M.B. v. Ontario (Children and Youth Services), 2013 HRTO 358

Human Rights Tribunal of Ontario

BETWEEN:

M.B. by his Next Friend D.H. Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume Date: March 1, 2013 Citation: 2013 HRTO 358 Indexed as: M.B. v. Ontario (Children and Youth Services)

APPEARANCES

M.B. by his Next Friend D.H., Applicant Christine Johnson, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services, Respondents Cheryl Ellison, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of disability.

2By Case Assessment Direction (CAD) dated June 29, 2012, the Tribunal, granted a Request and scheduled this matter for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. The hearing took place by telephone on October 16, 2012. The parties were represented by counsel.

3The CAD indicated that some of the allegations appeared to be untimely. Section 34 (1) and (2) of the Code, read as follows:

2(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

4The second issue identified in the CAD was whether, assuming the allegations to be true, the applicant's allegations may be reasonably considered to amount to a Code violation.

5The 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 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.

6The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation and it is important that this be determined at the earliest opportunity, where appropriate. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

7The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

8The 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. In some cases, for example, the applicant will not dispute the respondent's version of one or more of the facts.

9Accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant's belief that they have experienced discrimination.

10The 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 experienced by the applicant with the applicant's personal characteristics.

11Support for that connection may come in a variety of forms: the timing of a person's dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

12The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

13The primary focus in the summary hearing is on the applicant's evidence. The respondent's explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

14The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant's case.

15Having set out the basic framework for determining whether an application should be dismissed in whole or in part for timeliness or no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

16M.B. is a child who was diagnosed with Autism Spectrum Disorder (ASD) and Global Developmental Disability. As a result of his diagnosis, he was eligible for Intensive Behavioural Intervention therapy (IBI) with the Autism Intervention Program of Eastern Ontario (AIP-EO) which is administered by the respondent.

17According to the applicant's Next Friend, D.H., the applicant began treatment on September 15, 2009 and was discharged on March 25, 2011. On April 27, 2011, D.H. received feedback from a "discharge assessment" which D.H. argues the respondent was required to complete prior to discharge.

18According to the respondent, the family of M.B. "pushed" for a "post-discharge assessment" which was completed on April 13, 2011, however the discharge took place March 25, 2011.

19The respondent argues that the Application is out of time, having been filed 1 year and 3 days after M.B. was discharged on March 25, 2011.

20D.H. argues that the Application is not out of time, having been filed within one year of the last interaction with the respondent in relation to the treatment of M.B. The applicant argued that after March 25, 2011 he was pursuing an internal review mechanism. In my view, even if the applicant is incorrect and the last event for the purpose of determining timeliness is March 25, 2011, his explanation is sufficient to demonstrate good faith. In the absence of evidence of substantial prejudice to the respondent, I would dismiss the respondent's Request for dismissal on the basis of timeliness.

21With respect to the question whether the Application has a reasonable prospect of success, D.H. argues that M.B. was discharged from the program as a result of his secondary diagnosis (Global Developmental Disability) which affected his ability to meet certain learning goals. He argues that the manner in which his eligibility for ongoing treatment was assessed had a disparate impact on M.B. because of his secondary diagnosis.

22The respondent argues that M.B. was discharged because he was not progressing and that consideration of how his secondary disabilities affected him would not have altered the decision to discharge him. The respondent argues that the decision to discharge M.B. was a clinical decision and includes many considerations.

23If I accept the applicant's allegations as true, which I am required to do at this stage in the proceeding, I cannot conclude that the applicant's allegations have no reasonable prospect of success. I cannot determine the issues between the parties at this stage without the benefit of evidence and assessments of credibility.

24Pursuant to Rule 19A.6, I do not consider it necessary to provide further reasons for this Interim Decision. These issues may be the subject of further consideration by the presiding adjudicator who will have the benefit of hearing evidence in relation to these issues and/or the merits of the case.

25Accordingly the Application will move to the next stage in the hearing process. If the parties indicate a willingness to participate in mediation within 15 days of the date of this Interim Decision, the Registrar will set this Application for mediation.

26I am not seized.