HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Corey Haynes
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Ottawa-Carleton District School Board,
James White, Irmela Murphy and Peter Wilson
Respondents
INTERIM DECISION
Adjudicator: Leslie Reaume
Indexed as: Haynes v. Ottawa-Carleton 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
Corey Haynes, Complainant ) Laurie Letheren and
) Kerri Joffe, Counsel
Ottawa-Carleton District School Board, ) Roger Mills, Counsel
Respondent )
James White, Personal Respondent ) Susan Ursel, Counsel
Peter Wilson and Irmela Murphy, ) Phuong T.V. Ngo
Personal Respondents ) for Sarah Colman, Counsel
Ontario Human Rights Commission ) Anthony Griffin, Counsel
Introduction
1This Interim Decision addresses the following preliminary matters:
a. the complainant’s request to add a respondent to this proceeding;
b. the objection raised by the respondents to the scope of the statement of facts, issues and remedy (“Commission’s statement”) which has been filed by the Commission; and
c. the complainant’s request to file a statement of facts, issues and remedy (“complainant’s statement”) on his own behalf.
BACKGROUND
2The complaint in this matter was filed on December 6, 2004 and alleges that the complainant experienced discrimination on the basis of colour and race, as well as a failure to accommodate his disability, in the provision of services pursuant to sections 1 and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In September 2003, Corey Haynes started attending grade 9 at Nepean High School. The complaint was filed by his mother, Dr. Janet Haynes, on behalf of Corey, who was 15 years of age at the time. The respondents named in that complaint include the school board, the complainant’s teacher (James White), principal (Irmela Murphy) and vice-principal (Peter Wilson) from the 2003-2004 academic years. The Commission referred the subject-matter of the complaint to the Tribunal by letter dated April 26, 2007.
3On October 29, 2007, Corey Haynes turned 18. The Tribunal was informed by letter dated December 10, 2007 that Dr. Haynes was no longer acting as her son’s litigation guardian and that Corey Haynes had retained ARCH Disability Law Centre to act as his counsel.
4The materials filed by the complainant, for the purpose of determining the preliminary issues, describe him as a black student who has narcolepsy and a communication disorder in the nature of a non-verbal learning disability. The materials also reference an Individual Education Plan (“IEP”), which, according to the complainant, sets out his need for accommodation.
5The Commission filed a statement of facts, issues and remedy on August 17, 2007. The complainant did not file a separate statement of his own. In early September 2007, the respondents wrote to the Tribunal objecting to parts of the Commission’s statement alleging that the material contained new allegations not investigated by the Commission, which expanded the nature and scope of the original complaint. The respondents asserted that the Commission included allegations involving seven additional teachers who were not the subject of the original complaint or the Commission’s investigation. The respondents requested an oral hearing to address their objections.
6The original complaint signed July 12, 2004 contains very few of the details which are now set out in the Commission’s statement. The original complaint, for example, does not make mention of the IEP or the complainant’s diagnosis of narcolepsy. The original complaint describes interactions with one of the complainant’s teachers, James White, during his grade nine year (2003-2004) as well as complaints made by Dr. Haynes to the vice-principal, Peter Wilson, and the principal, Irmela Murphy. From June 2004 when the complaint was filed, until the subject-matter of the complaint was referred to the Tribunal in April 2007, the complaint proceeded through the Commission’s process. During that same period, the complainant alleges that he continued to encounter experiences with other teachers and school administrators which he describes as part of an ongoing failure by the Board to accommodate his disabilities.
7Prior to the oral hearing taking place the Commission confirmed that it had no intention of seeking leave to add any of the seven teachers as respondents nor was it seeking individual remedies against them. The Commission further clarified its position that the teachers were potential witnesses who were implicated in the facts underlying what is essentially an ongoing complaint against the Board for failing to accommodate the complainant.
8A few days prior to the December 18, 2007 oral hearing, the Tribunal was notified that the complainant had retained his own counsel. During the conference call of December 18, 2007, the complainant’s new counsel requested an adjournment of the oral hearing and an opportunity to prepare requests to add a new respondent and to file a separate statement of facts, issues and remedy on behalf of the complainant. Counsel for the complainant advised that she intended to make a request to add one of the seven teachers named in the Commission’s statement as a personal respondent in the proceeding. The Commission indicated that it did not intend to join the complainant in his request to add a personal respondent. The hearing was adjourned to February 15, 2008. All of the parties were given an opportunity to consolidate their arguments and materials in response to any new material filed by counsel for the complainant.
9The documents before the Tribunal at the oral hearing included the materials filed by the parties in anticipation of the hearing going ahead on December 18, 2007, the materials filed by the complainant after December 18, 2007, and the materials filed by the Commission and the respondents in response. The complainant has also filed a proposed statement of facts, issues and remedy. The anticipated evidence of Peter Wilson is contained in Ms. Colman’s letter dated October 29, 2007 and correspondence exchanged between Ms. Colman and the Commission, obviating the need to have Mr. Wilson give oral testimony at the hearing of the preliminary issues.
10All of the respondents take the same position on the preliminary issues. Ms. Ursel, who acts for James White, one of the individual teachers named in the original complaint, also acts for the seven teachers referred to in the Commission’s statement. Ms. Ursel provided a summary of the anticipated evidence of those individuals in a letter dated October 30, 2007. The other parties did not dispute the evidence. The anticipated evidence is limited to whether or not the teachers made and retained notes and the state of their memory. Where the issue of their memory is addressed, it is generally described as “not as acute as it might have been had the teacher known of the allegations sooner”. In the case of Sheila Meggs, whom the complainant now seeks to add as a personal respondent, no representation is made as to the state of her memory. The anticipated evidence of the seven teachers does not address any of the factual allegations contained in the Commission’s statement.
DISCUSSION AND ANALYSIS
Complainant’s Request to Add Sheila Meggs as a Respondent
11Ms. Meggs became the complainant’s teacher in January 2007, three months before the subject-matter of the complaint was referred to the Tribunal. The Commission did not investigate any of the allegations against Ms. Meggs, which are now contained in the Commission’s statement and the proposed statement of the Complainant. It is generally alleged that Ms. Meggs knew of the complainant’s disabilities and resisted providing the complainant with the accommodations he required. The respondents and Ms. Meggs oppose the complainant’s request. The Commission takes the position that there is no utility to adding Ms. Meggs as a respondent at this stage in the proceeding.
12The Tribunal’s jurisdiction to add a party as a respondent arises from s. 39(2) and (3) of the 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 the 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…
39(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.
13In Payne v. Ontario (Board of Inquiry-Human Rights Code), [2000] O.J. No. 1896 (QL) [CHRR Doc. 00-120] (Ont. Sup. Ct.) (“Payne 2000”), the Divisional Court confirmed the Tribunal’s jurisdiction to deal with a motion to add parties at the inquiry before it and described the Tribunal’s discretion in these terms at paragraph 4:
The plain language of the section armed the Board with jurisdiction to deal with the motion to add parties at the inquiry before it. Whether that ought to happen is quite another matter, for determination by the Board on whatever material and arguments may be addressed to it on the subject.
14After the decision of the Divisional Court, the case was remitted back to what was then the Ontario Board of Inquiry. The Board decided in 2001 to allow the complainant’s motion to add a number of respondents to the inquiry before it: Payne v. Otsuka Pharmaceuticals Co. Ltd., 2001 CanLII 26231 (ON H.R.T.) (“Payne 2001”). The complainant relies on Payne 2001 and the decision in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep) [2006] HRTO 22 (“Greenhorn”). In Greenhorn, the Tribunal adopted a two-part test for dealing with such requests.
15The first stage of the test is derived directly from section 39(3) which requires the Tribunal to consider whether a person appears to have infringed the right of the complainant. The threshold for determining that question 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 paragraph 23.
16Although Ms. Meggs does not admit the allegations made against her, none of the parties dispute that if those allegations were true, they would support a finding that she has violated the complainant’s rights. Both the Commission and the complainant allege that Ms. Meggs resisted implementing the accommodations required by the complainant and that there were a number of meetings held with her and other school officials in an attempt to resolve the complainant’s concerns. I am satisfied that the statutory requirement is met here and that the allegations, if proven, could support a finding that Ms. Meggs violated the complainant’s rights.
17The parties argued Greenhorn requires the Tribunal to determine whether substantial prejudice would flow from adding the proposed party as a respondent. However, the Divisional Court in Payne 2000 did not limit the Tribunal to consideration of the statutory requirement and the issue of prejudice to the proposed respondent. Rather, the Court said the Tribunal’s determination should be made “on whatever material and arguments may be addressed to it on the subject” (Payne 2000, supra at paragraph 4).
18In my view, section 39(3) permits the Tribunal to consider factors other than prejudice where those factors bear on whether it is appropriate for the Tribunal to exercise its discretion to add a party. The focus on prejudice in Greenhorn as the predominant factor in the exercise of the Tribunal’s discretion was clearly appropriate for the circumstances of that case. Other cases may present relevant factors beyond the issue of prejudice which will inform the exercise of the Tribunal’s discretion. The Board in Payne 2001, for example, set out four questions which were considered relevant to determining whether to add a party to the proceeding.
19In the recent decision in Sigrist and Carson (Litigation Guardian of) v. London District Catholic School Board 2008 HRTO 14 (“Sigrist”), the Tribunal considered a request to add a special education teacher and a trustee as personal respondents in two complaints involving the London District Catholic School Board. The complainants, both students at the same school, alleged that they did not receive proper accommodation for their disabilities. The motion to add the personal respondents was denied. In coming to that conclusion, the Tribunal considered the fact that the Board was clearly in a position to respond to the allegations and to provide the appropriate remedy, should an infringement of the Code be found. The Tribunal also took into consideration that the allegations made against both teachers would be explored in the hearing as a potential basis for Board liability without any necessity to add either of them as personal respondents. Finally, the Tribunal concluded that even if both teachers were found to have contributed to an infringement of the rights of either or both complainants, the nature of the allegations would not give rise to a personal remedy against them.
20In this case, I agree with the position of the Commission that nothing meaningful can be achieved from either a procedural or substantive perspective by adding Ms. Meggs as a personal respondent. The involvement of Ms. Meggs in accommodating the complainant’s disabilities may be fully explored at the hearing as a potential basis for the Board’s liability. It would also not advance the remedial purposes of the Code to add her as a respondent. There are no remedial orders being sought against Ms. Meggs and, as a teacher who has now retired, she would not be subject to any of the remedial orders sought against the Board. Adding Ms. Meggs as a respondent would delay the hearing of this matter, which has already been delayed several months while these preliminary issues have been addressed. For all of these reasons, I decline to exercise my discretion to add Ms. Meggs as a respondent. In light of these factors, I consider it unnecessary to determine the question of prejudice to the proposed respondent.
21In Sigrist, the Tribunal encouraged the parties to consider whether the continued participation of some or all of the existing personal respondents was truly necessary. I would encourage the parties to make the same effort here to simplify what will undoubtedly be a lengthy, complex hearing. If the Board admits liability for the acts or omissions of employees acting in the course of their employment, it may be possible for the parties to achieve an agreement releasing the individually named respondents.
The Respondents Objection to the Commission’s Statement of Facts, Issues and Remedy
22Once the Commission refers the “subject-matter” of a complaint to the Tribunal pursuant to section 36(1) of the Code, the Tribunal is required to hold a hearing to determine whether a right of the complainant has been infringed in accordance with section 39(1). The Tribunal is not restricted to the allegations as they were articulated in the complaint form. The question is whether the allegations raised before the Tribunal, which at this early stage are contained in the Commission’s statement and the proposed complainant’s statement, form part of the subject-matter of the complaint: Jeffrey v. Dofasco Inc. (2000) CanLII 20864 (ON H.R.T.); Entrop v. Imperial Oil (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 (Ont. Bd. Inq.); Toneguzzo v. Kimberly-Clark Inc., 2005 HRTO 45 (“Toneguzzo”); Persaud v. Toronto District School Board et al. 2008 HRTO 12.
23The complainant is a high-school student who, since the filing of his complaint, has moved through successive academic years. As a result, he has come into contact with new teachers and experiences which have given rise to allegations involving the seven teachers. Those allegations could not have formed part of his original complaint dated June 12, 2004.
24This case is at the earliest stage before the Tribunal. No hearing dates have been set and only the Commission has filed a statement of facts, issues and remedies.
25The respondents object to what they describe as the expansion of the scope and nature of the complaint and specifically to those paragraphs of the Commission’s statement which relate to the seven teachers who were not part of the original complaint. They take the position that the subject-matter of the complaint is the failure to circulate the complainant’s IEP in a timely fashion. They contend that it would be highly prejudicial to those seven teachers for the Tribunal to allow the complainant to lead evidence of his interactions with them, even though the interactions relate to the accommodation of the complainant’s needs as a disabled student.
26The Commission’s position is that the allegations are not made “against” the seven teachers. They are facts alleged in support of the complainant’s overall concern that his needs as a disabled student were not accommodated during the period that he pursued his high school education as a student with the Ottawa-Carlton District School Board.
27The Commission’s position is that the subject-matter of the complaint is the allegation that the board failed to properly accommodate the needs associated with the complainant’s disabilities. The Commission makes a number of factual allegations in support of the complaint including the fact that the complainant’s IEP, which contains information about his need for accommodation, was not made known to teachers in a timely fashion. The Commission also alleges a series of interactions with teachers which may or may not have resulted from a failure to advise the teachers of the Complainant’s needs. We do not know, at this stage, the full context for those allegations. There may be other underlying reasons for the conduct of the teachers if the complainant can prove his allegations. However, in the Commission’s view, the allegations involving the complainant’s interactions with the seven teachers all relate to the complainant’s efforts to achieve accommodations for his disabilities.
28In Toneguzzo, the Tribunal refused to strike portions of the Commission’s statement on the basis that those paragraphs formed part of the continuum of events and could not be characterized as expanding the scope of the complaint. The Tribunal in that case found that the essence of the complaint was the alleged failure of the respondent to accommodate the complainant.
29The original complaint contains a series of allegations about the complainant’s interactions with his teachers from which the complainant has concluded that he experienced discrimination. The allegations against the seven teachers in the years following the filing of the complaint are similar in nature to the concerns raised by the complainant at the time of the filing of his complaint. The allegations contained in the Commission’s statement relate to the complainant’s experiences in successive academic years, all of which can be traced back to the complainant’s concern that his disabilities were not properly accommodated while he was attending high school.
30In the instant case, I agree with the Commission that the essence of the complaint is the allegation that the board failed to properly accommodate the needs associated with the complainant’s disabilities while he was attending high school from 2003 until 2007. At this early stage in the proceeding it would be premature to conclude that the subject-matter of this complaint is limited to the “timely circulation of the complainant’s IEP”.
31The respondents argued that construing the subject-matter of the complaint broadly enough to include the allegations involving the seven teachers, would be seriously prejudicial to the respondents and the teachers themselves. I have carefully considered Ms. Ursel’s submission that, if certain allegations are proven, the Tribunal may be required to make findings of fact and law about the conduct of the seven teachers. Ms. Ursel submits that any such findings may have employment related or other professional consequences for those teachers. She also argued that they could be added as respondents at any time in the proceeding pursuant to the Tribunal’s power to add parties who appear to have violated the complainant’s rights.
32I have also considered the proposed evidence of the seven teachers, all of which relates to whether or not they took notes, whether those notes are still in their possession, and the state of their memories. The proposed witness statements do not set out a response to the Complainant’s allegations and do not address whether or not the seven teachers knew about the Complainant’s need for accommodation. In my view, the proposed evidence of the teachers does not establish that the respondent would be unable to receive a fair hearing. The allegations involving the seven teachers span the academic years 2004-2005, 2005-2006, 2006-2007. Three of the seven teachers say that their memories are “not as acute” as they might have been. Four of the teachers say nothing of the state of their memories. Some have taken notes and destroyed them, some never took notes, some have notes which are under the control of the Board, and some interactions alleged by the Complainant would not necessarily give rise to the production of notes in any event.
33While I appreciate Ms. Ursel’s concerns, at this stage of the proceeding those concerns are too speculative to preclude the Commission and the complainant from seeking to prove the allegations contained in their statements. The seven teachers are potential witnesses, and concerns about the retention of their notes and the extent of their memories may be raised if they are called to give evidence in this proceeding. Having said that, I wish to be clear that I have drawn no conclusions whatsoever about the veracity of the complainant’s allegations or the conduct of the teachers implicated in those allegations.
Extension of Time to File a Statement of Facts, Issues and Remedy
34The complainant is entitled to file a statement of facts, issues and remedy separate from the Commission. It is not unusual for the complainant to retain counsel and file a statement which reflects the complainant’s own view of the case. Having determined that the complainant’s allegations are properly raised in this proceeding, the only question for the Tribunal is whether it would prejudice the respondents to allow the complainant to file a statement at this stage in the proceeding.
35The Commission filed its statement in August 2007. Four months later, the complainant retained counsel and immediately raised with the Tribunal the necessity to file a statement on behalf of the complainant alone. The respondents take issue with the content of the proposed statement but have not demonstrated that any prejudice would flow from allowing the complainant to file his own statement at this stage in the proceeding. The respondents will have a full opportunity to address the complainant’s allegations in their own responding statements.
ORDER
36For all of the foregoing reasons, the Tribunal makes the following Order:
(1) The request to add a respondent is denied;
(2) The request to strike portions of the Commission’s statement is denied;
(3) The complainant’s request to file the proposed statement of facts, issues and remedy is granted;
(4) The respondents have 60 days from the date of this decision to file their responding statement of facts, issues and remedy. The Commission may file a reply, if necessary, within two weeks of the respondents filing their statement.
(5) The parties may arrange a conference call through the Tribunal Registrar, if necessary, to address any case management issues arising out of this order.
Dated at Toronto, this 2nd day of May, 2008.
“Signed by”
Leslie Reaume
Vice-Chair