S.B. v. Sunnyside Garden Daycare Centre of Toronto, 2011 HRTO 429

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.B. by her litigation guardian N.S.

Applicant

-and-

Sunnyside Garden Daycare Centre of Toronto,

Judith Malcolm-Barnes and Sheila Thomas

Respondents

decision

Adjudicator: Kaye Joachim

Date: February 28, 2011

Citation: 2011 HRTO 429

Indexed as: S.B. v. Sunnyside Garden Daycare Centre of Toronto

APPEARANCES

S.B. by her litigation guardian N S ) N.S.

Applicant )

Sunnyside Garden Daycare Centre )

of Toronto, Judith Malcolm-Barnes ) Ian Werker, Counsel

and Sheila Thomas, Respondents )

1This is a hearing into the Application of S.B., (the applicant or S.B.), initiated by her mother and litigation guardian N.S. (the “mother”) pursuant to s. 53(5) of the Human Rights Code, R.S.O., 1990, c. H.19, as amended (the Code).

2The respondent, Sunnyside Garden Daycare Centre (“Daycare”), is a licensed non-profit Daycare. Located at, but separate from G.A. Public School, Sunnyside provides care to children in two age groups: Pre-school (toilet trained children between 2.5 to 5 years of age) and School-Age (ages 6 to 12). The respondent Judith Malcolm Barnes is the Supervisor of the Daycare. The respondent Sheila Thomas was the volunteer president and member of the board of directors of the Daycare at the time.

3S.B. is a child born July […], 2003, who was on the respondent Daycare’s waiting list from January 2006 until September 2007 when the Daycare advised that they had removed her name from the wait list. The applicant’s mother believes that S. B. was not offered a place in the Daycare from June 2006 to September 2007 because of S.B.’s brother’s (a child with a disability) and that this amounts to discrimination on the basis of association with a person with a disability, contrary to sections 1, 8 and 12 of the Code.

4The respondents assert that S.B. was not offered a place in the Daycare because of a mistake regarding her age caused by S.B.’s father writing the wrong date of birth on the enrolment application. By the time the mistake was corrected, there were no spaces in the respondent Daycare for a child that age. Eventually, S.B. was removed from the wait list because of the mother’s allegedly inappropriate conduct toward staff.

5The litigation guardian had also submitted an Application in respect of the applicant’s brother. That Application was dismissed as it was filed more than one year before the alleged discrimination, 2010 HRTO 711. I do not need to determine whether the applicant’s brother was treated contrary to the Code. On the contrary, it is sufficient for me to consider the documentary evidence, already filed which establishes that that the applicant’s mother and the respondents had ongoing discussions and disagreements relating to the needs of applicant’s brother.

6For the purpose of determining the present Application, I accept that the evidence presented in the Application of the applicant’s brother should be considered (although it was not the subject of oral examination or cross-examination) for the purpose of assessing whether the applicant’s brother’s behaviour may have influenced the respondents’ decision with respect to accepting the applicant into the respondent Daycare. If so, the applicant may be able to establish a breach of the Code, if I find that applicant was refused admission to the respondent Daycare because of her association with her brother, a person with a disability or a person who was perceived to have a disability.

7The issue in the present Application is whether the respondents refused to admit the applicant to their Daycare because of association with a person with a disability. The mother has advanced the theory that the respondents did not admit the applicant to the Daycare because they perceived that the applicant might have a disability similar to her brother and the respondents did not want to face the obligation involved in accommodating the applicant. Alternatively, they feared that once the applicant was in the Daycare the brother would seek re-admittance to the Daycare and would have to be given priority in accordance with the Daycare’s sibling policy.

Findings of Fact

8Except as indicated below, the following facts are not seriously in dispute. Where there is an important dispute in the evidence, I will explain later in the Decision why I made my findings of fact.

9The parents made application to the respondent Daycare for their son and daughter on January 19, 2006. The enrolment application, completed by S.B.’s father, erroneously stated S.B.’s date of birth as July 2002 (which would have made her 3.5 years of age at the time of the application).

10Both children were placed on the waiting list for a spot in the pre-school program. In February 2006 the respondents contacted the applicant’s mother and offered both children a spot in the Daycare for July 2006. The spots were declined and notations were made on both applications to move the children for consideration for admission in September 2006.

11On June 1, 2006 Ms. Barnes testified that she advised the mother that spots were available for both children. The mother accepted the spot for the brother, but declined the space for the applicant. Ms. Barnes testified that there might not be a place available in September 2006. The mother advised that she would leave S.B. at her other daycare because she was not yet ready for the pre-school program.

12The mother testified that she had not been offered a space in June 2006 for S.B and if she had been she would have accepted it. For reasons which I will set out later in this Decision, I prefer the evidence of Ms. Barnes on this point, and I find as a fact that the respondent offered the applicant a space in the pre-school Daycare programme in June 2006, which was declined.

13The mother testified that she was advised that the applicant would remain at the “top of the list” but Ms. Barnes denied making such a statement. It is unnecessary to resolve this dispute in evidence. I accept Ms. Barnes’ evidence that she would not have promised the next spot to the applicant and I also accept the mother’s evidence that she understood that her daughter’s place on the wait list would not change.

14However, the Daycare did change its policy in early 2007 and moved away from accepting children based primarily on the date of their application.

15S.B.’s brother attended the Daycare from July 2006 when he was five and about to enter kindergarten at G.A. Public School. Between July and November 2006, the brother’s daycare services were suspended periodically due to behavioural issues. The respondents consulted with the City of Toronto Daycare consultants and the City provided support to the respondent Daycare through the Child Development Institute to enable the brother to return to the respondent Daycare.

16Following an incident on November 23/24, 2006, in which the brother ran out of the Daycare and into the street, the respondents advised the mother that her son would not be receiving further daycare services, due to their belief that they could no longer safely provide daycare services for him, in light of their responsibilities to the other children in their care. By this time, the brother was no longer attending G.A Public School. The mother asserts that her son was eventually diagnosed with a variety of psychiatric disorders including Attention Deficit/Hyperactivity Disorder, mood and anxiety dysregulation that contribute to a pattern of oppositional/defiant behaviour and with a learning disability. She asserts that the behaviours he had been exhibiting while at the Daycare were all symptoms of his various disabilities.

17Following the expulsion of her son from the Daycare, the mother contacted the City of Toronto for assistance in having her son re-admitted to the Daycare. They advised her that they could not direct the Daycare to admit her son, but offered her assistance in finding another placement for her son. The applicant also contacted her local MP for assistance.

18In early 2007 the Daycare began developing a policy to deal with the fact that there were more children graduating from the preschool program (ages 2 to 5) into the school age program (ages 5 to 10) than the school age program could handle. The situation was sensitive as all members of the Board had children who would be affected.

19In February the Daycare wrote to all parents with children in the school age program to advise that there may be too many children and asked them to confirm their plans for 2007. In March 2007 the Daycare decided to revise its admission policy from first come, first served, to give priority to the youngest children. This would reduce the number of children graduating into the school age program and avoid a similar overcrowding problem in the school age program in the future.

20Ms. Barnes was directed to prepare a list of all children on the waiting list by their date of birth and their preferred date of admission. S.B.’s name was on this list which indicates that the Daycare still considered her for admission at this time. S.B. was listed (erroneously due to the father’s error on the application form) as born July 2002. Ms. Barnes was directed to offer admission to the youngest children first, and to consider as well the sibling policy.

21The Daycare records demonstrate that children with 2003 and 2004 birth date were offered admission for summer or fall 2007 in accordance with the new policy and that no child with a 2002 birth date was offered admission for 2007 with two exceptions, discussed below.

22The first exception was a child offered admission in February 2007 (before the new policy had been finalized). This child had been on the City of Toronto subsidy waitlist form 2003 and came to the top of the City’s list. The City then contacted the Daycare and inquired if there were a space. At this time, there was a space and the Daycare agreed to admit the child, although the child had not been on the Daycare’s waiting list. I do not find that this child’s admission was in any way related to or an attempt to defeat S.B.’s place in the program. There were other children on the wait list before S.B. who were also passed over at that time in order to accommodate the child on the subsidy list.

23A second child with a 2002 birth date was offered a place in the program in accordance with the sibling policy in July 2007. This child had not been on the wait list as long as S.B.

24Meanwhile, the applicant was still pursuing her attempt to have her son reinstated in the Daycare. On March 28, 2007 the applicant wrote a detailed letter to the respondent Daycare’s Board of Directors stating that she believed that they had not provided adequate care to her son from July to November 2006 and had not complied with the City’s policies in withdrawing daycare services from her son. She noted that her son might seek to be re-admitted and asked as a remedy that the Chair of the Board of Directors be asked to resign immediately because of her involvement in having her son withdrawn.

25On May 8, 2007 the Board of Directors responded to the effect that they believed that the Chair had handled the matter appropriately and the matter was now closed.

26Upon receipt of this letter the mother became concerned about the Daycare’s willingness to accept her daughter into the Daycare. On May 29, 2007 the mother called the Daycare to determine the applicant’s place on the waitlist. She spoke to a staff member, Melissa Radovini, in what Ms Radovini described as a threatening and demeaning way. Ms. Radovini passed on the message to Ms. Thomas and to Ms. Barnes. Ms. Barnes was absent due to illness at that time.

27On June 1, 2007 the mother called the Daycare again, not having received a return phone call. She again spoke to Ms. Radovini. Ms. Radovini testified that the mother was verbally abusive. At the hearing Ms. Radovini broke into tears describing the events.

28On June 13, 2007 Ms. Barnes finally spoke to the mother about S.B.’s place on the waitlist. At that time, Ms. Barnes, believing S.B. to be a 5 year old senior pre-schooler (according to the application she would turn 5 in July), advised that the Daycare was not placing 5 year olds at that time. During this conversation, the mother revealed that S.B. was only 3 (turning 4 in June). Ms. Barnes advised that the Daycare had been placing children that age in the junior pre-school program but was not sure whether there was more room in that program. The Daycare had already contacted parents of the younger children and were awaiting response from them. At this stage, S.B. no longer had “preferential standing” which is accorded to children who have siblings in the program.

29On June 19, 2007 Ms. Barnes and the mother had another conversation. The mother insisted on S.B.’s being placed in the Daycare and Ms. Barnes advised that they could not provide her with an enrolment date as the program was full.

30Ms. Barnes alleges that the mother became irate and began yelling, and accused her falsely of tampering with the files. She stated she would “see her in court” and hung up the phone. The mother denies accusing her of tampering but otherwise did not seriously dispute Ms. Barnes’ evidence. It is unnecessary to determine whether the word “tampering” was used during this conversation.

31The Daycare’s Board of Directors met on June 20, 1007 to discuss the situation and determined that it would not accept S.B. even if a place became available. The Board began drafting a letter but due to the dismantling of the Board at the end of the school year the letter was not finalized and sent until September. On September 28, 2007 the respondent wrote to the mother explaining why S.B. had not been admitted to the day care and further advising that S.B. had been removed form the wait list because of the unpleasant disputes between the Daycare and the mother.

Analysis of Disputed Evidence

32There is no dispute that the applicant was offered a spot in February 2006 which she declined. Ms. Barnes testified that she was also offered a spot in June 2006 which the applicant’s mother declined. The applicant’s mother vociferously denied declining this spot.

33I prefer the evidence of Ms. Barnes on this point. The Daycare application contains a notation to move to September 2006 (which was also found on the brother’s application). This is consistent with the mother’s refusal of the space in February 2006 and indicates that the children would next be considered for admission in September 2006. The brother was offered a space in June 2006 for July 2006 which was accepted. The applicant’s mother refused the space for the applicant June 2006 which prompted the notation “January 2007”. This indicated that applicant wished to be considered for admission in January 2007.

34The most telling evidence on this point is that the respondent stated in their response in paragraph 14 that the space was offered in June 2006. The mother responded in writing on May 15, 2008 (exhibit 7):

I agree. S(…) was not yet toilet trained when I was offered the space in June 2006 therefore in accordance with the Daycare’s acceptance criteria I had to decline the space offered at this time; however I was assured by Ms. Barnes that S(…)’s name would be placed next in the queue and I would be notified of and offered the next available space pending S(…)’s completion of toilet training. (redactions mine)

35I accept this admission against interest. However the applicant’s mother may have remembered the situation at the time of the hearing; it is clear that in May 2008 she recalled being offered the spot in June 2006. I conclude that a spot was offered to the applicant in June 2006 and was declined. I also find that the respondent understood that the applicant wanted to be considered for admission in January 2007.

Waitlist from January 2007 to June 2007

36From January 2007 to June 2007 when the applicant was removed from the waitlist does the evidence indicate that the applicant was passed over for consideration for a place in the Daycare?

37In early 2007 the day care began revising its policy in light of the anticipated overcrowding problem in the school year program commencing September 2007.

38In February 2007 a space was offered to the child born in 2002 on the subsidy waitlist. As I stated earlier, other children on the waitlist were also passed over in favour of this child, and I cannot conclude that this admission demonstrates anything in regard to S.B. It appears to be an effort on the part of the respondent to fulfill its obligation to offer space to children on the subsidy list.

39In March 2007 the Daycare developed a new policy of admitting youngest children first (despite their place on the waitlist) to adjust to the overcrowding anticipated in the fall of 2007. Only children with 2003 and 2004 birthdates were offered space except for one 2002 child who was admitted because he or she had a sibling in the program.

40There is no doubt that the applicant’s father erroneously recorded S.B.’s date of birth as July 2002 instead of July 2003 and therefore the Daycare believed in good faith that she was one of the older children on the wait list. By the time it learned of the error in June 2007 the children with 2003 and 2004 birth dates had already been offered the remaining places in the Daycare.

41While the applications of some of the other children born in 2002 did indicate that there was contact between the respondent and the family in 2007, they were not subsequently enrolled in the Daycare in 2007. The contact may have been initiated by the parent inquiring about their place and does not establish that these children were offered a place for 2007. Other children with 2002 birthdates who registered in the Daycare were offered the place after the applicant was removed from the waitlist.

42The applicant believed that the respondent had determined prior to June 20, 2007 Board meeting that the applicant would not be admitted to the Daycare in any event because of her brother. The documentary evidence indicates that there was some attempt to draft a letter to the mother prior to the Board meeting, with the intention that the letter would be put to the Board on June 20, 2007. However, it was not until the Board meeting of June 20, 2007 that the Board formally decided to accept the recommendation to remove the applicant’s name from the waiting list.

43I conclude that the applicant was not offered a space in the Daycare because the respondents erroneously believed that she was born in 2002 and they were giving preference to children born in 2003 and after. She was removed from the Daycare list in June 2007 because of the negative interactions between her parent and the Daycare staff. A City of Toronto consultant confirmed that this is not an unusual situation in daycares and not contrary to any City of Toronto policy.

44I conclude that the applicant has not established that the applicant was denied admission to the Daycare because of her association with a person with a disability.

45The Application is dismissed.