S.T. v. Toronto District School Board, 2009 HRTO 432

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend, C.R.E.

Applicant

-and-

Toronto District School Board, Deborah Clodman, Martha Tobe and Maria Powell

Respondents

INTERIM DECISION

Adjudicator: Lorne Slotnick

Date: April 15, 2009

Citation: 2009 HRTO 432

Indexed as: S.T. v. Toronto District School Board

APPEARANCES

S.T. by her next friend, C.R.E., Applicant

C.R.E., Next Friend

Toronto District School Board, Deborah Clodman, Martha Tobe, and Maria Powell, Respondents

Grant Bowers, Counsel

1This is an Application under section 53(3) of the Human Rights Code R.S.O. 1990, c.H-19, as amended (the “Code”.) This Interim Decision deals with two preliminary requests by the respondents: first, that the three personal respondents be removed, leaving only the Toronto District School Board as respondent; and second, for an order that the report made to the Children’s Aid Society about the applicant is barred from being the subject matter of a complaint under the Code. The Tribunal received written submissions from both parties.

2The underlying complaint to the Ontario Human Rights Commission, filed in July, 2006, alleges discrimination in services on the grounds of race, colour and ethnic origin. At the time of the events giving rise to the complaint, the applicant was a 9 year old Grade 3 student at an elementary school that is part of the respondent Toronto District School Board (“TDSB”). Her litigation guardian is her grandmother. The allegation is that the TDSB and the individual respondents were part of an effort to force the applicant out of the school because she is black.

3Because of the nature of some of the issues in this case, the style of cause in this Interim Decision does not include the full name of the minor applicant. Her litigation guardian’s surname is not similar to hers. Should the litigation guardian wish to have the applicant’s identity not disclosed in the final decision, she may raise the matter with the adjudicator hearing the case, who will decide on any confidentiality issues.

INDIVIDUAL RESPONDENTS

4The respondent Debra Clodman was the applicant’s Grade 3 teacher at the time of the alleged violation of the Code. The respondent Martha Tobe was the acting principal of the school. The respondent Maria Powell was a teacher at the school. All three had at least some direct involvement in the incidents that form the basis of the complaint.

5The respondents say the individual respondents were acting within the scope of their duties, and rely on the Tribunal’s decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and in particular the following statement at paragraph 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

6Sigrist and Carson, however, was markedly different from the Application at issue here. In that case, the complainants sought to add the Premier, former and current Ministers of Education and others as respondents. None of those sought to be added had any direct involvement in the subject matter of the complaints, which concerned a school’s accommodation of two students with disabilities. The Sigrist and Carson case focused on the school board’s policy rather than the conduct of one or more individuals.

7Here, on the other hand, the respondents seek to have parties dropped from the Application where those respondents had direct involvement in actions which, if established, would contravene the TDSB’s own policies against discrimination as well as the Code. In the circumstances then, the conduct of the individual respondents will be a central issue in this case. Furthermore, if there is any basis for the allegations, there may be an argument in favour of the Tribunal ordering a remedy against one or more of the personal respondents. In this regard, the following statement (paragraph 40) from Sigrist and Carson is more applicable:

The complainants are quite correct that, under the Code, the fact that a corporate respondent may also be liable for the conduct of an employee is not a basis upon which to insulate that employee from personal liability for her or his own conduct that violates the Code.

8It would be premature to dismiss the Application as against the individual respondents in these circumstances before any evidence is heard, and the Request to dismiss the Application against them is therefore denied.

REPORT TO THE CHILDREN’S AID SOCIETY

9Some of the allegations in this Application arise from an e-mail message sent in May, 2006, to one of the individual respondents, which appears to be from a parent of a student in the applicant’s class. The message expresses concerns about some comments allegedly made by the applicant and also says the applicant had a sticky note on her skirt and on her underwear that said, “look but don’t touch.” After some discussions, the respondent Tobe called the Children’s Aid Society, which then sent a caseworker to interview the applicant. The parties agree that the caseworker concluded that there was no evidence of abuse.

10The respondents say such a report to a Children’s Aid Society cannot be the subject matter of an application under the Code, and rely on sections 72(1) and 72(7) of the Child and Family Services Act, R.S.O. 1990, c.C-11, as amended, which imposes a duty on teachers and other professionals to report any situation where a child may be in need of protection, and insulates the person making the report from legal action unless they are acting maliciously or without reasonable grounds. The relevant portions of those sections read as follows:

72. (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:

[the section goes on to list a number of situations including physical harm to a child, sexual exploitation, serious emotional harm, abandonment, etc.]

(7) This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion.

11Similar legislation in Newfoundland and Labrador was considered by the Supreme Court of Canada in Young v. Bella 2006 SCC 3, [2006] 1 S.C.R. 108. Considering that the purpose of the legislation is to protect children, the Supreme Court set a low threshold for the “reasonable cause” necessary to make a report, saying that the informant does not have to believe that abuse has occurred or will occur, but instead “need only have ‘reasonable cause’ to ask [the child welfare agency] to consider looking into the matter.” Yet despite the low threshold, there are still situations where reports to a child welfare agency do not meet the standard of “reasonable grounds” or may be made by a person acting maliciously. This, in fact, was the case in Young v. Bella, in which the Supreme Court restored a trial judge’s award of damages against those who had made a report to the child welfare agency without reasonable cause.

12Here, the respondents argue that Ms. Tobe, the acting principal of the school at the time, acted within her duties by contacting the Children’s Aid Society about the applicant. They assert that she did not act maliciously or without reasonable grounds, and that therefore the report to the Children’s Aid Society cannot be the subject of a human rights hearing.

13The applicant’s litigation guardian, however, says the e-mail and the report to the Children’s Aid Society were a part of the effort to push the applicant out of the school. In her submissions on the issue, as well as in other documents filed with the Tribunal, she alleges that the suspicions of abuse were created so that the applicant would leave a school that is “predominantly for whites.” In her pre-hearing submission, she asserts that the respondents “contacted the Children’s Aid Society because they were pressured to get the black child out of the school.”

14Given these allegations raised on the behalf of the applicant, the Tribunal cannot simply make the assumption that the report to the Children’s Aid Society was made with reasonable grounds or without malice. To do so would foreclose inquiry into a key part of the allegations before any evidence is before the Tribunal. The respondents are, in effect, requesting the Tribunal to decide on a portion of the Application without hearing any evidence when there are conflicting versions of the events. A mere assertion by the respondents that the report was made with reasonable grounds is not sufficient to eliminate an integral part of the applicant’s allegations of discrimination. The applicant has a right to put forward all her evidence in support of the complaint. The respondents’ Request for an order that the report to the Children’s Aid Society not be considered by the Tribunal is therefore denied.

ORDER

15The respondents’ preliminary objections are denied.

16I am not seized of this matter.