Zavadsky v. Ontario (Education), 2009 HRTO 45

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonid Zavadsky by his litigation guardian Vyacheslav Zavadsky

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the

Minister of Education

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 14, 2009

Citation: 2009 HRTO 45

Indexed as: Zavadsky v. Ontario (Education)

1This is an Application filed July 2, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2Further to the Tribunal's Interim Decision 2008 HRTO 383, this Interim Decision identifies outstanding preliminary issues identified by the parties and the Tribunal and sets out a schedule for the delivery of written submissions.

a. Whether the applicant is entitled, or should be permitted to amend the original complaint to deal with the issues identified in the request for reconsideration filed with the Commission on June 15, 2008.

b. Whether, in light of Arzem v Ontario, 2006 HRTO 12, notice of these proceedings shall be given to Ottawa District School Board on the question of whether they should be added as a party.

c. Whether the facts as alleged in the complaint establish a prima facie case of discrimination.

d. Whether the issues raised in this Application have been dealt with and decided by the Court of Appeal in Wynberg v. Her Majesty the Queen in Right of Ontario ("Wynberg") 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732 leave ref'd [2006] S.C.C.A. No. 441 and if so, what is the effect of that decision on the Tribunal's proceedings.

e. In light of the legislative framework set out in the Education Act and the respective roles and responsibilities of the Ministry of Education and the school boards, and the decisions of the Court of Appeal in Wynberg and the Tribunal in Sigrist and Carson v. London District Catholic School Board (2008 HRTO 14) and Davidson v. Lambton Kent District School Board, (2008 HRTO 294), Campbell v Toronto District School Board, 2008 HRTO 62, (i) does the Ministry have any liability for the alleged failure to accommodate, (ii) is the Ministry the proper respondent on the Application, and (iii) what is the effect on the Tribunal proceedings of the failure of the complainant to exhaust his remedies against the applicable school board by way of the procedures set out in the Education Act, and/or under the Human Rights Code.

3The respondent shall file its written submissions on all the above issues within 40 days of the date of this decision.

4The applicant shall file its written submissions on all the above issues within 40 days of receipt the respondent's submissions.

5The respondent shall file its reply, if any, within 10 days of receipt of the applicant's submissions.

6The applicant has waived his right to make oral submissions. Accordingly, the Tribunal may decide the above issues on the basis of the written submissions. If the Tribunal determines that further oral submissions are required, the Tribunal will contact the parties to schedule a Case Resolution Conference.