Peter Armorer v. Ontario College of Social Workers and Social Service Workers, 2011 HRTO 742

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Armorer

Applicant

-and-

Ontario College of Social Workers and Social Service Workers

Respondent

DECISION

Adjudicator: Judith Keene

Date: April 18, 2011

Citation: 2011 HRTO 742

Indexed as: Armorer v. Ontario College of Social Workers and Social Service Workers

Appearances

Peter Armorer, Applicant ) Self-represented

Ontario College of Social Workers ) Jill Dougherty and and Social Service Workers, Respondent ) Mark Edelstein, Counsel

1This is a Decision in respect of an Application filed on July 27, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges that the respondent discriminated against the applicant with respect to services on the basis of sex and marital status contrary to s. 1 of the Code.

2The applicant complained to the respondent regarding the conduct of one of its members. The member, in the context of family law proceedings involving the applicant and his former spouse, conducted a custody and access assessment regarding the applicant’s daughter. The applicant complained that, among other things, the member was biased and acted in a discriminatory and unethical manner. The Application alleges that the decision dismissing the complaint against the member, and the decision-making process of the College’s Complaints Committee, was discriminatory.

3On November 23, 2010, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a Summary Hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The Application was delivered to the respondent with the CAD, which directed that the respondent need not file a substantive Response. The CAD provided that either party could file any cases or documents they intended to rely upon at the Summary Hearing no later than 14 days prior to the teleconference.

4The CAD pointed out that the Tribunal does not have the power to deal with general allegations of unfairness, but only to determine whether there has been discrimination by the respondent on a ground prohibited by the Code. The CAD also noted and cited Tribunal decisions has held that the decisions of decision-makers dealing with disputes between others are not subject to review under the Code because of the principle of judicial immunity or the definition of “services”.

5The CAD directed that the applicant be prepared to address the issue of whether the respondent’s decision is protected by judicial immunity and whether it is a “service” under the Code, and that he also be prepared to explain how there is a reasonable prospect that he could prove that the decision of the Complaints Committee constitutes discrimination on the grounds of sex and/or marital status, and to indicate the evidence he would use to establish that.

SUMMARY HEARING

6The Summary Hearing was held on February 4, 2011. In addition to material previously filed and his oral submissions, the applicant provided a document entitled “2011/02/04 Prepared Statement Response for Summary Hearing – HRTO Case File # 2010-06382-I” (referred to below as the applicant’s “Prepared Statement”), and the respondent provided a Brief of Authorities, all of which I have read and considered in coming to my decision in this matter.

7In his Prepared Statement, the applicant states that his Application is “also about the initial actions of [the respondent’s] member…that led to the complaint”. It is worth noting at the outset that the Application names only the Ontario College of Social Workers & Social Service Workers as the respondent, and focuses on the decision of the College’s Complaints Committee in respect of his complaint regarding the conduct of one of its members in a custody and access assessment. The conduct of the member in producing her assessment, which was apparently completed in late March 2008, is not the subject of this Application.

8At issue is the conduct of the College’s Complaints Committee, the screening body of the College that investigates written complaints of professional misconduct, incompetence or incapacity, in dealing with the applicant’s complaint, and its ultimate decision in respect of the complaint.

9The Complaints Committee conducts a review of written materials and decides whether to refer a complaint to the College’s Disciplinary or Fitness to Practice Committees. The Complaints Committee’s process does not involve a hearing.

10The applicant stated that the Complaints Committee “broke the law” by “condoning a violation”, by one of the College’s members, of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. He also stated that the Complaints Committee should have found the member negligent because of her decision and because she “broke the rules”. In answer to questions from me, he stated that he was not alleging that members of the Committee did anything outside their roles as adjudicators.

11The decision at issue was made by a panel of the Complaints Committee established under s. 14 of the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31. The Committee determined that none of the allegations made by the applicant should be referred to the respondent’s Discipline Committee or the Fitness to Practise Committee.

12While the Complaints Committee concluded that the applicant’s allegations did not merit a referral to the College's Discipline Committee, the Chair of the Committee included in her decision some comments directed toward the social worker member about avoiding complaints in the future. The decision noted that, when the social worker contacted the applicant to cancel a meeting of March 23, 2008, and the applicant protested that he had not yet submitted his additional documentation, “the Member might have asked him to specify what relevant information was contained in the package that might impact on her report”. The decision also “encourages the Member in future to mitigate against allegations of bias by ensuring each parent is given equal time prior to releasing her report and recommendations”. The decision notes that while the social worker’s failure to give each parent equal time “did not adversely impact the outcome of the Member's assessment and report”, it states that “College members must always be alert to the optics of their actions, and how clients may reasonably perceive the fairness of their process”.

13I reminded the applicant that the Tribunal’s jurisdiction only extends to issues of discrimination under the Code, and asked him to identify how the Complaints Committee discriminated against him. He responded that the fact that the Committee stated that assessors are allowed some discretion is in itself discriminatory, that the Committee is biased, and that this is proved by the fact that more mothers than fathers get custody of their children. He stated that he had no statistical evidence that would support this latter point.

14To sum up, the applicant’s position is that a breach of the Code could be found on the basis of allegations that the Complaints Committee “broke the law” by “condoning a violation” of the Children’s Law Reform Act, failed to find the social worker negligent despite his opinion that she “broke the rules” and stated that assessors are allowed some discretion. None of these allegations, even if proven, appear to me to give rise to a breach of the Code. The applicant alleged that the Committee was biased against him because he is a man, but could point to nothing in the decision or in any other action or omission by the Committee in respect of his complaint that would indicate bias. As in Dabic v. Windsor Police Service, 2010 HRTO 1994, this leaves the Tribunal with only a bald allegation of discrimination with nothing to suggest that the actions of the respondent were connected with grounds under the Code.

15Given my conclusion with respect to the absence of any connection to the Code I need not consider the jurisdictional issues argued by the respondents. In the circumstances of this case, I find that the Application has no reasonable prospect of success.

16The Application is dismissed.