HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
[Indexed as: Arzem v. R (Ontario)]
Ontario Human Rights Commission
Commission
-and-
Arzem, et al. "Group A"
-and-
Aslanboga, et al. "Group B"
-and-
Brooke, et al. "Group C"
-and-
Ciccone, et al. "Group D"
-and-
Athanasopoulos, et al. "Group E"
-and-
Burrows "Group F"
-and-
Cariou, et al. "Group G"
-and-
Martin "Group H"
Complainants
-and-
Her Majesty the Queen in Right of Ontario (as represented by Minister of Community and Social Services, Minister of Health and Long Term Care and Minister of Children and Youth Services)
Respondents
INTERIM DECISION
Adjudicator: Patricia E. DeGuire
HR-0844-04 and HR-0845-04 (Group C); HR-0870-04 to HR-0882-04 (Group D); HR-0921 to HR-0931-05 (Group E); HR-541-03; HR-0567-03 (Group F); HR-0966-05 to HR-0974-05 (Group G); and HR-0987-05 (Group H)
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
INTRODUCTION
1In its interim Decision, Arzem v. R (Ontario), 2005 HRTO 42, issued October 17th, 2005, the Human Rights Tribunal of Ontario (the "Tribunal") took the decision that notice ought to be given to the school boards and the proper bargaining agents forthwith.
2Accordingly, the Tribunal issued the following Order:
ORDER
The Tribunal gives the following directions:
The Commission and the Complainant counsel shall dispatch the Notice to the relevant school boards and bargaining agents forthwith, no later than 72 (seventy-two) hours of the date of this Decision.
This Decision shall be sent to the school boards and the bargaining agents with the Notice.
The parties shall dispatch forthwith—no later than seventy-two (72) hours after the date of this Decision—to the school boards and the bargaining agents copies of their pleadings and where appropriate the disclosure that has been provided to date. If and where practical, this may be done electronically. [Emphasis added]
THE PARTIES' SUBMISSIONS
3At the proceeding for the Constitutional Question, which began on October 18, 2005, the Commission's counsel, Ms. S. Ffolkes-Abraham informed the Tribunal that the Commission was the most appropriate entity to dispatch the notices, and was pleased to do so. However, she, as well as the other counsel, raised valid concerns that there are numerous school boards, and the fact that they had other aspects of these cases, in particular, the hearing on the merits to attend almost immediately, likely, they will not be able to serve the Notices within the timelines stipulated by the Tribunal.
DECISION
4Counsel have persuaded the Tribunal that they are unable to meet the timelines set by the Tribunal in its Order.
5In addition, counsel raised concerns about the privacy interests of the Complainants if they had to provide certain disclosure to the prospective respondents now.
6The Tribunal has considered these concerns and emphasises that only "where appropriate" should disclosure be sent to the proposed respondents now. None of the parties—the Commission, the Complainants or Ontario—is required to provide disclosure now that has real or arguably privacy concerns until the Tribunal has decided if the school boards will be added as parties.
7As stated in Decision 2005 HRTO 42, on the face of the record, it appears that the school boards may be parties under subsection 39(2) of the Code. In addition, the bargaining agents may be affected by the outcome of the hearing on the merits. Therefore, the Tribunal will decide whether the school boards should be added as parties, and whether the bargaining agents should participate in these proceedings, and to what extent the latter may do so.
8To that end, the Tribunal asks the Commission and Ms. E. Venhola, who represents the majority of the Complainants, to send the Notices to the school boards and the bargaining agents by October 28, 2005.
9Thus, the Tribunal asks the school boards and the bargaining agents to make written submissions they want the Tribunal to consider.
10The school boards' and the bargaining agents' submissions must be filed with the Tribunal and served on all the parties no later than November 4, 2005. As well, the school boards and the bargaining agents must serve their submissions on each other.
11If the parties wish to respond to those submissions, they must file and serve their responses, no later than Monday, November 14, 2005.
12If the school boards and the bargaining agents fail to respond by November 4, 2005, they will not be entitled to any further Notice with respect to the hearing. Further, the Tribunal will proceed to hold the hearing on the merits in their absence.
13Therefore, the Order set out below replaces the Order contained in the Tribunal's October 17th, 2005 Decision, 2005 HRTO 42.
ORDER
14The Tribunal gives the following directions:
The Commission and the Complainant counsel shall dispatch the Notice to the relevant school boards and bargaining agents by October 28, 2005.
This Decision and the October 17, 2005 Decision—2005 HRTO 42—shall be sent to the school boards and the bargaining agents with the Notice.
By October 28, 2005, the parties shall send to the school boards and the bargaining agents copies of their pleadings and where appropriate, the disclosure that has been provided to date. If and where possible or practical, this may be done electronically.
Dated at Toronto, this 25th day of October, 2005.
"Signed by"
Patricia E. DeGuire
Vice Chair
APPENDIX A
List of Complainants' Counsel and Agents
HR-0602-04 to HR-0722-04 Arzem et al. v. R. (Ontario) (Group A)
HR-0747-04 to HR-0825-04 Aslanboga et al. v. R. (Ontario) (Group B)
HR-0844-04 AND HR-0845-04 Brooke/Allan v. R. (Ontario) (Group C)
HR-0870-04 to HR-0882-04 Ciccone et al. v. R. (Ontario) (Group D)
HR-0921-05 to HR-0931-05 Athanasopoulos et al. v. R. (Ontario) (Group E)
HR-0541-03 AND HR-0567-03 Burrows et al. v. R. (Ontario) (Group F)
HR-0966-05 to HR-0974-05 Cariou, et al v. R. (Ontario) Group G)
HR-0987-05 Martin v. R. (Ontario) (Group H)
Complainants "Group A"
ARZEM, Andrew by his next friends Sheri and Gary Arzem †represented by Ellie Venhola
BARGER, Brendan by his next friend Thomas Berger †represented by Ellie Venhola
BRADY, Adam by his next friend Susan Brady †represented by Ellie Venhola
BROOKHOUSER, Jordan by his next friend Lucy Brookhouser †represented by Ellie Venhola
CANDIDO, Jared by his next friend Marti Candido †represented by Ellie Venhola
CIUMMELLI, Lucas by his next friend Lucas Ciummelli †represented by Ellie Venhola
COLACICCO, Nicholas by his next friend Susan Colacicco †represented by Ellie Venhola
COLLINS, Benjamin by his next friend Lise Collins †represented by Ellie Venhola
CRISTINI, Anthony by his next friend Paul Cristini *** on own behalf
CROWDER, Ben by his next friend Kimberley Crowder †represented by Ellie Venhola
DELAHUNTY, Kyle by his next friends Terry and Maltie Delahunty †represented by Ellie Venhola D'ULISSE, Christian by his next friend Giancarlo D'Ulisse†represented by Ellie Venhola
FIALA, Thomas by his next friend Yvette Fiala †represented by Ellie Venhola
FRENCH, Tyler by his next friends Terry and Elisa French †represented by Ellie Venhola
FRYER, Evan by his next friend Timothy Edwin Fryer †represented by Ellie Venhola
GALATI, Michael by his next friend Teresa Galati †represented by Ellie Venhola
GIVELAS, Michael by his next friend Angela Givelas †represented by Ellie Venhola
GOEBEL, Connor by his next friend Gavin Goebel †represented by Ellie Venhola
GUBERNAT, Rick †represented by Ellie Venhola
GUBERNAT-VOLINZ, Elise by her next friend Rick Gubernat †represented by Ellie Venhola
HUNT, Riley Andrew by his next friend Juliana Hunt †represented by Ellie Venhola
IACONO, Liam by his next friend Gaetano Iacono †represented by Ellie Venhola
JOHNSTON, Payton by his next friend Sandi Johnston †represented by Ellie Venhola
KRUMINS, Kieran by his next friend Jennifer Krumins †represented by Ellie Venhola
KUHLMANN, Grant by his next friend Laura Kuhlmann †represented by Ellie Venhola
LI, Nathan by his next friend Chris Li †represented by Ellie Venhola
MADDOCK, Chad by his next friend Tracy Maddock †represented by Ellie Venhola
MAJOOR, Quenten by his next friend Barry Majoor †represented by Ellie Venhola
MEDD, Luke by his next friend Wendy Arnott-Medd †represented by Ellie Venhola
MEIN, David by his next friend John Mein †represented by Ellie Venhola
MELAMED, Jay by his next friend Andrea Bellman †represented by Ellie Venhola
MICELI, Giacinto by his next friend Rita Miceli †represented by Ellie Venhola
MOORE, Curtis by his next friend Joanne Moore †represented by Ellie Venhola
MOORE-JEHA, Joseph by his next friend Christine Jeha †represented by Ellie Venhola
MORRISON, Sean by his next friends Nancy and Philip Morrison †represented by Ellie Venhola
MURACA, Robert by his next friend Flavia Muraca †represented by Ellie Venhola
MYERS, Daniel by his next friend Leah Myers †represented by Ellie Venhola
NOLAN, John Eric by his next friend Beth Nolan †represented by Ellie Venhola
PANOKOS, Sara by his next friend Julie Panakos †represented by Ellie Venhola
QUANSAH, Cameron by his next friend Damian Quansah †represented by Ellie Venhola
ROY, Adam by his next friend Ellen Farrington †represented by Ellie Venhola
RUPAKUMAR, Krishan by his next friends Juliet and Rock Rupakumar†represented by Ellie Venhola
SCHMALZ, Jacob by his next friend Michael Schmalz †represented by Ellie Venhola
SEGAL Eric by his next friend Sharon Gabison ** on own behalf
SISTI, Nicholas by his next friend Joanne Sisti †represented by Ellie Venhola
STEFFEN, Benjamin by his next friend Darla Steffen †represented by Ellie Venhola
THIELE, Robert by his next friend Nelly Thiele †represented by Ellie Venhola
UTHAYAN, Nakulan Vishal by his next friend Usha M. Uthayan †represented by Ellie Venhola
UTHAYAN, Sahadaevan Vittal by his next friend Usha M. Uthayan †represented by Ellie Venhola
VELIKONJA, Ernest by his next friend Sandra Velikonja †represented by Ellie Venhola
Vijayarajah, Jonathan by his next friend Joseph Vijayaraj †represented by Ellie Venhola
VOGELS, Jacob by his next friend Ms. Cindy Vogels **** represented by Karen Canatta
WAGMAN, David by his next friend Lillian Wagman †represented by Ellie Venhola
WAGMAN, Michael by his next friend Lillian Wagman †represented by Ellie Venhola
WALSH, Cameron by his next friend Ms. Sheri-Lee Walsh †represented by Ellie Venhola
WEE, Jan-Eric by his next friend Ms. Tessie Wee †represented by Ellie Venhola
WEICHEL, Kieran by his next friend Sandra Weichel †represented by Ellie Venhola
ZUCCARO, Michael by his next friend Lina Zuccaro †represented by Ellie Venhola
Complainants "Group B"
Aslanboga, Burak by his next friend Ms. Nazile Baydir †represented by Ellie Venhola
BRIDE, Emily Sara Elizabeth by her next friend Mr. Peter Bride †represented by Ellie Venhola
BORGSTADT, Cameron by his next friend Carolyn Borgstadt * represented by Ellie Venhola
CARDONA, Jonathan by his next friend Ms. Laura Cardona †represented by Ellie Venhola
CESARIO, Andrew by his next friend Mrs. Patricia Cesario †represented by Ellie Venhola
CRAREY, Samantha by her next friend Elli Crarey ** on own behalf
CURRIE, Joshua by his next friend Mrs. Donna Currie †represented by Ellie Venhola
DEWIT, Nicholas by his next friend Michael DeWit †represented by Ellie Venhola
FRANKLIN, Calvin by his next friend Alex Franklin *** on own behalf
GELLER-CUMMINGS, Adam by his next friend Gail Geller ** on own behalf
HEWITT, Jonathan by his next friend Mrs. Deborah Campbell * represented by Ellie Venhola
MARKAKIS, Jon by his next friend Ms. Constantina Arvanitis †represented by Ellie Venhola
MICANOVIC, Ana by her next friend Mladen Micanovic †represented by Ellie Venhola
MILLAR, Brandonby his next friend Victoria Millar †represented by Ellie Venhola
MOGYORODI, Samuel by his next friend Gary Mogyorodi †represented by Ellie Venhola
NIKOLIC, Eric Benjamin and James by their next friend Mark Nikolic †represented by Ellie Venhola
ROBINSON, Brandon by his next friend Karen Robinson †represented by Ellie Venhola
SCANDRETT, Shawn by his next friend Cindy Scandrett * represented by Ellie Venhola
SCANTAMBURLO, Luigi by his next friend Vesna Scantamburlo †represented by Ellie Venhola
SHONUCK, John by his next friend Laurene Shonuck * represented by Ellie Venhola
SNELL, Laura by her next friend Mary Snell *** on own behalf
TESFAY, Robel by his next friend Tsigeweyin Tesfay †represented by Ellie Venhola
THOMASON, Tyler by his next friend Martin Thomason * represented by Ellie Venhola
TOBIN, Jeffrey by his next friends Barbara and Brian Tobin †represented by Ellie Venhola
TURNER, Kathleen, Scott and Stephen by their next friend Mary Turner †represented by Ellie Venhola
VAUSE, Justin by his next friend Linda Vause †represented by Ellie Venhola
WALSH, Matthew and Michael by their next friend Anita Walsh †represented by Ellie Venhola
Complainants "Group C"
ALLAN, Mackenzie by his litigation guardian Brad Allan †represented by Ellie Venhola
BROOKE, Daniel by his litigation guardian Sylvia Brooke †represented by Ellie Venhola
Complainants "Group D"
CICCONE, Michael by his litigation guardian Ms. Tina Ciccone *** on own behalf
DOWSETT, Aidan by his litigation guardian Jennifer Dowsett †represented by Ellie Venhola
EVRENIADIS, Jonathan Alexander by his litigation guardian Dina Vardouniotis *** on own behalf
FRICK, Thomas by his litigation guardian Mrs. Rose Frick *** on own behalf
GALATI, David by his next friend Teresa Galati †represented by Ellie Venhola
McLEOD, Connor by his litigation guardian Brenda Bogardis †represented by Ellie Venhola
WU, Adonia by her litigation guardian Yvonne Wu †represented by Ellie Venhola
Complainants "Group E"
Athanasopoulos, Spiridon by his litigation guardian Mrs. Voula Kant*** on own behalf
Boufford, Jordan by his litigation guardian Mr. Bradley Boufford*** on own behalf
Cruz, Linda and Sandra by their litigation guardian Mrs. Rosemary Cruz*** on own behalf
Millington, Aidan by his litigation guardian Ms. Janette Jones*** on own behalf
Nahmiache, Cody by his litigation guardian Ms. Jackie Martin*** on own behalf
Nesbitt, Thais Victoria by her litigation guardian Ms. Kiritea Nesbitt*** on own behalf
Shonuck, John by his next friend Laurene A. Shonuck*** on own behalf
Van Louwe, Dylan by his litigation guardian Mr. Nancy Van Louwe ***** represented by William P. Dermody
Complainant "Group F"
BURROWS, Luke by his next friend Norrah Whitney ** on own behalf
Complainant "Group G"
CARIOU, Matthew by his litigation guardian Ms. Kim Cariou*** on own behalf
DEWITT, Madison by her litigation guardian Mr. Michael DeWitt** on own behalf
HARABAJZA, Mark by his litigation guardian Ms. Carol Ivic*** on own behalf
THOMPSON, Matthew by his litigation guardian Ms. Manuela Beni*** on own behalf
MARAS, Mackenzie by her litigation guardian Mr. Tom Maras*** on own behalf
ZARETSKY, Daniel by his litigation guardian Ms. Mona Taylor*** on own behalf
Complainant "Group H"
MARTIN, Gordon by his litigation guardian Ms. Janet Martin*** on own behalf