P.S. v. Children’s Hospital of Eastern Ontario, 2012 HRTO 2404

Human Rights Tribunal of Ontario

Between:

P.S. by his next friend R.S. Applicant

-and-

Children’s Hospital of Eastern Ontario and Susan Richardson Respondents

Decision

Adjudicator: David A. Wright Date: December 28, 2012 Citation: 2012 HRTO 2404 Indexed as: P.S. v. Children’s Hospital of Eastern Ontario

Appearances

P.S. by his next friend R.S., Applicant R.S., Next Friend

Children’s Hospital of Eastern Ontario and Susan Richardson, Respondents Bryan Carroll, Counsel

Introduction

1The applicant is a child with autism. The organization respondent, Children’s Hospital of Eastern Ontario (“CHEO”), is one of nine regional service providers in Ontario for Autism Intervention Programs created and funded by the Ontario Ministry of Children and Youth Services. The Autism Intervention Program – Eastern Ontario it administers (the “program”) provides Intensive Behavioural Intervention (“IBI”) services to children at the severe end of the autism continuum. The individual respondent, Susan Richardson, is Vice-President, Professional Services at CHEO. This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondents discriminated against the applicant with respect to services because of disability, association with a person identified by disability, and reprisal. The issue to be dealt with in this decision is whether the Application should be dismissed as untimely.

2Following a case conference, the Tribunal directed that it would deal first with two preliminary issues: (i) whether the Application should be dismissed, in whole or in part, as untimely under s. 34 of the Code; and (ii) whether it should be dismissed on the basis that it has no reasonable prospect of success. With regard to the second issue, the Tribunal brought to the parties’ attention its decisions on challenges to termination of funding under autism intervention programs in Bunda v. Hamilton Health Sciences, 2010 HRTO 698, and M.Y. v. Central West Autism Intervention Service Erinoakkids, 2012 HRTO 1584. A hearing was held in Ottawa on September 18, 2012, during which the parties made submissions on these two issues.

Statutory Framework

3Section 34 of the Code provides that an Application must be filed within one year of the incident or last in series of incidents of alleged discrimination. An untimely Application may be filed if the tribunal is satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay. Subsections 34(1) and (2) read as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Chronology

4The Application was filed on December 24, 2010. The applicant’s next friend, his father, argues that there is an “ongoing continuum” of discrimination that continues to the present and the Application is not out of time. In the alternative, he argues that there is good faith within the meaning of s. 34(2). I will begin with a chronology of the significant events in the relationship between the applicant’s parents and the program.

5The applicant received program funding from 2003 until January 2007 through the “Direct Funding Option”, under which the program funds approved private IBI services organized by parents. There was extensive conflict between the applicant’s parents and the program administrators, both during the period the applicant was receiving funding and following the 2006 decision to discharge the applicant from the program, terminating his funding.

6Funding for the program and the number of placements are limited. Psychologists working for the program must decide which children are not benefitting and should be discharged from the program. This is considered a clinical decision. As a result of complaints made by the applicant’s parents to the College of Psychologists about some program administrators, the review of the applicant’s IBI program was conducted by the clinical director of an autism intervention program from another provincial region. Based on her assessment, the decision was made in December 2006 that the applicant should be discharged. The decision took effect in January 2007, although the applicant was provided with transitional funding.

7The applicant’s parents disagreed with this decision and throughout 2007 there was extensive correspondence between the parties. In August of 2008, the applicant’s parents provided a psychological reassessment report from a different psychologist that recommended continuation of IBI. On this basis, they continued to seek his readmission to the program.

8Eventually, CHEO engaged an American psychologist to conduct a further assessment of the applicant to which his parents very reluctantly agreed. The applicant’s parents believe that the American psychologist’s work is directed toward “debunking” facilitated communication, which the applicant uses to communicate, and discounting intelligence in non-verbal persons with autism spectrum disorder. They believe that hiring this psychologist was intended to confirm the conclusion that the applicant would not be readmitted.

9The report of the American psychologist was provided to the applicant’s parents in early November 2009 and did not support the applicant’s readmission to the program. On November 11, 2009, there was a meeting with the applicant’s parents to discuss the report.

10On December 11, 2009, Ms. Richardson wrote to the applicant’s parents. The letter confirmed that CHEO would not be accepting the re-referral of the applicant to the program, since in the respondents’ view the findings of the American psychologist did not indicate a change in the applicant’s learning trajectory from the assessment conducted at time of discharge. The letter concluded as follows:

As discussed with you in our meeting of November 11, 2009 we will with your consent also further review if there are alternative funding sources from other organizations that would help with your care of [P].

11On January 3, 2010, the applicant’s parents wrote to Ms. Richardson again taking issue with the American psychologist’s report and addressing the issue of securing alternative sources of funding as follows:

You also state that you wish to help by seeking alternative funding sources that would assist in our care of [P]. As we said at our meeting on 11 November, this is something we very much welcome and really look forward to hearing from you very soon about concrete measures. We do appreciate that you are extremely busy and have many responsibilities and that [P] is only one of your many concerns. That said, we are in desperate need and require help sooner rather than later. We also find it quite ironic that Ms. Eva Szczerba found two weeks’ notice of termination over the Christmas holidays quite appropriate but that identifying alternative sources of funding does not seem to have the same priority. That said, we are convinced that funding is available and have every confidence that your efforts to help us access it will have positive results. We have a home program in place for [P] that meets the criteria established by the Autism Intervention Program. However, it needs to be paid for.

We look forward to hearing from you in identifying and accessing sources of funding to assist in caring for [P]. At the very least, we ask for an interim report from you over the next two weeks as we need this information in considering next steps.

12On February 19, 2010, Dr. Lise Besnaire, director of the Autism Program at CHEO, wrote to the applicant’s parents in relevant part as follows:

On the funding issue, MCYS has informed that you are at the maximum allowed. Unfortunately, we have exhausted the possibilities that we are aware of, for additional funding at this time. I regret that the news is not more positive on this issue.

13In January of 2010, the applicant’s parents wrote to the Ontario College of Psychologists alleging that the assessment of the applicant conducted by the American psychologist was contrary to Ontario law as he was not licensed in Ontario. The applicants are not aware what actions, if any, the College eventually took.

Applicant's Submissions

14The applicant’s theory of the case is that CHEO and Ms. Richardson treated the applicant differently and in a discriminatory manner because he is at the severe end of the autism spectrum. His parents believe that Ms. Richardson made assumptions about the applicant based on the stereotype that a non-verbal person with autism lacks intelligence. They state that if he were verbal and higher functioning he would have been treated differently. They emphasize that they are not arguing that the decisions to terminate funding or not to re-admit the applicant were discriminatory. Rather, they argue that Ms. Richardson’s approach throughout, including the selection of the American psychologist, suggested prejudgment and a stereotyping of the applicant because of the fact that he was at the severe end of the autism spectrum.

15The only events that fall within the one-year period before the filing of the applicant are those related to the respondents’ offer to review whether there were alternative sources of funding the parents might use. The applicant argues that there was no response provided directly by Ms. Richardson and no explanation of what efforts she or others made to determine what sources of funding might be available. The approach to this, they argue, is a continuation of the discrimination.

Analysis

16The only alleged incidents of discrimination that are timely are those related to the review of possible further sources of funding. However, I find that the suggestion that the respondents’ conduct in relation to the review of further sources of funding was discriminatory because of disability is a bald allegation that has no reasonable prospect of success. First, the suggestion that Ms. Richardson did not respond or investigate such sources is incorrect. It is evident that Ms. Bisnaire’s response of February 19, 2010 was on behalf of Ms. Richardson and CHEO. CHEO made efforts, it appears, but did not find any further sources of funding. Moreover, even assuming that Ms. Richardson did not fulfil a commitment she made, there is no basis to suggest that this constitutes differential treatment or discrimination on the basis of disability as compared with the treatment of others without the disability. On the contrary, it is self-evident that the involvement of the hospital vice-president in this matter and the offer to assist in funding was exceptional. There is no reasonable prospect that CHEO’s follow-up on its offer to review sources of funding could be found to be discrimination because of disability.

17These alleged incidents of discrimination that have no reasonable prospect of success cannot, in my view, form part of a “series of incidents” under s. 34(1) that would make the Application timely. To do so would, in essence, make the limitation period in s. 34(1) essentially meaningless. In my view, the remainder of the Application is out of time as it does not relate to a series of incidents under s. 34(1) that ends within the one-year period before the filing of the Application.

18The applicant’s parents argue that even if all or part of the Application is out of time, good faith is established pursuant to s. 34(2). They argue that they expected that Ms. Richardson would provide an update or explain what she was doing in locating other sources of funding. They explain that the delay in filing the Application was in good faith because they were giving her a chance to respond but she chose not to respond. They also ask the Tribunal to take into account the prejudice that will result to the applicant if the Application is dismissed.

19I find that the applicants have not established good faith. Pursuing other avenues has generally not been accepted as a valid or good faith reason for delay in pursuing a human rights application: see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Rots v. Ontario (Community Safety and Correctional Services), 2011 HRTO 422. Moreover, the applicant’s parents knew in February 2010 that CHEO had exhausted the possibilities of funding. There is no good faith established for a delay in filing the Application until December 26, 2010.

20The only alleged incidents of discrimination that are timely have no reasonable prospect of success. The other allegations are untimely and are not part of a series of incidents, and it has not been established that the delay was incurred in good faith. For these reasons the Application must be dismissed.

Order

21The Application is dismissed.