HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.R.
Applicant
-and-
Family and Children’s Services of Lanark Leeds and Grenville
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed As: J.R. v. Family and Children’s Services of Lanark Leeds and Grenville
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 discrimination with respect to the provision of goods and services because of disability, family status, marital status and age.
2In its Response (Form 2), the respondent requested the early dismissal of this Application because the substance of it has been appropriately dealt with in proceedings in the Ontario Superior Court of Justice. The respondent has also filed a Request for Order During Proceeding seeking an Order that any hearings held in this case be closed to the public and a “sealing” order be made to ensure the confidentiality of documents filed in the course of the proceeding.
3The applicant filed submissions in reply to the Response and Request. The applicant opposed the request to dismiss. The applicant also opposed the Request in large part but did agree that the title of proceedings could be anonymized. However, it is clear from the applicant’s submissions that she did not completely understand the nature of the request, believing for example that the respondent’s request that any hearing be held in camera meant that she would be on camera during the hearing instead of what it does mean – that the hearing be closed to the public. The applicant made no comment about the sealing order requested by the respondent.
The Request For Order
4The Request is granted. The pleadings in this case will be sealed as requested, all hearings will be closed to the public and the title of the proceeding will be anonymized.
5It Is apparent on the face of the pleadings that the case relates to one or more children in need of protection as defined in the Child and Family Services Act, R.S.O 1990, c. C.11 (“CFSA”). Section 45.8 of the CFSA prohibits the disclosure or publication of any information which would have the effect of identifying a child involved in a child protection application:
(8) 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.
6Section 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides as follows:
9.(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the tribunal may hold the hearing in the absence of the public.
7In my view, having regard to the statutory provisions outlined above, it is appropriate to grant the orders requested by the respondent in order to ensure that the identify of one or more children in need of protection and any parent or other member of the family, are not identified. The Tribunal makes the following Orders:
a. The respondent’s request to seal the record is granted. All pleadings and documents in the Tribunal’s file for this Application will be sealed and will not be available to the public or distributed to any person (except the parties and their legal counsel, if any), without a further order of the Tribunal;
b. Any hearing, whether by telephone or in-person, will be closed to the public;
c. The title of proceeding will be anonymized to obscure the identity of the applicant.
The Summary/Preliminary Hearing
8Having reviewed the pleadings to date, the Tribunal directs that a summary/ preliminary hearing be held to determine two issues: whether or not the Application should be dismissed because it has no reasonable prospect of success, and whether or not all or part of the Application should be dismissed pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in the Ontario Superior Court of Justice. I also note that there have been proceedings before the Child and Family Services Review Board which may bear on this question.
9The hearing of these issues will take place by telephone conference call. Although held at the same time, there are slightly different procedures for each which are set out below. The member assigned to hear the case may make further directions with respect to the conduct of the hearing.
The Summary Hearing
10Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:
In 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 generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In 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 will be whether there is a reasonable prospect that 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.
11The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link between any of the actions of the respondent and the ground or grounds alleged.
12At the summary/preliminary hearing, the parties may make submission about whether or not the Application should be dismissed because it has no reasonable prospect of success. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a link to the grounds alleged and a link to the respondent’s alleged actions. No witnesses will give evidence during the summary hearing portion of this hearing.
The Preliminary Hearing
13In addition, the Tribunal will hear the parties’ submissions about whether or not the Application should be dismissed pursuant to section 45.1 of the Code, 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”.
14In preparing their submissions, the parties 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. All decisions of the Tribunal can be accessed free of charge on the website of the Canadian Legal Information Institute at: www.canlii.org/en/on/onhrt/index.html.
15The parties may make submissions on whether the Application should be dismissed on this basis. If the parties wish to rely on any evidence, witnesses or case law with respect to this issue they must deliver any additional documents, witness lists or case law they wish the HRTO to consider to each other and file them with the Tribunal no later than 35 days after the date of this Interim Decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.
16The summary/preliminary hearing will be held by telephone conference call. If in the opinion of the Tribunal an in-person hearing is required, the Tribunal will consult with the parties. The format of the hearing will be dependent in part on what evidence, if any, the parties intend to call.
Directions
17The Registrar will schedule a summary/preliminary hearing by telephone conference call. If the parties wish to rely on any evidence, witnesses or case law with respect to these issues they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this Interim Decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.
Orders
18The Tribunal makes the following Orders:
a. The respondent’s request to seal the record is granted. All pleadings and documents in the Tribunal’s file for this Application will be sealed and will not be available to the public or distributed to any person (except the parties and their legal counsel, if any), without a further order of the Tribunal;
b. Any hearing, whether by telephone or in-person, will be closed to the public;
c. The title of proceeding will be anonymized to obscure the identity of the applicant.
19I am not seized.
Dated at Toronto, this 13th day of December, 2016.
“Signed by”
David Muir
Vice-chair```