claimed the right to be free from racial discrimination in the context of the contractual relationship with AYS, I find that AYS indirectly violated the right under s. 8 of the Code as against the applicant by considering the claims raised by the applicant’s husband as a factor in the decision to terminate the contractual relationship that it had with both the applicant and her husband, and I find this to be in violation of s. 9 of the Code. In any event, at least with regard to the comments about “Natives”, these comments were made in front of the applicant as well as the applicant’s husband, and I find that the applicant’s husband was claiming the right to be free from racial discrimination on both of their behalfs.

163With regard to the applicant’s assertion that interfering with the ability of her and her husband to attend the leadership seminar at the Bethesda Christian Centre property was an infringement of their religious beliefs, once again it is not necessary for the applicant to establish or prove that this was a violation of her right to be free from discrimination because of her creed; it is sufficient that she claimed this right. In this instance, there is no question that it was the applicant who claimed this right, and I have found that the raising of interference with the religious beliefs of the applicant and her husband also was a factor in AYS’s decision to terminate the contract.

164While I have found that the raising of allegations of racism and interference with their religious beliefs was not a determinative or decisive factor in AYS’s decision to terminate the contract, it is well established that in order to ground a violation of the Code, a discriminatory reason need only be a factor in the decision: see Velenosi v. Dominion Management (1997), 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON CTGD), 16 O.R. (3d) 290 (Div. Ct.).

165Accordingly, for all of the above reasons, I find that AYS violated the applicant’s right to be free from reprisal contrary to sections 8 and 9 of the Code when it considered the issues raised by the applicant’s husband relating to racism and the issue raised by the applicant regarding interference with their religious beliefs as a factor in the decision to terminate.

Cancer testimonial

166For the reasons stated above, I have found that the view that the applicant and her husband were being “exploitive” in using the cancer testimonial in furtherance of their Christian ministry was another factor that contributed to the strained relationship between AYS staff and the applicant and her husband, which formed one of the reasons for the termination decision.

167Pursuant to s. 3 of the Code, a person has a right to contract on equal terms without discrimination because of, inter alia, creed. The cancer testimonial on the website for the Bethesda Christian Centre is an expression by the applicant of her belief that her religious faith and the intervention of her God cured her husband’s cancer. While others certainly have the right to disagree with this belief, in my view it is inappropriate and constitutes discrimination because of creed for such disagreement to become a factor in a decision to terminate a contract, as I have found that it did in this case.

168In my view, the only reasonable way that the cancer testimonial can be viewed as “exploitive” or as being used to promote the proposed youth camp is if the person who holds these views disagrees with the applicant’s expression of belief that her faith and the healing power of her God cured her husband’s cancer and if the person further questions the sincerity of the applicant’s expression of belief. I find that both aspects of such a view, namely disagreement with the applicant’s religious belief and questioning the sincerity of her religious beliefs, constitute discrimination because of creed in violation of the Code when they became a factor in AYS’s decision to terminate the contract.

169Accordingly, I find that AYS violated the applicant’s right to contract on equal terms without discrimination because of creed, contrary to sections 3 and 9 of the Code, when the view that the applicant’s cancer testimonial was “exploitive” or used for promotional purposes became a factor that contributed to the strained relationship between AYS staff and the applicant and her husband, which formed one of the reasons for the termination decision.

Suspected affiliation with Freedom Village

170As stated above in relation to the incident on January 19, 2007, I have found that, once Mr. Barron ascertained that the leadership seminar was being held on the Bethesda Christian Centre property, the applicant’s Christian faith and her suspected affiliation with Freedom Village became a factor in the escalation of this incident. I have found that Ms. Dawe’s unreasonable and unsupported suspicions about a potential affiliation between Freedom Village and the youth camp that the applicant and her husband aspired to operate were based in part upon the applicant’s Christian faith and its role in the proposed youth camp. I also have found that this suspicion, whether in whole or in part, formed the basis of Ms. Dawe’s request that the foster child to whom she was assigned (Youth 2) not be taken to the camp without her permission. I have found that Ms. Dawe’s suspicion and her request to AYS formed the basis of AYS’s direction to the applicant and her husband that no foster child was to be taken to their youth camp without the permission of the CAST worker. I also have found that, as a result of Ms. Dawe’s suspicions, AYS itself harboured suspicions about the potential affiliation between Freedom Village and the applicant’s proposed youth camp, and I find that these suspicions formed part of the “serious” or “very grave” concerns that Mr. Barron expressed about the applicant’s youth camp.

171I further have found that, when Mr. Barron found out that the leadership seminar was being held on the Bethesda Christian Centre property, his and AYS’s suspicions about a potential affiliation with Freedom Village, as fuelled by Ms. Dawe, and the direction not the take any foster child to the youth camp, which resulted from Ms. Dawe’s suspicions, combusted in an escalation of the situation with the applicant. I have found that it was unreasonable for Mr. Barron to take the position that the applicant and her husband were barred from taking Youth 1 to the leadership seminar without approval by the CAST worker, on the basis that there is no evidence that any such approval requirement had been imposed by the CAST worker for Youth 1 and because Youth 1 was not being taken to any youth camp as known to Mr. Barron and AYS. I have found that the fact that this leadership seminar was being held at a retreat centre on property where the applicant and her husband hoped one day to operate a youth camp is not sufficient to reasonably support viewing a leadership seminar as a “youth camp”. As a result, I have found that Mr. Barron’s position that the applicant and her husband were not allowed to take Youth 1 along while they attended the leadership seminar was unreasonable, and I further have found that this position resulted from suspicions of a potential affiliation with Freedom Village that was based in part on the applicant’s creed or Christian faith.

172In addition, for the reasons stated above, I have found that concerns about the youth camp proposed by the applicant and her husband and their plan to take Youth 1 to the property where they proposed to operate this youth camp while they attended a leadership seminar was a factor in AYS’s decision to terminate, resulting from suspicions about a potential affiliation between this proposed youth camp and Freedom Village.

173On the basis of these findings, I find that the applicant’s right to contract on equal terms without discrimination because of her creed was violated by AYS contrary to ss. 3 and 9 of the Code when the incident on January 19, 2007 became a factor in its decision to terminate the contract. The suspected affiliation of the applicant’s proposed youth camp with Freedom Village, which I have found was shared by Ms. Dawe and AYS and continued up to the time of termination of the contract, was based upon an alleged similarity between the program offered by Freedom Village and the applicant’s proposed youth camp. Two aspects of this alleged similarity are that both programs were directed towards assisting troubled and/or drug-addicted youth and were located on rural property. But I have found that a third aspect of the alleged similarity relates to the fact that both programs were Christian faith-based. From the material provided in evidence, both programs shared a belief in the power of the Christian faith to assist in the healing process for troubled and/or drug-addicted youth. I find that continuing to suspect an affiliation with Freedom Village, despite written and verbal statements by the applicant and her husband that there was no such affiliation, was based in part on the Christian faith-based nature of the two programs. This, in my view, represents a stereotypical view of the applicant’s Christian faith, by using that as one of the reasons to lump her proposed youth camp into the same basket as Freedom Village.

174In making this finding, I am casting no aspersions on the program offered by Freedom Village. That is not the issue before me. Rather, the issue is that, based in part on the applicant’s Christian faith and its role in her proposed youth camp, Ms. Dawe and AYS suspected an affiliation with Freedom Village, which caused AYS to place restrictions on the ability of the applicant and her husband to take foster children to this camp without approval by CAST workers who had not requested such a restriction and which led to an unreasonable refusal to allow the applicant and her husband to take Youth 1 along while they attended a leadership seminar on property where they proposed to open their youth camp. The conflict with the applicant which resulted from this unreasonable refusal, which I have found to be based in part upon a discriminatory reason, in turn became a factor in the decision by AYS to terminate its contract with the applicant and her husband.

175Accordingly, I find that this constitutes a further basis upon which the applicant’s right to contract on equal terms without discrimination because of her creed was violated by AYS contrary to ss. 3 and 9 of the Code.

Termination of contract

176While I have found that discriminatory reasons were factors in AYS’s decision to terminate its contract with the applicant and her husband, I also have found that a decision would have been made by AYS to terminate the contract even apart from consideration of the three factors that I have found to be in violation of the Code. I have found that there were other credible and non-discriminatory reasons for AYS to reach the conclusion that the applicant and her husband were unable to work effectively and cooperatively with agency management and staff which were unrelated to the allegations of racial or religious discrimination or the view that the cancer testimonial was “exploitive” or being used to further the applicant’s Christian ministry. I also have found that there were other credible and non-discriminatory reasons for AYS to have concern about the January 19, 2007 incident apart from the suspected affiliation with Freedom Village and the refusal to allow Youth 1 to be taken to the Bethesda Christian Centre property. And I have found that AYS’s concerns about the conduct of the applicant and her husband in relation to professionals in the field were credible, in the sense that the concerns were sincerely held by AYS, and were not a pretext for discrimination.

177The impact of this finding is that, while the applicant is entitled to a remedy as against AYS as a result of its consideration of discriminatory factors in the decision to terminate the contract, I find that the applicant is not entitled to seek a remedy arising out of the economic impact on her of the contract termination and specifically her claim for lost income.

Liability of personal respondents

178I have found that AYS, as a corporate respondent, is liable for the violations of the Code that I have found. The next question is whether I also should find Mr. Catney and Mr. Barron personally liable for all or some of these same violations.

179This Tribunal has been clear in its decisions that the practice of naming personal respondents is to be discouraged: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14; Persaud v. Toronto District School Board, 2008 HRTO 31. On numerous occasions, this Tribunal has exercised its power and discretion to remove personal respondents as parties to a proceeding on the basis of the factors articulated in Persaud, supra.

180In my view, this Tribunal has a similar discretion to exercise when deciding whether to impose separate and individual liability on a personal respondent. In the instant case, I already have found AYS as the corporate respondent to be liable for the very conduct and actions upon which Mr. Catney and Mr. Barron might be held personally liable. I find that there is no issue as to AYS’s deemed or vicarious liability for the actions of Mr. Catney and Mr. Barron, as the actions at issue in this proceeding all were taken in the course of their employment with AYS or, in Mr. Catney’s case, as an officer of AYS. AYS remains in existence as a viable corporate entity, and there is no evidence before me to indicate that it would be unable to respond to any remedy that I may order.

181The next consideration, in my view, is whether there is any compelling reason to impose personal liability on Mr. Catney and/or Mr. Barron. In this regard, I note that, apart from a request for monetary remedies, there are no other non-monetary remedies requested by the applicant as against Mr. Catney or Mr. Barron personally, and as I have stated, there is no evidence to indicate that AYS would be unable to respond to any monetary remedy I may award. While it is true that it was the actions of Mr. Catney and/or Mr. Barron which formed the basis of my findings of liability as against AYS, in my view this alone does not constitute a sufficient compelling reason to exercise my discretion to impose personal liability on them. While I have found that discriminatory reasons were a factor in the decision to terminate the contract, I also have found that Mr. Catney and Mr. Barron also had sincerely held concerns about the relationship with the applicant and her husband as foster parents that led them to make the termination decision which were not a pretext for discrimination. In the specific circumstances of this case, I find that it would not be appropriate to impose personal liability on Mr. Catney and Mr. Barron, and I exercise my discretion to decline to do so.

182As a result, the Application is dismissed as against Mr. Catney and Mr. Barron.

Liability of CAST Respondents

Jurisdiction

183The CAST respondents have submitted that this Tribunal has no ability to impose liability on them, as neither CAST nor AYS were in an employment relationship with the applicant. It is not disputed that there was no employment relationship between CAST and the applicant. The CAST respondents rely upon a finding by the Ministry of Labour that there was no employment relationship between AYS and the applicant. On this basis, the CAST respondents distinguish my decision in Boone v. Catholic Children’s Aid Society of Toronto, 2009 HRTO 2098.

184While a violation of the applicant’s right to be free from discrimination in respect of employment under s.5(1) of the Code was alleged in the complaint as originally filed with the Commission, this complaint was subsequently amended to remove an allegation of a breach of s.5(1) and to substitute allegations of a violation of s. 1, the right to freedom from discrimination in respect of services, goods and facilities, and of s. 3, the right to contract on equal terms without discrimination. It is the amended complaint which forms the basis of the Application against CAST in this matter.

185As a result, I will decline comment on whether the interactions between AYS and the applicant and the role played by the CAST respondents can be regarded as being “in respect of employment” as that term has been interpreted under the Code. I note only in passing that this term as used in the Code may have broader scope than the term “employment” as determined by the Ministry of Labour under the Employment Standards Act, 2000.

186As against the CAST respondents, I find that the primary right to be determined in this proceeding is the applicant’s right to contract on equal terms without discrimination because of creed. The AYS respondents concede in their submissions that AYS had a contractual relationship with the applicant and her husband. This is indisputable.

187With regard to the CAST respondents, I find that the same principles articulated by this Tribunal in Payne v. Otsuka Pharmaceuticals Co. (2001) 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 as applicable in the context of an employment relationship apply with equal force in the context of a contractual relationship. Just as a person or entity need not be the employer in order to breach the right to freedom from discrimination in respect of employment under s. 5(1) of the Code, I find equally that a person or entity need not be a party to the underlying contract in order to breach the right to contract on equal terms without discrimination under s. 3 of the Code. In both contexts, in my view, the issue for this Tribunal is whether there is “some nexus or link in the chain of discrimination between the respondent and the complainant”: see Payne, supra at paras. 34 to 36.

188As a consequence, I will examine whether there is some nexus or link in the chain between the CAST respondents, or any of them, and the violations of the Code that I have found as against AYS in the context of its contractual relationship with the applicant.

Suspected affiliation with Freedom Village

189I already have found above, as against AYS, that the suspected affiliation between Freedom Village and the applicant’s proposed youth camp was part of the reason for the escalation of the incident on January 19, 2007 and for the refusal to allow the applicant and her husband to bring Youth 1 along while they attended a leadership seminar on the property where they proposed to operate their youth camp. I have found that this in turn became a factor in the decision by AYS to terminate its contract with the applicant and her husband as foster parents. I further have found that this constituted discrimination against the applicant in the context of this contractual relationship because of her creed, contrary to s. 3 of the Code, because part of the reason for the suspected affiliation with Freedom Village was based on the alleged similarity that both youth programs were Christian faith-based.

190The question for me at this point is whether there is any nexus or link in the chain of discrimination that extends to any of the CAST respondents. In my view, it is apparent from the evidence that there is. Ms. Dawe, who was employed by CAST, was the source of the concern about the suspected affiliation between Freedom Village and the applicant’s proposed youth camp. Notwithstanding her denial, I have found that part of the reason underlying this suspicion was due to the alleged similarity of the two programs, including the fact that both are Christian faith-based. I have found this suspicion by Ms. Dawe to be unreasonable and unsupported. Ms. Dawe was responsible both directly and through the then Placement Coordinator for communicating this concern to AYS, which I have found initially was resolved sometime in April 2006. I have found that the suspected affiliation was raised again by Ms. Dawe with AYS in June 2006, and was the cause for AYS to require the applicant and her husband to provide a letter confirming that they had no affiliation with Freedom Village and also was the cause for AYS to require the applicant and her husband to obtain approval from a CAST worker before taking any foster child to their youth camp. The evidence indicates that Ms. Dawe’s suspicion was shared, whether directly or indirectly, with other CAST employees and persisted with Ms. Dawe and AYS up to and beyond the termination of the contract. I have found that, in the manner described above, this suspicion ultimately became a factor in the decision by AYS to terminate its contract with the applicant.

191In my view, these findings provide more than sufficient basis to support that Ms. Dawe’s suspicions about affiliation with Freedom Village had some nexus to or formed a link in the chain of discrimination which contributed to AYS’s decision to terminate the contract. Indeed, I find that Ms. Dawe was the originating link in the chain and caused the chain to be rejuvenated and strengthened by re-raising her unwarranted suspicions. It was Ms. Dawe herself who made the unreasonable and unsupported leap initially to suspect an affiliation between the applicant’s proposed youth camp and Freedom Village, based in part upon the fact that both youth programs were Christian faith-based. As I have stated above, this basis for seeing similarity and suspecting an affiliation derives from a stereotypical view of the applicant’s Christian faith as being linked to the Christian faith as practised by the operators of Freedom Village, solely on the basis that both believe in the healing power of their God to assist troubled and/or drug-addicted youth.

192Ms. Dawe was at all material times, and continues to be, an employee of CAST and her actions at issue in this proceeding were in the course of her employment with CAST. As a result, pursuant to s. 46.3 of the Code, CAST is deemed to be liable for Ms. Dawe’s conduct.

193As a result, I find that CAST violated the applicant’s right to contract on equal terms without discrimination because of creed contrary to ss. 3 and 9 of the Code.

194In her submissions, the applicant raises a further issue about Youth 2 not being placed back in the care of herself and her husband after he had run away from their home, which she alleges is linked to Ms. Dawe’s suspicions and concerns. This is not an allegation that was raised in the complaint or amended complaint, and therefore is not part of the subject-matter of the proceedings before me.

Post-termination actions by CAST

195I already have found above that the evidence before me is insufficient to establish that CAST or Ms. Manak refused to allow the foster children to remain with the applicant and her husband by them entering into a contract to be foster parents with a new agency.

196I also have found that the issue of whether CAST would allow the applicant and her husband to foster directly with CAST was not ripe for consideration at the time material to this proceeding, and there is no evidence before me as to the extent to which this option was pursued further by the applicant.

197This leaves the issue of designating the applicant’s home as a “place of safety” in order to allow the foster children to remain there. Pursuant to s. 18 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), the Director or a local director may designate a place as a “place of safety” for the purposes of Part III of that Act. The CAST respondents submit that designating a foster home as a place of safety is a power exercised in emergency situations where the usual practice of waiting to place a child with a licensed foster family would not protect the best interests of the child. To the extent that CAST is rendering a “service” within the meaning of s. 1 of the Code in relation to the designation of a place as a “place of safety”, the CAST respondents submit that the service is being rendered to the child and not to a person such as the applicant who is a foster parent.

198I agree. The designation of a home as a “place of safety” under the CFSA is an extraordinary provision under that legislation which permits a child to be placed in an unlicensed home where doing so is in the best interests of the child. The focus of the Director or local director in making such a designation needs to be entirely on the child and what is in that child’s best interests. The benefit of such a designation redounds to the child. While a foster parent, such as the applicant, may personally feel some benefit if she or he continues to be able to care for a child as a result of a “place of safety” designation, that in my view is not the kind of benefit that is sufficient to render the making of such a designation a service to the applicant or a service in respect of which the applicant has standing to allege discrimination against herself pursuant to s. 1 of the Code.

199As a result, I find that there is no basis to support a finding of a violation of the Code by any of the CAST respondents arising out of their actions following the termination of the applicant’s contract with AYS.

Liability of personal respondents

200There is no basis in the evidence to support a finding of personal liability as against Ms. Manak, and the Application against her is dismissed.

201With regard to Ms. Dawe, s. 15(6) of the CFSA states:

No action shall be instituted against an officer or employee of a society for an act done in good faith in the execution or intended execution of the person’s duty or for an alleged neglect or default in the execution in good faith of the person’s duty.

202In Boone, supra, I held that this type of insulating provision serves to protect individuals from being held personally liable unless they have acted in bad faith. I stated that, in my view, in light of the nature of the duties performed by officers and employees of children’s aid societies, by health professionals and by others covered by similar provisions, there is an important policy purpose to ensuring that, as long as these individuals act in good faith, they will not be subjected to legal proceedings. This enables such individuals to act and make decisions by focusing on the relevant considerations relating to their various areas of responsibility and free from the fear of being personally subjected to legal proceedings.

203As a result, in order to establish liability as against a personal respondent such as Ms. Dawe, the applicant is required to establish that she failed to act in good faith. While I have found that Ms. Dawe’s suspicion about an affiliation between Freedom Village and the applicant’s proposed youth camp was unreasonable and unsupported and based in part on a stereotypical view of the applicant’s Christian faith, I do not find that she acted in bad faith in holding this suspicion and sharing it with AYS. She acted out of a sincerely held concern arising out of an experience by a youth with Freedom Village and was concerned to protect the child to which she was assigned from a similar experience without obtaining further information about the applicant’s youth camp and without first giving her approval for the youth to attend. While one may characterize Ms. Dawe as having been over-zealous in pursuing her concerns, this is not in my view sufficient to establish that her actions were not in good faith.

204Accordingly, the Application is dismissed as against Ms. Dawe.

NEXT STEPS

205As indicated at the commencement of this Decision, this proceeding was bifurcated on consent of the parties to first address the issue of liability under the Code and then, at a subsequent stage, to address any issue of remedy.

206As I already have stated above, I have found that while discriminatory reasons were factors in AYS’s decision to terminate its contract with the applicant and her husband, a decision would have been made by AYS to terminate the contract even apart from consideration of the three factors that I have found to be discriminatory. As a result, while the applicant is entitled to a remedy as against AYS as a result of its consideration of discriminatory factors in the decision to terminate the contract and as against CAST for its role in the chain of events leading to the termination decision, the applicant is not entitled to seek a remedy against either AYS or CAST arising out of the economic impact on her of the contract termination and specifically her claim for lost income.

207This leaves two categories of remedy for consideration. First, arising out of my findings that her rights under the Code were infringed, the applicant is entitled to seek compensation for injury to her dignity, feelings and self-respect. The decision to bifurcate the hearing was made on the second day of hearing, after I had heard all of the applicant’s evidence, including all of her evidence regarding the emotional impact of the alleged discrimination. Her evidence was that she and her husband were really confused and distraught following the termination of their contract, and experienced huge stress as a result of fighting to protect the foster children and the emotional toll of sharing with the children what had happened. The applicant testified that she believed that their reputation in the field had been damaged and “tarred” by this experience, with the result that they haven’t continued to be foster parents after this, which was one of their employment goals.

208However, I did not hear evidence relating to the allegation of reprisal and the allegation arising out of the cancer testimonial until the second day of hearing, after the existence of the amended complaint had been confirmed. As a result of the decision to bifurcate, I did not hear evidence from the applicant regarding the emotional impact upon her relating to these allegations in the amended complaint, and the applicant was not cross-examined by counsel for either set of respondents on the emotional impact issue. If the applicant wishes to provide any further evidence regarding the emotional impact of the allegations arising from the amended complaint which I have found to be in violation of the Code and/or respondents wish to cross-examine the applicant on her emotional impact evidence, then the relevant party shall so advise the Tribunal and the other parties within 14 days of the date of this Decision and a hearing day will be scheduled for this to occur. Alternatively, if the applicant does not wish to provide any further evidence and if the respondents do not wish to cross-examine the applicant on this issue, then I will proceed to make my assessment of compensation for injury to dignity, feelings and self-respect on the basis of the evidence I already have heard, after receiving and considering submissions from the parties.

209The second category of remedy that I need to consider relates to non-monetary or “public interest” remedies to promote future compliance with the Code. In her Description of Remedies (Ex. 4, p. 5), the applicant seeks such remedies as item #4. In addition, pursuant to s. 45.2(2) of the Code, I have the discretion and power to order such remedies even if none are requested. In my view, it is not necessary for me to hear evidence from the parties on this issue, but if any party feels otherwise they shall so advise the Tribunal and the other parties within 14 days of the date of this Decision and set out specifically what further evidence they believe I need to consider and whether an in-person hearing is required to receive this evidence.

210If the applicant wishes to provide further evidence of emotional impact or if any respondent wishes to cross-examine the applicant on her emotional impact evidence and/or if an in-person hearing is required to receive evidence regarding public interest remedies, then the Tribunal will proceed to schedule a date for the hearing and I will hear evidence and submissions from the parties at that time.

211Alternatively, if the applicant does not wish to provide any further evidence, if no respondent wishes to cross-examine and if an in-person hearing is not required to receive evidence regarding public interest remedies, or if I don’t hear otherwise from the parties within 14 days, the Tribunal will proceed to set a schedule to receive written submissions on remedy.