H.O. v. Toronto District School Board, 2013 HRTO 1296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

H.O.

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Naomi Overend

Date: July 24, 2013

Citation: 2013 HRTO 1296

Indexed as: H.O. v. Toronto District School Board

APPEARANCES

H.O., Applicant

Self-Represented

Toronto District School Board, Respondent

Gail Geronimo, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of services because of race, colour, place of origin and ethnic origin. The applicant self-identifies as a Black male.

2By Case Assessment Direction, dated February 15, 2013, the Tribunal directed that a summary hearing be held. The hearing took place by conference call on July 15, 2013.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The test of no reasonable prospect of success is determined by assuming the applicant’s version of the facts is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

5The parties are given an opportunity to make submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

6The Case Assessment Direction for this case notes that the summary hearing would address whether there is a reasonable prospect that the applicant could prove, on evidence reasonably available to him, a link between the event(s) and the prohibited grounds alleged in his Application.

7The applicant advised in advance of the summary hearing that he wished to adjourn the proceedings, a request he repeated at the outset of the summary hearing. The applicant advised that he felt overwhelmed by a health concern and by the on-going child protection proceedings in which he is involved. The respondent objected to the adjournment request.

8I explained to the applicant that this was not a hearing on the merits, and that he would not be required to present his evidence at the summary hearing, but that I wanted to know what evidence he anticipated he would be calling at the hearing to prove the link between the respondent’s actions and the grounds of discrimination set out in his Application. I also advised the applicant that I would hear his submissions and that if it became apparent that he could not proceed I would consider whether to adjourn at that point.

9The applicant largely relied on his Reply submissions. Although he insisted on reading large segments of his Reply, he did augment his submissions with additional comments and he also answered my questions. At no point during this phase of his oral presentation did the applicant suggest he could not proceed or answer my questions. Accordingly, the summary hearing proceeded, with the respondent making brief submissions in response and the applicant, in turn, responding to those submissions.

factual background

10The applicant is the father of three girls. The respondent alleges, and the applicant does not dispute, that his middle child disclosed to her teacher that she was unable to complete her homework because her mother had been drinking to excess the night before, that her parents had been fighting and that she had not been able to sleep.

11The applicant’s daughter also disclosed that, on one occasion, she and her older sister had had to move the television set because they were afraid that it would fall on their mother, who was passed out. She said that she had used a chair to get to alcohol on a high shelf, in the hopes that if she could reach it, she could get her mother to stop drinking. The respondent states that the girl was sobbing when she was telling her teacher about this.

12The respondent asserts, and the applicant does not dispute, that the teacher spoke to her principal about whether this information should be disclosed to the Children’s Aid Society (“CAS”). The principal suggested that the teacher phone the CAS to get its advice on whether to report the disclosure.

13The teacher phoned the CAS and spoke with an intake worker about the situation. During this initial inquiry she did not disclose the child’s name. After she finished, she was told that she should make a formal report. The CAS intake worker took further information from the teacher at this point.

14As a result of this report, the CAS became involved and the children appear to have been removed from the care of the applicant and their mother. The applicant and the children’s mother no longer live together.

decision and analysis

No Reasonable Prospect of Success

15The applicant alleges that the decision to report the information disclosed by his daughter was based on the fact that he is Black and his wife Caucasian. He further alleges that the teacher and others at the school knew him to be a responsible and caring father, and that if he had not been Black, the teacher would have called him rather than reporting “him” to the CAS. By making a report, the applicant alleges the respondent “eliminated” him “from the solution.”

16The applicant’s Reply makes it clear that he feels that, because he had not inflicted harm on his daughter, nor had he been neglectful in his care of her, his daughter was not at risk of harm from him. It was, therefore, improper for the respondent to associate him with the problem concerning the mother of his children.

17The respondent submits that s. 72(1) of the Children and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), puts it under a positive obligation to report certain conduct. The relevant portion of that section states:

Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to the society:

1. The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

6. The child has suffered emotional harm, demonstrated by serious,

i. anxiety,

ii. depression,

iii. withdrawal,

iv. self-destructive or aggressive behaviour, or

v. delayed development,

and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

8. There is a risk that the child is likely to suffer emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.

18Section 72(4) of the CFSA makes it an offence for a person who performs professional or other official duties with respect to children to fail to make a report if he or she has reasonable grounds to suspect a child is in need of protection. Section 72(5) of the CFSA makes it clear that the term “person who performs professional or other official duties” includes teachers.

19The respondent Board also has guidelines for its staff and volunteers for dealing with incidents of suspected abuse or neglect of students. Those guidelines make it clear that a Board employee or volunteer (a) must report suspected abuse/neglect when the individual has reasonable grounds for those suspicions; and (b) “should not conduct an investigation regarding the suspicion or disclosure and should only question the student to clarify the nature of the complaint.”

20Where Board employees/volunteers are unclear about whether they have reasonable grounds, the guidelines advise them to consult with a Board social worker or an intake worker at the CAS.

21The applicant’s suggestion that the teacher and/or school ought to have spoken with him runs contrary to the guidelines and the CFSA. The teacher, having heard the disclosure from the applicant’s daughter concerning her mother and home situation, was directed by the guidelines to speak to an intake worker at the CAS to clarify whether she had reasonable grounds to report.

22Having been advised that there were reasonable grounds, the teacher was obliged to report to the CAS, not consult with the applicant about what his position on his daughter’s disclosure might be.

23The teacher’s actions in consulting, not conducting an investigation and ultimately reporting are all consistent with the guidelines. The act of reporting was mandated by the CFSA.

24Once the CAS was involved, the matter was out of the respondent’s hands. Certainly the CAS was free, if appropriate, to speak with the applicant. I would note, parenthetically, that the applicant has filed a separate Application against the CAS.

25In his Reply, the applicant further alleges that the respondent not only reported him, but that it “embellished its story to the CAST with the knowledge that it would cause a breakdown of our strong family unit.” He asserts that the consequences of “that single action” were known or “ought to have been known” to the respondent. However, he can point to no evidence that he might call that supports his assertion that the respondent “embellished” the disclosure nor has he provided any particulars of what these embellishments might be. For reasons relating to confidentiality, the applicant has not seen the reports made to the CAS, nor can he point to any other evidence that might have grounded a suspicion that the reports were embellished.

26In addition, in his Reply, the applicant notes that employees of the respondent have reported his subsequent “private” interactions with his middle daughter to the CAS without authorization from himself or the child’s mother. He does not specify why this conduct is problematic other than an apparent belief that this happened because he is Black.

27With respect to the alleged racial motivation behind the initial report and any follow-up reporting, the applicant relies on the historical evidence of racism and the social constructs relating to race, in particular as they relate to persons who are Black. He states that given this history and the constructs, the respondent’s reporting was, on a “balance of probabilities,” made “in bad faith.”

28More specifically, the applicant alleges that there is a specific history of racism with respect to school boards:

I believe that the widespread perception of discrimination against racialized students related to the Safe Schools Act, persists in the Board’s relationship with its racialized communities, including the Black community.

29After making this statement, the applicant then cites statistics concerning the number of complaints filed with the Ontario Human Rights Commission against 39 Boards of Education in Ontario during 2004-2008, stating that 32% of them allege discrimination on the ground of race, colour, ethnic origin, place of origin and ancestry. He also includes a statistic relating to applications filed in July 2008, of which 16% of the applications relating to the area of services listed race, colour, ethnic origin, place of origin or ancestry.

30Whether or not the applicant’s numbers are accurate, I would point out that these statistics relate to a large number of school boards, of which the respondent is but one. Moreover, the substance of these allegations is not clear, nor is it clear which racialized groups are said to have been impacted.

31The existence of racism, in particular anti-Black racism, has been recognized by both this Tribunal and the Courts. However, an applicant cannot rely on the existence of such racism, in the absence of any other evidence, to establish that his race was a “factor” in the respondent’s conduct.

32As noted by the Tribunal in Pitter v. Toronto Transit Commission, 2012 HRTO 1412 at para. 19-20:

The Tribunal has long accepted that is often difficult to establish direct evidence given the subtle and nuanced ways in which racial discrimination manifests in our culture. The Tribunal is often called upon to draw reasonable inferences from circumstantial evidence which establishes that race is more likely than not one of the factors associated with the conduct in question. In Phipps vs. Toronto Police Services Board, 2009 HRTO 1604 (“Phipps”), for example, the Tribunal drew the inference of racial discrimination from evidence that Mr. Phipps, a black man dressed in his postal uniform delivering mail door to door, nevertheless aroused the suspicions of a police officer who thought it possible that Mr. Phipps might be wearing the postal uniform as a ruse. Even after speaking with Mr. Phipps himself, and also with a neighbour as well as conducting a criminal records check, none of which raised any concerns, the officer continued his investigation of Mr. Phipps by inquiring about him with another letter carrier.

The facts in the Phipps case are not the only kinds of facts which give rise to an inference of discrimination. However, the Phipps case demonstrates the necessity to look beyond the mere speculation of the applicant to the surrounding circumstances of the respondent’s actions. In this case, the applicant is unable to point to evidence which would be reasonably available to him which would enable the Tribunal to draw the inference that the applicant was treated by the respondent in an adverse manner because of his race, colour, ancestry or place of origin. [Emphasis added.]

33On the face of the known facts in this case, the applicant has no reasonable prospect of success of establishing that he experienced “unequal treatment” with respect to services. His daughter made a disclosure, which the respondent reported to the appropriate authority, as it was legislatively required to do. The applicant can point to no evidence on which he might rely to support his assertion that if he had not been Black, he would have been contacted and a report would not have been made.

34His allegation that the respondent’s conduct was racially motivated is nothing more than a bald assertion and on that basis I would dismiss his Application as having no reasonable prospect of success.

Statutory Bar against Filing this Application

35The respondent submits in it Response that this Application is barred by virtue of s. 72(7) of the CFSA, which states:

This section applies although the information may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion.

36This statutory bar was found to apply to applications to this Tribunal in an earlier decision. In T.A. v. The Children’s Aid Society of Toronto, 2011 HRTO 189, the Associate Chair dismissed an Application against a doctor who had reported the medical status of her patient to the CAS on the basis that there was no reasonable possibility that the doctor “could be found to have acted maliciously or without reasonable grounds.”

37In his Reply and oral submissions for the summary hearing, the applicant asserts that the respondent made its report in bad faith and, therefore, his Application is not barred. However, in light of my finding that the applicant has no reasonable prospect of success of establishing the racial allegations underlying his assertion of bad faith, there is no basis on which the applicant can demonstrate that the respondent acted “maliciously or without reasonable grounds for suspicion.” Accordingly, I find that the Application is barred by s. 72(7) of the CFSA and must be dismissed on that basis.

order

38This Application is dismissed.