Balak v. Ontario (Education), 2009 HRTO 1463

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Courtney Balak by Her Next Friend Darcy Balak

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Waterloo Catholic District School Board, Glenn Sheculski, Rick Boisvert, Dawna Ward and Jodie Schnarr

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 11, 2009

Citation: 2009 HRTO 1463

Indexed as: Balak v. Ontario (Education)

1This is an Application filed on February 13, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The purpose of this Interim Decision is to deal with the applicant's Request for an Interim Remedy filed on July 8, 2009.

2The Application alleges discrimination and reprisal on the basis of disability in the provision of goods, services and facilities by the respondents and an alleged failure to accommodate the applicant's disability in the school setting.

3The applicant filed this Request seeking an order from the Tribunal directing that Educational Assistant (EA), speech therapy, occupational therapy and physiotherapy supports be provided for the applicant pending a final resolution of this Application. The applicant's position is that the job description of the current full time support worker providing services to the applicant does not have "educational merit" and alleges that the applicant has lost speech, printing and reading skills as a result of tensions caused by working with the current full time support worker assigned to her. The applicant has submitted documents in support of the Request, including medical reports from two physicians.

4Counsel for the respondent school board ("WCDSB") and the four personal respondents filed a Response to the Request for Interim Remedy. In it, she indicated that WCDSB does not actually provide the therapeutic support services. Their role is to provide referrals to those services and to facilitate the student's participation in such services during school hours and on school property, which they contend they have done and will continue to do. Counsel further submits that WCDSB has already made referrals for occupational therapy and physiotherapy and that it will make a further referral for speech therapy without the need for a Tribunal order. They also suggest that the current full time support assigned to work with the applicant is equally or more qualified to provide educational support than the EA requested by the applicant as part of the request for interim remedy.

5Neither the Ministry of Education nor the union have taken a position on the Request for Interim Remedy.

DECISION

6The conditions for awarding an interim remedy are set out in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

7In TA v. 60 Montclair, 2009 HRTO 269, the Tribunal held that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is "whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found."

8Normally, the Tribunal's power to order respondents to do or refrain from doing something is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do or refrain from doing something in the absence of a finding that the Code has been violated. For this reason, an applicant bears a "significant onus" in establishing that the Tribunal should award an interim remedy. (TA v 60 Montclair, supra).

9Further, the Tribunal's decision in Chopra v. Kratiuk, 2009 HRTO 810, explains why compliance with the Tribunal's rules, generally and specifically in relation to requests for interim remedies, is important to a fair just and expeditious process.

The Tribunal's Rules and processes are designed to ensure the fair, just and expeditious determination of the merits of matters before it. They are not meant to impose unduly technical barriers to the determination of the issues. The Tribunal has the power to accept material from parties even when they fail to comply with the Rules.

However, the technical requirements of the Rules should not be lightly ignored. Strict compliance with the Rules may be necessary to the fair, just and expeditious determination of the issues before the Tribunal. In a request for interim remedies, an applicant is asking the Tribunal to take an extraordinary step. He or she is asking the Tribunal to order a respondent to take or not take certain actions, before the merits of the Application have been decided. Even before any violation of the Code has been proven, the applicant wishes the Tribunal to intervene and provide remedies.

There will be cases where such an extraordinary step is justified. However, it should not be taken without the proper evidentiary and legal foundation, part of which is reflected in the materials an applicant must file under Rule 23.

10The need to establish an appropriate evidentiary and legal foundation for a request for an interim remedy is further noted in TA v. Montclair, when the Tribunal states:

Because the Tribunal will rarely receive evidence through the oral testimony of witnesses, it is critical for the parties to provide sufficient evidence through signed declarations from persons with first hand knowledge of the facts being alleged. Failure to comply with this requirement may result in the Request being dismissed outright.

11The interim remedy requested here is that the Tribunal order the respondent school board to take appropriate steps to ensure physiotherapy, occupational therapy and speech therapy supports are available to the applicant and that the current full time support worker be replaced by an EA.

12The applicant has not provided the signed declarations necessary to establish an appropriate evidentiary foundation for her Request. The letters from the applicant's physicians are dated November and December, 2008, and were clearly not prepared for the purpose of providing evidence on the Request. The reports speak to the applicant's medical conditions, make recommendations for continuing therapeutic care and provide opinions regarding appropriate accommodations for the applicant within the school setting.

13However, even if these letters were to be accepted in lieu of signed declarations, they do not provide, in conjunction with the other material before me, a sufficient basis to order the interim remedies sought.

14It appears that the WCDSB has made referrals to some of the appropriate independent service providers already and stands ready to make the remaining referral to the speech therapist. The school board has also indicated a continued willingness to facilitate service provision during school hours and on school property. In the circumstances, the Tribunal does not find an interim order in relation to these matters "necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing".

15It is apparent from the materials that the question of the qualifications of the full time support worker is a central area of disagreement. The applicant has been receiving full-time assistance at school. The applicant takes issue with the educational qualifications of the current support worker, and wishes to have her replaced with an EA. Again, even accepting the reports of the physicians in lieu of declarations, I am not convinced that they support the contention that an immediate change of full time support worker is warranted or that the applicant's skills would diminish if left in the current arrangement pending a final decision by the Tribunal.

16In the circumstances, I do not believe it would be just and appropriate to make the interim orders requested by the applicant. The Request is denied.