D.L.T. v. Ontario (Children and Youth Services), 2013 HRTO 264

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.L.T. by his next friend 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: David A. Wright Date: February 13, 2013 Citation: 2013 HRTO 264 Indexed as: D.L.T. v. Ontario (Children and Youth Services)

APPEARANCES

D.L.T. by his next friend W.T., 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

INTRODUCTION

1The applicant made a Request to Expedite this Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Request is opposed by the respondent Minister of Children and Youth Services (“Ministry”) and unopposed by the respondent Children’s Aid Society of London and Middlesex (“Society”). During a teleconference with the parties on February 12, 2013, the Request was granted with reasons to follow. These are the reasons for that decision. This Interim Decision also confirms directions given during the call about the next steps in the expedited Application.

BACKGROUND

2The applicant is a child with complex and significant developmental and behavioural disabilities. His next friend, his grandmother, had a parental role and custody of him, although the Society currently has a care and custody order and the applicant is in a foster home. The applicant’s medical conditions require extensive care and supervision. The Application, which originally named only the Ministry, alleges that through the design and implementation of its funding regime, Ontario discriminated against the applicant because of disability and family status. 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. It suggests that given the Ministry’s current funding model and decisions that it has made in his case, he can only access the treatment that he requires if he is in the care of the Society. The effect of Ontario’s policies and decisions, the applicant suggests, is that parents like his grandmother may be encouraged and/or forced to give up custody of children with disabilities to children’s aid societies in order to obtain treatment for them.

3The applicant’s grandmother sought funding and services to care for the applicant. The Ministry and its funding agent for complex special needs funding, Community Services Coordination Network (“CSCN”), were involved in these discussions, as was the Society. According to the Society, it participated in a meeting on June 7, 2012, which included representatives of the Ministry, CSCN, and service providers, but not the applicant’s grandmother. The Society states in its materials that, “At that time a plan was developed for the child to be placed back into Society care and become a Crown Ward”. It is suggested that this was a way for the applicant to obtain the funding he needs given the current funding model and the decisions made by the Ministry and the CSCN. Following the meeting, the applicant’s grandmother eventually indicated her support of this plan and consented to the application for Crown wardship but subsequently withdrew that consent. The wardship application is presently before the Court but has been adjourned until a pre-trial conference to be held in June.

4The applicant and Society state that the judge expressed his hope that the Tribunal Application could be dealt with before then and that this was a considering in granting the adjournment. The Ministry was not present at this proceeding. The Court’s written endorsement specifically states that at the next date the applicant’s next friend “will speak to the status of her Human Rts. Application”.

5The Ministry filed a Response which named the Society as an additional respondent. The Response does not address the merits of the applicant’s allegations about the funding regime or the Ministry’s involvement in the applicant’s case. It makes various legal arguments including abuse of process, the application of s. 34(11), and that the Tribunal cannot grant the relief the applicant seeks. In essence, the Ministry’s position, in response to both the Application and the Request to Expedite, is that the issues are before the Court in the child protection proceeding and the Tribunal should dismiss or defer the matter for this reason, and that the Application does not raise matters that fall under the Code.

DEFERRAL

6I do not agree with the Ministry’s characterization of the issues or that this Tribunal should await a determination by the Court in the child protection proceeding. The applicant has asked this Tribunal to adjudicate the issue of whether the Ministry’s funding regime and decisions are discriminatory because of disability and family status. The Application argues that there are systemic funding issues that have put the child in the position of potentially losing his parent, and discrimination against him as a child with psychological disabilities compared with children with different disabilities. The issue before the Court is whether the child is in need of protection. In the child protection proceeding, the Court will not decide whether Ontario discriminates because of disability in the funding and other services it provides to children with disabilities. The Society confirms, both in this proceeding and in the child protection proceeding, that its only reason for seeking a wardship order is to obtain necessary services for the applicant. It also confirms that it is unlikely to succeed in the child protection application without the applicant’s consent, given that it does not have child protection concerns at this time, although such concerns may arise if the applicant returns to his grandmother’s care but she is unable to provide medical treatment. Both the applicant’s next friend and that Society state that the judge suggested that it would be helpful if this matter proceeded first. In these circumstances, it would not be appropriate for the Tribunal to exercise its discretion to defer this proceeding pending the outcome of the Court proceedings. The Ministry may raise any of its other arguments about duplicative proceedings, including its jurisdictional arguments, as part of the hearing on the merits.

REQUEST TO EXPEDITE

7I turn to the test for expedited proceedings under Rule 21, which permits an application to be expedited in urgent circumstances. As stated by the Tribunal in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, “for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process”. In my view, these circumstances meet this requirement. The applicant is a child with complex and specific needs which it is alleged may not be met if the Crown wardship application is not granted, and who is facing the breaking of the legal bond between him and his parent if it is. There is no remedy available if the Application is allowed at a later time that could remedy the impact of a break in the parent-child relationship or the loss of treatment at a critical time in the applicant’s development if the hearing is delayed. The Tribunal has often expedited applications involving allegations that a child is not receiving appropriate services (see, for example, R.B. v. Keewatin-Patricia District School Board, 2012 HRTO 1721). These circumstances, in my view, are truly urgent, given the effects on the child of not getting treatment and/or losing his parent.

NEXT STEPS

8In my view, the next steps of this expedited Application require a clear definition of each party’s position on the facts and the allegations that the Ministry’s funding practices and decisions in this case discriminated on the basis of disability and family status. Moreover, the Ministry indicates that it may seek to add CSCN as a respondent. Accordingly, the order below sets out dates by which each party must provide a detailed statement of the facts on which it relies and its position, by which any request to add a further respondent must be made, and a date for another case conference. The parties’ attention is drawn to Rules 5.7 and 8.2 of the Tribunal’s Rules of Procedure.

ORDER

9The Tribunal orders as follows:

1. The Request to Expedite is granted.

2. By February 19, 2013, the applicant shall deliver to the other parties and file with the Tribunal a detailed description containing the complete basis on which it is alleged that the funding regime and decisions made in the applicant’s case were discriminatory, and containing complete details about the applicant’s understanding of the Ministry’s involvement in this case.

3. By February 22, 2013, the Society shall deliver to the other parties and file with the Tribunal a complete description of the basis on which it came to the conclusion that Crown Wardship should be sought and the applicant’s consent should be requested, including the Ministry’s involvement in that process.

4. By March 8, 2013, the Ministry shall deliver to the other parties and file with the Tribunal a complete response to the merits of the Application, including all facts upon which it relies in its defence and the reasons why it asserts that the funding regime and decisions are not discriminatory as alleged.

5. If the Ministry seeks to add CSCN as a respondent, it shall deliver to the other parties and CSCN and file with the Tribunal a Request for Order in Form 10 with complete argument in support of its request, on or before March 8, 2013. It shall deliver to CSCN, together with the Form 10, all materials filed with the Tribunal or sent by the Tribunal in this file, a copy of this Interim Decision, and a copy of the Notice of Conference Call for March 26. Making such a request does not change the need to file a complete and detailed Response as directed above.

6. The other parties and CSCN shall deliver to the other parties and file with the Registrar any response to the Request for Order in Form 11, on or before March 22, 2013.

7. The Tribunal will hold a further case management teleconference on March 26, 2013 at 2:00 PM. CSCN shall attend this teleconference if the Ministry has sought to add it as a respondent. The parties must be prepared during this teleconference to set dates for pre-hearing disclosure, exchange of documents and will-say statements, and the hearing.

10I am not seized of this Application.