M.D. v. Durham Children’s Aid Society, 2016 HRTO 410

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.D. Applicant

-and-

Durham Children’s Aid Society, Matthew Sweet and Sheri Makarczuk Respondents

DECISION

Adjudicator: Bruce Best Date: April 1, 2016 Citation: 2016 HRTO 410 Indexed as: M.D. v. Durham Children’s Aid Society

APPEARANCES

M.D., Applicant Self-represented

Durham Children’s Aid Society, Matthew Sweet, Sheri Makarczuk, Respondents Vincent Panetta, Counsel

Introduction

1This Application alleges discrimination with respect to race, colour, sex and reprisal because of services contrary to the Human Rights Code, RSO 1990, c.H19, as amended (the “Code”).

2The Tribunal issued a Case Assessment Direction directing a summary hearing be held to determine whether the Application should be dismissed on the basis that it is outside the Tribunal’s jurisdiction on the basis that the respondents are not providing a “service” to the applicant for the purposes of s. 1 of the Code, or, if there is jurisdiction, whether the Application should be dismissed on the basis that there is no reasonable prospect it will succeed.

3As explained more fully below, I find that the Application must be dismissed as having no reasonable prospect of success.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, usually early in the proceeding and often before a response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

7However, and significantly in this case, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant and his former spouse have a child. They had a contentious divorce, which involved a 6-day Superior Court trial to determine custody. The custody decision noted that parental conflict was a significant concern, and found fault with both parents.

11At most of the times relevant to this Application, his former spouse had custody of the child, and he would have regular access. The applicant had a number of concerns respecting the spouse’s ability to care for the child which he raised with the respondents. The applicant felt that the respondents were not taking appropriate steps to safeguard the child, and that he was not being given sufficient information about why specific decisions were made.

12The applicant brought two applications to the Child and Family Services Review Board (“CFSRB”) alleging that the corporate respondent had failed in its obligations to him under the legislation. The CFSRB ruled in the applicant’s favour in both those applications, finding the respondent had failed in its obligation to hear the applicant’s concerns, and to provide reasons for its decisions. See MD v Durham Children’s Aid Society (CFSA s.68), 2014 CFSRB 43 and MD v Durham Children’s Aid Society (CFSA s.68), 2015 CFSRB 12.

13Ultimately, the corporate respondent did intervene, and the child was eventually taken from the mother’s care and control and placed with the applicant.

14Following the CFSRB decisions, the applicant filed this Application alleging that the reason the corporate respondent had failed in its obligations was because of a bias against him as a racialized male. The Tribunal directed that a summary hearing be held to determine whether the respondents were providing a “service” to the applicant for the purposes of the Code, and/or to determine if there is evidence reasonably available to the applicant to support his claim that the allegedly disadvantageous treatment he received was due to discrimination under the Code.

Applicant’s Submissions

15The applicant pointed to the following factors or evidence which he claimed would support his allegations of discrimination:

• That the concerns he expressed to the respondents were ultimately proven to be justified, and the child was removed from her mother’s care;

• That the decisions of the CFSRB demonstrated that the corporate respondent had failed in its statutory obligations to him as a parent;

• That the handwritten notes of the respondent caseworker showed contradictions in how his child’s file was handled;

• That the caseworker said to him at one point that he was ‘fixated’ on his ex-spouse;

• That the caseworker responded to concerns raised by the spouse about his care of the child; and

• The fact that other individuals, including a schoolteacher, had provided information to support his concerns.

16The applicant submits that what happened can only be explained through the lens of the intersection of race and gender. With respect to the comment that he was fixated on his ex-spouse, the applicant suggests that this comment contained tones of male domination over women, and that it was driven by a gender bias.

Analysis and Decision

Reasonable Prospect of Success

17In my view, the applicant was unable to point to any evidence beyond his own perceptions or beliefs that could lead the Tribunal to find that his race or his gender were factors how he was treated by the respondents.

18Most of the evidence the applicant pointed to would, if proven, establish only that he had raised valid concerns about his ex-spouse’s ability to care for their child, and these concerns were not heeded by the respondents. The proposed evidence may establish that the respondents did not take appropriate action. It would not, however, provide any evidence, direct, circumstantial or otherwise, that could establish a link between what happened and the applicant’s race or his gender.

19The applicant interpreted the comment that he was “fixated” on his ex-spouse as being a gender-based stereotype. However, as with the other evidence, this would appear to be based only on his own perceptions. The applicant did not propose any evidence that would support his belief that the comment was based on gender stereotypes.

20The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311. As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code.

21My decision to dismiss the Application should not be taken as any indication that the respondents acted appropriately or reasonably in response to the applicant’s concerns. The CFSRB has, in two decisions by two different members, already determined that the respondent did not meet its obligations to the applicant under the legislation. The applicant’s concerns were, ultimately, found to be justified. However, absent any evidence that the treatment the applicant received was discriminatory, there is no basis on which the Tribunal can proceed.

Jurisdiction

22Given my finding that the Application has no reasonable prospect of success, I do not need to address the jurisdictional issue raised by the respondents.

Order

23For the above reasons, the Application is dismissed.