N.S. by his Litigation Guardian J.S. v. Innovative Community Support Services, 2017 HRTO 1083

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.S. by his Litigation Guardian J.S. Applicant

-and-

Innovative Community Support Services and Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services. Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: August 17, 2017 Citation: 2017 HRTO 1083 Indexed as: N.S. by his Litigation Guardian J.S. v. Innovative Community Support Services

APPEARANCES

N.S. as represented by his Litigation Guardian J.S., Applicant Edgar-Andre Montigny, Counsel

Innovative Community Support Services, Respondent Leanne Fisher, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent Cheryl Ellison, Counsel

Introduction

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

3The Litigation Guardian is the father of the applicant, N.S., who is an adult diagnosed as having a severe intellectual disability. His support needs are complex and he requires 24 hour support and assistance with all matters of hygiene, food preparation and cleaning. He communicates through facial gestures, signs and tones of voice.

4The respondent, Innovative Community Support Services (“ICSS”), is a not-for-profit charitable organization that supports persons with developmental disabilities and their families. At all material times, N.S. resided, with others, in an independent living residence operated by ICSS. He resided there independently of family members and received residential services from ICSS.

5Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (“MCSS”) has been named as a respondent. ICSS is an agency funded through MCSS to provide residential services and supports to adults with developmental disabilities. Legislation provides the framework for MCSS funded adult development services in Ontario. The legislation enables MCSS to make regulations and policy directives that set out mandatory requirements that apply to all agencies funded by MCSS to provide services and support under the legislation. MCSS does not approve or license MCSS-funded residences; however, it oversees community based compliance with the legislation and policy directives. It also conducts inspections for compliance with the regulations. MCSS indicates that it is not responsible for the day-to-day operations of the services agencies, nor is it responsible for individual or clinical decisions regarding individuals who live in the residences operated by the service agency.

6The applicant’s complaint is summarized in the narrative of his Application:

The complaint, filed on [N.S.’s] behalf, relates to the custodial approach taken towards his care by [ICSS]…. [MCSS] were aware of the situation and failed to intervene and improve [N.S.’s] quality of life. As a result we are convinced that [N.S.] endured a level of neglect and disrespect that is well below the standard of care provided in most community settings.

7By way of example, the allegedly neglectful and disrespectful conduct of ICSS specifically raised by the applicant includes: not adequately assisting N.S. in personal hygiene activities such as teeth brushing; inappropriately allowing N.S. to not wear underwear; not taking N.S. on sufficient outings; not letting N.S. freely enter the kitchen; not allowing N.S. appropriate access to magazines; not taking adequate measures to protect N.S.’s safety; calling emergency services too frequently; not calling N.S.’s family frequently enough; not replacing T.V.s promptly enough after they had been broken by N.S.; not accommodating N.S.’s “communication needs”; failure to accommodate N.S.’s “need for linguistic stimulation”; failure to accommodate N.S.’s “need for exercise”.

8In summary, the applicant contends that the respondents have “breached the Code in their failure to accommodate [N.S.’s] disability-related support needs.”

9ICSS and MCSS each brought a request for a summary hearing, asserting that the allegations in the Application do not constitute discrimination against them.

ICSS

10While I am sympathetic to the applicant’s ordeal, what is at issue here is whether N.S. was discriminated against based on his disability when he was in residence at the home operated by ICSS. More specifically, did ICSS, in the way it provided services to him, discriminate against him in violation of the Code.

11In my view, the allegations made against ICSS are, in essence, complaints about the quality of support provided to N.S. by ICSS and disagreements about how he would have been best supported by ICSS.

12The Tribunal’s jurisprudence is clear in stating that:

The Code is not a mechanism to challenge, in general, the quality of health care that a person has received or a disagreement over the nature or extent of the care that was provided. As stated in Seberras, there must be “something more than an assertion that the applicant’s particular disability was not dealt with properly in a particular case to establish discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds. (Barber v. South East Community Care Access Centre, 2013 HRTO 60 at para 26. “Barber”)

13I appreciate that J.S. believes, among other things, that his son’s health care provider’s directives have not been followed, including in setting up a plan of care and that his son’s health has been put in jeopardy because ICSS did not allegedly satisfy N.S.’s needs. However, these are not allegations that the Code has been violated.

14The applicant relies upon the concept of duty to accommodate. However, there is no freestanding duty to accommodate persons with disabilities. As stated in Barber at para. 28.

There is no freestanding duty to accommodate persons with disabilities. The duty to accommodate arises, under ss. 11 and 17 of the Code, when a respondent attempts to justify discrimination; the discrimination cannot be justified unless the respondent shows that it could not accommodate the person’s needs without experiencing undue hardship. To trigger the duty to accommodate, an applicant must show that there has been direct or indirect discrimination on the basis of one of the Code grounds. The mere assertion that the applicant’s medical needs have not been properly met does not allege Code-related discrimination or suggest a violation of any duty to accommodate.

15In my view, the allegations of discrimination and failure to accommodate related to the manner in which support services were delivered to the applicant by ICSS have no reasonable prospect of success.

MCSS

16Although MCSS is charged with supporting persons with developmental disabilities by the provision of transfer payments to service agencies such as ICSS and by providing oversight of service agencies compliance with regulations and policy directives issued by MCSS, it is the service agency, and in this case ICSS, which actually delivers service in the area where the an applicant lives.

17The applicant argues that MCSS is liable under the Code because it “failed to intervene in the situation and improve [NS’s] quality of life.” However, the applicant failed to point to any evidence he has or any evidence that would be reasonably available to him to that MCSS “failed to intervene” because of the applicant’s disability.

18That being said, the Tribunal has held that the Ministry of Education is not 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. In C.P. v. Kinark Child and Family Services, 2016 HRTO 1653 at para. 14, the Tribunal stated:

The 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 Ministry named in this case [Ministry of Children and Youth Services]. That is, there is no Code-related obligation for the Ministry to oversee Kinark’s [Kinark Child and Family Services] accommodation of the applicant.

In my view, this would apply by analogy to MCSS as well.

19I find that there is no reasonable prospect that the allegations against MCSS in failing to intervene in the support care of the applicant provided by ICSS could show discrimination by MCSS within the meaning of the Code.

20For these reasons the Application against the respondents is dismissed as having no reasonable prospect of success.

ORDER

21The Application is dismissed.