Stock v. District School Board of Niagara, 2009 HRTO 2039

Human Rights Tribunal of Ontario

B E T W E E N:

Justine Stock by her next friend Debbie Stock

Applicant

-and-

District School Board of Niagara

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: November 27, 2009

Citation: 2009 HRTO 2039

Indexed as: Stock v. District School Board of Niagara

1The applicant’s mother filed this Application, as next friend of the applicant, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 3, 2009, alleging discrimination on the basis of disability in the area of goods, services and facilities.

2The purpose of this Interim Decision is to address the applicant’s Request to Expedite Proceedings and the respondent’s Request for Order During Proceedings (“RFOP”).

3The Request to Expedite states that the applicant has been unable to attend school since the beginning of the school year due to the lack of accommodation of her disabilities by the respondent. With respect to the harm that would result if the Request to Expedite is denied, the following is described: missed school time; continued denial of accessible education services; lagging behind the rest of her classmates; damage to self-esteem; loss of peer support; and the perpetuation of discrimination.

4The respondent filed a Response to Request to Expedite Proceedings on November 16, 2009. The respondent submits that it is prepared to agree to the Request to Expedite but submits that the Tribunal should set three conditions before such an order is given:

1. Debbie Stock must send her daughter back to school immediately;

2. Debbie Stock must provide unconditional written permission for the respondent to use, disclose and submit as evidence in the course of this Application information and documents from the applicant’s Ontario Student Record (“OSR”) in order for the respondent to defend itself in this Application; and

3. the respondent requests that the Tribunal grant the respondent’s request to extend the time for filing a Response to 35 days after Debbie Stock provides this written permission to the respondent’s representative.

The respondent also filed a RFOP on November 16, 2009, in relation to the request for an extension of time referred to in item “3” above.

5On November 20, 2009, the applicant’s next friend filed a Response to the respondent’s RFOP, indicating that she does not object to the respondent’s request to use, disclose and submit as evidence in response to the Application information and documents from the applicant’s OSR. However, she objects to the respondent’s request for an extension of time to file its Response to the Application.

REQUEST TO EXPEDITE

6The Tribunal’s Rules of Procedure provide for applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.

7In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9, the Tribunal held that, for 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.

8In the present case, the respondent submits that it is prepared to agree to the Request to Expedite (although it submits that the Tribunal should set three conditions before such an order is given). However, even where a respondent does not oppose a request to expedite, this does not end the matter. The Tribunal must consider whether the circumstances are truly so urgent as to justify giving the application priority for Tribunal resources over other applications: see Russell v. Georgina (Town), 2009 HRTO 466, at para. 3. In any event, in the present Application, while the respondent submits that it is prepared to agree to the Request to Expedite, clearly it is not agreeable to abridging the time for filing a Response to the Application. On the contrary, it has filed an RFOP seeking an extension of time to file a Response.

9The Request to Expedite states that the applicant has been unable to attend school since the beginning of the school year due to the lack of accommodation of her disabilities. In its Response to the Request to Expedite, the respondent submits that the applicant’s next friend is currently keeping the applicant at home and has kept her at home since September 2009. It submits this is despite the fact that the applicant has been successful in her first two years of secondary school and that a Special Education Appeal Board (“SEAB”) agreed that the placement which the applicant has been in, which the respondent is proposing to continue, was the appropriate placement for her. The respondent explains that it has been providing home instruction for the applicant in the hope that her next friend would return her to school following the decision of the SEAB. The respondent submits that it is not in the applicant’s best educational interest to remain at home instead of attending school and, currently, board staff are encouraging the return of the applicant to school, but her next friend is setting unreasonable expectations/conditions.

10In her Response to the respondent’s RFOP, the applicant’s next friend submits that the applicant has already been disadvantaged from attending school and has been forced to remain at home on the basis of the denial of proper accommodation by the respondent. In addition, the respondent’s designated home instructor has stated that he will be unable to continue with home instruction due to the ongoing Application. It is also submitted that the applicant has complex needs which require immediate accommodation, tailored to her specific needs, and the longer it takes for this Application to be determined, the further the undue hardship that will be caused to the applicant.

11In Haughton v. Toronto District School Board, 2009 HRTO 655, the Tribunal stated at paras. 8-10:

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.

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.

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.

12I find that the circumstances of this Application are not meaningfully different from those before the Tribunal in Haughton. In my view, 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. The Application refers to matters occurring between September 2008 and June 30, 2009. In particular, it is alleged that in June 2009, the applicant’s next friend was given an Individual Education Plan (“IEP”) for Term One of the 2009 school year that indicated a further reduction of services. Thus, it appears that the main contention of the Application has been known for some time. It also appears that the IEP was the subject of an appeal hearing before the SEAB on October 6, 2009. The present Application and Request to Expedite were not filed until November 3, 2009. 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.

13Having reviewed the materials, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence. The Request to Expedite the Proceedings is therefore dismissed.

RESPONDENT’S RFOP

14The respondent seeks an order to extend the time for filing its Response to the Application to 35 days following the receipt by the respondent’s representative of unconditional written permission from the applicant’s next friend for the respondent to use, disclose and submit as evidence in the course of this Application information and documents from the applicant’s OSR. The respondent’s Response is currently due by December 14, 2009.

15The respondent refers to the Education Act, R.S.O. 1990 C. E.2, as amended, which provides that the OSR is a privileged document, and may not be relied upon in any hearing, except with the written consent of the applicant or his/her guardian.

266.(1) In this section, except in subsection (12),

"record", in respect of a pupil, means a record under clause 265 (1) (d).

(2) A record is privileged for the information and use of supervisory officers and the principal and teachers of the school for the improvement of instruction of the pupil, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.

16The respondent submits that these provisions preclude disclosure of information and/or documents from an OSR without the written consent of the student’s parent. The respondent submits that it is unable to defend itself without referring to, using and disclosing to the Tribunal, as evidence, information and documents from the applicant’s OSR.

17The applicant’s next friend responded that she does not object to the request to use, disclose and submit as evidence in response to the Application, information and documents from the applicant’s OSR; however, she objects to the request for an extension of time.

18In the circumstances, the applicant’s next friend is directed to provide written permission to the respondent, within five days of the date of this Interim Decision, so that it may use, disclose and submit documents and information in the applicant’s OSR to the Tribunal in the course of this Application.

19The respondent’s request for an extension of time to file its Response is granted in part. The respondent shall file its Response to the Application within 35 days of the date of this Interim Decision.

20I note that both parties have agreed to attempt mediation. The Tribunal will schedule a mediation on the earliest possible date which is mutually agreeable to the parties after the respondent’s Response has been filed.

21I am not seized of this matter.