A.T. by his litigation guardian M.B. v. Kinark Child and Family Services, 2017 HRTO 1353

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

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 13, 2017

Citation: 2017 HRTO 1353

Indexed as: A.T. by his litigation guardian M.B. v. Kinark Child and Family Services

WRITTEN SUBMISSIONS

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

Ella Venhola, Counsel

Kinark Child and Family Services, Respondent

Sabatina Vassalli, Counsel

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

Lonny Rosen, Counsel

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

2This Interim Decision is further to an Interim Decision 2017 HRTO 1081 dated August 17, 2017. That Interim Decision directed the applicant to make submissions about whether Dr. Todd Mason and Contact Niagara for Children’s and Development Services (“Contact”) are proper respondents to the Application. The respondent Kinark Child and Family Services (“Kinark”) was also to provide clarification about Dr. Caroline Roncadin who was a personal respondent. These submissions have been received and this Interim Decision provides direction about the future handling of this Application.

Dr. Roncandin

3At the preliminary hearing held on July 19, 2017, the parties agreed that two personal respondents, who were employees of Kinark should be removed as respondents because it was clear that the allegations about them related entirely to the performance of their work duties and Kinark confirmed that it would assume full liability in the event that it was found that anything done by these two employees resulted in an infringement of the applicant's rights under the Code.

4There was discussion at the hearing about whether the same thing might apply to Dr. Roncadin. The applicant advised that she would consent to the removal of Dr. Roncadin if Kinark was prepared to accept full liability for anything the Dr. Kinark was found to have done or not done that resulted in an infringement of the applicant’s rights under the Code. Counsel for Kinark advised that she needed to obtain further instructions on this issue. In post-hearing submissions from counsel for Dr. Roncadin, I am advised that counsel for Kinark has confirmed that Kinark agrees that Dr. Roncadin was acting in the course of her employment with Kinark in all respects relevant to the Application and that Kinark will accept full liability in the event that there is a finding that Dr. Roncadin infringed the applicant’s rights under the Code.

5In the circumstances, I find that it is appropriate to remove Dr. Roncadin as a respondent to the Application.

Contact Niagara for Children’s and Development Services

6As explained in the earlier Interim Decision, the involvement of Contact in the events giving rise to the Application was limited to the process of arranging the Independent Review Mechanism (IRM) conducted by Dr. Mason. As part of its function as an administrator of the IRM process, Contact is required to maintain a roster of independent clinicians and to ensure that they are fully aware of the purpose of the IRM and of their obligations under that process.

7In her submissions, the applicant argues that Contact is responsible for ensuring that the engagement contract with the independent reviewer includes references to and terms relating to the reviewer’s obligations under the Code. This is necessary, the applicant submits, “so as to ensure that service recipients are not burdened with continued discrimination in service delivery.” The applicant further submits that all service providers are required to ensure that the service is provided free from discrimination.

8The applicant submits that in this case, the review by Dr. Mason was flawed because it was based on data that was discriminatory or was produced in a discriminatory manner. As discussed below, the applicant argues that Dr. Mason had a positive duty to do something about this and that his failure to do something was an act of discrimination by him. The applicant suggests that Contact has some liability because the fact that Dr. Mason’s report was allegedly discriminatory shows that Contact did not fulfill its obligations.

9In my view, even if the applicant were correct that Dr. Mason’s review was tainted by discrimination, it would not follow that Contact would have liability for this. Contact’s role in this particular case was limited to forwarding the data it received from Kinark to Dr. Mason. Contact had no control over the data it received from Kinark and no ability to do anything about the data even assuming it in fact was discriminatory or based on discriminatory practices. Contact also had no control over the content of Dr. Mason’s report, even if it also was discriminatory or flawed because of discriminatory data.

10In my view, the proposition that Contact could have done more to prevent discrimination by ensuring that Dr. Mason was more aware of the applicant’s rights under the Code is not sufficient to establish a basis for a finding that Contact had anything to do with the alleged discrimination in this case.

11For these reasons, I find that Contact is not a proper respondent to the Application and it is removed as a respondent.

Dr. Mason

12As the independent reviewer, Dr. Mason did not have any interaction with the applicant. The only information he had was the information transmitted from Kinark, through Contact.

13The allegation about Dr. Mason is that he should have realized that the information he was provided was tainted by discrimination. In particular, he should have realized that some of the test results about the applicant were flawed because Kinark failed to accommodate the applicant when the tests were administered. The allegation is that because he did not reject or at least question these test results, he too participated in the discrimination. The applicant notes that Dr. Mason was aware that the test results were alleged to be discriminatory because the record he had from Kinark included letters from the applicant’s parents explaining why they objected to the tests and to the conclusions that were drawn from them.

14The applicant notes that all psychologists have a professional obligation to provide psychological services that are free from discrimination. This obligation resides in the Code and is re-enforced by professional codes of conduct and requirements of the College of Psychologists. The IRM process is similarly required to be a process that is free of discrimination.

15There is no suggestion that Dr. Mason directly discriminated against the applicant. It is not alleged that Dr. Mason’s opinions were influenced by any stereotypical assumptions he may have made about the applicant and no suggestion that he assessed the documents concerning the applicant in any way differently because of any Code protected ground. Rather, the allegation is that Dr. Mason knew or ought to have known that some of the documents that he assessed were themselves discriminatory. By not doing something about this, he in effect condoned the discrimination that arose at Kinark and was thus a participant in the discrimination.

16Counsel for Dr. Mason has asked for an opportunity to respond to the applicant's submissions about whether he is a proper respondent to this Application and indicates that submissions will be forwarded by October 31. I am prepared to grant this request. The applicant may make any final submissions by November 10, 2017.

Request for clarification of earlier Interim Decision

17An issue that was dealt with in Interim Decision 2017 HRTO 1081, the earlier Interim Decision in this case, was whether the Ministry of Children and Youth Services was a proper respondent to the Application. The Interim Decision determined that it was not. The Interim Decision described the Ministry’s in part in the following terms:

The 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.

18After the Interim Decision was issued, the Ministry contacted the Tribunal to request that this language be corrected, to change the work “benchmarks” to “tools”. The Ministry explained:

It is incorrect that the Ministry issues “benchmarks”. The AIP guidelines state that “All of the regional service providers delivering the AIP must use certain tools for assessments [emphasis added]”. Please see paragraph 4.1, page 9, of the attached Guidelines. “Benchmarks” are clinical criteria for clinicians to guide them in decision-making regarding a child’s treatment. Benchmarks are designed to monitor a child’s progress and to facilitate decision-making regarding a child’s eligibility, progress and continuation in Intensive Behavioural Intervention (IBI). In 2007 and 2008, two expert panels convened by MCYS developed draft clinical practice guidelines and benchmarks for the AIP; however, these clinical practice guidelines and benchmarks were not implemented by MCYS.

At the preliminary hearing, the Applicant’s counsel argued that the Ministry issued “benchmarks” and this is properly reflected at paragraph 10 of the decision. However, in response, at the preliminary hearing, the Ministry’s counsel distinguished “tools” from “benchmarks” and explained what the benchmarks are and that they are not issued by the Ministry. Ministry counsel explained that the Ministry policy only provides that certain “tools” must be used for assessments.

19I am not convinced that it is necessary to issue an amended version of the earlier Interim Decision. However, I do appreciate the distinction raised by the Ministry and confirm that the information from the Ministry is that under the Independent Review Mechanism Guidelines, it issues tools and not benchmarks.

Scheduling

20As indicated, further submissions may be filed regarding whether Dr. Mason is a proper respondent to this Application. However, because of the delays already incurred in this case, I am asking the Tribunal’s Scheduling department to place the case in its scheduling queue now with a view to scheduling a three-day hearing. Further hearing dates can be scheduled as needed. I will make a ruling on the status of Dr. Mason in advance of the hearing. I would ask counsel for the applicant and Kinark to discuss between them how they would like to structure the hearing. I will be available for a case-management conference call if the parties require such assistance.