Nye v. Hamilton-Wentworth District School Board, 2009 HRTO 1205

Human Rights Tribunal of Ontario

Between:

Anna Nye by her next friend Martin Nye Applicant

-and-

Hamilton-Wentworth District School Board Respondent

Interim Decision

Adjudicator: Sherry Liang Date: August 5, 2009 Citation: 2009 HRTO 1205 Indexed as: Nye v. Hamilton-Wentworth District School Board

1This is an Application received on July 10, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The Application alleges discrimination in educational services on the basis of disability. The applicant, a secondary school student with the Hamilton-Wentworth District School Board (the Board), alleges that the Board has failed to provide her with the appropriate accommodations relating to her disability, by refusing to allow her to be placed in her mother's special education class and failing to communicate adequately with her parents about her required accommodation.

2The Application was accompanied by a Request to Expedite Proceedings. The time for responding to the Application has not elapsed and no Response has yet been filed, but the Tribunal has received a response to the Request to Expedite from the Board.

3The Board opposes expedition of the Application.

REQUEST TO EXPEDITE

4In the Application, the applicant's father sets out the history of the applicant's attendance in secondary school, which started in September 2008. He states that as of September 2007, the applicant's parents have communicated with the Board with a view to establishing a plan for her secondary school education. The applicant's mother teaches a class of special education students at one of the secondary schools within the Board, Sir Winston Churchill S.S., and the applicant's parents wished to have her placed in her mother's class.

5The applicant's parents attended at an Identification, Placement and Review Committee (IPRC) meeting on June 20, 2008, which resulted in the applicant's placement in a class for special education students at another secondary school, Hill Park S.S.

6Despite her parents' dissatisfaction with this placement, the applicant started school at Hill Park S.S. in September 2008. By October 2008, the applicant was transferred to Sir Winston Churchill S.S., although not to her mother's class. Since October 2008, the applicant's parents have continued in their efforts to have the applicant placed in her mother's class.

7In the Request to Expedite, the applicant's father describes the urgent circumstances that may affect the fair and just resolution of the merits of the Application as relating to their request to have the applicant placed in her mother's class as of September 2009. He states, as the harm that would result if the Request is denied, that one more year of a failure to accommodate would be very deleterious to her education.

8In response, the Board states that the concerns raised by the applicant pertain to matters that have accumulated over a lengthy period of time. The initial request to have the applicant placed in her mother's class was made almost one year ago and there are no new urgent circumstances in play to justify an order for an expedited hearing. The Board states that the factors described in the Application and Request to Expedite are not meaningfully different from those described by many other applicants before the Tribunal.

9The Board states that the applicant has a placement at Sir Winston Churchill S.S., as well as an offer for a placement at another school. The Board submits that an expedited process would hinder the just resolution of the merits of the Application in that the case is complex and it will be prejudiced in its ability to respond fully to the Application if the proceedings are expedited. The Board also states that the proper process for dealing with the matters raised by the applicant is the IPRC process, including the appeal process under the Education Act, and the applicant has not pursued an appeal there.

10In Haughton v. Toronto District School Board, 2009 HRTO 655, the Tribunal stated:

[8] The desirability of dealing expeditiously with a claim that a student is not receiving proper education services is self-evident. However, whether such a claim warrants expediting the Tribunal's regular processes must be assessed on a case-by-case basis. It has been the Tribunal's experience that it receives a significant number of complaints about the schooling of young students – if all were expedited, the Tribunal's resources would be heavily weighted in favour of dealing with these cases at the expense of many other applications before it.

[9] In this case, without diminishing the seriousness of the applicant's concerns and the sincerity of the applicant's mother's desire to address her son's situation, the factors described as supporting an expedited process are not meaningfully different from those described by many other applicants before the Tribunal.

[10] This Application refers to events during the current school year that led the applicant's mother to withdraw her son from school in October 2008. This Application and Request to Expedite were not filed until more than six months later. Although it appears that events in the fall of 2008 are the main issue for the applicant, it is also apparent that the Application concerns disputes about the applicant's education that have accumulated over some time. The issues are complex and the Tribunal does not find it appropriate to require the respondents to prepare their Responses in an abridged time frame.

11I find no meaningful differences between the circumstances before the Tribunal in Haughton, and those in this Application. The Application raises complex issues that have accumulated over time, and it would be fair to allow the Board adequate time to respond to them. Moreover, the main contention of the applicant, that her appropriate accommodation requires that she be placed in her mother's class, has been known since at least September 2008. The Tribunal has stated that except in the rarest of circumstances, a party who has delayed in filing his or her Application without explanation will not be given the priority for Tribunal resources of an expedited proceeding: Kwan v. Hospital for Sick Children, 2009 HRTO 621.

12In all the circumstances, the Tribunal will make no direction about abridging the time for filing a Response or in connection with the hearing of this matter. If the parties consent to mediation, the Tribunal will schedule a mediation as soon as possible following the filing of a Response.

13I am not seized.