HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
D.D.
Applicant
-and-
Children’s Aid Society of the District of Nipissing and Parry Sound; North Bay Regional Health Centre; District of Nipissing Social Services Administrative Board; James W. Stewart Medicine Professional Corporation; B.A. Demers Medicine Professional Corporation; College of Physicians and Surgeons; Legal Department Paralegal; Kelly J. Morgan Psychotherapy/Assessments; Jean-Jacques Primeau; Workplace Safety Insurance Board Head Office
and Kristine Smith
Respondents
DECISION
Adjudicator: Leslie Reaume
Indexed as: D. D. v. CAS (Nipissing and Parry Sound)
APPEARANCES
D. D., Applicant
Self-represented
Children’s Aid Society of the District of Nipissing and Parry Sound, Respondent
Heather Zuck, Counsel
North Bay Regional Health Centre, Respondent
Shane Smith, Counsel
District of Nipissing Social Services Administrative Board, Respondent
Peter E.G. Leckie, Counsel
James W. Stewart Medicine Professional Corporation, Respondent
Jennifer Katsuno, Counsel
B.A. Demers Medicine Professional Corporation, Respondent
Jennifer Katsuno, Counsel
College of Physicians and Surgeons, Respondent
Carina Lentsch, Counsel
Legal Department Paralegal, Respondent
Chris Lafrance, Representative
Kelly J. Morgan Psychotherapy/Assessments, Respondent
Amanda Smallwood, Counsel
Jean-Jacques Primeau, Respondent
Dona Salmon, Counsel
Workplace Safety Insurance Board Head Office, Respondent
Greg Bullen, Counsel
Kristine Smith, Respondent
Heather Zuck, 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 reprisal and discrimination on the basis of disability, family status, marital status, association with a person identified by a prohibited ground, with respect to employment, housing, goods, services and facilities and contract.
2A number of the allegations appear to relate to an application for crown wardship involving the applicant’s youngest daughter. As a result, I have anonymized the applicant’s name in this decision in order to ensure that her daughter is not identified as a result of the publication of this Decision. Section 45.(8) of the Child and Family Services Act, R.S.O. 1990, c, C.11, 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.
See also A.D. v. Children’s Aid Society of Hamilton, 2011 HRTO 473.
3This Application was filed in several parts. There are approximately 400 pages of materials, some of which appear to contain descriptions of the experiences which the applicant alleges to be discriminatory. There are other documents such as invoices, letters and reports which the applicant appears to be relying on to prove her allegations of discrimination. They cover a range of issues including but not limited to a crown wardship application, a court application for child and spousal support, benefit entitlements and medical treatment. Almost all of the allegations were filed outside of the one-year limitation period under the Code, however, that is not the focus of my decision. In most cases there are more fundamental issues which I have addressed below, which deprive the Tribunal of the authority to deal with the applicant’s allegations.
4For the most part, the applicant’s allegations are vague, incomplete and lack sufficient detail to understand why she considers this Tribunal the appropriate forum for resolving these long-standing grievances. She appears to be dissatisfied with a number of decisions which have been made in relation to herself and her family. The applicant also appears to believe that she has been mistreated because of a number of prohibited grounds. However, these perceptions do not establish a legal basis for proceeding with a Tribunal hearing into her allegations. I have included some examples of the applicant’s allegations here to illustrate these issues. These statements come from a document entitled “Affidavit” which was prepared and signed by the applicant. The document is dated May 30, 2015 and was filed to supplement her other materials:
Statements found in affidavits from 2011 to November 19, 2013 from different organization showing up inaccurate, incomplete, exaggerated and false statements that pertains to my employer the North Bay Regional Health Centre or previously known as North Bay General Hospital;
Family Health Benefits/coverage cut off x3 due to being behind 100% employee contribution $358.50/month (September 2012; June 2013; April 2013) knowingly on the situation and serious valid reason of my late payments;
OHS doctor (Dr. B. Demers) owned business – Professional Medical Corporation showing up in a report asking the court for an order for me to attend this place for bloodwork and the organization that wrote this were aware of this specific doctor reporting in past to the College of Physician placing a conflict of interest;
Undefended court orders have been obtained against me between 2011 and 2015 and I need to clear the records. Ongoing unequal treatment and punishment based on bias information, subject of prejudice, harassed and discrimination affecting my health and conditions including my family’s health and conditions;
Letter written to CEO July 2013 after being paid up to the end of the month and cut off for the second time from the family health benefits. NO RESPONSE LETTER RECEIVED – copy of confirmation email received from CEO assistant states it was printed and received;
Also conflict of interest with four doctors under North Bay Regional Health Centre that has affect my case in court, mostly prejudice/bias information and two false allegations claims through another organizations claims to the court;
5The applicant’s allegations go back to at least 1999 and relate to a variety of different time periods, incidents, formal and informal proceedings and the alleged actions of the 11 named respondents. I have cited a few examples here to illustrate the breadth of her Application. There is an early period where the applicant believes that she was being harassed by her employer as well as a doctor who was providing her with medical treatment at that time. The applicant states that she complained about this doctor to the College of Physicians and Surgeons and she alleges that her complaints were not taken seriously. She alleges that from 2011 to the present she has been mistreated by the Children’s Aid Society (“CAS”) and that her complaints have not been answered. The applicant names a CAS worker and describes an affidavit filed by the worker during child protection proceedings which the applicant describes as a personal attack on her. The applicant alleges that her husband has also been mistreated and that his benefits have been withheld because he has been reported to be living with her. She alleges that Social Services took advantage of her husband and had him sign consents when he was incapable of doing so. She alleges that a court appointed assessor recommended to the court that the applicant should have her blood tested by an organization owned by another named respondent, Dr. Bruce Demers. The applicant alleges that this recommendation was copied and pasted by the CAS into other materials filed with the court which assisted the CAS in obtaining crown wardship of the applicant’s youngest child.
6During the summary hearing the applicant provided oral submissions in an attempt to clarify her allegations. A support person from the Mental Health Association stood by with the applicant during the call to provide support if needed. The oral submissions confirmed that the applicant’s allegations are as they appear in the Application: a series of incidents spanning a number of years which describe a long history of interactions with public institutions and private individuals and perceptions on the part of the applicant that she has been mistreated on the basis of, family status, marital status, association with a person identified by a prohibited ground.
7My role is to determine whether the Tribunal has the authority to deal with these allegations. My findings are not meant to compound the genuine distress that the applicant feels, particularly over the loss of her daughter to crown wardship. However, this Tribunal has no power to resolve general allegations of unfair treatment, no matter how serious, where there is only a perception on the applicant’s part that there is a connection to a prohibited ground. I have set out my reasons for this decision in more detail below.
Procedural History
8The Application was received in several parts. On May 21, 2015, the Tribunal wrote to the applicant confirming that the Application was received on May 19, 2015.
9On June 10, 2015 the Tribunal issued a Case Assessment Direction (“CAD”) directing, on its own initiative, that a summary hearing by teleconference be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. The CAD also directed the parties to prepare to deal with a number of other issues: whether the substance of the Application has been appropriately dealt with in a related proceeding; whether the allegations are timely; and the applicant’s allegations of reprisal.
10A half-day summary hearing by teleconference was scheduled for October 6, 2015. A number of the parties filed submissions in advance of the summary hearing.
Summary Hearings
11The role of the applicant in the summary hearing is to describe to the Tribunal the evidence they intend to rely on to support their belief that they experienced discrimination. The Tribunal’s role is to consider whether the allegations fall under the Tribunal’s authority and whether there is evidence which will reasonably be available to support the allegations. Where an applicant believes that she has been the victim of discrimination, but is unable to point to evidence which would support that belief, an application will be found to have “no reasonable prospect of success”.
12While the primary focus in the summary hearing is on the applicant’s evidence, the respondent’s explanation may be considered where the parties agree on the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.
13The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.
14At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. At this stage, the Tribunal assumes that the applicant is telling the truth unless there is clear evidence to the contrary which the applicant does not dispute. However, that does not mean that the Tribunal accepts the applicant’s assumptions and beliefs about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s assumptions and beliefs that the unfair treatment they experienced arises from a prohibited ground under the Code. Making this connection is an important part of proving discrimination.
15In order to proceed to a full hearing some evidence must exist, which goes beyond the applicant’s feeling or belief that the ground played a role in what they experienced. Many circumstances play a role in assisting the Tribunal in determining whether a person has experienced discrimination in the legal sense. However, if the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success.
16If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. If the Tribunal is unable to determine that an application has no reasonable prospect of success, it will move to the next stage in the hearing process. In some cases, the Tribunal finds that only part of an application will move ahead, while part is dismissed.
17In this case the Tribunal’s CAD also directed the parties to address whether section 45.1 of the Code, applies to this proceeding, which reads as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
18The parties were advised that in preparing their submissions, they may wish to consider the decisions of the Supreme Court of Canada in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, as well as previous cases in which the HRTO has considered the application of s. 45.1, including Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 and the cases cited in that decision.
19A number of the issues raised by the applicant appear to have been dealt with in the context of a child protection proceeding.
20The parties were also asked to address the issue of timeliness. Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
21The applicant was also advised that the Tribunal would consider her allegations of reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent’s alleged actions.
22Following the summary hearing the applicant filed various materials and further submissions up to January 19, 2016. I have not found it necessary to seek responding submissions from the other parties with respect to this material.
Analysis
Children’s Aid Society of the District of Nipissing and Parry Sound (CAS) and Kristine Smith
23The applicant alleges that she experienced discrimination and harassment related to her medical and psychological conditions by a worker named Kristine Smith at the CAS. The applicant’s allegations relate to the apprehension of her daughter and interactions with the worker as well as various actions taken by the CAS in the course of child protection proceedings. The child protection proceeding was completed on November 9, 2013 by way of a final order of the Court.
24The position of the respondents is that the applicant’s allegations are vague, lacking in particulars, appear to be untimely and in any event, were the subject of a child protection proceeding before the Ontario Court of Justice as well as a criminal proceeding and a complaint before the Child and Family Services Review Board.
25I agree with the respondents and have dismissed these allegations on the basis that there is no reasonable prospect of success, but also in this case, on the basis of section 45.1 of the Code.
26In K.M. v. Kodama, 2014 HRTO 526, upheld in Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085, the Tribunal discussed the relationship between issue estoppel, fairness and finality. In that decision, the Tribunal found that the fairness of using the results of another proceeding to bar a human rights Application is a principle that ought to be considered in applying s.45.1 of the Code. The Tribunal also noted that an application should not be dismissed as having been “appropriately dealt with” in another proceeding without taking into account the nature of the other proceeding, the applicant’s stake in it and the parties’ reasonable expectations about the impact of the earlier proceeding on their broader legal rights.
27In this case, however, the applicant’s request to proceed with her allegations before this Tribunal would be tantamount to permitting her to re-litigate the crown warship issues which were resolved by judicial decisions. The applicant believes that she was treated unfairly, however, the issues associated with the apprehension of the applicant’s daughter and her ongoing interactions with the CAS during this period, were central to the child protection proceeding. In order to consider the applicant’s allegations, the Tribunal would be required to hear the same evidence and reconsider the same issues which were dealt with in the court proceeding.
28For those reasons I have determined that the substance of the applicant’s allegations against these respondents has been appropriately dealt in another forum and the allegations are dismissed.
North Bay Regional Health Centre (NBRHC)
29The applicant’s allegations against NBRHC are vague and lacking in particulars. The allegations relate to events which took place in 2002 and 2006. The applicant uses the words “ongoing discrimination, harassment, threats, intimidation, failure to inquire on serious issues involving OHS doctor….” without providing any particulars which would help the Tribunal identify issues falling within its jurisdiction. There is no reasonable prospect that the applicant will succeed where she is unable to describe what the allegations are and how they relate to a prohibited ground under the Code.
District of Nipissing Social Services Administrative Board
30The applicant’s allegations appear to relate to decisions made with respect to eligibility for financial assistance and related proceedings for spousal and child support. The applicant alleges that she was treated unfairly but she has not set out sufficient facts to demonstrate that the Tribunal would have any jurisdiction over the issues she has raised. As a result, I find that there is no reasonable prospect that she will be successful and these allegations are dismissed.
James W. Stewart Medicine Professional Corporation and B.A. Demers Medicine Professional Corporation
31The applicant alleges that she experienced discrimination in relation to the delivery of medical services to herself and her family. The allegations against Dr. Stewart arise from medical treatment provided to the applicant’s husband and grandmother. The applicant has never been a patient of Dr. Stewart and their last contact was in 2011. The allegations against Dr. Demers arise from assistance he provided to the applicant in his capacity as Occupational Health and Safety Physician for the North Bay Regional Health Centre. Dr. Demers has had no contact with the applicant since 2002-2003. The respondents argue that the allegations against them are out of time and have no reasonable prospect of success.
32The allegations against Dr. Stewart have no reasonable prospect of success. Dr. Stewart never provided medical care to the applicant. The applicant disagrees with the medical treatment received by her grandmother but this does not create a service relationship between herself and Dr. Stewart. The applicant alleges that Dr. Stewart made discriminatory statements about her mental health but did not provide details of those statements. Fundamentally the applicant perceives that she has been mistreated by Dr. Stewart in some way but there is no reasonable prospect that she will prove that she experienced discrimination in the context of a service.
33The allegations against Dr. Demers have no reasonable prospect of success. The applicant alleges some involvement on the part of Dr. Demers in a “CAS affidavit” and recommendations in an “assessor report” recommending that the applicant have her blood tested in order to see her daughters and her husband. Dr. Demers denies having any involvement in what are vague allegations about a “CAS affidavit” and “assessor report”. The applicant is unable to point to any evidence which would substantiate these allegations and as a result, they are dismissed as having no reasonable prospect of success.
College of Physicians and Surgeons
34The applicant’s allegations against this respondent are vague and lacking in particulars. She states that in 2006 the College did not take her complaints seriously and that this is somehow connected to her being told that she was bipolar. The other 5 allegations do not contain sufficient information to be understood or connected in any way to the Code. As a result, these allegations have no reasonable prospect of success and they are dismissed.
Legal Department Paralegal
35The applicant has named her former representative from the firm Legal Department Paralegal in this Application. The allegations are vague and I see no connection to a ground under the Code. In any event, during her oral submissions the applicant indicated that her former representative did not directly discriminate against her but that the relationship broke down because of information disclosed by the CAS. There is no reasonable prospect that the applicant will be successful in proving discrimination against this respondent.
Kelly J. Morgan Psychotherapy/Assessments
36The allegations against this respondent relate solely to a Court Ordered Parenting Capacity Assessment that Kelly Morgan was retained and appointed by the Court to conduct in April 2012. The assessment was required by the Court in the context of on-going child protection proceedings. The respondent argues that Ms. Morgan’s assessment, recommendations and report are protected by the legal doctrine of Expert Witness Immunity and cannot form the basis of an application before this Tribunal. I agree, although I do not consider it necessary to rely on this argument since the applicant is unable to establish that her allegations fall within a social area under the Code. The applicant disagrees with the opinion expressed by Ms. Morgan in her report. However, Ms. Morgan was not providing a service to the applicant and therefore the Tribunal has no jurisdiction over these allegations.
Jean-Jacques Primeau
37Mr. Primeau was performing his duties as a Crown Attorney. He had one contact with the applicant in 2008 in a North Bay court. Mr. Primeau was involved in withdrawing charges of criminal harassment against the applicant in 2013. Mr. Primeau’s actions are protected by prosecutorial immunity, and in any event, the applicant has not made any allegations against Mr. Primeau over which the Tribunal would have jurisdiction. As a result, these allegations are dismissed against this respondent.
Workplace Safety Insurance Board (WSIB)
38There is no dispute that the WSIB has not provided the applicant with any services and that her allegations relate to her husband’s claim. The applicant argues that she was the authorized representative for her husband with respect to his claim and that she felt like she was “getting the run around”. The applicant argued that her husband clearly had lung damage that was permanent and yet he was not paid what he was entitled to be paid. The applicant mentions in her materials that she was unhappy about an interaction between herself and a WSIB investigator who came to her house in relation to her husband’s claim. The applicant was also apparently interviewed by the WSIB in relation to her husband’s claim at some point. There is no service relationship between the WSIB and the applicant and as a result the Tribunal has no jurisdiction over her allegations. There is also no reasonable prospect that the applicant will succeed because these allegations relate to her dissatisfaction with the benefit entitlement process and not discrimination. The allegations against this respondent are therefore dismissed.
Request for Tribunal Ordered Inquiry
39The applicant has also filed a Request for a Tribunal Ordered Inquiry. I have not found it necessary to deal with this request given the disposition of the allegations against each of these respondents. The applicant does not appear to understand that the purpose of a Tribunal Ordered Inquiry is to obtain evidence in relation to an existing Application not to conduct an independent investigation of the allegations. There will be no need to obtain evidence in this case because the Application has been dismissed.
ORDER
40For all of these reasons, the Application is dismissed.
Dated at Toronto, this 22nd day of January, 2016.
“Signed By”
Leslie Reaume
Vice-chair