C.P. v. Kinark Child and Family Services, 2016 HRTO 1653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.P., as represented by her litigation guardian, L.P.

Applicant

-and-

Kinark Child and Family Services and Her Majesty the Queen in right of Ontario, as represented by the Ministry of Children and Youth Services

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 21, 2016

Citation: 2016 HRTO 1653

Indexed as: C.P. v. Kinark Child and Family Services

APPEARANCES

C.P., as represented by her litgation guardian, L.P., Applicant

Sean Bawden, Counsel

Kinark Child and Family Services, Respondent

Sabatina Vassalli, Counsel

Ministry of Children and Youth Services, Respondent

Cheryl Ellison, Counsel

Introduction

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to services because of disability. By Case Assessment Direction, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference.

2The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that it will succeed.

3The Litigation Guardian is the mother of the applicant, C.P., who is diagnosed with autism, apraxia of speech, global developmental delay and progressive idiopathic scoliosis. The latter three conditions are described in the Application as "secondary disabilities." The applicant was in receipt of intensive behavioural intervention ("IBI") services for her autism, through the Autism Intervention Program (the "Program" or "AIP"), but was discharged from the Program in 2015.

4The applicant's Litigation Guardian asserts that the testing failed to take into account/accommodate the applicant's secondary disabilities, which resulted in the applicant being discharged prematurely from the Program and, accordingly, denied access to IBI services.

5The IBI services were offered through Kinark Family and Children Services ("Kinark"), which is funded by the Ministry of Children and Youth Services (the "Ministry"). Both Kinark and the Ministry were named respondents to the Application. They each brought a request for a summary hearing, asserting that the allegations in the Application do not constitute discrimination against them.

Kinark family and children services

6The applicant's Litigation Guardian asserts that in administering the testing, which resulted in the applicant being discharged from the program, Kinark failed to take into account the applicant's secondary disabilities, in particular her speech disability which renders her unable to communicate verbally. The applicant's Litigation Guardian states that she is in the process of obtaining evidence that the outcome of the testing would have revealed actual progress had the respondent accommodated the applicant's speech disability. The argument advanced on behalf of the applicant is that the she would not have been discharged from the IBI program had the testing been conducted appropriately.

7The respondent, Kinark, denies that this is so. It produced a document at the summary hearing which purports to show the applicant's rate of progress is the same even when those aspects of the test that relied on verbal skills are removed from the results. The applicant's Litigation Guardian states that she is in the process of obtaining evidence which refutes this document. In any event, the Tribunal does not hear evidence at this stage and, therefore, cannot make factual findings on matters in dispute at a summary hearing. These factual disputes can only be determined at a hearing on the merits.

8Kinark relies on several Tribunal cases that stand for the proposition that it is not the Tribunal's role to evaluate the correctness of clinical decisions, even those that are based on relative levels of disability: Bunda v. Hamilton Health Sciences, 2010 HRTO 698 ("Bunda"), M.Y. v. Central West Autism Intervention Service Erinoakkids, 2012 HRTO 1584 ("M.Y.") and Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797.

9Some of these cases say that the decision to discharge a child from a treatment program does not constitute discrimination, unless the applicant is able to establish something more than the decision was merely wrong. In M.Y., the Tribunal noted at para. 30 that, the Tribunal's earlier decision in Bunda:

... stands for the proposition that it is not the role of the Tribunal to evaluate a respondent's clinical decision, and that there must be some evidence of an impact on the applicants because of the nature of their disability for a case to move forward. In order to establish that they have a reasonable prospect of success the applicants need to point to something more than simply a disagreement as to the appropriate standard of care with respect to these treatment services. [Emphasis added.]

10The applicant's Litigation Guardian points out that she is, in fact, alleging that there is an impact on the applicant because of the nature of her other, non-autism disabilities. Whether or not the applicant can establish this on a balance of probabilities is properly a determination to be made following a hearing on the merits. At this stage, I cannot conclude that the Application has "no reasonable prospect of success."

Ministry of Children and Youth services

11Although the Ministry established the Program, it is Kinark (as one of nine regional service providers) which actually delivers it in the area where the applicant lives. It is undisputed that it is Kinark, not the Ministry, which determines whether a child within its catchment area is eligible for the Program and whether a child should be discharged from the Program. Specifically, it was Kinark that determined that the applicant should be discharged from the Program, the decision at issue in this case.

12In response to the Ministry's request that it be removed as a party to this Application, the applicant's Litigation Guardian argues that the relationship between the two named respondents is such that the Ministry is also responsible. The applicant's argument can be summarized as follows:

1. The Ministry is vicariously liable for the actions of Kinark, because the Ministry provides "oversight" and guidance to Kinark "on how those services are to be provided in order to meet the goals of the AIP." Kinark's authority to discharge clients from the program was specifically granted by the Ministry and, therefore, Kinark was acting on behalf of the Ministry.

2. The Ministry "failed in its duty to monitor compliance with the AIP Guidelines. Had it "conducted regular reviews of the program as it is bound to do under the AIP Guidelines, the Applicant's treatment path might have been corrected."

3. The Ministry's requirement that certain "tools for assessment" be used in order to measure progress of children in the Program resulted in Kinark utilizing what the applicant alleges is discriminatory testing.

4. The Independent Review Mechanism ("IRM" or "review") process, for which the Ministry was responsible, was "conducted improperly in such a way as to promote and give effect to the discriminatory decision" to discharge the claimant from the Program.

13With respect to the first point, the Tribunal has considered and rejected this theory in the educational context. More specifically, the Tribunal has held that the Ministry of Education is not vicariously liable for the alleged failure of a school board to accommodate the disability-related needs of a student – a power which it has granted to school boards to make. See J.Y. v. Hamilton-Wentworth Catholic District School Board, 2013 HRTO 806; R.C. v. Ontario (Education), 2014 HRTO 999; and J.G.L. v. Toronto District School Board, 2015 HRTO 657.

14The Tribunal has noted in these education cases that the Code does not impose an obligation on the Ministry to oversee accommodations by school boards. This would apply, by analogy, to the named Ministry in this case. That is, there is no Code-related obligation for the Ministry to oversee the Kinark's accommodation of the applicant. Moreover, the applicant's Litigation Guardian was unable to point to any specific provision in the AIP Guidelines which imposes such an obligation. Indeed, the applicant's Litigation Guardian did not point to a specific violation of the AIP Guidelines by Kinark.

15On the issue of testing, the specific evaluative tools under attack, namely the ABLLS and AGLLS-R testing, are not mandated in the Ministry's AIP Guidelines. The Ministry does mandate the use of certain "tools," but not the specific testing at issue in this case. Moreover, the applicant's Litigation Guardian does not assert that the tools mandated by the Ministry prevented Kinark (or any other regional provider) from tailoring the testing it used in conducting discharge assessments.

16Finally, the applicant's Litigation Guardian's attack on the IRM process does not suggest that the reviewer, in fact, conducted a "discriminatory" review, but rather that there was improper interference with reviewer's preliminary conclusion and recommendation. Even if the IRM Coordinator was acting on the Ministry's behalf – an allegation which the Ministry specifically denies – the applicant's allegations are only that he acted improperly and outside the AIP Guidelines. The Tribunal does not jurisdiction to review allegations of unfair or improper conduct, unless it is also discriminatory.

17Ultimately, the question is whether there are allegations against the Ministry that, if proved, would arguably be contraventions of the Code. The applicant's Litigation Guardian has suggested broadly that the Ministry provides oversight and guidance, but has not alleged specific acts that have disadvantaged the applicant on the basis of her disability. In the absence of such an allegation, the Application must be dismissed against the Ministry.

order

18For the reasons set out above, I make the following order:

a. The Application is dismissed as against the Ministry of Children and Youth Services as having no reasonable prospect of success.

b. The request by Kinark Child and Family Services to have the Application dismissed against it as having no reasonable prospect of success is denied.