D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 1332

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.L.T. by his next friend W.T. Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services and Children’s Aid Society of London and Middlesex Respondents

INTERIM DECISION

Adjudicator: David A. Wright Date: July 31, 2013 Citation: 2013 HRTO 1332 Indexed as: D.L.T. v. Ontario (Children and Youth Services)

APPEARANCES

D.L.T. by his next friend W.T., Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondents Mimi Singh, Counsel

Children’s Aid Society of London and Middlesex, Respondent Jill Scrutton-Fulford, Counsel

Ontario Human Rights Commission, Intervenor Cathy Pike, Counsel and Rana Arbabian, Student-at-Law

Introduction

1The applicant is a twelve-year-old child with significant disabilities. His grandmother and next friend, W.T., has legal custody of him. He is currently obtaining residential treatment. In July 2012, the Children’s Aid Society of London and Middlesex (“CAS”) brought a child protection application in the Superior Court of Justice seeking Crown wardship (“the CW application”). The CW application suggests that W.T. consented to Crown wardship, and while she agrees that she consented to CAS custody, she disputes that she agreed to Crown wardship.

2The Application to this Tribunal alleges that the CW application resulted from the policies of the Ministry of Child and Youth Services (the “Ministry”) and its involvement in this specific case. It alleges that Ontario discriminated against the applicant because of disability by not funding treatment for his psychological disabilities in the same way as it funds treatment for children’s physical disabilities. It also alleges that the funding regime and actions taken in this case discriminated against the applicant because of family status, by encouraging or forcing the rupture of the parent-child relationship in order to obtain needed treatment.

3The Application was filed shortly after the CW application was commenced in July 2012, and completed and delivered to the Ministry in August 2012. The Ministry named the CAS as an additional respondent. In January of 2013, the applicant filed a Request to Expedite, which was granted on February 13, 2013: 2013 HRTO 264. In early March, 2013, the applicant was approved for complex special needs funding by the Community Services Coordination Network (“CSCN”), a transfer payment agency funded by the Ministry, pending the withdrawal of the CW application. The CW application was dismissed as withdrawn on April 4, 2013. As a result of these events, the Tribunal revoked its order expediting the Application: 2013 HRTO 548.

4The issue in this Interim Decision is whether the Application is moot. The respondents argue that in light of the approval of funding and the termination of the child protection proceedings, there is no live controversy to be adjudicated. The applicant and the intervenor the Ontario Human Rights Commission (“Commission”) disagree, arguing that the Application is not moot, and that even if it is, the Tribunal should exercise its discretion to hear the matter.

5For the reasons that follow, I find that the Application is not moot. It is alleged that because of systemic discrimination in Ministry policies and discriminatory actions by the respondents in this case, the applicant was at risk for a period of months of having his grandmother’s parental relationship with him ruptured. It is alleged that he suffered damages as a result. The issues of whether the delay in obtaining funding for the applicant’s care and the commencement of the child protection application resulted from discrimination and caused the applicant damage are a live controversy between the parties about past events.

ALLEGATIONS

6There are significant disputes between the CAS and the Ministry about Ministry policy, the discussions between them and CSCN that led to the CW application, and why the CAS brought that application. There are also differences as to the facts between the applicant and the other parties, and some understandable gaps in her knowledge because she was not present at one of the key meetings and production has not yet taken place.

7The parties agree that the issue of mootness must be analyzed based on the allegations that have been made. The issue here is not whether the Application has no reasonable prospect of success; the question is whether the allegations are moot. Moreover, I reject the Ministry’s suggestion that the applicant is bringing forward bare allegations or suspicions. The child protection application completed by the CAS refers to a meeting held on June 7, 2012 between the CAS, CSCN, service providers, and a representative of the Ministry where the applicant’s grandmother was not present. It states that during the meeting “a plan was developed for the child to be placed back into Society care and become a Crown ward” and that “[u]ltimately the grandmother indicated her support of this plan”. The suggestion that the child protection application was brought in order to secure funding for him is supported by the Society’s Response to this Application. As stated at para. 6 of the Society’s Response:

The CAS’s knowledge of the Guidelines, and its belief that D.T. would not qualify for funding based on them, was a significant factor in the CAS’s decision to commence its CW application regarding D.T.

8While I understand that the Ministry vigourously disputes them, the following allegations by the applicant are key to the analysis of the mootness issue:

• The respondent’s funding regime treats physical and mental disabilities differently, resulting in inferior funding and services for those with mental disabilities.
• As a result, the applicant’s grandmother had difficulty obtaining funding for treatment he needed in 2012 and approached the Ombudsman for assistance.
• Given its knowledge of the funding regime, the CAS believed the applicant would not qualify for services unless it had custody of him.
• The CAS, Ministry and others had a meeting in June 2012 at which they decided that the best way for the applicant to obtain needed services was to become a Crown ward.
• As a result of this meeting, the applicant’s grandmother was encouraged to voluntarily give up custody of him in order to obtain services.
• For a period of nine months, an application to remove his grandmother as his custodial parent and place him in the custody of the CAS was outstanding in the Superior Court of Justice.
• The applicant had the same placement he would have had if the funding had simply been approved, without the CW application. However, during that period, in particular as a result of his anxiety disorder, the outstanding CW application and the possibility of his grandmother’s custody being removed had a negative effect on the applicant’s mental health. While he did not understand the complexity of the issues, he understood that something was occurring, and asked his grandmother if she was “fighting the judge”.

9The monetary remedies requested are damages for injury to dignity, feelings and self-respect for the applicant and his next friend and legal costs in the child protection proceeding. The applicant and the Commission also ask for systemic remedies in the form of changes to the funding regime. Without deciding the issue, I accept that there are legal obstacles to the claim for damages on behalf of the next friend and the claim for costs. However, there is a live dispute over whether the criteria for and process of seeking and obtaining funding and the commencement of the CW application were discriminatory and caused the applicant injury to dignity, feelings and self-respect or other damages, and whether damages and/or remedies for future compliance should be ordered as a result.

ANALYSIS

10A moot application is one in which there is no “live controversy” or “concrete dispute”: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 at paras. 15-25. This, of course, does not mean that the dispute must be ongoing in the sense that losses continue. Litigation about the legal consequences of and potential liability for events that happened in the past does not mean that a matter is moot.

11While the applicant now has the funding he seeks, he is entitled to argue that as a result of the funding regime and the actions taken by the respondents, he experienced discrimination and damages. It is a live controversy whether there was a discriminatory funding regime, and whether because of that or the respondents’ actions, an application was made asking that the applicant’s grandmother lose custody of him and he be made a Crown ward. The issue of whether that caused the applicant injury to dignity, feelings and self-respect and whether policy changes should be awarded as a result of any discrimination are also live issues.

12The respondent relies upon Pennington v. Peterborough (City), 2012 HRTO 1851, reconsideration denied, 2013 HRTO 127, a case found to be moot where the applicant had received the dentures that he alleged had originally been denied to him for discriminatory reasons. That case is unlike the present one in at least two respects. First, although there was delay in receiving the benefits, the effects of the delay were not the alleged result of the respondents’ action and were too remote and speculative (see paras. 28-35 of the Reconsideration Decision). The minimal effects found in Pennington of a three-month delay in getting dentures cannot be compared with the serious effects of a threat to the legal relationship between a parent and a child, a matter that affects security of the person under s. 7 of the Canadian Charter of Rights and Freedoms: New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at paras. 61-67. Second, one of the important factors in Pennington was that the respondent had changed the policy alleged to be discriminatory and there was no basis for any claim for damages for injury to dignity, feelings and self-respect (paras. 32-33). In this case, the policies have not changed, a systemic remedy would likely be appropriate if discrimination was found, and it is not the case that the claim for damages, in particular damages for injury to dignity, feelings and self-respect, has no merit.

13The issue of whether the funding regime and the respondents’ actions constitute discrimination against the applicant, causing him damages during the period prior to the granting of funding in April 2013 is a live controversy, as is whether there should be orders that the policies be changed as a result.

14Accordingly, the respondent’s Request that the Application be dismissed as moot is denied.

ORDER

15While I understand that the CAS wishes to argue that it should be removed as a respondent, in my view no further Requests for Order should be heard in this Application prior to production. Accordingly, I make the following directions as part of the Tribunal’s approach to active case management:

(1) The respondent Ministry shall advise the other parties within 14 days of the date of this Interim Decision whether it agrees to attend mediation. If it agrees to mediation, mediation will be scheduled.

(2) Within 28 days of the date of mediation or, if there is no mediation, within 42 days of the date of this Interim Decision, the parties shall produce to each other all documents in their possession that are arguably relevant to the issues in this Application.

(3) A case management conference will be scheduled during the two-week period following the disclosure deadline.

16I am not seized of this Application.