A.T. v. Kinark Child and Family Services, 2017 HRTO 1081

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.T. by his litigation guardian M.B.

Applicant

-and-

Kinark Child and Family Services, Caroline Roncadin, Contact Niagara for Children’s and Development Services, Todd Mason, and Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Children’s and Youth Services

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 17, 2017

Citation: 2017 HRTO 1081

Indexed as: A.T. v. Kinark Child and Family Services

APPEARANCES

A.T. by his litigation guardian M.B., Applicant

Ella Venhola, Counsel

Kinark Child and Family Services, Respondent

Sabatina Vassalli, Counsel

Ministry of Children and Youth Services, Respondent

Cheryl Ellison, Counsel

Contact Niagara for Children’s and Developmental Services and Todd Mason, Respondents

Lonny Rosen, Counsel

Caroline Roncadin, Respondent

Amanda Smallwood, Counsel

1This Application alleges discrimination in the provision of services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The applicant is a person with a disability that includes a diagnosis of Autism Spectrum Disorder. He was a client of Kinark Child and Family Services (“Kinark”) from 2006 to 2015 where he received IBI therapy. He was discharged from Kinark effective December 31, 2015. The applicant alleges that the decision to discharge the applicant was discriminatory on the grounds that the applicant’s particular circumstances and needs were not accommodated in the treatment the applicant received and in specific tests that were administered.

3The applicant’s objection to the discharge decision triggered an Independent Review Mechanism (IRM). The IRM process was administered by Contact Niagara for Children’s and Development Services (“Contact”). Contact arranged for the record to be reviewed by an independent psychologist, and Dr. Todd Mason was selected as the reviewer. He conducted a paper review of the record and concluded that the discharge decision was correct, based on the applicant's progress during treatment and guidelines established by the Ministry of Children and Youth Services (“the Ministry”). Contact, Dr. Mason and the Ministry were all named as respondents to the Application. Also named was Dr. Caroline Roncadin, who at the relevant time was employed by Kinark as a psychologist. She administered some of the tests that were part of the process leading up to the discharge. The Application also named additional personal respondents.

4The Application was reviewed by a Vice-chair of the Tribunal who issued Interim Decision 2017 HRTO 120, dated January 27, 2017. The Interim Decision denied requests for a summary hearing made by Kinark, Contact and Dr. Ronacadin and directed that a preliminary hearing be scheduled to deal with the following issues:

1. Should the Application as against the Ministry be dismissed as having no reasonable prospect of success?

2. Are some of the allegations as against Kinark untimely?

3. Were the allegations as against Kinark appropriately dealt with by the IRM process and should the Application as against Kinark be dismissed under section 45.1 of the Code?

4. Is the decision of Dr. Mason and the IRM process protected by the doctrine of adjudicator immunity?

5The Interim Decision removed Nadine Wallace as a respondent to the Application because there were no allegations of discrimination involving her.

6An in-person preliminary hearing was held on July 19, 2017. All the parties participated.

Removal of two personal respondents

7The Application named Frances Donovan and James Jackson as personal respondents. At the relevant times they were employees of Kinark. At the hearing, Kinark confirmed that it would accept full liability in the event that there was a finding that these individuals had infringed the applicant’s rights under the Code. The applicant agreed that on this basis, these individuals could be removed as respondents. I said that in my opinion it is appropriate to remove them as respondents and I confirm that they have been removed as respondents.

Dr. Roncadin

8There was some discussion between the parties about whether Dr. Roncadin should also be removed as a respondent to the Application. Counsel indicated that further instruction was necessary before this could be addressed.

The Ministry

9The Ministry provides funding for the treatment of Autism Spectrum Disorder. The funding is provided to a variety of agencies, including Kinark, who administer the treatment. The Ministry issues guidelines which are updated from time to time concerning treatment, including benchmarks that are to be considered by the agencies in designing treatment plans and making discharge decisions.

10At the hearing, the applicant explained that the Ministry was named as a respondent because the Ministry should be held accountable for discrimination that occurs in the delivery of the treatment programs that the Ministry funds. The applicant asserts that the Ministry has a general obligation to ensure that treatment programs are compliant with the Code and that it ought to be held vicariously liable for discrimination by the treating agencies when it occurs. The applicant also suggested that the Ministry should be liable as it establishes the benchmarks that are used by the service providers in making decisions about treatment and discharge.

11Programs for the treatment of Autism Spectrum Disorder are provided by the Ministry of Education, in addition to the Ministry of Children’s and Youth Services. Programs funded by the Ministry of Education are administered by school boards and there have been a number of Applications filed with this Tribunal alleging discrimination in the provision of those services in which the applicant has sought to add the Ministry of Education as a respondent for the same reasons identified by the applicant in this case. The Tribunal has consistently removed the Ministry of Education as a respondent in those cases (see for example, J.Y. v. Hamilton-Wentworth Catholic School Board; 2013 HRTO 806; R.C. v. Ontario (Education), HRTO 999; and J.G.L. v. Toronto District School Board, 2015 HRTO 657.) In C.P. v. Kinark Child and Family Services, 2016 HRTO 1653, the Tribunal rejected the same arguments advanced by the applicant in the present case for why the Ministry of Children’s and Youth Services should be a respondent to an Application alleging discrimination by Kinark.

12I find that there is no reasonable prospect that the applicant could establish that the Ministry discriminated against the applicant and the Application as against the Ministry is dismissed on that basis.

Timeliness

13Section 34 of the Code provides:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

14There is no dispute that the allegations about the process leading up to and including the decision by Kinark to discharge the applicant from treatment are timely.

15The Application refers to the applicant's treatment history with Kinark and suggests that the treatment plan was discriminatory because it did not provide sufficient treatment for the applicant’s needs. In general terms, this issue relates to the recommendation by the applicant’s treating physicians that he should receive 35 hours of treatment but he received only 20 hours of treatment.

16In its Response to the Application, Kinark argued that allegations about the applicant's treatment plan over the years should be dismissed as untimely. Kinark noted that the suggestion that the treatment plan was discriminatory was raised in 2006 and that there is no explanation for why it was not pursued at that time.

17At the hearing, counsel for the applicant explained that the history of the applicant’s treatment plan at Kinark is critical information in order to understand the allegations about the discharge decisions. Counsel confirmed that evidence about this history is contextual. She clarified that the applicant would not seek damages or any remedy in respect of the historical treatment plan.

18This is a case where there are allegations that are timely and a history that is not timely but that provides context for the timely allegations. I agree that it is necessary to hear evidence about this history but I confirm that in the event there is a finding of discrimination in this case, there can be no damages or remedy in respect of this history.

The Independent Review Mechanism

19The IRM process is established by Ministry Guidelines and I was provided with a document dated March 1, 2015, “Guidelines, Independent Review Mechanism (Appendix to Autism Intervention Program Guidelines)” (referred to as “the Guidelines” in this decision).

20The Guidelines describe the purpose of the IRM in the following terms:

The purpose of the Independent Review Mechanism (IRM) is to enhance the consistency, transparency and fairness of decisions made regarding a child’s eligibility or discharge from the Autism Intervention Program (AIP)…

Through the IRM, parents/caregivers of children and youth with Autism Spectrum Disorder (ASD) may initiate reviews of decisions regarding eligibility for or discharge from the program. Psychologists and psychological associates who are independent form the AIP service delivery review AIP decisions and then determine whether the AIP provider’s decision is supported by the information in the case materials provided to the IRM.

21The Guidelines provide that the IRM will be administered by an IRM Coordinator that is independent from the AIP and that the reviewers are also autonomous and independent from the AIP. The IRM Coordinator is responsible for maintaining a roster of reviewers who must have expertise in the treatment of Autism Spectrum Disorder.

22According to the Guidelines:

The Independent Reviewer will determine if the AIP decision is consistent with the information in the case file materials based on his/her clinical judgement and the AIP Guidelines.

23If the reviewer determines that the discharge decision was appropriate, the decision stands and there is no further appeal available although counsel advised that the IRM decision could be subject to a judicial review.

24If the reviewer determines that the discharge decision was not appropriate, the discharge is reversed and the child or youth remains in the treatment program.

25In this case, the applicant’s parents triggered the IRM process after receiving the discharge decision from Kinark. Contact was the IRM Coordinator. Contact is a separate organization that is not associated with Kinark. While it does provide some service, in this case, it was involved only as the IRM Coordinator.

26In accordance with the Guidelines, Contact identified Todd Mason as an appropriate independent reviewer. Dr. Mason is a psychologist who practices in British Columbia. Kinark provided Contact with its complete treatment record for the applicant and Dr. Mason was provided with the record which was redacted to remove identifying information about the applicant and also removing information identifying that Kinark was the service provider.

27Dr. Mason’s IRM report is dated November 6, 2015. The report outlines the record that he received and reviewed, and provides a summary of the applicant’s impairments and disabilities. It outlines the history of assessment and treatment plans and the process and decisions leading up to the discharge decision by Kinark.

28The record received by Dr. Mason included letters dated April 20, 2015 and August 25, 2015, written by the parents and outlining their concerns with the service provided by Kinark and with the decisions leading to the discharge. The letters included most of the allegations that form the substance of the Application. Dr. Mason reviewed these letters in his report, and noted that they included “a potential human rights violation”. The report discusses the response to these letters by Kinark as reflected in the record provided to Dr. Mason.

29The report concluded:

Although it is possible, and even likely, that this client could continue to make gains within an ABA-type intervention program, the data do not support the continuation in home-based 1:1 IBI within the AIP. This client could be expected to continue to make gains in most areas in an ABA-type classroom based program. This fits with a general principal of ASD intervention, which is that is that should occur in the least restrictive, most naturalistic learning environment.

The information in the case file is consistent with this author’s clinical judgement and the AIP Guidelines. Therefore, the AIP decision to discharge the child from IBI services is supported.

Was the IRM a proceeding that appropriately dealt with the substance of the Application?

30Section 45.1 of the Code provides as follows:

45.1 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.

31Kinark argues that IRM process was a proceeding and that it appropriately dealt with the substance of the Application.

32In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (“Danyluk”), the Supreme Court of Canada discussed the factors that must be present in order for the doctrine of issue estoppel to be present. The Court found that there must be a process that is of a judicial nature. This does not mean that the process has to be similar to a court proceeding or even necessarily involve a hearing. In Danyluk, a decision by an Employment Standards Officer under the Employment Standards Act was a proceeding for the purpose of issue estoppel because the officer was involved in a process that included gathering information and making a determination based on that information.

33In British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Supreme Court reviewed the applications of the doctrines of issue estoppel, collateral attack and abuse of process. Figliola is particularly instructive because the analysis was in the context of section 27(1)(f) of the British Columbia Human Rights Code, which is substantially the same as section 45.1 of the Ontario Code. Abella, J., speaking for the Court majority said, at paragraph 37:

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.

34In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”) the Court reviewed the principles of issue estoppel again. At paragraph 31 the Court stated:

Issue estoppel, with its residual discretion, applies to administrative tribunal decisions. The legal framework governing the exercise of this discretion is set out in Danyluk. In our view, this framework has not been overtaken by this Court’s subsequent jurisprudence. The discretion requires the courts to take into account the range and diversity of structures, mandates and procedures of administrative decision makers; however, the discretion must not be exercised so as to, in effect, sanction collateral attack, or to undermine the integrity of the administrative scheme. As highlighted in this Court’s jurisprudence, particularly since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, legislation establishing administrative tribunals reflects the policy choices of the legislators and administrative decision making must be treated with respect by the courts. However, as this Court said in Danyluk, at para. 67: “The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.”

35In light of these principles, it is then necessary to understand the purpose of the IRM process and the nature of the decision that was made, and how this may contrast with the substance of the Application.

36The Guidelines establishing the IRM process indicate that the purpose of the review is to determine whether the service provider’s decision is supported by the information in the case materials provided to the IRM. In this case, it seems clear that the reviewer was asked to provide a clinical review of the data provided and to determine whether the determination that the applicant should be discharged was clinically supported given measurements of his therapeutic progress as compared to the benchmarks established by the Ministry. Consistent with the expectations of the review, Dr. Mason reviewed the record from a clinical perspective, and his conclusion that the discharge was appropriate was based on his “clinical judgement”.

37It therefore appears to me that the IRM process was designed to review a clinical determination and not designed to review a legal issue.

38The determination that Dr. Mason had to make was whether the applicant should have been discharged or whether he should have remained in the program. In my view, this is a determination that this Tribunal does not have the expertise or the jurisdiction to determine. The issue that the Tribunal does have jurisdiction to determine is whether the process leading up to the discharge decision was adversely influenced or tainted by an infringement of the applicant’s rights under the Code. In my view, this is the “substance of the Application”. If there was a finding that the applicant’s rights had been infringed, there would then be a consideration of remedy but this would not necessarily include re-instatement in the program.

39Dr. Mason was aware, through the letters from the parents that were part of the record, that they had a number of concerns, including a “potential human rights violation”. However, whether there was a human rights violation was clearly not an issue that he was asked to decide as part of the review. It is not clear what Dr. Mason would or could have done if he agreed that there was an infringement of the applicant's rights under the Code that impacted the decision to discharge unless he also felt that clinically, the applicant should not have been discharged.

40Although the letters of the parents were part of the record, there was no opportunity for them to make submissions to the reviewer or to provide any further evidence as part of the IRM process.

41According to counsel for Kinark and the counsel for Dr. Mason and Contact, a reviewer does have discretion to obtain further information if the reviewer determines that further information is necessary in order to conduct the review. This possibility is not mentioned in the Guidelines and in any event, it is not something that Dr. Mason did in this case.

42In summary, I find that the IRM process was designed to review a clinical decision and not designed to resolve any legal issues, including any issue under the Code. The substance of the Application is different than the substance of the IRM review. The markers identified by the Supreme Court for issue estoppel, collateral attack and abuse of process are absent. I am therefore satisfied that the Application cannot be dismissed under section 45.1 of the Code.

The status of Dr. Mason

43Dr. Mason has been named as a personal respondent in this Application. On his behalf, counsel argues that he cannot be liable under the Code because of the doctrine of adjudicative immunity.

44I find that before having to decide if this doctrine is applicable in this case, it is appropriate to determine if Dr. Mason is properly named as a respondent at all. I find this because it is not clear to me what it is that Dr. Mason is alleged to have done that infringed the applicant’s rights under the Code. If there is no allegation that amounts to an allegation of the applicant's rights under the Code, Dr. Mason should not be a respondent to this Application.

45The applicant is therefore directed to clarify if there is anything that Dr. Mason is alleged to have done that infringed the applicant's rights under the Code.

Contact

46There is also a question as to what it is that Contact may have done that could involve an infringement of the applicant's rights under the Code. It appears to have had only an administrative role in co-ordinating the IRM process.

47The applicant is directed to also clarify if there is anything that Dr. Mason is alleged to have done that infringed the applicant's rights under the Code.

Order

48The personal respondents Frances Donovan and James Jackson are removed as respondents to the Application.

49The Application as against the Ministry of Children’s and Youth Services is dismissed as having no reasonable prospect of success.

50The decision of the Independent Medical Review process was not a proceeding that dealt with the substance of the Application and the Application is not dismissed under section 45.1 of the Code.

51The applicant is directed to provide clarification about whether there is anything that Dr. Mason or Contact are alleged to have done that involve an infringement of the applicant's rights under the Code. This clarification shall be sent in writing to the Registrar and the remaining respondents within 30 days of the date of this Interim Decision. The respondents need not respond unless directed to do so by the Tribunal.

52Further direction about the Application will be provided following receipt of the clarification from the applicant.