E.P. v. Ottawa Catholic School Board, 2009 HRTO 1994

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.P. by her litigation guardian, Wendy Fournier Applicant

-and-

Ottawa Catholic School Board and Anne Marie Duncan Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: November 23, 2009 Citation: 2009 HRTO 1994 Indexed as: E.P. v. Ottawa Catholic School Board

INTRODUCTION

1This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The complaint which underlies the present Application was filed with the Ontario Human Rights Commission on October 9, 2007.

2This Interim Decision addresses the parties' Requests for Orders and sets out case management directions for the start of the hearing on November 26, 2009.

The Scope of the Application

3The complaint filed on October 9, 2007 questions the adequacy of the overall accommodation of the applicant's special education needs between September 2006 and September 2007, the relationship between the applicant and the personal respondent Duncan, and alleged reprisals by Ms. Duncan in September 2007.

4However, in her statement of additional facts and voluminous materials filed, the applicant raises issues dating back to 2001 and going forward to the present day.

5The respondents have objected to this expansion of the Application. The transitional provisions of the Code provide that the subject matter of the Application must relate to the original complaint. Accordingly, the pre- and post-complaint events do not form the subject matter of the present Application.

6The respondents submitted that the allegations of sexual solicitation, harassment, poisoned environment and family status are not within the subject matter of the Application. The original complaint specifically alleged discrimination on the basis of disability, reprisal, sexual solicitation and breach of settlement. In my view, apart from the ground of family status, which does not form part of the present Application, the other grounds do form part of the present Application as long as they occurred between September 2006 to September 2007.

7Accordingly, this means that I will only hear from witnesses who can testify to the events that occurred between September 2006 and September 2007.

Production of Documents

8The applicant is directed to provide the complete email string for all emails filed in the applicant's productions for the period between September 2006 and September 2007 (or emails that refer to that time period).

Failure to comply with Tribunal Deadlines

9The applicant seeks an order restricting the respondents from relying on any response or document filed on the basis that they were all filed beyond the timelines established in the Tribunal's Rules. The respondents' initial Response was not filed until 43 days after receipt of the Application (not 35 days), although the respondents sought an extension on the 35th day. The respondents did not meet the deadline for production of documents, in part because of a dispute about the use of the Ontario School record. The respondents' documents were not submitted until November 6, 2009, 19 days before the scheduled hearing.

10The Tribunal has the discretion to accept responses and documents beyond the timelines where it is fair, just and expeditious to do so. The slight delay in filing the Response has not caused any prejudice. The delay in filing the documents is only partly explained by the dispute about the OSR. However, the documents which I have reviewed all relate to matters within the applicant's mother's knowledge. I am not satisfied that the applicant has experienced any prejudice in the late delivery. As the hearing is not going to be completed on November 26, 2009, the applicant will have additional time to review the respondents' documents.

11Finally, the applicant submitted that the respondents have improperly denied possession of documents when she made a request under the Municipal Freedom of Information and Protection of Privacy Act, documents which they are not relying upon and that this is an additional basis for excluding the material.

12The proceedings under the MFIPPA are not relevant to this proceeding and I decline to inquire into this allegation.

13The applicant's request that I strike the respondents' Responses and documents is denied.

Witnesses

14The applicant has identified eight witnesses, including the applicant and several teachers and administrators. She has not provided a statement of what the witnesses are expected to say.

15In order to avoid the attendance of witnesses who have little chance of testifying the first day, I direct that no witnesses apart from the applicant and Ms. Fournier need attend on the first day of hearing.

First Day

16At the commencement of the hearing I will address any further preliminary issues, discuss the relevance of the additional witnesses and what they are expected to say, hear brief opening statements and the applicant's and Ms. Fournier's evidence.