Persaud v. Toronto District School Board et al., 2007 HRTO 39

Human Rights Tribunal of Ontario

Between:

Andrew Persaud Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto District School Board, Anthony Masciello, Harry Rosen, Paul Corner, Roy Evely, and Suzana Greenaway Respondents

Interim Decision

Adjudicator: Mark Hart Date: November 8, 2007 Citation: 2007 HRTO 39 Indexed as: Persaud v. Toronto District School Board et al.

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@ontario.ca Website www.hrto.ca

Appearances

Ontario Human Rights Commission: Prabhu Rajan, Counsel Andrew Persaud, Complainant: Roger Rowe, Counsel Toronto District School Board, Anthony Masciello, Harry Rosen, Paul Corner, Roy Evely, and Suzana Greenaway, Respondents: John Bell, Counsel

Introduction

1This Interim Decision deals with the Respondents’ request to bring a motion to address alleged deficiencies in the pleadings filed by the Commission and the Complainant and to seek further disclosure prior to filing the Respondents’ pleadings or making disclosure.

BACKGROUND

2The Complaint in this matter was filed on October 10, 2005, and alleges discrimination on the basis of race and colour in relation to the Complainant’s treatment at, and eventual suspension from, Vaughan Road Academy and transfer to another school in the Respondent School Board. The Complaint was subsequently amended on May 23, 2006 to reflect the correct legal name of the Respondent School Board.

3The Complaint was referred by the Commission to the Tribunal by letter dated April 30, 2007 and received by the Tribunal on May 2, 2007.

4At the Initial Conference Call with the parties held on May 31, 2007, dates for the exchange of pleadings and disclosure were set as follows:

• The Commission and the Complainant were to serve and file their Statement of Facts, Issues and Remedy and provide disclosure by July 20, 2007;
• The Respondents were to serve and file their Response and to provide disclosure by September 14, 2007;
• The Commission and the Complainant were to file any Reply by September 21, 2007.

5On July 20, 2007, the Commission filed its Statement of Facts, Issues and Remedy, which did not include the public interest remedies the Commission is seeking. Without first seeking the Tribunal’s consent to an extension of the deadline for filing its pleadings, the Commission instead wrote to the Tribunal on the day its pleading was due to state that Commission counsel was unable to receive final instructions on the public interest remedies “due to vacation schedules” and that it was expected that the Commission would be able to provide same within the next two weeks. In fact, the public interest remedies were filed separately and as part of a revised pleading on August 23, 2007, over a month after the Commission’s pleading was due.

6The Commission’s letter to the Tribunal and the parties on July 20, 2007 simply states: “Unless I hear otherwise, I trust that this is acceptable.” For future reference, this is not an acceptable manner in which to seek an extension of a deadline set by the Tribunal.

7The Complainant filed his Statement of Facts, Issues and Remedy on July 20, 2007. However, the Complainant did not provide disclosure until August 23, 2007, which is over a month after disclosure was due. No request was made to the Tribunal for an extension of the deadline for making disclosure.

8Apparently, by letter to the parties dated August 8, 2007 which was not copied to the Tribunal, counsel for the Respondents indicated that he “had no objection to either party unilaterally extending the deadline set by the Tribunal” and that he would similarly be extending the Respondents’ deadline for their pleading and disclosure. As the Commission and the Complainant took an additional 34 days to complete their pleadings and disclosure, the Respondents apparently extended their own deadline by the same number of days, to October 18, 2007. Once again, no request was made to the Tribunal for an extension of the deadline for filing the Respondents’ pleading or for making disclosure.

9Compliance with a deadline for the filing of material with the Tribunal or for making disclosure is mandatory, and no party has the right or authority to "unilaterally" extend a Tribunal deadline. If for any reason compliance with a deadline is not possible, a party is required prior to the expiry of the deadline to request that the Tribunal grant an extension by letter to the Registrar and copied to the parties, with the request setting out: the reason the deadline could not be complied with; whether the other parties consent to the extension of the deadline; if not, the efforts made to obtain consent of the other parties; and a specific date by which compliance is proposed to be made. Unless there are exceptional circumstances, such a request should be made sufficiently in advance of the deadline in order for the Tribunal to make a decision whether or not to grant the request.

THE RESPONDENTS’ REQUEST TO BRING A MOTION

10On October 17, 2007, the Respondents wrote to the Tribunal to state that “the current state of the pleadings and production render [them] incapable at this time of preparing a responding pleading and compiling proper disclosure”. The Respondents had written to the Commission and the Complainant the previous day setting out alleged deficiencies in both their pleadings and disclosure, requesting a response by October 26, 2007. The Respondents proposed that, if the parties were unable to resolve these issues by October 26, 2007, the Respondents would proceed with a motion to address the alleged deficiencies prior to filing their pleading and making disclosure.

11The Tribunal invited the Commission and the Complainant to respond to this correspondence from the Respondents, which they did on October 22, 2007. The Commission and the Complainant took the position that the Respondents should be required to file their pleading and make disclosure prior to any motion. The Respondents were afforded an opportunity to reply, which they did by letter dated October 24, 2007. In this correspondence, the Respondents again took the position that they did not know the case being alleged against them and that it was only after the alleged serious deficiencies in the Commission’s and Complainant’s pleadings had been addressed that the Respondents would be in a position to file their pleading and make disclosure.

12On October 25, 2007, the Tribunal directed the parties' attention to the Tribunal's decision in Garrelhas v. ICE Consultants Inc. (No. 1) (2005), CHRR Doc. 05-703, 2005 HRTO 51 and in particular, the Tribunal directed the parties' attention to paragraph 14 of this decision, which states:

No doubt, there will be situations that arise in the litigation of disputes before the Tribunal where parties raise issues related to the sufficiency of pleadings or objections that a party is improperly seeking to expand the subject matter of a complaint. The parties are entitled to raise these issues and objections and the Tribunal may be required to make rulings. However, except in the rarest of circumstances, preliminary and procedural objections should not be brought prior to a party filing its pleadings and making disclosure (emphasis added).

13As a result, the Tribunal directed the Respondents to provide the Tribunal with reasons, without legal argument, as to why their motion regarding alleged deficiencies in the Commission's and Complainant's pleadings and disclosure is not premature and should be heard prior to the Respondents making disclosure and filing their pleading. The Tribunal indicated that, following review of these reasons, the Tribunal may invite the other parties to make submissions in response to material received from the Respondents, or may rule that the Respondents' intended Motion is premature and direct the Respondents to make disclosure and file pleadings by a specific date.

THE GARRELHAS DECISION

14In Garrelhas, supra, the Tribunal similarly dealt with a situation where, prior to filing their pleading, the Respondents took the position that the pleading filed by the Commission was deficient or improper, and brought a Motion seeking further particulars, as well as an Order striking certain paragraphs.

15In finding that this Motion was premature, the Tribunal noted that the processes established under the Code and the Tribunal's Rules aim to ensure that human rights complaints are dealt with expeditiously and in a way that avoids undue technicality. The Tribunal also referenced Section 2 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 ("the SPPA"), which provides that the Rules (and hence the procedures) of any Tribunal to which the SPPA applies, should be interpreted in a manner which "secure[s] the just, most expeditious and cost-effective determination of every proceeding on its merits."

16The Tribunal identified a number of reasons why preliminary and procedural objections should not be brought prior to a party filing its pleadings and making disclosure, which are:

a) The bringing of Motions for further particulars or the striking of particular paragraphs in a pleading at the pleading stage tends to slow down the process and often leads to unnecessary proceedings. Rule 39 of the Tribunal's Rules specifically contemplates that preliminary issues and objections will be raised in the respondent's pleadings. Likewise the Rules provide for pre-hearing conferences, generally held after pleadings are filed and disclosure is exchanged, during which the Tribunal may deal with any and all preliminary and procedural issues in advance of any hearing of the merits. Requiring the parties to file their pleadings and make disclosure prior to dealing with preliminary matters will assist the parties and the Tribunal in narrowing issues and having all objections dealt with together. Effective case management and efficient dispute resolution requires the parties to set out their respective cases at the earliest opportunity once the matter is referred to the Tribunal.

b) It is useful for the Tribunal, when being asked to rule on preliminary or procedural issues, to have the parties' pleadings before it. This is so even where a party claims that it is not in a position to respond fully to certain aspects of a case because of allegedly deficient pleadings. Requiring the parties to identify, at the earliest stage and to the extent possible, which matters are agreed to, which matters are in dispute and to provide a statement of the material facts upon which the party intends to rely, will be extremely helpful for the Tribunal in its task of determining any preliminary issues that may arise, and as noted above, in case management more generally.

c) Motions of this kind need to be considered within the particular context of how human rights complaints are dealt with under the structures established in the Code. By the very nature of proceedings before the Tribunal and the fact finding process before the matter is referred to the Tribunal, there should have been a great deal of information exchanged between the parties. Even where allegations in the Commission’s or Complainant’s pleadings are vague or unspecific, the nature of the allegations must be examined within the context of the original Complaint, the investigation process in which the Respondents participated, the extensive disclosure made to the Respondents, and the Commission's pleadings as a whole, in order to determine whether the Respondents have been provided with enough information to allow them to file a Response that adequately fulfils the requirements of the Rules.

DECISION AND ANALYSIS

17In their submissions filed with the Tribunal in support of their position that their motion is not premature, the Respondents raised a number of concerns. First, the Respondents expressed uncertainty regarding the scope of the Complaint, and in particular pointed to several paragraphs in the Commission’s pleading which reference alleged actions taken against the Complainant’s siblings and pointed to the remedies sought in the Complainant’s pleading which reference mental anguish, hurt feelings and humiliation experienced by the Complainant’s family members. The Respondents expressed concern that allegations were now being brought by the Complainant’s siblings and that damages were now being requested on behalf of the Complainant’s family members.

18On the basis of my review of the pleadings, the Commission is not bringing allegations on behalf of the Complainant’s siblings, who are not parties to this proceeding. The Commission’s Statement of Issues, which was adopted by the Complainant, only raises issues as to whether the Complainant experienced discrimination or harassment, not whether the Complainant’s siblings experienced discrimination or harassment. Further, while the Complainant’s pleading lacks clarity as to whether damages are being sought on behalf of the Complainant’s family members, the Respondents provided the Tribunal with a letter dated October 22, 2007 from Counsel for the Complainant which clarifies that “the monetary amounts are being claimed on behalf of [the Complainant] only against the respondents jointly and severally” (emphasis added). Accordingly, no damages are being sought by anyone other than the Complainant, including the Complainant’s family members.

19The Respondents may take issue with the relevance and/or admissibility of certain allegations in the Commission’s pleading as they relate to the Complainant’s siblings, and the Tribunal expresses no view one way or another on any such issue. However, in my view, this is not a sufficient or proper reason for the Respondents not to file their pleading and make disclosure.

20The Respondents next take issue with the Commission’s pleading raising the International Baccalaureat (“IB”) program offered by Vaughan Road Academy Secondary School. The Respondents state that this issue never formed part of the original Complaint nor were the Respondents aware that the Commission was investigating this issue.

21In my view, this is not an issue that needs to be resolved prior to the Respondents filing their pleading and making disclosure. Indeed, as stated in Garrelhas, supra, the Tribunal would benefit from having the context of the full pleadings in order to properly address the issue of whether the allegation about the IB program is properly part of the matter before the Tribunal. I note that in the Commission’s pleadings, a fairly extensive public interest remedy is being sought in relation to this IB program. Prior to the Respondents having an opportunity to raise the issue of whether allegations relating to the IB program are properly before the Tribunal, I will not require the Respondents to make the kind of disclosure that might be entailed in responding to the broader allegation regarding the IB program as set out in paragraph 5 of the Commission’s pleading or to the public interest remedy being sought by the Commission in relation to the IB program. However, this does not prevent the Respondents from filing a pleading which sets out their position regarding this allegation, and particularly as it relates to the Complainant, or from making disclosure.

22The Respondents further state that they are entitled to know the case against them, which in the Respondents’ view requires the Commission and Complainant to identify which specific facts and/or events give rise to an alleged contravention of the Code and provide the nexus between the event and the alleged contravention.

23In my view, this is the kind of “undue technicality” that is referenced in the Garrelhas decision. The Respondents are certainly entitled to know the case against them. But what is specifically required from the Commission and the Complainant at the pleadings stage is “a statement of the facts and issues in dispute”: see Rule 37(a). The Rules do not go further and require, at this preliminary stage, that the Commission articulate the nexus between each alleged fact and the alleged contravention of the Code. Similarly, what is required from the Respondents at this preliminary stage is a Response which sets out, among other things, a statement of all facts with which they agree, a response to the issues, and a concise statement of the facts on which they rely: see Rule 39(a) and (b). If, after all pleadings have been filed and disclosure has been made, there is still uncertainty as to the case against the Respondents, then this issue would properly be raised at the Pre-Hearing Conference Call or by motion, at which time the Tribunal would have the benefit of the full pleadings in order to assess whether any further clarification is required.

24The Respondents also take issue with the public interest remedies being sought by the Commission, and state that they are not reasonably related to the nature of the original infringement alleged. This is a matter for argument at the hearing. At this preliminary stage, all the Respondents are being asked to do is to set out their position on the remedies requested: see Rule 39(d). The Respondents further note that the Commission has not provided any production with respect to the public interest remedies. This issue can be raised at the Pre-Hearing Conference Call or by motion, and does not impair the Respondents’ ability to file their pleadings or make disclosure.

25The Respondents have indicated that they lack particulars regarding the very serious remedies being sought by the Complainant and others, and that the particulars provided by the Complainant’s counsel do not satisfy his obligation. The Respondents state that there also has been no production regarding these issues. The Respondents take the position that this lack of particularity and documentation makes it impossible for them to respond to those issues at this time.

26On the contrary, the Respondents already have demonstrated that they are in a position to plead to these issues. As previously stated, what is required at this stage is for the Respondents to set out their position on the remedies requested. With regard to the remedies being sought by the Complainant, the Respondents have demonstrated that they are capable of doing this. Rule 39(e) also asks the Respondents in their pleading to identify any preliminary motions. The Respondents have demonstrated that they are capable of identifying preliminary motions to address the alleged lack of particularity and production.

27The Respondents have raised a more general issue regarding a lack of disclosure from the Commission and Complainant and further alleged deficiencies in the Commission’s and Complainant’s pleadings, which are more fully set out in correspondence dated October 16, 2007 to counsel for these parties. Having reviewed and considered this correspondence carefully, together with the responses from counsel for the Commission and for the Complainant which were helpfully provided by the Respondents to the Tribunal, I do not believe that the issues raised by the Respondents would prevent them from filing their pleading and making disclosure at this time.

28The Respondents should be able to identify which facts they agree with and which facts they dispute, and should be able to set out their version of events. As part of the current process for referral of complaints to the Tribunal, the Tribunal is provided with a copy of the complaint and the Respondent’s response; and it is evident from the very fulsome Response filed by the Respondents with the Commission that they are quite capable of setting out their version of the events at issue. To the extent that there are any alleged deficiencies in the Commission’s and Complainant’s pleading or further particulars or disclosure required, this can be identified by the Respondents in their pleading as a preliminary issue that will need to be addressed prior to the hearing. When these issues do get addressed, whether at the Pre-Hearing Conference Call or by way of motion, the Tribunal will have the benefit of the full pleadings in order to inform and guide its decision.

29As indicated in the Garrelhas decision, the Tribunal wishes to discourage parties from raising preliminary or procedural issues until after the pleadings have been filed and after disclosure has been made, so that these kinds of issues can be addressed in a more comprehensive rather than piecemeal fashion and with the benefit of the context provided by the pleadings. While there may be rare cases where a respondent is unable to file a meaningful response without first raising a preliminary or procedural issue, for example where a respondent genuinely has no idea who the complainant is or what events are being referred to, the kinds of issues raised by the Respondents in this case are not the kinds of issues that would warrant consideration by the Tribunal in advance of filing a Response and making disclosure. All of these issues can, and no doubt will, be addressed on the Pre-Hearing Conference Call or by way of motion after pleadings have been completed and disclosure has been made.

ORDER

30For all of the foregoing reasons, the Tribunal makes the following Order:

a) The Respondents shall file their Response and make disclosure by no later than Friday, November 23, 2007;

b) The Commission and the Complainant shall file any Reply by no later than Friday, November 30, 2007;

c) The Pre-Hearing Conference Call will be scheduled for the week of December 3, 2007 and the Registrar’s Office will be in contact with the parties to set a date and time.

I am not seized of this matter.

Dated at Toronto, this 8th day of November, 2007.

”Signed By”

Mark Hart Vice-Chair```