I.K. v. Children’s Aid Society of Toronto, 2014 HRTO 120

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

I.K.

Applicant

-and-

Children’s Aid Society of Toronto, Michelle Winterburn, Jocelyn Hsu, Julie James, Katherine Duncan and Shannon Deacon

Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: January 27, 2014 Citation: 2014 HRTO 120 Indexed as: I.K. v. Children’s Aid Society of Toronto

WRITTEN SUBMISSIONS

I.K., Applicant Self-represented

Children’s Aid Society of Toronto, Michelle Winterburn, Jocelyn Hsu, Julie James, Katherine Duncan and Shannon Deacon, Respondents Carole Jenkins, Counsel

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 goods, services, and facilities because of race, colour, place of origin, citizenship, ethnic origin, and disability. The Application alleges that the respondents discriminated against the applicant when they took the applicant’s child into care.

2In their Response, the Children’s Aid Society of Toronto (“CAS”) and the personal respondents ask that the Tribunal hold a summary hearing pursuant to Rule 19A.1 of the Tribunal’s Rules of Procedure (“the Rules”) to explore whether or not the Application has a reasonable prospect of success. In the alternative, the respondents ask that the Application be deferred because of an ongoing child protection application before the Ontario Court of Justice.

3On January 14, 2014, the Tribunal asked the applicant to respond to the respondents’ requests to dismiss or defer, which he did in writing on January 22, 2014.

4The purpose of this Interim Decision is to determine whether the Application should proceed or be dismissed or deferred. For the reasons stated below the Application shall be deferred pursuant to Rule 14 of the Rules pending the outcome of the child protection proceedings.

Factual Background

5The applicant self identifies as a black, Muslim, immigrant from Nigeria. He came to Canada in 2010. The Application says he then met and married a woman with a learning disability. Together they had a child on […], 2012. Prior to the birth of his child the applicant was arrested and charged with assaulting his then pregnant wife. He was granted a conditional discharge; he was not to be in his wife’s presence without her express written consent which she gave. It was also during his wife’s pregnancy that the couple came to the attention of CAS. The CAS investigated and when the baby was born, they did not apprehend the child.

6After the applicant’s child was born, the CAS continued to be involved in the applicant’s family situation. The personal respondents are all employees of the CAS who had contact with him or his wife.

7In November of 2012 the applicant’s child was taken into care by the CAS and a child protection application was filed. The applicant and his wife have supervised access visits. In July of 2013 the CAS amended its application to the Court seeking Crown wardship of the child. The applicant’s parents are now in Canada and involved in the access visits; a kin placement is being considered. The protection application is scheduled to return to the Court on February 19, 2014.

Request to Dismiss

8The respondents ask the Tribunal to schedule a hearing pursuant to Rule 19A.1 to determine whether or not the Application has a reasonable prospect of success. To summarize the Response, the respondents argue that the Application does not contain any allegations of fact that would indicate there is a link between the behaviour complained of and the grounds set out in the Application.

9In his Reply the applicant provides additional particulars, including comments made by some of the personal respondents. Attached to the Reply is a letter from the applicant’s wife that states she wishes to intervene in the Application on the basis that she also was discriminated against by the respondents, on the basis of disability.

10Given all of the circumstances and in particular the fact that the Application shall be deferred pending the outcome of the child protection proceedings as set out below, it would be inefficient and premature for the Tribunal to consider the respondents’ request for a summary hearing at this time. Should the Application be reactivated after the conclusion of the child protection proceedings, the respondents may renew their request at that time.

Request to Defer

11Section 45 of the Code gives the Tribunal the power to defer an application in accordance with its Rules. Rule 14.1 of the Rules states:

The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

12A deferral is not ordered automatically when parties are involved in other legal proceedings. However, deferral of an application is often appropriate to ensure that proceedings dealing with the same issues do not run concurrently as that raises the possibility of inconsistent findings of fact.

13Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer the Application, having regard to the status of each proceeding and the steps that have been taken to pursue them.

14In this case, the same underlying events give rise to both the child protection proceeding and the Application. The facts relating to this Application and those in the child protection proceeding are the same. Further, the child protection proceeding is well advanced. Although the remedies sought in the two proceedings are different, that alone does not justify proceeding with concurrent applications.

15In the circumstances, I find that it is appropriate to defer consideration of this Application pending the conclusion of the child protection proceedings. The parties may wish to refer to Rules 14.3 and 14.4, which outline how the Application may proceed once the child protection proceedings have concluded.

DECISION

16The Application is deferred pending the outcome of the child protection proceedings.

17I am not seized of this matter.