C.M. v. Hamilton-Wentworth District School Board, 2015 HRTO 1478

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.M. as represented by his litigation guardian L.S.

Applicant

-and-

Hamilton-Wentworth District School Board, Hamilton Niagara Haldimand Brant Community Care Access Centre, and Bayshore Home Health

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: November 3, 2015

Citation: 2015 HRTO 1478

Indexed as: C.M. v. Hamilton-Wentworth District School Board

WRITTEN SUBMISSIONS

C.M. as represented by his litigation guardian L.S., Applicant

Wade Poziomka, Counsel

Ministry of Health and Long-Term Care, Proposed Respondent

Nadia Laeeque, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to add respondents to the Application.

2This 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 on the basis of disability and family status in the provision of services. The respondent Board of Education filed a Response to the Application and the applicant subsequently filed a Reply and a Request for Order seeking to add the Ministry of Health and Long-Term Care (“Ministry”), the Hamilton Niagara Haldimand Brant Community Care Access Centre (“CCAC”), and Bayshore Home Health (“Bayshore”) as respondents in these proceedings. The Ministry filed a response to the Request for Order, but neither the CCAC nor Bayshore filed a Response to the Request for Order.

3The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

4The application contains allegations relating to provisions for the applicant’s needs at school. The applicant requested that the Ministry, the CCAC and Bayshore be added as respondents after receiving the Board of Education’s Response to the Application, which indicated that in this case, responsibility for implementing shared responsibility for appropriate extended health support services in school settings is borne by the Board of Education and the CCAC. It stated that the Board of Education and the CCAC are “distinct, independent institutions” and that the Board of Education has “no control or oversight over” the CCAC “or the third party nursing or medical agencies with whom” the CCAC may contract. It states that “The individuals who actually provide the nursing or medical services to pupils requiring extended health support services are either employees of the local HCP [“Home Care Provider”, being the CCAC] or alternatively, are employees of third party nursing or medical agencies with whom the local HCP has contracted”. In this case, one of the nursing or medical agencies with whom the CCAC contracted was Bayshore.

5In its response to the Application, the Ministry submits that it provides no direct service to the applicant and that its role is limited to providing funding for such services to Local Health Integration Networks who in turn fund CCACs to provide services. It submits that CCACs are not its agents. It submits that it is not a proper party to the proceeding.

6After consideration of the above factors, I am not persuaded that it is appropriate to add the Ministry as a respondent to the Application. There is no suggestion of a relationship between the Ministry and the applicant which is covered by the Code in respect of the allegations contained in the Application. The issues in this Application do not relate to funding, including sufficiency of funding or eligibility for funding. The allegations in this Application do not appear to support a finding that the Ministry has violated the Code and I do not find that there is a basis to add it as a party to this Application.

7After consideration of the above factors, I do find that it is appropriate to add the CCAC and Bayshore as respondents to the Application. In light of the statements noted above at paragraph 4, contained in the respondent Board of Education’s Response, statements which neither the CCAC or Bayshore has contested, there is a potential that the CCAC and/or Bayshore may be responsible, or share responsibility for any alleged Code violations in this case.

8As for the third part of the Smyth test, I find that it would be fair in the circumstances to add the CCAC and Bayshore as respondents. According to the applicant, prior to receiving the Board of Education’s Response, the applicant had no knowledge of the administrative arrangements between the respondent Board of Education, the CCAC and Bayshore. Fairness requires that the applicant be permitted to add the entities the respondent Board of Education indicates were also responsible for the provision of services to the applicant while at school. Neither the CCAC nor Bayshore has made any Response to the Request for Order During Proceedings, and there is no indication that either will be unduly prejudiced by being added as respondents to this matter.

ORDERS

9For the reasons set out above, the applicant’s request to add the Ministry of Health and Long-Term Care as a respondent is denied.

10For the reasons set out above, the applicant’s request to add the CCAC and Bayshore as respondents is granted. The style of cause shall be amended accordingly.

11It appears that the respondent CCAC and Bayshore have been provided with, among other things, a copy of the Application, the respondent Board of Education’s Response and the applicant’s Reply and the Request for Order During Proceedings. In these circumstances, the Tribunal will deliver to the CCAC and to Bayshore a copy of this Interim Decision, and they are directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of this Interim Decision is sent.

12The applicant may file a Reply to the CCAC’s Response and to Bayshore’s Response. The applicant shall file any Reply with the Tribunal, copied to the respondents, not later than 14 days after the CCAC’s Response and Bayshore’s Response are sent to the applicant.

13I am not seized.