D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 2052

Human Rights Tribunal of Ontario

BETWEEN:

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

-and-

Ontario Human Rights Commission Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott Date: December 11, 2013 Citation: 2013 HRTO 2052 Indexed as: D.L.T. v. Ontario (Children and Youth Services)

APPEARANCES

D.L.T. by his litigation guardian W.T., Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondent 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. The applicant alleges that the respondents discriminated against him on the basis of his disability when he was unable to obtain funding from the Ministry of Children and Youth Services (the “Ministry”) in 2012 for the services that he required because of the nature of his disability and when W.T. was compelled to relinquish care and custody of him so that he could obtain the required services.

2The intervenor, the Ontario Human Rights Commission (the “Commission”) has filed a Request for an Order During Proceeding (the “Request”) seeking the following production from the Ministry:

a. With respect to all meetings that have taken place pertaining to the applicant attended by any representative of the Ministry:

o Documents created in preparation for the meetings; notes taken during the meetings, or those made subsequent to the meetings recording what occurred; any other documents prepared after and pertaining to the meetings, including recommendations, proposals and submissions.

b. Records of communications, including emails and notes of or taken during telephone calls and among the parties concerning the applicant and Ministry policies applicable to the applicant.

c. Any and all Ministry documents, including guidelines, policies, option papers, directives and recommendations, whether accepted or not, from 2005 to date, pertaining to the funding by the Ministry of services for children and youth with psychological and other non-physical disabilities, ‘complex’ or not.

3The Ministry has agreed to produce all arguably relevant documents falling within categories “a” and “b” above. The Ministry asserts the Commission’s request for category “c” documents is speculative, relates to largely irrelevant documents, is unmanageable, and the prejudice of producing these documents outweighs any probative value.

decision

4The basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. The Commission has the burden of demonstrating that the documents sought are “arguably relevant” to the issues before the Tribunal in this case.

5In the Application, the applicant claims that he was ineligible for funding to meet his special needs in the spring of 2012. Ministry policies and guidelines relating to the funding of children with psychological and other non-physical disabilities, including complex special needs funding, that were in effect in 2012 are arguably relevant to the issues in dispute and must be produced by the Ministry. Policies and guidelines in effect from 2005 to 2011 are not arguably relevant because they were not in place at the time the applicant was seeking funding. Similarly, option papers and recommendations, whether accepted or not by the Ministry, are not arguably relevant unless they came into effect through funding policies and guidelines. The Tribunal has ordered production of the 2012 policies and guidelines.

case management

6The Children’s Aid Society of London and Middlesex (the “CAS”) has filed a Request to be removed as a party. The following directions are given relating to the Removal Request.

a. The CAS will deliver and file its materials on the Removal Request by January 27, 2014;

b. The Commission and the Ministry will deliver and file responding materials by February 17, 2014;

c. Upon receipt of the parties’ materials, the Tribunal will determine whether the Removal Request will be determined in writing or in-person.

7The Tribunal has scheduled a hearing date of May 16, 2014. This hearing date remains in place. The Tribunal will provide further direction regarding the use of this date.

order

8The Ministry will produce all policies, guidelines and directives relating to funding children with psychological and other non-physical disabilities, including complex special needs funding, that were in place in 2012 to the CAS and the Commission by January 6, 2014. Category “a” and “b” documents must also be disclosed by the Ministry by this date.

9The CAS will deliver and file materials on its Removal Request by January 27, 2014.

10The Ministry and Commission will deliver and file their materials responding to the CAS’s Removal Request by February 17, 2014.

11The hearing date of May 16, 2014 stands.