Mark de Pelham v. Peel Children’s Aid Society, 2016 HRTO 1673

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark de Pelham

Applicant

-and-

Peel Children’s Aid Society

Respondent

DECISION

Adjudicator: David Muir

Date: December 23, 2016

Citation: 2016 HRTO 1673

Indexed as: de Pelham v. Peel Children’s Aid Society

APPEARANCES

Mark de Pelham, Applicant

Earl Fagan, Representative

Peel Children’s Aid Society, Respondent

Pamela Yudcovitch, Counsel

Introduction

1This Application alleges discrimination with respect to employment and housing because of disability, record of offences and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In his Application the applicant alleges differential treatment in employment and accommodation based in whole or in part on a perceived disability and a record of offences. He also alleges reprisal. The applicant alleges that the respondent conducted a criminal records check without his consent. He also alleges that he has in the past been addicted to a controlled substance and believes that this fact became known to the respondent and that their decision to request that he leave his accommodation or the child would be removed was influenced by this alleged knowledge of a prior history of addiction and/or criminal conviction. The applicant alleges that a child living in the same accommodation was removed in reprisal for his having challenged the respondent’s doing a criminal background check without his consent.

3In his Application the applicant also purported to raise a constitutional challenge to section 5(1) of the Code. The Notice of Constitutional Question provided, in part, as follows:

The Applicant intends to question the constitutional validity of Sec 5(1) of the Human Rights Code, R.S.O. 1990, CHAPTER H.J9, subject to sec 15(1) and sec 1 of the Constitution Act, 1982 section 1, Canadian Charter of Rights and Freedoms.

The following are the material facts giving rise to the constitutional question: The applicant, Mark David de Pelham, claims discrimination in employment on the grounds of Police and Criminal Record. The applicant is aware that the Human Rights Code of Ontario limits human rights protection to individuals with a record of offences, that is to say a criminal conviction that has been pardoned.

The following is the legal basis for the constitutional question: The applicant submits that Police and Criminal Records are analogous to the protected grounds listed under sec 5(1) of the Human Rights Code. Furthermore, the applicant submits that Police and Criminal Records are analogous to the protected grounds enumerated under sec. 15(1) of the Canadian Charter of Rights and Freedoms.

4The definition of “record of offences” in the Code is as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

5As I understand the applicant’s argument on this point it is that the absence of Code protection with respect to employment for persons who have been convicted of a criminal offence is contrary to the equality provisions contained in section 15 of the Canadian Charter of Rights and Freedoms. The applicant is not a person with a “record of offence” as defined in the Code because although he has a criminal record he has not been granted a pardon. The applicant has sought to raise these and related issues in the past in several Applications with this Tribunal without success. See, in particular, de Pelham v Mytrak Health Systems, 2009 HRTO 172, de Pelham v. Hilti Canada, 2011 HRTO 1046 application for judicial review dismissed, de Pelham v. Hilti Canada Corporation, 2012 ONSC 5956 (Div. Ct).

6The respondent is a non-profit corporation whose mandate is governed by the Child and Family Services Act, R.S.O. 1990, c. 11 as amended and any regulations made under that statute. In general terms, the respondent among other duties is mandated by the Act to protect and ensure the well-being of any child who is resident in the Region of Peel and who has been determined to be in need of protection.

Procedural History of this Case

7ln Interim Decision 2015 HRTO 121 the Tribunal addressed a number of preliminary issues raised by the parties, including the removal of a personal respondent.

8The respondent filed a Request for Summary Hearing to which the applicant responded after being directed to do so in the Interim Decision.

9In a Case Assessment Direction issued on May 11, 2015 I granted the Request for Summary Hearing. A Summary Hearing was held on October 22, 2015. The case was re-assigned to another Vice-chair in May 2016 and the Summary Hearing was scheduled to be re-heard.

10The re-hearing was held by telephone conference call on September 21, 2016. All parties participated.

Decision

11For the reasons that follow I find that this Application must be dismissed.

12In considering the issues raised in the case I am mindful of the fact that the underlying circumstances involves a child in need of protection subject to the supervision of the respondent and ultimately the Ontario Court of Justice. In particular, I have considered that the respondent commenced a Protection Application pursuant to the Child and Family Services Act in September 2012. The child was found by the Court to be a child in need of protection on September 12 and December 12, 2012 and Orders for the care and custody of the child were made by the Court. Ultimately the respondent brought a motion on November 6, 2013 to vary the temporary care orders which had been made in September and December 2012 and the child was placed in the care and custody of the respondent by Order of the Court.

13I have also considered that many of the issues raised by the applicant in this Application were addressed by the Divisional Court in an application filed by the applicant seeking redress under the Freedom of Information and Protection of Privacy Act R.S.O. 1990, c. F. 31, as amended. The Court in de Pelham v. Peel Regional Police Services 2015 ONSC 6558 at para. 4 observed as follows:

Alternatively, and because the applicant devoted almost his entire submission on this point, even if we retained some power of judicial review, we find no reviewable error by the IPC. We see no problem with the Children’s Aid Society advising police of the presence of a potential caregiver in a home where they have placed a vulnerable foster child for the purpose of ensuring that there are no safety concerns arising from that situation. Having received such information from the Children’s Aid Society it was reasonable for the police to search their records. Further, we are satisfied that the IPC reasonably concluded that, in those circumstances, disclosure by Peel Regional Police was properly made for the purpose of complying with the duty to report a child in need of protection under s. 72 of the CFSA. That section applies to compel (and authorize) disclosure notwithstanding the provisions of other legislation, including privacy legislation. The IPC decision in this regard is based on an accurate interpretation of the law and was reasonable in all respects.

14In addition to the facts set out above the following background circumstances are necessary to understand the issues raised in this case. The applicant became the room mate of a person who has been identified as R.B.. It is not entirely clear when the applicant moved in with R.B., but it was after the December 12, 2012 Court Orders but prior to August 2013. When the applicant moved in with R.B., R.B.had temporary custody of a child in need of protection pursuant to the December 2012 Order.

15The respondent was not immediately informed that the applicant had taken up residence in R.B.’s home. When the respondent became aware of the applicant’s presence in the residence on or about August 27, 2013 it also noted that it had not received background information on R.B.. Accordingly, pursuant to its responsibilities under the Child and Family Services Act and O. Reg. 206/00, it took steps to conduct vulnerable sector criminal background checks on both R.B. and the applicant including criminal background checks. An Order of the Court was obtained on August 28, 2013 requiring R.B. to attend at the police station and provide his consent for a criminal records check and to make his best efforts to ensure that the applicant attend for the same purpose. R.B. provided is consent on August 28, 2013.

16The respondents submitted the documents necessary for the criminal records check of the applicant on September 6, 2013. As a result of a number of clerical issues the respondent did not receive a final response to their request until September 17, 2013. The applicant gave his consent on September 16, 2013. The fact that the respondent began the records check before the applicant gave his consent was a matter of significant concern for the applicant at the time. A further Order on October 4, 2013 made on consent of the parties in the child protection proceeding required the Peel Regional Police to produce criminal records that involve R.B. and the applicant. The applicant was not a party to the child protection proceeding although he claims that he attended on one occasion and addressed the Court.

17Based in part on the applicant’s record of a criminal conviction the respondent directed that the applicant must move from his residence within 24 hours or the child would be removed. Two or three days later this direction was rescinded. The child was removed several weeks later and on November 6, 2013 the child was placed in the care and custofy of the respondent pursuant to an Order of the Court.

The Employment Case

18The applicant alleges discrimination in employment because of a perceived disability and his record of offences. I agree with the respondents that there is no employment relationship at play in these circumstances. The applicant relies on a number of documents created by the respondent to facilitate its background and criminal records checks on prospective volunteers. The respondent used these forms to facilitate a background check on the applicant. Contrary to the applicant’s view, these documents do not create an employment relationship however broad the language “with respect to employment” in section 5 of the Code has been interpreted. However, even assuming that the phrase “with respect to employment “ includes volunteer work, there is no indication of any kind that there was any intention on the part of the applicant or the respondent to enter into a volunteer employment relationship.

19At the hearing the applicant suggested that by his moving into a residence in which also resided a child in need of protection he de facto became a prospective volunteer. This is not the case. Rather what his moving in with R.B. did was create an obligation on the part of the respondent to assess the suitability of the living arrangements for the child in need of protection, including conducting background checks on the applicant. Given the complete lack of any indicia of an employment relationship there is no reasonable prospect that this aspect of the Application can succeed and accordingly it is dismissed.

20The dismissal of the claim of discrimination in employment disposes of the Notice of Constitutional Question as well given that the applicant’s challenge to the definition of record of offences is confined to its application to section 5(1) of the Code.

The Accommodation Case

21The applicant also alleges that he experienced discrimination with respect to accommodation contrary to section 2 of the Code because of disability and record of offences. In my view this aspect of the Application must be dismissed as well on the basis that it has no reasonable prospect of success.

22In this regard the applicant relies on essentially two facts: that he is a person with a criminal record; and a handwritten notation “crack addict?” written by some unknown person on one of the documents received by the respondent from the Peel Regional Police regarding the applicant’s background check. The applicant alleges that the adverse impact of the alleged discrimination was the decision of the respondent to remove the child unless the applicant left.

23In my view these aspects of the Application must be dismissed as well for the following reasons.

24First, the applicant is not a person with a record of offences as defined in the Code and, in any case, there is no Code protection with respect to the prohibited ground of “record of offences” concerning the social area of housing or accommodation as set out in section 2 of the Code. As previously indicated, the applicant’s challenge to the definition of “record of offences” was confined to its application to section 5(1) of the Code and accordingly the issue does not arise in this circumstance.

25In any event, I agree with the respondent that the applicant can point to no connection between the actions the respondent took and any Code protected right of the applicants in these circumstances. I do understand that the applicant’s housing accommodation was possibly placed in peril for a short period of time. However that is a consequence of there being a child in need of protection in the home into which the applicant decided to move. The respondent had a statutory mandate and obligation to protect the child that it, and the Court, had found to be in need of protection. It had no authority or obligations to the applicant in respect of housing or accommodation, or any of the other social areas protected by the Code. The respondent’s relationships were therefore primarily with the child in need of protection and secondarily, perhaps, to the caregiver. In my view, the respondent had no Code protected relationship with the applicant and therefore there is no Code protected link between the respondent’s actions and its possible effects on the applicant. This has often been articulated as a lack of standing to bring the application. See, Fulton-Bell v. Kawartha-Haliburton Children’s Aid Society, 2009 HRTO 1769. Moreover, I observe again, that the custody of the child including the temporary custody Order in favour of the applicant’s roommate and the ultimate removal of the child from the roommate’s custody were by Order of the Ontario Court of Justice. The applicant was not a party to those proceedings and to the extent that this Application is an attempt to challenge those Orders, it must be dismissed as well as an abuse of process being in substance a collateral attack on the Court’s decsions with respect to the child.

26Having found that the applicant is without standing to bring this Application on the basis of discrimination in accommodation there is no need to consider the other grounds for dismissal raised by the respondent.

The Reprisal Claim

27The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. 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.

28In his Application the applicant makes it clear that his reprisal claim relates to his claim the child being removed because he “stood up” to the actions of the respondent. This “standing up” was a protection of privacy complaint which was ultimately denied by the Divisional Court on the basis noted above in para. 13. There is no indication that the applicant raised a Code issue rather the central concern in the Application is that the respondent conducted a criminal background check without his consent and as such it was an abuse of power. This complaint is unrelated to the Code. In any event there is no evidence to which the applicant can point from which it might be inferred that the respondent removed the child in reprisal because the applicant sought to vindicate his Code rights as opposed to it fulfilling its statutory mandate of seeking to ensure the protection of the child. I also observe, again, that the child was removed from the custody of R.B. pursuant to an Order of the Ontario Court of Justice. The applicant’s claim in this regard amounts to a collateral attack on the Court’s Decision and would be dismissed for that reason even if it had an air of reality.

29For all of these reasons the Application is dismissed.