S.C. v. Halton Children’s Aid Society, 2014 HRTO 1776

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.C. and I.C. by his Litigation Guardian S.C. Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondents

A N D B E T W E E N:

S.C. and J.C. by her Litigation Guardian S.C. Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondents

A N D B E T W E E N:

S.C. and K.C. by her Litigation Guardian S.C. Applicants

-and-

Halton Children’s Aid Society and Her Majesty the Queen in Right of Ontario as represented by the Minister of Children and Youth Services Respondents

DECISION

Adjudicator: Maureen Doyle
Date: December 11, 2014
Citation: 2014 HRTO 1776
Indexed as: S.C. v. Halton Children’s Aid Society

APPEARANCES

S.C., I.C., J.C., and K.C., Applicants Self-represented

Halton Children’s Aid Society, Respondent Diane Skrow, Counsel

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

Introduction

1These Applications allege discrimination with respect to services because of family status and age and they allege reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents deny any discrimination contrary to the Code.

3On August 27, 2014, the Tribunal directed on its own initiative that a summary hearing be held to determine if the Applications should be dismissed on the basis that there is no reasonable prospect that they will succeed. The Tribunal directed that the applicants would proceed first at the summary hearing and that the applicants, would make argument about why the Applications should not be dismissed as having no reasonable prospect of success and point to the evidence upon which they would prove a link between the respondents’ alleged actions and the grounds cited, and reprisal. It also stated that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. The Tribunal did not require Responses from the respondents.

4A summary hearing was convened and all parties participated. The minor applicants were not in attendance, but participated through their litigation guardian, S.C.

5In a summary hearing, the issue is whether an application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or a part of it will succeed. This is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, 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.

Application to the facts

7The applicant S.C. indicates that he is also filing these Applications as litigation guardian of three of his children, who are minors (the “minor applicants”). There is one narrative common to all three Applications, though two of the children have also provided their own written account of events. The remedies claimed include, among other things, court costs associated with family custody matters in 2000 and 2011, as well as compensation for each of the litigation guardian’s nine children. The litigation guardian also states that he and the minor applicants, who he says were discriminated against on June 27, 2014, are the “claimants”.

8The narrative states that on June 27, 2014, without his children’s informed consent and without his permission, the Halton Children’s Aid Society (“CAS”) “detained” the minor applicants and interviewed them. The narrative alleges that the CAS worker lied to the minor applicants by telling them that the litigation guardian had consented to the interview, and then repeatedly asked them if the litigation guardian had hit them with a stick. The narrative alleges that when the minor applicants indicated that they did not have to talk to the CAS worker, she threatened to go to see them every 30 days. In the narrative, the litigation guardian states that “this occurred after I had filed a complaint against the respondent to the CFSRB”. The CFSRB is the acronym for the Child and Family Services Review Board.

9In the narrative, the litigation guardian also alleges that the CAS worker “bullied [his] child” by taking her cell phone and reading her private messages.

10The litigation guardian alleges that he has filed complaints with the CFSRB about the CAS’s “abuses” three times in the past and that “each time they have resort to the same kind of intimidating tactics”. He provides no particulars but alleges that in the past, the CAS has retaliated against him when he makes complaints to the CFSRB by showing up at his home with police, refusing to provide disclosure in Family Court, and falsely investigating him. He alleges that his family has been subject to discrimination by the CAS since 1999. He alleges that the Ministry of Children and Youth Services has ignored his complaints.

11With respect to the respondent Minister of Children and Youth Services (the “Minister”), the applicants allege that the Minister is aware of CAS abuses, but that the Ministry continues to fund the CAS and remains silent.

12Prior to the summary hearing, the litigation guardian provided written submissions stating that I.C. and K. C. were “detained and repeatedly questioned if they were being abused” on April 7, 2014, without their “informed consent” and without parental permission or a court order. He alleges that the CAS was not investigating a child protection concern against him and detained his children without any reason. He asserts that this is “clearly … evidence of age discrimination”.

13In his written submissions, the litigation guardian alleges that he filed a complaint with the CFSRB on June 27, 2014, following which the CAS threatened the children psychologically and emotionally. He attached copies of statements from two of the minor applicants and from their mother. He disagrees with the respondents’ assertion that his complaint was dealt with by the CFSRB.

14The written statement from J.C. states that a lady told her she needed to see her every 30 days, told her she had her mother and father’s permission to speak to her but her mother said she did not, and the woman asked her a number of times if her parents hit her.

15The written statement from I.C. indicates that it was “another interview” with a woman who told him his mother said she could interview him, but when he texted his mother, she denied having given permission. It states that the woman asked him if everything was good at home and he told her it was.

16The written statement from the minor applicants’ mother indicates that she did not give permission for the CAS to interview her children a second time. She states that when she received a text from her son on June 27, 2014, to ask if she had given permission for an interview, she said no and indicated she would come to the school. She states that when she arrived at the school, the woman from CAS was gone.

17At the summary hearing, the litigation guardian submitted that the CAS discriminated against I.C. and J.C. on the basis of age by interviewing them without his permission. He alleged that the CAS is there to create problems and harass his children. He stated that he is “living proof” of this as he has eight children from three relationships and all of his children have been investigated, since 1992 (I note that in his Application, he stated that he has nine children). He also alleged that at one point, there was an allegation that the children’s mother hit them with a hanger and slippers, but they did not interview him about that allegation.

18At the summary hearing, the CAS submitted that the applicant has not demonstrated any link between the respondents’ alleged actions and a ground protected by the Code. The CAS submitted that with regard to the allegation of reprisal, the applicant had not pointed to any evidence of intent to reprise against him. The CAS submitted that the applicant made the same complaint to the CFSRB that it had interviewed his children without his consent and the CFSRB found that his consent had not been necessary. The CAS submitted that it conducts investigations into reported abuse, and that though the applicant is unhappy about that, the interviews are normal in the course of a child protection investigation.

19The Minister filed written submissions prior to the summary hearing in which it states that the litigation guardian has not provided any link between the grounds of family status and age and any actions of the Minister, nor has he established any intent of the Minister to retaliate against him.

20In its written submissions and at the summary hearing, the Minister submitted that at most the allegations are complaints about how an investigation was conducted by the CAS, but that has been dealt with and decided by the CFSRB and this Tribunal has no jurisdiction to consider the question. Counsel for the Minister cited Gabriel v. Prince Edward Children’s Aid Society, 2012 HRTO 160 at paragraphs 8-9, where the Tribunal dismissed an applicant’s complaint about the way that CAS conducted an investigation, as having no reasonable prospect of success.

21For the reasons stated below, these Applications are dismissed as having no reasonable prospect of success.

22Section 1 of the Code provides as follows:

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.

23Section 10 of the Code defines “age” as follows:

“age” means an age that is 18 years or more

24Though the Code makes certain provisions for accommodation for 16 and 17-year-olds who have withdrawn from parental control, as well as regarding sales of liquor and tobacco, the minor applicants are all under the age of 18, and are not included in the Code definition of “age” for purposes of provision of services by the CAS or by the Minister. Accordingly, there is no reasonable prospect of success for the allegations that these minor children were discriminated against contrary to the Code on the basis of their age.

25Section 10 of the Code defines “family status” as follows:

“family status” means the status of being in a parent and child relationship

26The litigation guardian makes a bald assertion that the CAS is there to create problems and harass his children. However, the minor applicants have not been able to point to any evidence that they were treated differently by the CAS or the Minister than are others who are interviewed by the CAS, either because they are in a parent and child relationship, or because they are in a particular parent and child relationship. Without such evidence, this allegation has no reasonable prospect of success.

27The Applications also contain the allegations that the CAS worker lied to the children about having their parents’ consent to conduct an interview and took the phone of one of the minor applicants (the litigation guardian does not identify which one), and looked at her private messages and failed to investigate an allegation of hitting. The Code 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 Code. As noted above, the minor applicants are not included in the Code definition of age for purposes of actions by the CAS or the Minister. Further, the minor applicants have pointed to no evidence linking the CAS worker’s alleged actions to family status. Without such a link, there is no reasonable prospect of success for these allegations and they are dismissed.

28The litigation guardian is also an applicant. He has pointed to no evidence to link the alleged actions by the respondents to his age or to his family status. Without such a link, S.C.’s allegations of discrimination have no reasonable prospect of success and are dismissed.

29Section 8 of the Code provides as follows with respect to reprisals:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

30The Applications also allege reprisal on the basis that the CAS harassed the minor applicants after a complaint was made to the CFSRB. There is no indication that the minor applicants had claimed or tried to enforce their rights under the Code as part of the complaint to the CFSRB, nor is there any indication that they have refused to infringe a right of another person under the Code as part of the complaint to the CFSRB. In the absence of such Code-protected activity, it is not possible for the applicants to claim reprisal contrary to the Code.

31The action that S.C. alleges led to reprisal was his complaint to the CFSRB that the CAS spoke to his minor children without his consent. As found above, if the CAS spoke to a minor child without his consent, this does not fall under the protection of the Code. Further, and in any event, his complaint was not an attempt to claim or enforce his rights under the Code, nor was he instituting or participating in proceedings under the Code, nor was he refusing to infringe a right of another person under the Code. In the absence of a Code-protected activity, it is not possible for S.C., as applicant, to claim reprisal contrary to the Code.

32For all of these reasons, these Applications are dismissed.