J.S. v. Children’s Aid Society of Toronto, 2015 HRTO 879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.S.

Applicant

-and-

Children’s Aid Society of Toronto

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: July 02, 2015

Citation: 2015 HRTO 879

Indexed as: J.S. v. Children’s Aid Society of Toronto

APPEARANCES

J.S., Applicant

Self-represented

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her because of her place of origin contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, the applicant claimed that the respondent refuses to close her file with them because she is of Russian origin.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. The applicant clearly believes that the Children’s Aid Society is not treating her fairly. She believes that it is behaving cruelly toward her and misusing public funds by keeping her file open when, in her view, there is no reason to do so. Even if I accept all of the facts alleged by the applicant as true, she has not been able to point to any evidence beyond her own suspicions that her place of origin was a factor in the respondent’s refusal to close her file.

Respondent Did Not Participate in the Summary Hearing

4On May 20, 2015, the Tribunal issued a Notice of Summary Hearing (“Notice”) to the parties confirming that a summary hearing of the Application was scheduled to take place by teleconference on June 30, 2015 at 1:30 p.m. The Notice was delivered to the respondent at the mailing address provided to the Tribunal.

5The summary hearing was convened by teleconference on June 30, 2015 at the scheduled time. Neither the respondent’s counsel nor any representative of the respondent called into the summary hearing at 1:30 p.m. In accordance with the Tribunal’s usual practice, I waited until 2 p.m. before proceeding. At 2 p.m., no one representing the respondent had called into the summary hearing.

6Under Rule 3.13(a) of the Tribunal’s Rules of Procedure, the Tribunal has the power to proceed with a hearing in a party’s absence where the party has been notified of the hearing and fails to attend.

7Therefore, I proceeded with the summary hearing in the absence of the respondent.

Summary Hearing Process

8The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

9The Tribunal cannot address allegations of unfairness that are unrelated to the Code. Many experiences of unfairness that are not linked to the Code can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the prohibited grounds set out in the Code.

10The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

11However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any direct or circumstantial evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

12As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

13Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

14A health professional recommended that the applicant take advantage of services provided by the Children’s Aid Society to assist her after she was discharged from hospital after the birth of her child. Sometime later, the applicant wrote to the respondent asking that they close her file because she no longer had any need for its services. Instead of closing her file, the respondent commenced a court proceeding against the applicant. The judge in the case denied the applicant’s request that the respondent close her file.

15In August, 2014, a social worker employed by the respondent visited the applicant’s home under court order. The applicant told the social worker she no longer needed the respondent’s services. In response, the social worker insisted on cooperation and told the applicant she could call the police to take her child away if she did not cooperate. The applicant told the social worker that she is from Russia and she could not understand on what basis the respondent could force her to cooperate if she no longer required its services.

Findings

16Even if I accept the facts put forward by the applicant as true and provable, I find that she has provided no information that can reasonably establish that the respondent’s actions were in any way linked to her place of origin.

17When I asked the applicant what evidence she would be able to bring forward in a hearing to establish the link between the respondent’s actions and her place of origin, she stated that she would rely upon the following evidence which she filed with her Application:

a. A letter written by her mother, who is a neurologist, stating that the applicant is not a danger to anyone.

b. A letter she wrote to the respondent asking it to close her file.

c. A complaint she filed with the Ontario Ombudsman about the respondent’s refusal to close her file.

d. Certificates she has received due to her participation in various parenting programs.

18In addition, the applicant said she intended to call witnesses who could testify to the respondent’s actions toward her.

19The applicant claims that all of the above would prove that she is a good mother and that there is no longer any need for the respondent to keep her file open. As noted above, for an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond their own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

20At most, the applicant is claiming that since she is a good mother and believes she has no need for the respondent’s involvement, the only reason she can think of for why it is refusing to close her file is because she is of Russian origin. The Tribunal has repeatedly found that this is not sufficient to establish that an application has a reasonable prospect of success. See, for example, Rana v. Loblaws Companies Ltd., 2012 HRTO 533 and Gerrick v. Ceva Logistics, 2011 HRTO 712.

21I note that the applicant also submitted in the summary hearing that the respondent’s actions were discriminatory on the basis of motherhood. This submission also stands no reasonable prospect of success. The applicant provided no information to support her view that she was treated differently from others due to her status as a mother. There is no doubt that the respondent began providing services to the applicant because she is a mother. However, that, on its own, is not sufficient to prove discrimination. The applicant failed to point to any evidence that would show that the respondent’s actions were discriminatory because of her status as a mother.

22As a final point, the applicant argued that the respondent’s actions were not only discriminatory but cruel and a misuse of public funds. As I advised the applicant during the summary hearing, the Tribunal only has jurisdiction over discrimination under the Code. It does not have a broader jurisdiction over claims of cruelty unconnected to the Code or claims regarding the alleged misuse of public funds.

23For all of the above reasons, I must find that the applicant has failed to point to any evidence that could establish a link between the respondent’s actions and the protections against discrimination contained in the Code.

anonymization

24I have anonymized this Application (used initials) in order to ensure compliance with s. 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11 which states:

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Order

25For the above reasons, the Application must be dismissed on the basis that it has no reasonable prospect of success.

26The applicant’s name has been substituted with her initials, J.S., in the style of cause of this proceeding.