Nassr v. Windsor-Essex Children’s Aid Society, 2013 HRTO 53

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Donald Nassr

Applicant

-and-

Windsor-Essex Children’s Aid Society

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: January 11, 2013

Citation: 2013 HRTO 53

Indexed as: Nassr v. Windsor-Essex Children’s Aid Society

APPEARANCES

Jason Donald Nassr, Applicant

Self-represented

Windsor-Essex Children’s Aid Society, Respondent

Anna Vannelli, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of creed, sex, and family and marital status.

2By Case Assessment Direction (“CAD”) dated September 18, 2012, on its own initiative the Tribunal directed that a summary hearing be held in this matter by teleconference. The CAD stated as follows in paragraphs 4 and 5:

The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited. No witnesses will give evidence during the summary hearing.

3The CAD also directed the parties to deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

4The summary hearing was held by a telephone conference on December 19, 2012. In the conference call I heard from the applicant and the respondent.

Summary Hearings

5The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Background

7The applicant submits that he and his partner shared custody of a biological daughter and the partner’s son from a previous relationship. During 2009 he and his partner separated, reconciled, and separated again. His partner instituted a family court action to determine custody of the children. The applicant’s Application and his submissions at the summary hearing suggest that this was an acrimonious process. The two children were receiving services from the respondent, Windsor-Essex Children’s Aid Society.

8In his Application, the applicant alleges that in receiving and seeking services from the respondent he suffered discrimination based on creed, sex, family status, and marital status. Based on the Application, the relevant provisions of the Code are as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

9Code section 10 defines “family status” to mean “the status of being in a parent and child relationship” and “marital status” to mean “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage.”

Creed

10The applicant self identifies as an atheist who can be spiritual at times. He alleges that the first case worker (the “First Worker”) assigned to his family mentioned “God” to him on several occasions, “knowing full well that [the applicant was] an atheist.” At the summary hearing, the applicant submitted that the First Worker also told him that he should bring “God” into his children’s lives. The applicant alleges that because of his creed the First Worker became skewed against him and didn’t take him seriously, treating his concerns as not credible, not investigating those concerns, and was generally dismissive. For example, the applicant submits that on several occasions he spoke to the First Worker or left messages for him about concerns he had with respect to his daughter’s care when with her mother. The applicant alleges that the First Worker discriminated against him by not following up on his reports about possible harm to his daughter. Furthermore he alleges that the First Worker made defamatory remarks, for example telling his spouse that the applicant should stop lying to the children. The applicant submits that the First Worker made another defamatory remark in an investigation report wherein he stated there was “risk of emotional harm” to the children based on a conversation the applicant allegedly had with his partner’s son.

Sex, Family Status, and Marital Status

11The applicant submitted that it is a common stereotype in the child protection world that females are better caregivers. The applicant submitted that his status as a single, separated father caused the respondent and its staff to judge and treat him as an inferior primary caregiver. To support this allegation the applicant alleges that when he asked the First Worker if he thought women are better parents than men, the First Worker refused to answer his question, however, the applicant understood his position by reading his eyes. At the summary hearing the applicant also submitted that another example of being judged negatively as single, male, and separated was when the First Worker recommended that the applicant join a men’s support group.

12The applicant alleges that the respondent’s staff, including the First and subsequent worker (the “Second Worker”) as well as their supervisor (the “Supervisor”), discriminated against him by: not returning all of his calls, not taking his concerns about the children’s safety seriously, writing a letter to the Central Housing Registry in support of the mother, and being rude to him in general. The applicant also alleges that when he called the Supervisor to complain about the First Worker, the Supervisor hung up on him telling him she “had no time for this.”

13Specifically, with respect to the applicant’s allegation that the respondent did not follow up on his concerns regarding his observations about his daughter following her time with her mother, the applicant submitted that he had suggested that the respondent contact a family doctor and nurse to substantiate his observations, but that the respondent did not follow this advice. He also submits that the Second Worker lied in the letter to the Central Housing Registry when he stated the applicant’s behaviour towards his partner was harassment rather than clarifying that it was at the time “alleged” harassment.

14Finally, the applicant submits that during the family court custody proceeding the respondent was more supportive of his spouse than him by building momentum so that the court would prefer his partner in the custody decision. By way of example, the applicant has filed a copy of a transcript of a voice mail from the First Worker to his partner that was submitted by his partner in the family court proceeding. He submits it was defamatory and misstated facts. The transcript of this voice mail states:

[The applicant] just called me… He appeared not very happy and said he is calling the police…when the police come show them the letter you have and let them know there’s an investigation going on because of the threat that he made to the child…

15The applicant submits this was inaccurate and thus defamatory and discriminatory because the First Worker should have specified that the threat was “alleged” and under investigation.

16At the summary hearing the applicant stated that the respondent’s discrimination was not apparent to him at first, however, he later concluded that this was the root cause of the respondent treating him like a nuisance and generally supporting his partner in trying to keep the children away from him.

Analysis

17Although the respondent may dispute some or all of the applicant’s allegations, it has not yet been required to file a Response to the Application. Accordingly, in determining whether the Application has no reasonable prospect of success, I have considered whether the applicant has pointed to evidence that he has, or that is reasonably available to him which, if accepted, could establish his claim of discrimination. Importantly, while I have assumed the applicant’s allegations to be true for the purposes of this summary hearing, at this stage they remain unproven allegations.

18In determining whether an application has a reasonable prospect of success, an application must contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068, Gazsi v. Cascades Recovery Inc., 2012 HRTO 1899. In Barker v. Ontario (Community and Social Services), 2010 HRTO 703 at para. 5, the Tribunal stated:

The Tribunal does not have a general power to decide whether the respondent treated the applicant fairly or appropriately. … [W]hile the applicant has clearly stated he feels mistreated by the respondent, to fall within the Tribunal’s jurisdiction…he must also explain how this alleged mistreatment related to a ground and social area under the Code.

19While the applicant raises serious concerns about the respondent’s dealings with him and appears quite frustrated, there is no apparent connection between the matters complained of and the Code grounds he alleges. See S.B. v. Children’s Aid Society of Toronto, 2010 HRTO 1327. See also Kostiuk v. Ottawa (City), 2011 HRTO 16 at para. 10:

The Code is not designed to remedy all instances of differential treatment, bullying or interference in one’s public affairs. The alleged treatment must be linked in a substantive way to a Code ground.

20In my view the applicant merely asserts and speculates that his status as a single father separated from his partner and his atheist beliefs were factors in the respondent’s treatment of him. Assuming, without deciding, that atheism is a creed for the purposes of the Code, the applicant has not satisfied me that he can link the alleged disadvantage he suffered to this prohibited ground. For example, despite making the broad assertion that his atheism was well known to the respondent and the First Worker in particular, the applicant has not pointed to any evidence in support of this conclusion. For example he has not pointed to any evidence of having told the workers of his beliefs in advance or in response to these comments, or that comments about “God” were unwelcome to him. His conclusion that their treatment of him was based in part on his atheism is a bald allegation without specifics to link the alleged treatment to prohibited grounds. Furthermore, the applicant has not pointed to any indirect or circumstantial evidence from which a link could be inferred. The evidence of the First Worker making reference to “God” in this context is in my view insufficient to infer that the First Worker was aware of, or referring to, the applicant’s atheist beliefs.

21Likewise, the applicant contends broadly that he was treated poorly due to a common stereotype that the respondent adhered to in which single male fathers are viewed as inferior parents. The applicant’s interpretation that the look in the First Worker’s eyes is evidence of this belief is highly speculative and not evidence that would support such an inference. And in my view the First Worker’s suggestion that the applicant join a men’s group is not evidence that he faced discrimination due to his status as a single male parent.

22The applicant’s complaints relate to the quality of his interactions with the respondent. That is, that the respondent and staff did not return all of his calls, were dismissive of his concerns regarding his daughter, were not accurate in their depiction of investigations pertaining to him, and were rude to him. There is no evidence, however, that by not returning all of his calls or not following up on all of his concerns, the respondent treated the applicant any differently than any other parent whose child was receiving services from it or that these actions were linked to his status as a single, male parent or an atheist. And there is no evidence that any rudeness, mischaracterization of investigations or the First Worker stating to the applicant’s partner that the applicant should stop lying to the children were linked to any Code grounds either.

23Even if the allegations in the Application are accepted as true, the applicant has not linked, and in my view has no reasonable prospect of linking, the respondent’s manner of dealing with him with Code grounds. I am not satisfied that either his status as a single father separated from his partner or his atheism is connected to the respondent’s dealings with him. Accordingly there is no reasonable prospect that the Application will succeed and it is dismissed.

24This Application is dismissed.