Crarey v. Ontario (Education), 2008 HRTO 309

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Crarey by her Next Friend Eli Crarey

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Education

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: November 25, 2008 Citation: 2008 HRTO 309 Indexed as: Crarey v. Ontario (Education)

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”). On November 18, 2008 the respondent filed its Response.

2The complaint which underlies the present Application was filed on February 11, 2003. The complaint alleges discrimination in services by the respondent. In particular, the complainant alleges that the respondent, as the Ministry responsible for the delivery of educational services, has failed to provide adequate funding and oversight to ensure that students with autism have equal access to educational services.

3The respondent submitted that the Tribunal should dismiss the Application for one or more of the following reasons:

• In light of a binding settlement agreement signed by the complainant (and subsequently incorporated into an order of the Tribunal);
• On the basis of the doctrines of res judicata, issue estoppel and abuse of process;
• By virtue of s 34(11)(b) and 45.2 of the Code; or,
• In light of the fact that this is not a continued complaint within the meaning of section 53(3) of the Code.

4Section 53(4) of the Code required 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).

5However, 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.

6In 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.

7The 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 caselaw upon which they intend to rely;

b. Within 45 days following receipt of the respondent’s written submission, the applicant shall deliver to the respondent and file with the Tribunal her written submission in response, together with all documents and caselaw upon which she 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.

8The 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.