Burrows v. Toronto District School Board, 2008 HRTO 306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucas Burrows by his next friend Norrah Whitney

Applicant

• and -

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 25, 2008

Citation: 2008 HRTO 306

Indexed as: Burrows v. Toronto District School Board

1This is an Application filed October 14, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent failed to provide accommodation required for the applicant to attend school in the respondent’s school district.

2The respondents filed their Response on November 18, 2008. The respondents raised various preliminary issues including, abuse of process, no prima facie case, and precedential effect of the Ontario Court of Appeal decision in Wynberg v. Ontario 2006 CanLII 22919 (ON CA), [2006] O.J. NO. 2732. The respondents also assert that the complaint which forms the subject-matter of this Application is not “continued” within the meaning of the Code.

3Section 53(4) of the Code requires the Tribunal to establish rules to determine section 53(3) applications expeditiously. In accordance with this statutory mandate, the Tribunal developed a process whereby it was expected that the first step in most section 53(3) Applications would be mediation (Rule 8), followed by disclosure and the filing of further statements of facts, if required, followed by a case resolution conference to determine the merits of the Application (Rule 9).

4However, the Tribunal retains the discretion to control its own process and to hear requests to dismiss an application at any stage of its proceedings if it is fair, just and expeditious in the circumstances. The Rules confirm this: Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative; Rule 4.3(c) provides that the Tribunal may vary the application of these Rules at any time on its own initiative; Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined; and Rule 4.3(m) provides that the Tribunal may take any other action that the Tribunal determines is appropriate.

5In my view, the circumstances of this case justify the exercise of my discretion to hear the issues raised by the respondents at this stage of the proceedings and that to proceed in this manner is consistent with a fair, just and highly expeditious process.

6The Tribunal makes the following orders:

a. Within 45 days following the date of this decision, the respondent shall deliver to the applicant and file with the Tribunal, written submissions on all the above matters, together with all documents and case law upon which they intend to rely;

b. Within 45 days following receipt of the respondent’s written submission, the applicant shall deliver to respondent and file with the Tribunal their written submission in response, together with all documents and case law upon which they intends to rely;

c. Within 15 days following receipt of the applicant’s written submissions, the respondent shall deliver to the applicant and file with the Tribunal their written reply if any.

7The parties are required to advise the Tribunal, within 10 days of the date of this decision, of their availability to attend a case resolution conference in March 2009 to address the preliminary issues identified above. The parties are reminded that the Section 53(3) Rules contemplate that applications under section 53(3) of the Code be dealt with in an expedited manner.