M.D. v. Windsor-Essex Children’s Aid Society, 2013 HRTO 1444

Human Rights Tribunal of Ontario

Between:

M.D., Applicant

-and-

Windsor-Essex Children’s Aid Society and Rebecca Ross, Respondents

Decision

Adjudicator: Jo-Anne Pickel Date: August 23, 2013 Citation: 2013 HRTO 1444 Indexed as: MD v Windsor-Essex Children’s Aid Society

Appearances

M.D., Applicant Self-represented

Windsor-Essex Children’s Aid Society and Rebecca Ross, Respondents Keri Wilson, Counsel

Introduction

1The applicant filed an Application alleging that the respondents discriminated against her because of race, colour, ancestry, place of origin, disability, family status, and marital status. She also alleges that the respondents reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant identifies as a Canadian citizen who is of African Caribbean or Jamaican origin. She is also a single mother. She alleged that the apprehension of her children by the respondents and their subsequent dealings with her were discriminatory and/or amounted to a reprisal.

2By Case Assessment Direction (“CAD”) dated April 16, 2013, the Tribunal, on its own initiative, directed that a summary hearing be held to address the following three issues: (1) whether a proceeding before the Child and Family Services Review Board (“CFSRB” or “Board”) has appropriately dealt with all or part of the substance of the Application, (2) whether there is a reasonable prospect that the applicant will be able to prove a link between the respondents’ alleged actions and the grounds of discrimination alleged in her Application, and (3) whether there is a reasonable prospect that the applicant will be able to establish that the respondents intended to reprise against her for claiming and enforcing her rights under the Code.

3I sympathize with the applicant’s difficult family circumstances. However, for the reasons that follow, I find that this Application must be dismissed as having no reasonable prospect of success of making out a violation of the Code.

Section 45.1

4The respondents submitted that the Application should be dismissed under s. 45.1 of the Code. They submitted that a September 13, 2011 decision of the CFSRB has appropriately dealt with the substance of the Application.

5Section 45.1 states:

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.

6Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application.”

7In my view, the real issue in this case is the second issue. That is, whether the CFSRB’s decision appropriately dealt with the substance of all or part of the Application.

8The applicant filed a complaint against the organizational respondent to the CFSRB. The parties entered into a settlement of the complaint. However, the applicant later alleged that the organizational respondent failed to comply with one of the terms of the settlement agreement. The CFSRB’s decision deals only with whether the organizational respondent complied with the settlement. Although the applicant did allege before the CFSRB that some of the organizational respondent’s employees were motivated by racial bias, the CFSRB expressly noted that “[t]he issue of possible racism did not form part of the Agreement or the original complaint. The Board must look solely at the issue of compliance”.

9Based on this statement, it is evident that the CFSRB did not deal with the substance of the applicant’s human rights claims. It dealt only with the issue of the organizational respondent’s compliance with the terms of the settlement entered into by the parties. Accordingly, I deny the respondents’ request to dismiss the Application under s. 45.1 of the Code.

Reasonable Prospect of success

Summary Hearing Process

10The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) 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.

11The Tribunal cannot address general allegations of unfairness unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of unfair treatment because of one or more of the grounds listed in the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

12The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

13However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination under the Code.

14The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment allegedly experienced by the applicant with the applicant’s personal characteristics. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success.

15As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

16Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

17At the summary hearing, the applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. The respondents also made submissions in support of dismissing the Application.

18I note at the outset that, in her Application, the applicant included allegations against several entities and persons including the police, group homes and foster parents. The only allegations that might fall within the Tribunal’s jurisdiction over this Application are those that she has made against the actual respondents named in the Application: that is, the Windsor-Essex Children’s Aid Society and Ms. Ross.

19In her Application, the applicant alleged that the respondents apprehended her children and treated her unfairly because of the grounds listed in her Application. In her Application, the applicant emphasized the ground of race in particular. In her Application she stated her belief that “the capture and enslavement of Black children was and is a set agenda item for CAST [Children’s Aid Society] systems and all children’s aid societies throughout Canada.”

20Among other things, the applicant claimed that the respondents talked down to her, did not take her seriously, laughed at her, called the police, blocked her from seeing her children, lied to her children, refused to disclose medical records and destroyed her family due to her race and the other grounds set out in her Application. The applicant also claimed that her family was treated differently from white families in terms of visitation and supervision. She claimed that she was provided fewer visitation rights and was more closely supervised than white parents. In addition, the applicant claimed that Ms. Ross did not make sufficient efforts to reunify her and her children and that her judgment was clouded by discrimination based on the grounds listed in the Application.

21The respondents denied the applicant’s allegations. The respondents argued that the applicant raised the same allegations of unfair treatment in her Application that she had raised in other proceedings. The respondents submitted that the applicant has failed to point to any evidence that would link her allegations to the Code.

22At the summary hearing, I asked the applicant what evidence she would seek to advance at hearing to connect the unfair or inappropriate treatment she allegedly experienced with the grounds listed in her Application. The applicant replied that she believed all of the respondents’ actions detailed in her Application were discriminatory. She argued that discrimination is subtle and often does not take the form of overtly discriminatory comments or actions.

23When asked to specifically address what evidence she intended to advance at a hearing to prove a link to the Code, the applicant pointed to certain comments allegedly made to her and her daughter. In her Application, the applicant claimed that her daughter’s case worker told her daughter that the applicant was a witch doctor. At the summary hearing, she claimed that her daughter’s case worker also told her daughter that the applicant was delusional and a member of a cult.

24In her Application, the applicant claimed that Ms. Ross, the family case worker assigned to her case, told her that she was a “voodoo priestess” and that she had a mental condition. When I asked the applicant what specifically Ms. Ross had said about her being a “voodoo priestess”, the applicant clarified that she (the applicant) had been the one to use the term “voodoo priestess” during the course of a discussion with Ms. Ross. According to the applicant, she confronted Ms. Ross as to why Ms. Ross thought she was “mentally unstable” and delusional. It appears that the applicant also claimed that Ms. Ross thought she was a voodoo priestess. In response to the applicant’s question about why Ms. Ross thought the applicant was “mentally unstable”, Ms. Ross replied “it’s the way you present yourself”. The applicant took this comment to be a reference to her race or the fact that she is a single black mother.

25When asked what other evidence she would be able to advance to establish a link to the Code, the applicant stated that she would rely upon the documentation in her file which she claimed shows that the respondents have an agenda of treating black families differently.

Findings

Allegations of Discrimination

26It is clear that the applicant has experienced considerable emotional upset because of the apprehension of her children and the subsequent events detailed in her Application. It is also clear that she is not satisfied with the services she received from the respondents. However, I find that the Application has no reasonable prospect of success under the Code. Even if I accept the applicant’s allegations as true, there is no reasonable prospect that the she will be able to establish, on a balance of probabilities, that any of the grounds of discrimination alleged in her Application were a factor in the way the respondents treated her.

27In my view, even if proven, the alleged comments by the case worker to the applicant’s daughter are not sufficient to establish that the respondents treated the applicant differently because of any of the grounds alleged in the Application. If made, these comments may have been inappropriate but, by themselves, do not establish a violation of the Code. There is also no evidence reasonably linking the alleged comments to the treatment of the applicant by the respondents.

28I find that the more relevant comments were those allegedly made directly to the applicant by Ms. Ross, the family case worker assigned to the applicant’s case. As noted above, the applicant clarified at the summary hearing that Ms. Ross had not actually referred to her as a voodoo priestess. Instead, it was the applicant who used the term when challenging Ms. Ross’ perceptions of her as being “mentally unstable”. At the summary hearing, the applicant said she (the applicant) was the one to use the term “voodoo priestess” when she was challenging Ms. Ross as to why Ms. Ross thought she had mental health issues. As noted above, according to the applicant, Ms. Ross’ response was “it’s the way you present yourself”. The applicant believed that Ms. Ross’ reference to her self-presentation was a reference to her race and the fact that the applicant sometimes wears traditional African clothing. While I accept that this was her perception, she was unable to point to any evidence she would advance in a hearing to support this perception.

29Similarly, as noted above, the applicant believes she was provided with fewer visitation rights and was more closely supervised than white parents. However, when the respondents noted that the applicant’s supervised visitation rights were set out in a court order, the applicant conceded that this was the case. Nevertheless she claimed that she was more closely supervised than other parents and that she believes this was linked to her race. While I accept that this was her belief, she was unable to point to any evidence that would establish such a discriminatory difference in treatment at a hearing.

30As the Tribunal has noted in a similar case, mere speculation is insufficient to make out a link to the Code. See Nassr v. Windsor-Essex Children’s Aid Society, 2013 HRTO 53. See also Forde, above. There is no doubt that manifestations of racial discrimination, and other forms of discrimination, can be subtle and hard to prove. The Tribunal has recognized in previous cases that many discrimination cases do not involve direct evidence of discrimination but depend upon circumstantial evidence from which the Tribunal may draw an inference of discrimination. Nevertheless, in a summary hearing, the applicant must be able to point to some evidence they would advance in a hearing to show a link to the Code or from which an inference can reasonably be drawn that a respondent’s alleged actions were linked to any of the applicant’s Code-protected characteristics.

31In this case, I understand that the applicant strongly believes that the respondents treated her differently because she is a black single mother. However, I find that there is no reasonable prospect that she will be able to advance sufficient direct or indirect evidence to establish a link between the respondents’ alleged actions and a ground protected under the Code.

Reprisal Allegation

32I also find that the applicant’s reprisal allegation stands no reasonable prospect of success.

33In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code. See Noble v. York University, 2010 HRTO 878.

34The applicant first formally claimed that the respondents were motivated by racism in her complaint to the CFSRB. However, she claims to have made verbal claims of racism prior to making her formal complaint. Even if I were to accept that her verbal claims of racism are enough to trigger the Code’s reprisal protections, I find there is no reasonable prospect that the applicant will be able to establish that the respondents undertook the actions alleged in the Application out of an intention to retaliate against her for claiming that they were motivated by racism. The applicant has not pointed to any evidence that could link the respondents’ alleged actions to her claims of racism. Instead, it appears that the applicant perceived that the respondents were treating her unfairly because of her race and the other grounds alleged in her Application. Rather than being a claim of reprisal, this is a claim of alleged discrimination. For the reasons set out above, I have found that there is no reasonable prospect that the applicant will be able to advance sufficient evidence to establish a link between the respondents’ alleged actions and a ground protected under the Code.

Order

35For the above reasons, I find that the Application should be dismissed as having no reasonable prospect of success under the Code.