Mochnacki v. Central LHIN, 2013 HRTO 2095

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathleen Mochnacki Applicant

-and-

Central LHIN and Toronto Central LHIN Respondents

DECISION

Adjudicator: Jennifer Scott

Date: December 18, 2013

Citation: 2013 HRTO 2095

Indexed as: Mochnacki v. Central LHIN

APPEARANCES

Kathleen Mochnacki, Applicant Self-represented

Central LHIN and Toronto Central LHIN, Respondents Janice Stephenson and Stephanie Brown, Counsel

Introduction

1This Application was filed on April 16, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against when the respondents failed to invite her to apply for membership on the Service Access System Steering Committee (the “Steering Committee”), a committee struck to make recommendations for a mental health and addictions multi-service access model. The applicant believes that as a family caregiver of a son with serious mental health issues, she should have been invited to apply for membership on the Steering Committee.

2By Case Assessment Direction dated May 9, 2013 (the “CAD”), the Tribunal on its own initiative determined that a summary hearing would be held to hear the parties’ submissions on whether the Application has a reasonable prospect of success. The Tribunal stated the issue on the summary hearing was whether the failure to be asked to sit on the Steering Committee constituted unequal treatment on the basis of a prohibited ground of discrimination.

3An in-person summary hearing was held on September 23, 2013.

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The issue that Rule 19A requires the Tribunal to determine is whether the Application, in whole or in part, has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

5An applicant is not required to prove her case at a summary hearing, although she may be asked to point to the evidence that she has or expects to have to establish her complaint of discrimination. On the basis of the submissions by the parties, the Tribunal examines the allegations set out in an application and determines whether or not it should move ahead in the hearing process or be dismissed at the summary hearing stage.

6The Tribunal is not empowered to remedy general allegations of unfairness. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. The issue in this case is whether the applicant can draw a link between the failure to invite her to apply for membership on the Steering Committee and the prohibited grounds of discrimination alleged: gender identity, family status and association with a person with a disability.

7The applicant was given an opportunity to make submissions to assist the Tribunal in understanding the connection between the failure to invite the applicant to apply for membership on the Steering Committee and the prohibited grounds of discrimination alleged. The respondents also made submissions in support of dismissing the Application.

ANALYSIS

8The applicant is the family caregiver of her 31-year-old son who has serious mental health issues. The respondents, the Central and Toronto LHINs (the “LHINs”) are funded to finance, plan and integrate the health care system in their geographic areas.

9In late 2011, the LHINs established the Steering Committee and charged it with developing a mental health and addictions multi-service access model (the “Model”). In late October 2011, the LHINs issued a call for expressions of interest for individuals to sit on the Steering Committee. To be eligible to sit on the Steering Committee, one had to be a representative from community mental health and addictions service providers.

10The Steering Committee held three different focus groups for family members to provide input into the development of the Model. The applicant participated in a focus group on April 17, 2012.

11The applicant believes that caregivers of family members with psychiatric illnesses have been excluded from participating in the development of mental health services. She states that although families are financially responsible for the care of their family members, they are not considered equal partners in the mental health system. The applicant states members of the Steering Committee were offered a democratic process within which to apply to sit on the Steering Committee, whereas she was denied such a process. The applicant states further that she did not even know about the Steering Committee until the focus group. Although the applicant participated in a focus group on April 17, 2012, she does not believe the feedback of the focus group made its way into the report of the Steering Committee.

DECISION

12The applicant’s complaint is that expressions of interest were not sent to family caregivers and were only sent to representatives of mental health and addictions service providers. As such, she and other family caregivers were excluded from membership on the Steering Committee. Although the applicant was able to provide input into the work of the Steering Committee via the focus group, she complains that she was unable to impact the work more broadly by being a member of the Steering Committee.

13The decision by the LHINs to seek membership on the Steering Committee from mental health and addictions service providers is not discriminatory because there is no evidence to link that decision with a prohibited ground of discrimination. While I agree that as a result of that decision, the applicant was not invited to apply for membership, she was asked to participate in a focus group and provide input in that forum. The fact that the applicant wanted to be on the Steering Committee does not mean that the criteria for membership is discriminatory. Sending expressions of interest to mental health and addictions service providers did not have the effect of perpetuating group disadvantage and prejudice, or imposing disadvantage on the basis of stereotyping on the applicant.

14The applicant may well be right that family caregivers of children with mental health issues have not participated in the development of mental health services to the extent that they should. She may also be right that the development of mental health services might be better if their voices are heard. The fact that the work of the Steering Committee may have been enhanced by the participation of family caregivers does not mean their exclusion of the Steering Committee is discriminatory. The Steering Committee consulted with family members in three consultations in April 2012. The applicant participated in one of these consultation sessions.

15Accepting the applicant’s allegation that she was denied the opportunity to be a member on the Steering Committee as true, I find that there is no reasonable prospect that she can succeed under the Code. This finding is based on the fact that there is no evidence to support the claim that the exclusion of family members from membership on the Steering Committee was in any way connected to a prohibited ground under the Code.

ORDER

16The Application is dismissed has having no reasonable prospect of success.