M.L. v. Kenora-Rainy River Districts Child and Family Services, 2012 HRTO 1535

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.L. by her next friend B.C.

Applicant

-and-

Kenora-Rainy River Districts Child and Family Services, Paul Forsyth and Rebecca Swartz

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: August 7, 2012 Citation: 2012 HRTO 1535 Indexed as: M.L. v. Kenora-Rainy River Districts Child and Family Services

WRITTEN SUBMISSIONS

Kenora-Rainy River Districts Child and Family Services, Paul Forsyth and Rebecca Swartz, Respondents

Carmen Marginet, Representative

1The applicant’s mother filed this Application on behalf of her infant daughter on January 9, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services, goods and facilities because of creed and family status and reprisal.

2The Application alleges that the respondents mistreated the infant and failed to respect the applicant’s cultural beliefs by cutting the infant’s hair. The applicant’s mother further alleges that the respondents think that she is unable to care for the infant because she is a single mother.

3The respondents filed a Response on April 27, 2012 denying the allegations and requested that the Tribunal defer the Application pending the conclusion of proceedings before the Ontario Court of Justice under the Child and Family Services Act. The respondents indicated that the Application raises issues, namely the welfare of the infant and the matter of the hair sampling, which would likely form part of the Court’s decision.

4By way of Case Assessment Direction dated June 11, 2012, the Tribunal established deadlines for the parties to file information and submissions. The Tribunal directed the respondents to file with the Tribunal, copied to the applicant’s mother, a copy of any rulings or decision with respect the court proceedings involving the applicant child. The applicant’s mother was directed to write to the Tribunal, copy the respondents, advising of her understanding of the status of the court proceedings, and file any reply submissions with respect to the issue of deferral.

5On June 22, 2012, the respondents provided a copy of the Reasons for Judgment of Justice Hoshizaki of the Ontario Court of Justice. By way of judgment dated June 5, 2012, Justice Hoshizaki granted the respondent agency with Crown Wardship of the applicant child and ordered no access to the mother. Justice Hoshizaki stated that she was dismayed by “[t]he depth of deception in this mother” and found that, in relation to the issue of hair sampling, the respondent agency was left with no options because the mother refused to provide a sample of her own hair.

6The applicant’s mother has not corresponded with the Tribunal and the timelines set in the Case Assessment Direction have elapsed.

7Given that the court proceedings have concluded, there no longer appears to be any basis for deferral. However, the decision of Justice Hoshizaki triggers the need to consider several other preliminary issues in relation to this Application.

8First, it is unclear whether or not the applicant’s mother has status to proceed with this Application given the order of Crown Wardship. As noted in the Tribunal’s Practice Directions on Applications on Behalf of Another Person, the Tribunal permits the parent or legal guardian of a minor to participate as a Next Friend. A Next Friend can also include a person with legal custody, a court appointed guardian of the minor's property under the provisions of the Children's Law Reform Act, or the Children's Lawyer. In this case, the infant is now a Crown ward eligible for adoption in the care of the respondent agency and the mother no longer has any access to the infant.

9In addition to the question of the mother’s standing, there is also an issue of whether the allegations in the Application have been determined through the Crown Wardship proceeding. If so, there are the questions whether some or all of the substance of the Application has been appropriately dealt with as within the meaning of section 45.1 of the Code and/or whether allowing the Application to proceed would constitute res judicata or abuse of process.

10Section 45.1 of the Code provides as follows:

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

11In these circumstances, the Tribunal directs that a preliminary hearing be scheduled with respect to the issues of whether the mother has status to proceed with the Application, section 45.1 of the Code and res judicata/abuse of process.

12The Tribunal directs as follows:

i. Within 14 days from receipt of the date of this Interim Decision, the applicant’s mother is directed to write to the Tribunal, copied to the respondents, and indicate whether or not she intends to proceed with the Application and the basis upon which she claims to have status to proceed;

ii. If the applicant’s mother fails to confirm an intention to proceed and the basis upon which she claims to have status to proceed, the Tribunal will deem the Application to have been abandoned;

iii. If the mother indicates an intention to proceed with the Application, the Registrar will schedule a two hour conference call for the purpose of hearing submissions on the following issues:

• whether the applicant’s mother has status to proceed with this Application;
• whether the allegations in the Application have been determined through the Crown Wardship proceeding and, if so, whether allowing the Application to continue would constitute res judicata or abuse of process and/or whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code, on the basis that the substance of the Application already has been appropriately dealt with by Justice Hoshizaki’s decision.

iv. No later than 21 days prior to the conference call, the parties shall file with the Tribunal and deliver to each other written submissions, documents and case law addressing the above-noted issues.

13I am not seized of this matter.