HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dylan Sigrist by his litigation guardian Lori Sigrist

and Andy Carson by his litigation guardian Paula Soares-Carson

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

London District Catholic School Board,

Gary Clarke, Jeff Gillies, Joseph Rapai, Terry Grand, Anne Kavelaars,

Evelyn Paparella, Tamara Nugent and Des Desalaiz

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 25, 2008

Citation: 2008 HRTO 14

Indexed as: Sigrist and Carson v. London District Catholic School Board et al

Human Rights Tribunal of Ontario

400 University Avenue, 7^th 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

Dylan Sigrist, Complainant ) By his litigation guardian,

) Lori Sigrist

Andy Carson, Complainant ) By his litigation guardian,

) Paula Soares-Carson

Ontario Human Rights Commission ) Raj Dhir, Counsel

London District Catholic School Board, )

Gary Clarke, Jeff Gillies, Joseph Rapai, ) Eric Roher and Melanie

Terry Grand, Anne Kavelaars, Evelyn ) Warner, Counsel

Paparella, Tamara Nugent and Des Desalaiz, )

Respondents )

and )

Norah Ayers-Toong and Anne Kavelaars, )

proposed Respondents )

Ministry of Education, Dalton McGuinty, )

Gerard Kennedy, Sandra Pupatello, ) Robin Basu, Sarah Wright

Kathleen Wynne, Gerry Townsend and ) and Bruce Ellis, Counsel

Janet Penner, proposed Respondents )

Introduction

1This Interim Decision addresses motions brought by the complainants to add a number of party respondents to this proceeding. The complainants’ first motion is to add the Ministry of Education (the “Ministry”) and a number of individuals including the Premier, current and former Ministers of Education and Ministry employees as party respondents on a variety of bases, including their statutory responsibilities under the Education Act, R.S.O. 1990, c. E.2, as amended (the “Education Act”), their failure to act on recommendations made in reports of the Provincial Auditor and the Ontario Human Rights Commission (the “Commission”), and their failure to respond to the complainants’ specific circumstances when brought to their attention.

2The complainants’ second motion is to add the special education teacher at Our Lady of Lourdes Catholic School (the “school”) as an individual respondent to both complaints and to add Anne Kavelaars, a trustee for the London District Catholic School Board (the “Board”) as an individual respondent to the Carson complaint.

BACKGROUND

3The complaint of Dylan Sigrist was filed on June 5, 2006 and alleges that Dylan did not receive proper accommodation for his disabilities at the school. The complaint of Andy Carson was filed on June 13, 2006 and similarly alleges that Andy did not receive proper accommodation for his disabilities at the same school. The Commission joined both complaints and referred them to the Tribunal by letter dated October 15, 2007.

4The Initial Conference Call in this matter was held on November 16, 2007. On the call, the litigation guardians for the complainants expressed their intention to seek to add the Ministry of Education and certain other individuals as party respondents to this proceeding, prior to determining whether to participate in mediation and prior to the filing of pleadings. As a result, the Tribunal set a schedule for service of the motions on the parties and the proposed respondents, and for written responses and replies.

DISCUSSION AND ANALYSIS

General principles relating to motions to add party respondents

5The Tribunal's jurisdiction to add a party as a respondent arises from s. 39(2) and (3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), the relevant portions of which read as follows:

39(2) The parties to a proceeding before the Tribunal are,

(a) the Commission, which shall have carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the Tribunal to have infringed the right . . .

(3) A party may be added by the Tribunal under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the Tribunal considers proper.

6The legal principles to be applied in addressing a request to add a person as a party respondent were recently reviewed by the Tribunal in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep) [2006] HRTO 22. In that case, the Tribunal confirmed that there is a two-part test to be applied when dealing with such requests.

7The first part of the test is whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant's rights: Greenhorn, supra, at para. 23. The second part of the test is whether the addition of the proposed respondent would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal.

8In applying this test, it is important to bear in mind that this is a legal proceeding in which the Tribunal is expressly directed to determine whether a right of the complainant under the Code has been infringed and, if so, to award an appropriate remedy. This is different from an audit, such as those conducted by the Provincial Auditor, or a policy consultation, such as those conducted by the Commission, which address a broad range of concerns and issues and which may result in broad recommendations for change or reform. While the important work of such broad-based initiatives may afford helpful evidence for the Tribunal to consider, at the end of the day the focus of this legal proceeding is on whether a respondent has infringed the rights of either or both complainants under the Code. Specifically in relation to the motions brought by the complainants, the focus is on whether there are facts alleged which could support a finding that the Ministry of Education or any of the other proposed respondents infringed the complainants’ rights.

Motion to add the Ministry of Education

9The complainants’ motion to add the Ministry of Education, which is supported by the Commission, articulates three broad bases upon which the Ministry allegedly violated the complainants’ rights:

a. the statutory responsibilities of the Ministry and the Minister of Education (the “Minister”) under the Education Act;

b. the failure of the Ministry to act upon the recommendations made in the 1994 and 2001 Provincial Auditor’s reports and in the 2003 Commission consultation report; and

c. the allegation that the Ministry was made aware of the complainants’ specific circumstances and failed to adequately address or attempt to resolve these issues.

10I will address each of these arguments in turn. The Ministry also does not assert that any substantial prejudice would be caused by adding Ontario as a respondent. Accordingly, the only issue to be determined is whether there is a sufficient basis to conclude that the Ministry appears to have infringed the complainants’ rights.

a) The Ministry’s statutory responsibilities

11The complainants rely upon a number of provisions in the Education Act in order to assert the Ministry’s potential liability, and particularly rely upon ss. 8(3) and 11(1).5.

12Section 8(3) of the Education Act provides as follows:

Identification programs and special education programs and services

(3) The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario, and shall provide for the parents or guardians to appeal the appropriateness of the special education placement, and for these purposes the Minister shall,

(a) require school boards to implement procedures for early and ongoing identification of the learning abilities and needs of pupils, and shall prescribe standards in accordance with which such procedures be implemented; and

(b) in respect of special education programs and services, define exceptionalities of pupils, and prescribe classes, groups or categories of exceptional pupils, and require boards to employ such definitions or use such prescriptions as established under this clause.

13Section 11(1).5 of the Education Act provides as follows:

11. (1) Subject to the approval of the Lieutenant Governor in Council, the Minister may make regulations in respect of schools or classes established under this Act, or any predecessor of this Act, and with respect to all other schools supported in whole or in part by public money,

12. governing the provision, establishment, organization and administration of,

i. special education programs,

ii. special education services, and

iii. committees to identify exceptional pupils and to make and review placements of exceptional pupils.

14These same provisions recently were addressed by the Ontario Court of Appeal in Wynberg v. Ontario 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732 leave ref’d [2006] S.C.C.A. No. 441. As stated by the Court at paras. 87 to 88:

In general, . . . the Minister of Education does not directly provide education programs to students. . . . This reflects the broad scheme of the Act which provides for a decentralized system of local school boards managed by elected trustees to administer the educational system at the operational level.

The Act requires boards to ensure that their exceptional pupils get the special education programs and services they need, either by providing them directly or by contracting with other boards to do so.

15In other words, it is the Board that is responsible for providing individual assessments and special education plans and programs for the complainants, while the Ministry’s responsibility is to provide a regulatory framework within which individual school boards exercise these responsibilities. It is not the statutory role or responsibility of the Ministry to direct or impose requirements for the actions of a specific school board in relation to the provision of a special education program for any specific student – that is the local board’s responsibility.

16In their materials, the litigation guardians repeatedly assert that the Ministry must be responsible for reviewing or investigating the specific actions of the local school board, otherwise the board cannot be held accountable. However, the local school board’s actions are not beyond review. The school board is subject to the appeal process under the Education Act that ultimately concludes with the Special Education Appeals Tribunal. The school board also is subject to the complaint process under the Code that ultimately concludes before this Tribunal. So there are legal mechanisms by which the school board may be held accountable. However, these legal mechanisms do not include direct intervention by the Ministry in individual cases.

17In their submissions, both the complainants and the Commission have raised the decision of the B.C. Human Rights Tribunal in Moore v. B.C. (Ministry of Education) and School District No. 44 (2005) 2005 BCHRT 580, 54 CHRR D/245. In particular, the Commission cites para. 705 of the Tribunal’s decision, which states:

. . . while school boards may be autonomous in their day-to-day operations and primarily responsible for the delivery of education services, they act on behalf of the government in providing the specific educational services set out in the School Act. The Legislature, upon defining its objective as guaranteeing an educational program "designed to enable learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy society and a prosperous and sustainable economy", cannot evade its obligations . . . to provide those services without discrimination by establishing school boards to carry out that objective.

18I do not read this passage as meaning literally that, as all school boards are creatures of provincial legislation within the constitutional authority of the province, therefore the province is responsible for each and every action of each and every school board, any more than a province is held responsible for each and every action of a municipality, notwithstanding that municipalities are creatures of provincial statute. Rather, in order to properly ground the potential liability of the province, there must be some alleged act or omission by the province whereby the province caused or contributed to the discrimination experienced by the individual student in violation of the Code. For example, in the Moore decision, the province’s liability was grounded in the Ministry’s funding obligations and its under-funding of the local school district, which resulted in significant cuts in the services available to the student at issue and thereby contributed to discrimination against the student on the basis of disability. In the instant case, in my view, it is not sufficient merely to point to the Ministry’s statutory responsibilities without more as a basis for adding the Ministry as a party respondent.

19In addition, this Tribunal’s jurisdiction does not extend to determining whether or not the Ministry has complied with any obligation under the Education Act. Rather, this Tribunal’s jurisdiction is only engaged to deal with alleged violations of the Code.

20Accordingly, I do not find that the Ministry’s statutory responsibilities under the Education Act in and of themselves provide a sufficient basis upon which to add the Ministry as a party respondent in this case.

b) Recommendations in Provincial Auditors’ Reports and in Commission Consultation Report

21The next basis upon which the complainants and the Commission seek to add the Ministry as a party respondent relate to an alleged failure on the Ministry’s part to adequately act upon certain recommendations made in the 1994 and 2001 Provincial Auditor’s reports and in the 2003 Commission consultation report.

22Certain themes emerge from these reports: local level school practices often do not comply with Ministry regulations or guidelines; Individual Education Plans (“IEPs”) are not prepared in a timely fashion and are not an accurate reflection of students’ disability-related needs; there are delays in the appeal process; and there is a need for improved conflict resolution procedures. These broad themes in turn led to a series of recommendations for actions by the Ministry including: reviewing the Identification, Placement and Review Committee (“IPRC”) process and making any changes to ensure compliance with both the procedural and substantive components of the duty to accommodate; developing and implementing effective mechanisms for resolving disputes arising during the accommodation process; and monitoring school boards for compliance with Ministry regulations and guidelines.

23Again, the issue before the Tribunal is not whether the Ministry adequately acted upon the broad recommendations from these reports, but rather whether there is a sufficient basis to suggest the alleged failure to act upon these recommendations caused or contributed to the violation of the complainants’ Code rights.

24In this regard, I find that the alleged connection or nexus between the Ministry’s alleged failure to act upon these recommendations and the alleged infringement of the complainants’ rights to be entirely speculative. For example, in 1998, Ontario promulgated a detailed regulation (O.Reg. 181/98) setting out the basic requirements for IEPs, for the IPRC process, and for appeals. In 2004, the Ministry issued an updated IEP Resource Guide containing detailed information regarding the preparation of the IEP. It is alleged that the IEP prepared for Dylan in 2005 failed to comply with significant aspects of the regulations and the Ministry guide. That issue must be resolved between the Board and the complainant, as the Ministry has no direct involvement in the preparation of an individual IEP.

25However, with regard to the motion to add the Ministry as a party respondent, on what reliable basis, beyond mere assertion or speculation, is it alleged that the Ministry’s alleged failure to sufficiently act upon the recommendations from the Provincial Auditor’s reports or the Commission’s consultation report caused or contributed to the alleged infringement of Dylan’s rights under the Code? Even if the Ministry had promulgated even more detailed regulations or issued even more comprehensive guidelines, it seems entirely speculative that the IEP for Dylan somehow would have been prepared to the satisfaction of Dylan and his parents, when it is alleged that the IEP failed to comply even with the regulations and guidelines in place at the time.

26It is not enough to assert that there is a general correspondence between the themes addressed in the Provincial Auditor’s reports and in the Commission’s consultation report and the allegations contained in the complaints. To support a motion of this nature, material facts must be alleged that connect some specific failure by the Ministry to act upon some specific recommendation and the alleged infringement of the complainants’ rights under the Code. No such connection has been established on the basis of the material submitted in support of this motion.

27Accordingly, I do not find that the alleged failure by the Ministry to sufficiently act upon the recommendations in the Provincial Auditor’s reports and in the Commission’s consultation report provides a sufficient basis upon which to add the Ministry as a party respondent.

c) The Ministry’s alleged failure to respond to the complainants’ concerns

i) The Sigrist Complaint

28There is no dispute that Dylan’s parents sent a letter dated October 13, 2005 regarding concerns that Dylan’s needs were not being addressed by the school and the Board. This letter was sent to a series of individuals including the Minister of Education and the Ministry’s London Regional Office. The evidence further indicates that this letter prompted contact by the Ministry’s London Regional Office with Dylan’s parents, and a discussion took place with an education officer at the London Regional Office on November 10, 2005. The education officer offered to contact the Board superintendent to inquire as to how the Board was proceeding with the parents’ concerns, and Dylan’s parents agreed. The education officer then contacted the superintendent, who advised her that the school principal was preparing a response to the parents’ concerns. The principal’s response to Dylan’s parents dated November 11, 2005 was received by the London Regional Office on November 17, 2005. On November 23, 2005, the education officer again contacted Dylan’s parents to confirm that they had received the principal’s letter and to inquire as to plans for next steps by the parents. Dylan’s mother indicated that she had requested an IPRC for Dylan and after identification wanted to receive an IEP. The education officer’s records indicate that she asked whether the Ministry could be of any further assistance to Dylan’s parents, but do not record the parents’ response.

29Following the IPRC meeting on January 12, 2006 and receipt of a draft IEP, Dylan’s parents once again sent a package of information to the Ministry’s London Regional Office under cover of letter dated January 30, 2006. The cover letter expressed the parents’ serious concerns that the placement as noted on the IPRC statement of decision was incorrect, and that the IEP did not reflect what was required for Dylan or what was discussed and agreed to at the IPRC meeting. The material enclosed contained a detailed review of the parents’ concerns. The material submitted on this motion does not indicate that there was any response by the Ministry to this material.

30A further letter dated April 15, 2006 was sent by Dylan’s parents to the Ministry’s London Regional Office, this time enclosing material relating to the parents’ discussions with the Board superintendent and the parents’ continuing concerns that the Board and the school were not making appropriate or sufficient efforts to accommodate Dylan’s needs.

31Further contacts ensued in April 2006 between the education officer from the London Regional Office and Dylan’s parents. Ultimately, the Regional Manager for the Ministry’s London Regional Office responded by letter dated May 16, 2006. In this letter, the Regional Manager states that it is the school boards that have responsibility for the education of students, and the Ministry cannot impose a resolution to a dispute between a local board and a parent or student. However, the Regional Manager also states that staff in regional offices “can assist school boards and students / parents to try to achieve a resolution of their disputes”. The Regional Manager concludes by inviting Dylan’s parents to contact the education officer if the Ministry could be of any further assistance.

32Dylan’s parents also sent letters dated April 15, 2006 to the Premier and to the Minister of Education. The Premier responded by letter dated May 17, 2006 to indicate that the letter had been passed along to the Minister of Education for response. A response from the Minister was provided by letter dated September 28, 2006, in which the Minister encourages Dylan’s parents to continue to try to work with the Board to resolve their concerns. However, the Minister also indicates that she is prepared to request that an education officer from the Ministry’s London Regional Office contact the Board on the parents’ behalf to arrange a meeting between the parents and Board staff “with a clear focus and agenda designed to support Dylan in his return to school”. By this time, Dylan had been out of school for almost a full year since his aborted attempt to return to school in September 2005. And by this time, the human rights complaint also had been filed on Dylan’s behalf.

33From the Ministry’s own correspondence, it is clear that the Ministry does have a role in assisting school boards and parents in attempting to resolve disputes and is even prepared to intervene directly, as exhibited by the education officer’s actions in November 2005 and by the offer in the Minister’s September 28, 2006 letter. This also is conceded at paragraph 67 of the Ministry’s submissions, which states that “when contacted with concerns about the provision of special education to a particular student, staff of the regional offices of the Ministry generally play a facilitation role, by contacting both the board and the parent in order to discuss the issues with a view to resolving them for the benefit of the student.”

34While the Ministry did take some action when first apprised of the concerns raised by Dylan’s parents in October 2005, there is no indication from the material filed on this motion that the Ministry took any steps to respond when further concerns were raised by Dylan’s parents in late January 2006. Further, while a letter was sent out by the Ministry on May 16, 2006 in response to further concerns raised by Dylan’s parents in April 2006, no concrete offer of assistance was made to Dylan’s parents until the Minister’s letter in September 2006.

35In my view, the material filed on the motions provides a sufficient basis to ground the allegation that the Ministry contributed to the alleged infringement of Dylan’s rights under the Code through its failure to take more timely action to assist Dylan’s parents in resolving their concerns about the Board’s alleged failure to appropriately accommodate Dylan’s needs. Of course, this is not a finding that even if these facts were established, they would constitute a violation of the Code; and the evidence at the hearing may refute this allegation or provide a legitimate explanation or defence for the Ministry’s actions. However, I find that at this preliminary stage of the proceeding, the Ministry’s alleged failure to take more timely action to assist Dylan’s parents in resolving their concerns provides a sufficient basis to add the Ministry of Education as a party respondent to the Sigrist complaint.

36Accordingly, I hereby grant the motion to add the Ministry as a party respondent to the Sigrist complaint on this limited basis. In accordance with the Ministry’s request, the party to be added to this proceeding shall be “Her Majesty the Queen in right of Ontario”.

ii) The Carson complaint

37Andy’s mother sent e-mail communications to the Ministry in late 2005 and early 2006 raising a number of questions about the Ministry’s role in ensuring that school boards are in compliance with the Ministry’s special education guidelines. Ultimately, these communications resulted in a telephone discussion between Andy’s mother and an education officer with the Ministry’s London Regional Office on April 19, 2006. This was followed by an e-mail from Andy’s mother on April 19, 2006 expressing concern that the Ministry’s regional offices were only there to assist school boards and not to investigate, regulate or mandate. However, the e-mail from Andy’s mother also clearly states that she does not want the Ministry to become involved by contacting the Board and discussing the issues relating to her concerns about whether Andy was being properly accommodated. This was confirmed by e-mail from the Ministry dated April 20, 2006. There is no evidence on this motion to indicate that Andy’s parents made any further efforts to involve the Ministry in assisting with their concerns.

38As a result, in contrast to the Sigrist complaint, I do not find that there is a sufficient basis to indicate that the Ministry contributed to any alleged infringement of Andy’s rights under the Code and I dismiss the motion to add the Ministry as a party respondent to the Carson complaint.

Motion to add the Premier, current and former Ministers of Education and Ministry Staff

39In addition to seeking to add the Ministry as a party respondent to this proceeding, the complainants also seek to add various individuals as personal respondents, including the Premier, current and former Ministers of Education and Ministry staff.

40The complainants are quite correct that, under the Code, the fact that a corporate respondent may also be liable for the conduct of an employee is not a basis upon which to insulate that employee from personal liability for her or his own conduct that violates the Code.

41At the same time, section 39(3) of the Code states that the Tribunal “may” add a party to a proceeding, which indicates that the Tribunal has discretion in making this decision.

42The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

43In the instant case, for the same reasons that there is no basis to add the Ministry as a party respondent to the Carson complaint, there similarly is no basis to add any of the proposed personal respondents to this complaint.

44With regard to the Sigrist complaint, there clearly is no issue as to the ability of the Ministry of Education to respond to the allegations that form the basis upon which the Ministry has been added as a party respondent to this proceeding, or to provide a remedy if an infringement of the Code is found. Further, I presume that no issue will be taken by the Ministry to contest its liability for the actions of the individuals who are sought to be added. However, as this has not been expressly confirmed in the material filed on the motion, I ask that the Ministry provide written confirmation to this effect within two weeks of the issuance of this decision, failing which I will re-consider whether to add these individuals as personal respondents to this proceeding.

45Finally, I do not see any compelling juridical reason to add these individuals as personal respondents. I view the issues raised in the Sigrist complaint as directed more towards the policies and practices of the Ministry and its regional offices rather than the conduct of any particular individual. I also do not see the nature of the allegations raised against these individuals, even if found to have contributed to an infringement of the rights of either or both complainants, to award a personal remedy against them over and above any remedy that may be ordered against the Ministry. Accordingly, I am exercising the Tribunal’s discretion not to add these individuals as personal respondents to the Sigrist complaint.

Motion to add special education teacher and trustee as personal respondents

46Finally, both complainants seek to add the special education teacher at the school as a personal respondent, and the litigation guardian for Andy Carson seeks to add one of the Board trustees as a personal respondent to the Carson complaint.

47As indicated above, section 39(3) of the Code provides the Tribunal with discretion as to whether to add a person as a party respondent to a proceeding. In the instant case, the Board is clearly in a position to respond to the allegations in the complaints and to provide an appropriate remedy, should an infringement of the Code be found. In its submissions in response to the motion, the Board expressly has confirmed its position that all of the named personal respondents were acting within the scope of their employment, agency or duly authorized or elected status with the Board. As a result, the Board has thereby expressly acknowledged deemed or vicarious liability for the actions of these individuals. While I presume that this admission also would apply to the special education teacher, despite the fact that she is not currently a named personal respondent, this has not been expressly stated in the Board’s submissions. Accordingly, I ask that the Board provide written confirmation to this effect within two weeks of the issuance of this decision, failing which I will re-consider whether to add this individual as a personal respondent to this proceeding.

48Further, I do not see any compelling juridical reason to add either of these two individuals as party respondents. Both complaints address the Board’s and the school’s policies and practices in relation to the accommodation of exceptional students, including the preparation of the IEP, as opposed to any individual actions of the special education teacher. The special education teacher’s role in the preparation of the IEPs and her involvement in any accommodation provided will be fully explored at the hearing as a potential basis for Board liability without any necessity also to add her as a personal respondent. Similarly, any acts or omissions by the trustee also will be able to be fully explored at the hearing without needing to add her as a personal respondent to the Carson complaint. In addition, I do not see the nature of the allegations raised against these two individuals, even if found to have contributed to an infringement of the rights of either or both complainants, to provide an appropriate basis upon which to award a personal remedy against them over and above any remedy that may be ordered against the Board.

49Finally, in the interest of simplifying what is already proving to be a complex proceeding and which promises to be a lengthy proceeding, I encourage the parties to consider whether the continued participation of some or all of the existing personal respondents is truly necessary, or whether some agreement can be reached between the parties to release some or all of these personal respondents on the basis of the Board’s admission that at all material times they were acting in the course of their employment, agency or duly authorized or elected status, and thereby the Board admits any liability for their acts or omissions.

Ministry’s request for oral hearing

50In its submissions, the Ministry has requested an oral hearing on the motion in the event that I am not prepared to dismiss it based on the written submissions.

51Pursuant to Rule 7 of the Tribunal’s Rules of Practice, I have the discretion to determine whether any part of a proceeding is conducted in writing or in person or by other means. In this instance, prior to the Ministry’s notification of the motion, I exercised this discretion to hear the complainants’ motions in writing, in accordance with the Tribunal’s current practice. While I have considered the Ministry’s request for an oral hearing, especially in light of the fact that the Ministry did not have the opportunity to make submissions at the time I decided to hear the motions in writing, I do not believe that there is anything to be gained from providing the parties with a further opportunity to make submissions in person. I have carefully reviewed all of the voluminous material and authorities submitted by the parties, and particularly by the complainants and the Ministry, and I do not see that any further benefit would accrue from holding an in-person hearing. Accordingly, the Ministry’s request is denied.

Next Steps

52On the Initial Conference Call, the parties deferred consideration of utilizing the Tribunal’s mediation services pending determination of these motions, in order to ensure that all proper parties were offered the opportunity to participate in mediation. As a result, the Tribunal now wishes to hear from the parties as to whether they are interested in proceeding with mediation. Within two weeks of the issuance of this decision, all parties (including the Ministry) are to advise the Tribunal in writing whether they want to participate in mediation. If all parties agree to mediation, then the Tribunal will proceed to schedule a mediation date.

53In the event that any of the parties do not agree to mediation, then hearing briefs are to be filed in accordance with Rules 57 to 67 of the Tribunal’s new Rules of Practice. Pursuant to these Rules, the parties to a proceeding before the Tribunal no longer file “pleadings”, but instead file “hearing briefs” which contain a number of elements, including a statement of all facts upon which the party relies, a list of intended witnesses, an estimate of the number of hearing days required to present that party’s evidence, and a detailed description of the orders or remedies being sought or a response to such orders or remedies.

54The Commission’s hearing brief would be due by April 9, 2008, the complainants’ hearing briefs (if any) would be due by April 21, 2008, the respondents’ hearing briefs would be due by May 9, 2008, and any replies by May 16, 2008.

Communications from the litigation guardians for the complainants

55During the time period following the Initial Conference Call and in the course of the Tribunal’s consideration of the complainants’ motions, many communications were received by the Tribunal from the litigation guardians in addition to the submissions on the motion that they were afforded the opportunity to file. The Tribunal certainly understands that the litigation guardians are not represented by legal counsel and so may not fully understand what is involved in a legal proceeding of this nature. The Tribunal also is aware that the litigation guardians have grown increasingly frustrated by the length of time that it has taken to get their issues and concerns addressed.

56At the same time, there is a certain decorum and civility that the Tribunal expects all parties to observe when engaged in communications with the Tribunal or indeed with each other. All parties need to understand that each Vice Chair is assigned to many cases and that the Registrar is responsible for the entire Tribunal caseload of literally hundreds of cases. In this case, all communications from or to the parties (with the exception of routine correspondence or scheduling matters) were reviewed by me as the assigned Vice Chair. Every effort was made to provide responses and to issue this decision at the earliest possible time. The Tribunal, through the Registrar’s office, does endeavour to be helpful to all parties but there are limits as to what is appropriate for the Registrar to do. These limits are reached where a party seeks specific direction or instruction in relation to their case as opposed to general guidance as to Tribunal procedure. This distinction regarding the Registrar’s limits may not have been fully understood by the litigation guardians. It is hoped that all parties now better understand the Registrar’s role and the Tribunal’s processes.

ORDER

57For all of the foregoing reasons, the Tribunal makes the following Order:

a. That Her Majesty the Queen in right of Ontario (“Ontario”) be added as a party respondent to the Sigrist complaint;

b. That by March 10, 2008, Ontario provide written confirmation that no issue will be taken by Ontario to contest its liability for the actions of the Premier, former and current Ministers of Education and Ministry of Education staff who were sought to be added as personal respondents to this proceeding, failing which the Tribunal will re-consider whether to add these individuals as personal respondents;

c. That by March 10, 2008, the Board provide written confirmation that no issue will be taken by the Board to contest its liability for the actions of the special education teacher who was sought to be added as a personal respondent to this proceeding, failing which the Tribunal will re-consider whether to add this individual as a personal respondent;

d. That by March 10, 2008, all parties shall advise the Tribunal in writing as to whether they want to participate in mediation; and

e. That, in the event that any of the parties do not agree to mediation, then hearing briefs are to be filed pursuant to Rules 57 to 67 of the Tribunal’s new Rules of Practice in accordance with the following timetable:

1. the Commission’s hearing brief is due by April 9, 2008,

2. the complainants’ hearing briefs (if any) are due by April 21, 2008,

3. the respondents’ hearing briefs are due by May 9, 2008, and

4. any replies, if any, are due by May 16, 2008.