HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.D.

Applicant

-and-

Peel Children’s Aid Society

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 26, 2015

Citation: 2015 HRTO 121

Indexed as: M.D. v. Peel Children’s Aid Society

WRITTEN SUBMISSIONS

M.D., Applicant

Self-represented

Peel Children’s Aid Society and Rachel Daca, Respondents

Pamela Yudcovitch, Counsel

1This Application alleges discrimination with respect to the provision of goods and services because of disability, record of offences and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In his Application the applicant alleges differential treatment in the provision of services by the respondent based in whole or in part on the basis of disability and a record of offences. In submissions in response to some of the issues raised by the respondent the applicant has suggested that his complaint is “based on the non consensual background check conducted by [Ms. D] and the subsequent demand that he, the applicant, vacate his place of residence or face repercussions from the [respondent].”

The Respondents’ RFOP

3The respondent has filed a Request for Order (Request) seeking a number of Orders as follows:

a. That the name of the child who was under the care of PCAS and who forms part of the narrative of this dispute be referred to as "B";

b. That the parents of the child, B., be referred to as "P.S." (Mother) and "L.T." (Father) to protect the identity of the child and the child's parents;

c. That the individual who had custody and was caregiver to B., who lives in the same residence as the Applicant, be referred to as "R.B."

d. That the Respondent be permitted to produce documents in redacted form to protect the identity of B. and his parents and the name of the former caregiver with whom the Applicant and B. formerly resided;

e. That no identifying information about the child, or the child's parents or caregivers be provided by the Tribunal or to anyone other than the parties to the Application, and that any information that discloses the name of the child or the child's parents or caregivers be sealed, including within the Application and this Request for an Order;

f. That the proceeding in this matter be closed to the public; and

g. That the Tribunal allow the Respondents 21 days from the date of the Interim Decision in this Application to file its Response in this matter, with documents in redacted form.

4The Request for Order set out in paragraphs 3 (a) to (d) are granted. The Request for an Order set out in paragraph 3 (g) appears to be moot as the respondent has filed a Form 2 (Response). The Order sought in paragraph 3(e) is granted with modifications discussed below. The Request that this proceeding be closed to the public is deferred.

5The applicant agreed to each of the above requested orders.

6Although it is not at all clear that the child, his parents, or his current caregiver will play any role in this proceeding, the Tribunal has recognized the enhanced vulnerability of minors and the importance of protecting their identities from public disclosure. Tribunal Rule 3.11.1 reflects the general approach of anonymizing the identity of children under 18 and other participants as necessary to protect the identity of a child. The Tribunal has also applied section 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the Act) in proceedings before it to avoid identification of a child involved in child protection proceedings under that Act. See A.D. v. Children’s Aid Society of Hamilton, 2011 HRTO 473.

7In addition to the Tribunal’s general practice of anonymizing the identity of minors, I note that where section 45(8) of the Act applies, it imposes what might be characterized as a publication ban on information that has the effect of identifying a child who is a witness in a proceeding or the subject of a proceeding under the Act. In order to comply with this provision of the Act I find that it is likely that the Orders sought are largely required. Accordingly I find that the Orders sought in paragraph 3 (a) to (d) are appropriate in the circumstances.

8The Request for Order set out in paragraph 3 (e) is not granted in the form sought. My concerns with it as proposed are essentially practical and concerns the ability to “seal” information as opposed to sealing a document or group of documents. However in order to comply with section 45(8) of the Act the following Order is appropriate and in my view, and subject to any further submissions of the parties at the appropriate time, is sufficient to meet the ends of the Act:

No person, including this Tribunal, shall publish or make public information that has the effect of identifying the child or the child’s parent, caregiver(s) or a member of the child’s family.

9The request to close the proceeding to the public is premature at this stage as it is entirely unclear as I indicated above whether or not the child, her parents or any caregivers will be involved in any way in this proceeding. I would also observe that this aspect of the request is a very unusual one and will require full argument based on a more complete record of what in fact is in dispute in this case and to what extent if any, the child, parents and caregivers become part of the proceeding. The respondent may renew this aspect of the Request at the appropriate time.

10In responding to this Request the applicant stated that he agreed to the request to anonymize so long he was referred to as M.D. The applicant provided no reasons for the anonymization of his identity.

The Removal of the Personal Respondent.

11The respondent seeks an Order removing the personal respondent from the Application. The respondent argues that at all times the personal respondent was acting with the authority of the PCAS and PCAS takes responsibility for her authorized actions as a child protection worker. The respondent relies upon section 15(6) of the Child and Family Services Act which provides that actions are prohibited against an officer or employee for an act done in good faith in the execution of their duty under the Act. The respondent argues that there would be no prejudice to any party by the removal of the individual respondent from the Application.

12The applicant argues that the individual respondent did not act in good faith, that she violated provisions of privacy legislation in relation to records checks with a police service.

13Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

14I agree with the respondent’s submissions. In my view, considering all the circumstances, it is not necessary to involve the individual respondent in order to properly adjudicate this case. Despite the applicant’s assertions that the individual respondent violated privacy legislation in the manner in which she obtained certain information about him it is not at all clear how this allegation might relate to his Code claim based on claims of discrimination on the basis of a disability or a record of offences as defined in the Code. In any case I am not at all satisfied that the individual respondent remaining a party of the proceeding is necessary to its fair, just and expeditious adjudication. The individual respondent is removed from the Application and the style of cause amended accordingly.

The Summary Hearing Request

15Although framed as a Request for Summary Hearing this Request includes arguments with respect to the Tribunal’s jurisdiction to hear the case for a number of reasons in addition to an argument that it should be dismissed because it has no reasonable prospect of success. The applicant has not responded to this Request and should do so.

Directions

16For the reasons set out above the Tribunal makes the following Orders:

a. The personal respondent is removed from the Application and the style of cause amended accordingly;

b. That the name of the child who was under the care of PCAS and who forms part of the narrative of this dispute be referred to as "B";

c. That the parents of the child, B., be referred to as "P.S." (Mother) and "L.T." (Father) to protect the identity of the child and the child's parents;

d. That the individual who had custody and was caregiver to B., who lives in the same residence as the Applicant, be referred to "R.B."

e. That the Respondent be permitted to produce documents in redacted form to protect the identity of B. and his parents and the name of the former caregiver with whom the Applicant and B. formerly resided;

f. That no person, including this Tribunal, shall publish or make public information that has the effect of identifying the child or the child’s parent, caregiver(s) or a member of the child’s family;

g. The applicant will deliver and file a response (Form 11) to the respondent’s Request for Summary Hearing addressing all of the arguments made by the respondent, within 14 days of the date of this Interim Decision, failing which the Tribunal will determine the issues based on the material filed or the Application may be dismissed as abandoned.

17I am not seized of this case.