Human Rights Tribunal of Ontario
B E T W E E N:
Peter Corrigan by his Substitute Decision Maker Joan Corrigan
Applicant
-and-
Peterborough Victoria Northumberland and Clarington Catholic District School Board, John Miller and Christopher McCarney
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed as: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board
WRITTEN SUBMISSIONS FROM
Peter Corrigan by his Substitute Decision ) Elle Venhola, Counsel Maker Joan Corrigan, Applicant ) )
Peterborough Victoria Northumberland ) Melanie A. Warner, Counsel and Clarington Catholic District School ) Board, John Miller and Christopher ) McCarney, Respondents ) )
INTRODUCTION
1This is an Application filed on June 30, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application was filed on the applicant’s behalf by his mother, Joan Corrigan, who is named as his litigation guardian or substitute decision-maker.
2In the Response, the respondents ask the Tribunal to dismiss the Application because another proceeding has appropriately dealt with the substance of the Application. The respondents also ask the Tribunal not to deal with the Application because of the delay in filing it.
3The Tribunal directed a conference call to be scheduled to hear the submissions of the parties on the preliminary issues raised by the respondents [see Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 85]. The Tribunal also issued directions to the parties on the filing of any documents and case law they intended to rely on during the hearing of the preliminary issues [as above, as well as 2008 HRTO 212]. This conference call took place on November 28, 2008.
BACKGROUND
4The following facts are based on the materials filed by the parties and submissions made during the conference call.
5This Application relates to events that occurred between September 2001 and September 2003, when the applicant was enrolled at a secondary school in the Peterborough Victoria Northumberland and Clarington Catholic District School Board (the “Board”). It is alleged that the Board discriminated against him in its provision of education services in that it failed to accommodate his disability (which is described in the Application as immunodeficiency and/or autoimmune disorders). Much of the complaint centres on the applicant’s frequent and extended absences from school from September 2001 to September 2003 and the Board’s response to those absences. It is alleged that the Board failed to offer him appropriate accommodation and further, that it refused to accept or give weight to notes from the applicant’s naturopath.
6The culminating events occurred in September 2003. The applicant turned 18 years old in April 2003. In September of that year, he commenced the 2003-2004 academic year at a secondary school within the Board. It is not in dispute that he missed numerous classes in the first few weeks of the school year. The applicant alleges that he was absent for an extended period due to illness following which he was pressured to voluntary withdraw from the school. The respondents dispute the applicant’s characterization of the events, but it is agreed that the applicant withdrew from the school on or about September 26, 2003.
7It appears that the next contact between the applicant or his mother and the Board was in August 2004, when the applicant’s parents wrote to the Director of Education expressing their dissatisfaction with the actions of the Board and its employees in relation to their son’s schooling from September 2001 to September 2003.
8The applicant’s mother also contacted the Ontario Human Rights Commission (the “Commission”) to complain about the Boards actions, in or around the fall of 2004, as well as the Ombudsman and the Ministry of Education. Correspondence from counsel for the applicant states that the Commission advised the applicant’s mother that “a complaint could be filed on the basis of her allegations” but “the complaint was out of time and would not be accepted.”
9Counsel also states in her correspondence that the applicant’s mother subsequently discovered that she could, and ought to, bring a complaint to the Ontario College of Teachers (OCT). The applicant’s mother initiated a complaint to the OCT against the principal of the school (one of the respondents), in June 2005. Among other things, she alleged that the principal harassed and discriminated against her son on the basis of his disability. Between June 2005 and January 2007, the OCT dealt with the complaint through written and oral communications with the member, the member’s counsel, the applicant, the applicant’s mother, and other individuals. In January 2007, a panel of the Investigation Committee of the OCT issued its decision not to refer the complaint to the Discipline Committee or the Fitness to Practise Committee.
10This Application to the Tribunal was filed on June 30, 2008.
11To complete the factual background, the applicant’s mother submitted the Tribunal’s Form 4 (Application on Behalf of Another Person), and in her narrative states that she has “Continuing Power of Attorney over Property” for her son and is authorized to bring this Application on his behalf. Prior to the conference call, counsel for the applicant provided a document, “Continuing Power of Attorney for Property”, signed by the applicant on June 28, 2008. It states that he appoints his mother to be his attorney for property, restricted to “the authority to act as my litigation guardian in all legal matters.”
12The respondents submit that the Tribunal should not deal with this Application as it has been made beyond the time limit specified in section 34(1) of the Code. They submit that the applicant has not established that the delay was incurred in good faith and further, that they will be substantially prejudiced in their ability to defend against