HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raffaele (Ralph) Capocci

Applicant

-and-

York Catholic District School Board,

York Catholic District School Board – Board of Trustees,

Susan LaRosa, Jo-Ann Dawson and Dino Giuliani

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: January 30, 2009

Citation: 2009 HRTO 107

Indexed as: Capocci v. York Catholic District School Board

WRITTEN SUBMISSIONS BY

Raffaele (Ralph) Capocci, Applicant ) On His Own Behalf

York Catholic District School Board, York ) John-Paul Alexandrowicz,

Catholic District School Board – Board of ) Counsel

Trustees, Susan LaRosa, Jo-Ann Dawson )

and Dino Giuliani, Respondets )

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request that the Tribunal dismiss the Application on a preliminary basis because (a) it is untimely, (b) it is outside the Tribunal’s jurisdiction, (c) it is an abuse of process, and (d) it fails to make out a prima facie case of discrimination.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 1, 2008, which alleges that the respondents discriminated against him with respect to services and facilities because of his family status and his association and dealings with persons identified by a prohibited ground of discrimination.

3The respondents filed a Request for an Order during Proceedings on November 25, 2008, which requests that the Tribunal dismiss the Application prior to a hearing of the merits of the Application. The applicant filed a Reply and a Response to a Request for an Order on December 8, 2008, which oppose the respondents’ request to dismiss the Application on a preliminary basis.

4The parties provided written submissions, but requested that the Tribunal deal with the Request for an Order at an in person hearing. In my view, given the detailed nature of the written submissions, it is fair, just and expeditious to determine this matter on the basis of written submissions alone.

TIMELINESS

5The respondents state that the Application is barred by section 34 of the Code because the incidents of alleged discrimination occurred more than one year prior to the filing date of the Application (October 1, 2008). The only incidents mentioned in the Application that occurred less than one year prior to the filing date – the revocation of the applicant’s exclusion from St. Stephen Catholic School (February 2008) and his decision not to join the School Council (September 2008) – are not incidents of alleged discrimination.

6The applicant denies that the Application is untimely. He states that the most recent allegations of discrimination in the Application relate to incidents that occurred less than one year prior to the filing date of the Application. Specifically, the respondent LaRosa continued to exclude him from attending School Council and committee meetings (February 2008), and the exclusion prevented him from joining the School Council (September 2008).

7Subsection 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

8In my view, the Application includes incidents of alleged discrimination within one year of the filing date of the Application. The Application alleges that the respondents subjected him to a series of discriminatory acts in 2007 and 2008. There are specific allegations that the applicant was excluded from the school as a parent from June 2007 to February 2008, and that he continued to be excluded from Council and committee meeting at the school until at least September 2008, which prevented him from joining the School Council. The applicant filed his Application on October 1, 2008. The respondents’ request to dismiss the Application because it is untimely is therefore dismissed.

JURISDICTION

9The respondents state that the Application is outside the Tribunal’s jurisdiction because the allegations contained in it relate to rights and duties under the Education Act, R.S.O. 1990, c. E.2, as amended. Specifically, section 19 of the Code states that the Code does not apply to affect the application of the Education Act with respect to the duties of teachers; the respondent Dawson is a teacher within the meaning of the Education Act; and the majority of allegations in the Application relate to the exercise of her duty and discretion under the Education Act to exclude the applicant from the school.

10The applicant denies that the Application is outside the Tribunal’s jurisdiction. He states that he is relying on the Code, not the Education Act, to address the acts of discrimination, and that the Code has authority over other legislation in Ontario. He further states that the Application is about acts of discrimination against him, not what a teacher can or cannot do with respect to his or her duties.

11Section 19 of the Code provides:

(1) This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act.

(2) This Act does not apply to affect the application of the Education Act with respect to the duties of teachers.

12In my view, the Tribunal’s jurisdiction over the Application is not ousted by section 19 of the Code. I disagree with the respondents’ position that section 19 of the Code totally ousts the Tribunal’s jurisdiction with respect to the duties of teachers, but, for the reasons that follow, it is not necessary for me to determine this issue. With respect to the allegations against the respondent Dawson, the authority to exclude an individual from a school falls under the duties of principals as set out in subsection 265(1) of the Education Act, not the duties of teachers as set out in subsection 264(1) of the Education Act. In addition, the allegations against the respondents Giuliani and LaRosa have nothing to do with the duties of teachers. The respondents’ request to dismiss the Application pursuant to section 19 of the Code is therefore dismissed.

ABUSE OF PROCESS

13The respondents state that the Tribunal should dismiss the Application as an abuse of process because it seeks to revive allegations that were resolved in six memoranda of settlement, which were approved and executed by the Ontario Human Rights Commission in October 2008. Specifically, all six of the settled human rights complaints contained allegations about the respondent Board’s policies and procedures with respect to anaphylactic students; the applicant is the uncle of one of the complainants and the cousin of another; the applicant attended several of the mediation sessions as a representative of the complainants; and the applicant is seeking remedies against the respondent Board, which were already agreed to in the memoranda of settlement.

14The applicant denies that his Application is an abuse of process. He states that the six settlements, which involved children who sought accommodation of their disability, have no relevance to this Application, which involves denial of access to facilities and services because of his association with persons identified by a prohibited ground of discrimination. Specifically, the respondents excluded the applicant from attending the school as a parent and from participating in community matters at public forums at the school because of his involvement in a human rights process on behalf of children with a disability.

15In my view, the Application is not an abuse of process. The applicant was not a complainant in any of the six settlements, and while there is some minimal overlap between this Application and one of the settled complaints (both the Application and one of the complaints raise an alleged incident at the respondent Giuliani’s house in April 2007), the majority of the applicant’s allegations of discrimination are distinct from those in the six settled human rights complaints. If the respondents have concerns that the applicant is seeking remedies against the respondent Board, which were already agreed to in the six memoranda of settlement, the appropriate time to raise this issue is during the remedies stage of the hearing. The respondents’ request to dismiss the Application as an abuse of process is therefore dismissed.

PRIMA FACIE CASE

16The respondents state that the Tribunal should dismiss the Application because it fails to make out a prima facie case of a contravention of any provisions of the Code. First, the Code defines “family status” as being in a parent and child relationship, but the Application does not contain any allegations that relate to the applicant’s status as a parent or a child. The applicant only refers to the fact that he is the uncle and cousin of the two of the complainants in the six settled human rights complaints. Second, the Application fails to establish any association between the applicant and persons who have a disability, and there are no allegations that, if proven true, could establish that the respondents discriminated against the applicant because of his alleged association with persons who have a disability.

17The applicant denies that the Application fails to make out a prima facie case of discrimination. He states that the definition of “family status” in the Code is not intended to be exhaustive and should reflect his position in an extended family. He further states that the Response admits that the respondents knew that there was an association between him and students with anaphylaxis, and that the respondents discriminated against him by excluding him from the school and continuing to ban him from activities, which other community members are able to participate in, because of his relationship with, and advocacy on behalf of, children with a disability.

18Subsection 10(1) of the Code defines family status as “the status of being in a parent and child relationship.” I agree with the respondents’ submission that the Application does not contain any allegations that relate to the applicant’s status of being in a parent and child relationship. The Tribunal therefore orders that the ground of “family status” be struck from the Application.

19Section 12 of the Code states that a right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

20Where a request to dismiss an application on the basis that it fails to make out a prima facie case of discrimination is brought at a preliminary stage of the proceeding, there is no “evidence” before the Tribunal, but only “allegations”. In order to maintain the Application, it is sufficient at this stage if the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case: see Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, paras. 21-22.

21In my view, the Application raises allegations which, if accepted as true, would be enough to establish a prima facie case of discrimination. The Application alleges that that the respondents knew that he was an advocate for students with a disability (anaphylaxis), and that the respondents subjected him to differential and adverse treatment because of his association and dealings with those students. The respondents’ request to dismiss the Application on the basis that it fails to make out a prima facie case discrimination is therefore dismissed, without prejudice to the respondents’ right to make a further request after the applicant has presented his evidence at the hearing.

ORDER

22The Tribunal makes the following Orders:

(a) The ground of “family status” is struck from the Application.

(b) The respondents’ request to dismiss the Application because it is untimely, outside the Tribunal’s jurisdiction, an abuse of process, and fails to make out a prima facie case of discrimination in relation to section 12 of the Code, is dismissed.

23I am not seized of this matter.

Dated at Toronto, this 30^th day of January, 2009.

“Signed by”

Ken Bhattacharjee

Vice-chair```