D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 1742

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.L.T. by his litigation guardian 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: Jennifer Scott Date: October 16, 2013 Citation: 2013 HRTO 1742 Indexed as: D.L.T. v. Ontario (Children and Youth Services)

APPEARANCES

D.L.T. by his litigation guardian, 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

Introduction

1The applicant is a twelve-year-old child with significant disabilities. His grandmother and next friend, W.T., has legal custody of him. 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 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.

4This Interim Decision follows a case management conference call on October 3, 2013 where numerous preliminary issues were identified by the parties. The Ministry is seeking dismissal of the Application on the basis that it has no reasonable prospect of success. The CAS is asking that it be removed as a respondent to the Application. The intervenor, the Ontario Human Rights Commission, is requesting disclosure of documents from both respondents. It has not yet brought this request to the Tribunal.

Decision

5The Tribunal denies the Ministry’s request to hold a summary hearing. While the Tribunal is not required to provide reasons for a denial of a summary hearing request, it will provide brief reasons here.

6The decision to hold a summary hearing is based on an issue arising as to whether an applicant can draw a link between a respondent’s alleged actions and a Code ground or whether an applicant can establish a Code violation in law. The question is whether on the face of the Application, a link is drawn or an argument made that the respondents’ alleged actions discriminated against the applicant. There is no evidence called on a summary hearing and it is not intended to preclude novel cases from being heard.

7At this stage in the proceeding, there is no way of determining many of the factual issues in this case including: the criteria for complex special needs funding; whether D.L.T. was eligible for this funding in the care of W.T.; whether he was denied this funding while in the care of W.T. and if so, why; and who made the decision to proceed with the CW application and why that decision was made. The Tribunal cannot determine whether the Application has no reasonable prospect of success without some evidence on these factual issues. There are facts in dispute between the parties and factual disputes cannot be resolved on the basis of the parties’ legal submissions. There may or may not be findings of discrimination that flow from the evidence and the factual findings made, but this determination is best made at a hearing on the merits where evidence can be led.

8The Tribunal ordered the parties to disclose their arguably relevant documents by September 12, 2013. It is unclear whether the respondents’ arguably relevant documents have been provided to the Commission and if they have, whether some of the documents sought by the Commission have already been produced. The parties are therefore ordered to produce to the Commission copies of the documents they provided to each other previously if they have not done so already. In the event the Commission continues to request production of further documents from one or both respondents, it should file a Request for Order During Proceedings citing the specific documents being sought.

9The removal of the CAS cannot be determined before the production issue is decided. Although the CAS is not involved with the issue of complex special needs funding, it appears that it was involved in the decision to proceed with Crown wardship in this case. A decision on whether to remove it as a party cannot be decided in a factual vacuum. This approach is consistent with the earlier ruling by the Tribunal in its Interim Decision dated July 31, 2013, 2013 HRTO 1332, that the removal of the CAS should not be determined prior to production.

Order

10The Tribunal makes the following orders:

1. The respondents must provide their arguably relevant documents to the Commission within seven days of this Interim Decision, if they have not already done so.

2. In the event there are still documents requested by the Commission, it should file a Request for Order During Proceedings by October 30, 2013. The Ministry and the CAS will have until November 15, 2013 to respond.

3. The Commission’s request for production, if any, will be decided in writing.

4. Once the production issue is determined, the Tribunal will set out the process for addressing the request by the CAS to be removed as a party. The Tribunal will issue further directions for that process, including the timeline for all parties to respond to the removal request.

5. In the interim, the Application will be placed in the hearing queue.