A.H. v. Le Club Child Care Program, 2011 HRTO 769

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.H. by his litigation guardian K.H.

Applicant

-and-

Le Club Child Care Program and Najwha Khbeis

Respondents

DECISION

Adjudicator: Mark Hart

Date: April 19, 2011

Citation: 2011 HRTO 769

Indexed as: A.H. v. Le Club Child Care Program

APPEARANCES

A.H. by his litigation guardian K.H., ) K.H., representative Applicant )

Le Club Child Care Program ) John Razulis, Counsel and Najwha Khbeis, ) Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 20, 2006.

2The applicant is a minor child who alleges through his litigation guardian that he experienced discrimination with respect to services because of disability contrary to ss. 1 and 9 of the Code, arising out of events at his before and after school program in the spring of 2006.

3The hearing in this matter was held on December 7, 2010 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’s mother and the personal respondent. Also on consent, cross-examination was deferred pending the completion of my questioning of all witnesses.

4At the relevant time, the applicant was a 10 year old boy who was enrolled in a before and after school program operated by the respondent non-profit organization. The personal respondent is the owner and operator of the respondent organization, which operates 10 such programs in the Toronto area.

5The applicant commenced attending the program in the fall 2003. He has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Impulsive Behaviour Disorder. There is no dispute that the respondents at least were aware that the applicant had been diagnosed with ADHD when he commenced attending the program, and that he was taking medication for this condition. While concerns and strategies were discussed between the program leaders and the applicant’s mother at various times during the ensuing years prior to May 2006, the evidence indicates that no special accommodation for the applicant was requested or required during that period.

6There is dispute between the parties as to the applicant’s behaviours during the program during the period from the fall 2003 to April 2006. The applicant’s mother testified that there were the normal sorts of issues that one has with a child of the applicant’s age, that the frequency of such issues was no more than once per month, and that any such issues were resolved to everyone’s satisfaction. The personal respondent, who was not working directly in the program attended by the applicant, testified that at regular meetings with her staff, she recalls issues being raised about the applicant’s behaviour in the program, including that he would run out of the room and have to be coaxed back in, that he could be verbally and physically aggressive with the other children, and that he was at times difficult to manage. However, prior to the incident on May 3, 2006, the respondents’ concerns about the applicant’s participation in the program had not reached a point where they felt that any specific action needed to be taken.

7I am aware that there is an issue between the parties regarding the fact that the program supervisor, who ran the program and would have witnessed the applicant’s behaviours, was not called as a witness before me. In my view, either party could have called this person as a witness, but chose not to do so. In any event, in my view, not much turns in this case on the specifics or details of the applicant’s behaviour prior to May 3, 2006. The issue before me is whether the respondents acted reasonably and in accordance with their obligations under the Code following the May 3, 2006 incident. As these actions were taken by the personal respondent, what matters to me is the reason why she did what she did, which would include what had been reported to her about the applicant’s behaviour, and whether her actions were in accordance with the Code.

8There also was an issue before me about a log maintained by program staff, which includes their observations about the applicant’s behaviour on specific dates. None of these log entries, even redacted to remove references to other children, had been disclosed to the applicant or filed with the Tribunal prior to the hearing. The respondents brought the original log with them to the hearing, but objected to the applicant’s litigation guardian being afforded an opportunity to review the log to verify the entries about her son. In my view, all log entries relating to the applicant ought properly have been disclosed to the litigation guardian in accordance with the respondents’ disclosure obligations, with the names of other children redacted. However, after having been given time to consider the matter, the applicant did not request disclosure of the log entries regarding her son and this material was not received into evidence before me.

9I will turn now to the incident on May 3, 2006. It was reported to the personal respondent that, on that day, the applicant refused to stay within the program activity room for a period of two hours, from 3:15 p.m. to 5:15 p.m., and had to be followed by one of the program staff members who was attempting to escort him back to the program room. The applicant’s evidence is that she was told by the program supervisor that the applicant had been agitated that day and did not want to come back into the program room and that the program supervisor was concerned that the applicant didn’t settle down, but the applicant states that she doesn’t remember that it was anything “over the top”.

10In my view, this was a serious issue for the program. By law, the program is required to maintain a 15:1 ratio between students and staff. The evidence before me is that there were approximately 46 to 47 students in the program at the time, and 4 staff. If one staff member needs to be absent from the program for an extended period of time to look after one of the children, this could put the program out of its legally required ratio, not to mention depriving the other children of the benefit of the full staff complement and potentially increasing risk for the other children due to diminished supervision.

11That, however, was not all that was reported to the personal respondent about the applicant’s behaviour on that day. It was reported by the program supervisor that during a drama activity, the applicant ran through the stage area screaming “stupid” and that the other children were upset. The evidence of the applicant’s mother is that she recalls being told something about that. It was reported that the applicant continually burped in other children’s faces. The applicant’s mother doesn’t think she was told about this. It was reported that the applicant made gun shot noises and motions with his mouth and hands pretending to “shoot” staff and students. The applicant’s mother testified that children with ADHD often will move around and make noises, but she acknowledged that ADHD does not cause children to make gun shot noises or pretend to shoot staff and students. Her evidence is that she was not told about this. It was reported that the applicant hit two children with a toy stick. The evidence of the applicant’s mother is that she was not told about this.

12Having heard and considered the evidence, I accept the evidence of the personal respondent regarding what was reported to her about the applicant’s behaviour on May 3, 2006 for several reasons. First, there is no evidence to contradict the personal respondent. While the evidence of the applicant’s mother is that she was not told about certain specific behaviours, this does not mean that they did not occur. Second, when giving her evidence in response to my questions, I referred the personal respondent to the events of May 3, 2006 as outlined in the Response filed with the Commission. However, rather than merely parroting what was contained in the Response, the personal respondent identified those specific behaviours that she could recall being reported to her as having occurred on May 3, 2006 and candidly acknowledged either when other behaviours listed could not be attributed to May 3, 2006 or when she simply couldn’t recall whether they were attributable to that day. I also found her evidence fair and candid with regard to the pre-May 3, 2006 behaviours attributed to the applicant in the Response, where she similarly provided detail and support where she was able to but acknowledged that she could not recall or was not aware when she could not provide any detail or support.

13Accordingly, I find that it was reported to the personal respondent that on May 3, 2006, the applicant: was absent from the program room for an extended period of time, had to be followed by a program staff member, and resisted coming back to the program; ran through the stage area screaming “stupid” during a drama activity, making the other children upset; continually burped in other children’s faces; made gun shot noises and motions with his mouth and hands pretending to “shoot” staff and students; and hit two children with a toy stick.

14The personal respondent was away from work the week that the May 3, 2006 incident occurred, and so was informed about the incident the following week after she returned. The personal respondent then contacted the applicant’s mother to arrange a meeting to discuss the matter. While the applicant’s mother alleges that the personal respondent displayed a negative attitude towards the applicant during this phone call, her evidence on this point was quite vague beyond the fact that the personal respondent was unwilling on the call to provide much detail about what she wanted to discuss at the meeting. I do not find that the evidence of the applicant’s mother is sufficient to support the applicant’s allegation that a negative attitude was displayed.

15The meeting took place on May 16, 2006 and was attended by the applicant’s mother, the personal respondent and the program supervisor. There is much dispute about the details of what occurred during this meeting, which in my view are not necessary to resolve in order to determine the issue in this case. There is no dispute that the personal respondent commenced the meeting by expressing concern over the applicant’s behaviour in the program, and presented some options for the following year. One option was for the applicant to take the money that she was spending on the before and after school program (a total of $850 per month for her three sons who attended the program) and hire someone who could look after the boys at their home. Another option was for the applicant’s parents to hire and pay for a Child Care Worker to work with him in the program. Neither of these two options was acceptable to the applicant’s mother.

16The parties dispute whether the idea of applying for assistance through Child Care Enhancement Funding was raised at this meeting. The personal respondent’s evidence is that prior to the meeting, she had spoken with her liaison at York Region and had been informed about this fund, which could provide funding for the hiring of a Child Care Worker for the program. The evidence of the applicant’s mother is that this was raised after the meeting, and only after she herself had contacted the York Region liaison.

17In my view, it doesn’t matter whether this option was raised at the meeting or after the meeting. The fact is that it was raised at the latest by the time of the personal respondent’s letter dated May 25, 2006, at a time when there was no immediate consequence for the applicant until the following September. The applicant has raised the fact that there was a six month waiting period for this funding, and questions why it was not raised at a much earlier time. The respondents’ evidence is that it was not raised at an earlier time because they had been able to cope with the applicant up until the events of May 3, 2006 and no special accommodation had been requested or required for him up to that point, but that the events of May 3, 2006 created a tipping point where they realized that they needed greater resources in order to be able to continue to manage with the applicant in the program. Given the nature of the applicant’s behaviour on May 3, 2006 as reported to the personal respondent, it is my view that this assessment was entirely reasonable.

18By letter sent on May 25, 2006, the personal respondent wrote to the applicant’s mother to address what was described as the applicant’s “challenging behaviour” in the program. The letter states that the personal respondent is aware of the applicant’s medical diagnosis, and agrees that no child should be excluded from the program without exhausting other resources. Reference is made to the meeting on May 16, 2006 and that the options presented at that time were not acceptable to the applicant’s mother. The personal respondent then refers to the option of obtaining enhancement funding as her “last resort” in dealing with this matter. Given the six month waiting period to receive such funding, reference also is made to the possibility that the Department of Mental Health may have resources or funding to assist the family in the interim. The letter concludes by the personal respondent stating that she is interested in the intentions of the applicant’s mother, as it would assist in guiding her as to how she should proceed.

19In response, a letter was sent from the applicant’s father, who is a lawyer, dated May 29, 2006. This letter, to say the least, is intemperate and ill-advised. It refers to the personal respondent having made a decision to “get rid of” the applicant and to kick him out of the program. Based on the evidence before me, no such decision was made or communicated by the respondents. Rather, in light of the serious behaviours exhibited by the applicant on May 3, 2006, the respondents were exploring options for how they might be able to cope with the applicant’s needs if he returned to the program the following year. The applicant’s father refers to the personal respondent’s letter sent on May 25, 2006 as an attempt to “cover your ass”. He refers to the personal respondent as unprofessional and incompetent. He demands that she provide him in writing with all records regarding the applicant’s behaviour that led to the May 16, 2006 meeting.

20This letter does not, however, provide any response as to whether the applicant’s parents wished to pursue enhancement funding, to explore more details about potential assistance from the Department of Mental Health, or to discuss further options or possibilities aimed at keeping the applicant in the program with appropriate care for his needs. Rather, in my view, this letter adopts a “scorched earth” policy towards the respondents, which does not appear to lend any credence to the possibility of reasoned and rational dialogue.

21Further, the evidence before me indicates that shortly after the May 29, 2006 letter from the applicant’s father was sent, the applicant’s mother requested a refund of the money that she had placed on deposit for her children to enrol in the program for the following year. At around that time, the applicant’s mother contacted the Commission about filing a human rights complaint. Her evidence was that by this time, she already had decided that the applicant would not return to the program the following year.

22The first question for me to consider is whether the applicant experienced discrimination because of disability as a consequence of the discussion on May 16, 2006 and the subsequent letter dated May 25, 2006. There is no dispute that the respondents’ position was that additional resources, and specifically the presence of a Child Care Worker for the after school portion of the program, was required in order for the applicant to remain in the program for the following year. The evidence before me indicates that this decision was made by the respondents as a result of the applicant’s behaviour on May 3, 2006 in the context of his history of behaviour in the program.

23The question is whether this amounts to discrimination because of the applicant’s disabilities. There certainly is no direct evidence of discrimination because of the applicant’s disabilities. The respondents knew that he had been diagnosed with ADHD, and nonetheless he had attended the program for three years. The evidence is that there were other children in the respondents’ programs with ADHD. I find that it was not the fact of the applicant’s ADHD or Impulsive Behaviour Disorder that caused the respondents to impose this requirement, but rather the applicant’s serious behaviours as exhibited on May 3, 2006 in the context of his prior history in the program.

24It may be that the applicant’s behaviour on May 3, 2006 and in the program generally was attributable to some degree to his disabilities. However, there is no medical evidence before me to establish this. I could assume that a child with the applicant’s behavioural disabilities might have difficulty remaining in the program area or being directed back to the program area, but that is different than the applicant leaving the program for an extended period of time, requiring a staff member to follow him around, and being unable or unwilling to return to the program area. I could assume that a child with the applicant’s behavioural disabilities may have difficulty controlling his impulses, may become agitated and may act out to some degree, but that is different than the applicant yelling “stupid” during a drama activity, making noises and gestures as if to shoot staff and students, burping in other children’s faces, and hitting other children with a toy stick. In my view, the evidence before me is insufficient to prove that the specific behaviours on May 3, 2006 which were the precipitating cause of the respondents’ actions were attributable to his behavioural disabilities. As a result, I find that the evidence is insufficient to prove that the applicant experienced discrimination because of disability as a result of the respondents’ actions.

25Even if I were satisfied that a sufficient link had been established on the evidence before me to prove that the respondents’ actions were attributable to the applicant’s behavioural disabilities, the next question under s. 17(1) of the Code is whether the applicant because of his disabilities was incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right at issue, which in this case was his right to attend the respondents’ before and after school program without discrimination because of his disabilities. As I have found above, the behaviours exhibited by the applicant on May 3, 2006 were serious, and I find that they substantially interfered with the proper operation of the respondents’ program, not only by requiring a program staff member to be absent from the program area for an extended period of time but also because of the interference with the ability of the other children to participate in and enjoy the program. Given this behaviour, I find that the applicant was incapable of fulfilling the essential requirements attending his participation in the program, which include remaining in the program area and not interfering with the ability of other children to participate in and enjoy the program.

26Pursuant to s. 17(2) of the Code, I am not to find that a person is incapable within the meaning of s. 17(1) unless I am satisfied that his needs cannot be accommodated without undue hardship on the respondents. There is no question that the respondents take the position that the applicant’s needs, assuming that they were attributable to his behavioural disabilities, could have been accommodated in the program with the availability of an additional resource for the after school portion of the program, and in particular the presence of a Child Care Worker. I find that this was not an unreasonable position for the respondents to take in light of the behaviours exhibited by the applicant, and their impact on the program. The issue was who should bear the cost of this additional resource.

27At the hearing, I was somewhat critical of the respondents for failing to be open to exploring other options to fund the additional resource required to deal with the applicant’s behaviour and needs. It was clear to me from the personal respondent’s evidence that she was not open even to the possibility of considering expenditure of the program’s own funds to meet with applicant’s needs. The evidence before me was that there were approximately 400 children enrolled in the 10 programs operated by the respondents, with a monthly fee of about $300 at the time. The evidence was that a Child Care Worker would be paid $12 per hour and would need to attend the afternoon program for 3 hours per day, which works out to about $720 per month. Spreading this cost across the monthly fees paid for all children enrolled in the program would increase the monthly cost by only $2. Similarly, the idea of the respondents sharing the cost of hiring a Child Care Worker with the applicant’s family, even in the interim pending enhancement funding, was not open for consideration by the respondents.

28I am well aware that the respondent organization is non-profit and that it deliberately tries to keep its costs and fees down in the interest of serving its community. I applaud the respondents for the work that they do in this area. However, when providing services to children, the respondents need to ensure that to the greatest extent possible, their services are available equally to all children, including those with behavioural disabilities. I appreciate that meeting the needs of a child with a behavioural disability may require taking on additional costs for the respondents, including, in this case, potentially the hiring of an additional staff member with special skills. But the respondents, given the nature of the work that they do, need to be prepared to potentially take on this cost as a necessary cost of engaging in the work that they do, up to the point where either the child’s needs simply cannot be accommodated in the program or accommodation cannot be provided without causing undue hardship.

29Meeting the needs of children in the program with disabilities may require the respondents at times to more aggressively pursue available funding to support the accommodation of their needs, and in the interim provide the necessary resources out of their own funds or in partnership with the family. In the over 15 years that the respondents have been operating, other situations where additional resources were required to meet a child’s needs either were covered through enhancement funding or in one instance were paid directly by the family. While the personal respondent feared that if the program allocated its own resources to meet the applicant’s needs then they would have to do this for every child, in fact her own evidence as to the program’s history demonstrates that a situation where additional resources are required to meet a child’s needs that is not covered by enhancement funding will arise only rarely.

30Nonetheless, the accommodation process is a multi-party process and requires cooperation from all sides. I have found that, in light of the behaviours exhibited by the applicant on May 3, 2006, it was not unreasonable for the respondents to require that additional resources be available as of the following September to meet the applicant’s needs. This was the starting point for the accommodation discussion. I understand that the applicant’s mother may have felt that she was being presented with limited options at the meeting on May 16, 2006: either keep her son at home or pay for a Child Care Worker to attend the program with him. But rather than viewing the personal respondent’s letter of May 25, 2006 as a “cover your ass” letter, in my view this letter was an opportunity for the applicant’s parents to continue the accommodation discussion, to explore the possibility of enhancement funding or interim funding from the Department of Mental Health, or to present other potential options for meeting the applicant’s needs and the legitimate concerns of the respondents.

31Instead, by sending the May 29, 2006 letter and by shortly afterwards seeking a refund of their deposit and initiating the filing of a human rights complaint, the applicant’s parents in my view prematurely ended the accommodation discussion and failed in their duty to cooperate in the accommodation process: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at para. 50.

32For all of these reasons, the Application is dismissed.