X.M. v. Kinark Child & Family Services, 2016 HRTO 1457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

X.M. by his Litigation Guardian M.M.

Applicant

-and-

Kinark Child & Family Services

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: November 10, 2016

Citation: 2016 HRTO 1457

Indexed as: X.M. v. Kinark Child & Family Services

APPEARANCES

X.M. by his Litigation Guardian M.M., Applicant

Megan Evans Maxwell, Counsel

Kinark Child & Family Services, Respondent

Sabatina Vassalli, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction (CAD) dated May 5, 2016, the Tribunal directed that a Summary Hearing be held pursuant to Rule 19A of the Tribunal's Rules of Procedure. The hearing took place by telephone on November 9, 2016. The parties were represented by counsel.

3The purpose of a summary hearing is to consider whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4In 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 be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

5In 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 is whether there is a reasonable prospect that the 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.

6The Tribunal is mindful of the fact that in some cases the 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.

analysis

7X.M. is a child who has been diagnosed with Autism Spectrum Disorder (ASD) and apraxia, a motor disorder which prevents him from physically being able to speak. As a result of his diagnosis, he was eligible for Intensive Behavioural Intervention therapy (IBI) which is administered by the respondent. X.M. uses an augmentative and alternative communication device (ACC) and as such, communicates at a slower rate than if he was able to communicate verbally.

8According to the applicant's Litigation Guardian, M.M., the applicant began treatment in 2012 and was discharged in 2015. Allegedly, the respondent concluded that X.M. should be discharged because, in its opinion, he was not making sufficient progress.

9According to M.M., in making its decision to discharge, the respondent assessed X.M. in the same manner that it evaluated verbal IBI recipients and that its assessment did not take into account his diagnosis of apraxia and was based on an assessment of skills that he was incapable of achieving due to apraxia.

10X.M.'s mother, M.M., allegedly requested accommodation for X.M.'s apraxia in his assessments, advising the respondent that X.M. was being assessed in fields and in ways in which he was incapable of making gains due to his apraxia. M.M. indicates that the respondent refused to accommodate X.M.'s apraxia in its assessments of his progress and discharged him from IBI services.

11The respondent argues that X.M. was discharged because he was not making appropriate progress, that the decision to discharge X.M. was a clinical decision and that clinical decisions are not subject to review under the Code.

12M.M. indicates that she is not asking to have the respondent's clinical decision to discharge X.M. from IBI services overturned, rather she is challenging the method in which he was assessed for discharge and the respondent's failure to accommodate him during his assessments. M.M. takes the position that one cannot accurately determine whether X.M. was making appropriate gains until he is assessed with appropriate accommodations in place. She maintains that the respondent's requirement that X.M. be assessed in the same manner as all other IBI recipients, without modification, prevented him from being able to fully participate in the assessment process and, as a result, restricted him from eligibility for IBI services for reasons related to his disability.

13If I accept the applicant's allegations as true, which I am required to do in this proceeding, I cannot conclude that the applicant's allegations have no reasonable prospect of success. The Tribunal has held in Girdharrie v. Cardinal Fasteners, 2012 HRTO 430 at para. 18 that "in order to make a finding of no reasonable prospect of success, it must be both plain and obvious (assuming all the allegations to be true) that a respondent did not act contrary to the Code". In this case, it is not possible to reach that conclusion.

14I do not consider it necessary to provide further reasons for this Interim Decision nor, pursuant to Rule 19A.6, am I required to do so.

15Accordingly, the Application will move to the next stage in the hearing process.

16I am not seized.