Chu v. Dufferin Peel Catholic District School Board, 2009 HRTO 1303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Benjamin Sai-Mun Chu by his next friend Susan Chu

Applicant

-and-

Dufferin Peel Catholic District School Board, Tilia Cruz, Ralph Borrelli and John Kostoff

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: August 24, 2009

Citation: 2009 HRTO 1303

Indexed as: Chu v. Dufferin Peel Catholic District School Board

1This is an Application filed on July 14, 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, represented by his mother, intends to begin Junior Kindergarten in September 2009 at a school within the Dufferin Peel Catholic District School Board (the Board). He alleges that the Board has failed to accommodate his life threatening allergies by refusing to agree to an appropriate individual accommodation plan and that as a result he will be denied the opportunity to begin school in September.

2The applicant filed a Request to Expedite Proceedings along with his Application. The time for responding to the Application has not elapsed and no Responses have yet been filed, but the Tribunal has received a response to the Request to Expedite from the respondents. The respondents oppose expedition of the Application.

REQUEST TO EXPEDITE

3Under Sabrina’s Law, 2005 S.O. 2005, c. 7, ss. 2(3), school boards are required to develop individual pupil plans for students who have anaphylactic reactions. The applicant states that he suffers from allergies to peanuts, all nuts, dairy and eggs, which are life-threatening. Over a period of some months, the applicant’s mother has been in discussion with the Board over the development of an individual accommodation plan for the applicant. The applicant’s mother has submitted a plan for the Board to consider. The Board has developed an accommodation plan that is not satisfactory to the applicant. The Board’s plan appears to respond to elements of the plan submitted by the applicant, but does not incorporate all aspects of it. The applicant’s mother states that the plan did not address restrictions for allergens within the classroom and school community, in vending machines, in fund-raising initiatives and events in the school, as well as other measures.

4In describing the urgent circumstances that support of the Request to Expedite, the applicant states that he will not be able to attend Junior Kindergarten in September 2009. He states that he will accordingly be denied the essential social interactions that other children of his age have available, which will result in severe emotional impacts.

5In response, the respondents submit that the Tribunal’s threshold for granting a request to expedite has not been met in these circumstances. Among other things, the respondents state that the allegations that the applicant will be at risk when he begins school in September are speculative. He has never attended school, or the school in question. The Board has developed an individual accommodation plan to ensure that the applicant can start school in September.

6The respondents submit that the issues about the appropriate accommodation of the applicant are complex and will require a full response and expert evidence. The applicant wishes the Board to prohibit all substances that might cause an anaphylactic reaction. The issues raised by the Application will require a review and understanding of the legislation, an assessment of the accommodation measures undertaken, and of the applicants accommodation needs. An expedited proceeding may prejudice the proper determination of whether the allegations support a finding of discrimination. The respondents submit that the applicant has not identified circumstances that would prevent the Tribunal from conducting a fair and just hearing of the merits of the Application, or providing a just result if the matter is not expedited.

7The Tribunal has stated that while the desirability of dealing expeditiously with a claim that a student is not receiving proper education services is self-evident, whether such a claim warrants expediting the Tribunal’s regular processes must be assessed on a case-by-case basis.

8For a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process: Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53. Circumstances which might undermine a fair adjudication of the merits may be one reason why the Tribunal may expedite an application. Also, where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an Application, the Tribunal may exercise its power to expedite: see Ebrahimi v. Durham District School Board, 2009 HRTO 1062.

9I am not satisfied that the material before me supports the Request to Expedite. The Board and the applicant disagree about the extent of the measures required to accommodate the applicant’s allergies. There is an individual accommodation plan in place, and the disagreement is about whether it is sufficient. While I do not diminish the potential significance of the harm cited by the applicant, I cannot come to any conclusion on the basis of the material before me about the applicant’s ability or inability to attend school under the accommodation plan proposed by the Board. I agree with the respondents’ submission that the issues are complex, and that the nature of the issues weighs against proceeding in an expedited fashion.

10In all the circumstances, the Tribunal will make no direction about abridging time lines for filing a Response or in connection with the hearing of this matter. The respondents and the applicant have agreed to mediation, and the Tribunal will schedule a mediation as soon as possible following the filing of a Response.