HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.B. by his Next Friend D.H.
Applicant
-and-
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Children and Youth Services, and Children’s Hospital of Eastern Ontario
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: M.B. by his Next Friend D.H. v. Ontario (Children and Youth Services)
WRITTEN SUBMISSIONS
M.B. by his Next Friend D.H., Applicant
Christine Johnson, Counsel
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Children and Youth Services, Respondent
Caitlan McCain, Counsel
Children’s Hospital of Eastern Ontario, Proposed Respondent
Bryan A. Carroll, Counsel
1This Interim Decision addresses the applicant’s request to add the Children’s Hospital of Eastern Ontario (“CHEO”) as a respondent to the Application.
Factual Background
2The applicant M.B., by his next friend D.H., filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). M.B. is a child who was diagnosed with Autism Spectrum Disorder and Global Developmental Disability (“GDD”). As a result of his diagnosis, he was eligible for intensive behavioural intervention therapy with the Autism of Eastern Ontario program (“Program”). The Application alleges that M.B. was discharged from the Program as a result of his secondary diagnosis of GDD which affected his ability to meet certain learning goals. The Application alleges that the manner in which M.B.’s eligibility was assessed had a disparate impact on M.B. because of his secondary diagnosis.
3The parties participated in a mediation on May 17, 2013 but were not successful in resolving the matter.
4By Notice of Hearing dated June 17, 2013, the Tribunal advised the parties that the Application was scheduled to be heard on February 12-14, 2014.
5On June 25, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to add CHEO as a respondent to the Application. The applicant initially named the Ministry of Children and Youth Services (“Ministry”) as a respondent since it was his understanding that the Ministry held full responsibility for services provided through the Program.
6The applicant requested that CHEO be added as a respondent after receiving a letter from the Ministry confirming the following:
The Ministry of Children and Youth Services contracts with service providers (Regional Programs) in the nine regions of the province to provide intensive behavioural intervention. It is the responsibility of the Regional Program to determine eligibility, intensity and setting of a child’s intensive behavioural intervention. This applies to both children whose families choose the direct funding option and private service delivery, or regional program service delivery. Once eligibility has been determined and the service delivery option selected:
The program provider (regional or private) completes baseline skill assessments for the child; and
The program provider (regional or private) evaluates progress of the child at regular intervals, minimally every six months.
If the Regional Program determines that a child is ineligible for intensive behavioural intervention, and that a different approach to intervention would better meet the needs of the child, referrals to other community supports and/or programs will be made.
7CHEO is the regional service provider for the Program in Eastern Ontario from whom the applicant was receiving services.
8The applicant submits that the Ministry bears ultimate responsibility for the services provided under the Program. However, in light of the information provided by the Ministry in its letter, the applicant submits that CHEO may share liability for any Code violations in this case.
9The respondent takes no position with respect to the RFOP.
10The proposed respondent, CHEO, opposes being added as a respondent. In its Response to the RFOP, CHEO reviews the history of the applicant’s treatment and the discontinuation of this treatment. On the basis of this review, CHEO submits that there is no basis for a finding that it violated the Code. It argues that the applicant was treated in the same manner as all other children entering the Program. It also argues that the decision to terminate services to the applicant was based upon a clinical decision founded on appropriate clinical testing and clinical judgment.
11In addition, CHEO submits that the applicant’s request should be dismissed because it was filed more than two years after the services provided to the applicant were discontinued. CHEO submits that the Tribunal has no jurisdiction to add CHEO as a respondent because the applicant did not file its RFOP until more than a year after the incident to which the Application relates. Finally, CHEO submits that there is no reason to add it as a respondent to enable information to be available to the Tribunal. It argues that all documentation relating to testing and service plans already has been provided to the applicant.
Findings
12The applicant’s request to add CHEO as a respondent to this Application is granted.
13Although there is a one year time limit for the filing of Applications under the Code, this time limit does not apply to requests to add respondents. It is not uncommon for an applicant to only become aware that another person or entity might share responsibility for an alleged Code violation sometime after the filing of their Application and in many cases more than one year after the last incident of discrimination alleged in the Application.
14The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12. In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
15After considering the above factors, I find that it is appropriate to add CHEO as a respondent to the Application. In light of the information contained in the Ministry’s letter to the applicant, there is a potential that CHEO might be responsible, or share responsibility, for any alleged Code violations in this case. Based on the Ministry’s letter, it appears to take the position that it was CHEO’s responsibility to determine the applicant’s continued eligibility for intensive behavioural intervention. CHEO does not appear to dispute the information provided by the Ministry. Instead, CHEO takes the position that it did not violate the Code when the applicant’s treatment was discontinued and that the decision was a clinical decision based on appropriate clinical testing and judgment. CHEO’s arguments in this regard are arguments that are more appropriately made in the hearing on the merits. These submissions go to the issue of whether the discontinuation of the applicant’s treatment violated the Code rather than the separate issue of which entities might bear responsibility for any Code violation.
16As for the third part of the Smyth test, I find that it would be fair in the circumstances to add CHEO as a respondent. According to the applicant, he had no knowledge of the administrative and funding arrangements between the Ministry and CHEO at the time that he filed his Application. Based on the Ministry’s letter, it appears that the Ministry may take the position that it has no responsibility for any Code violations in this case. Fairness requires that the applicant be permitted to add the entity that the Ministry states was responsible for the applicant’s eligibility to remain in the Program. As well, in my view, CHEO will not be unduly prejudiced as the hearing in this case is not scheduled to occur for another six months.
17For these reasons, the applicant’s request to add the proposed respondent is granted.
ORDER
18The Tribunal orders the following:
a. The applicant’s request to add CHEO as a respondent is granted and the style of cause is amended accordingly.
b. CHEO is permitted to file a full Response to the Application if it wishes to supplement the submissions it made in response to the applicant’s RFOP. If CHEO does file a full Response, it must be copied to the applicant and the other respondent and filed with the Tribunal within 21 days of the date of this Interim Decision.
c. The applicant may file a Reply to CHEO’s Response. The applicant shall file any Reply with the Tribunal, copied to the respondents, not later than 14 days after CHEO’s response was sent to the applicant.
19I am not seized.
Dated at Toronto, this 16th day of August, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair