Eli Schafer v. Toronto District School Board, 2009 HRTO 571

Human Rights Tribunal of Ontario

B E T W E E N:

Eli Schafer by his litigation guardian Reva Schafer Applicant

-and-

Toronto District School Board, Georgina Balascas, Deb Massey and Rick Tarasuk Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: May 5, 2009 Citation: 2009 HRTO 571 Indexed as: Schafer v. Toronto District School Board

1This is an Application filed November 6, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). The Case Resolution Conference in this matter is scheduled for May 11 and 12, 2009.

2The applicant has filed several requests for orders including: the addition of Sheila Ward as a personal respondent, a request to record the proceedings, a request to call three expert witnesses, a request to compel the respondents to call certain witnesses and a request to compel the respondents to provide legal representation for the applicant. The respondents had identified several preliminary issues they intend to raise. The purpose of this Interim Decision is to provide for the orderly conduct of the CRC hearing.

Request to add Respondent

3The applicant originally named Sheila Ward in her initial self-drafted complaint; however, in the complaint form submitted with the Application, Sheila Ward was not identified as a respondent.

4I note that Ms. Ward serves as a trustee of the corporate respondent and the corporate respondent acknowledges that it is liable for the conduct of Ms. Ward under section 46.3(1). In the circumstances, I am not satisfied it is necessary to name Ms. Ward as a respondent to this Application. The applicant's request to add Sheila Ward as a party to this Application is denied.

Request for a Written Record of the Proceedings

5The applicant requested that the Tribunal make arrangements for a written record of the proceedings.

6The Tribunal's Transitional Rules provide:

5.7 The Tribunal does not normally record or transcribe its proceedings. Where a case resolution conference or hearing is recorded the recording does not form part of the Tribunal's record of proceedings including any record filed in respect of an application made under the Judicial Review Procedure Act.

7There is nothing extraordinary about the present Application which would cause me to depart from the Tribunal's ordinary practice not to record the hearing.

Request to call Expert Witnesses

8The applicant has sought permission to call three expert witnesses. Two of the witnesses are the occupational specialist and the special education co-ordinator who were involved with the provision of special education services to the applicant during the time of the events complained of and the respondents do not object to their evidence. The respondents do object to the third proposed expert, an educator who has provided educational services to the applicant after he left the respondent school board. The respondents assert that there are no exceptional circumstances which would justify the calling of this expert witness:

9Rule 5.15 provides:

5.15 In a section 53(3) Application, the Tribunal will not ordinarily permit the introduction of expert evidence other than medical reports, requests to add parties, requests to consolidate Applications or requests to intervene unless exceptional circumstances exist and doing so will not adversely affect the highly expeditious nature of the case resolution conference.

10In my view, the exercise of the discretion whether to permit the evidence of this witness is best left to be determined by the adjudicator hearing this matter at the Case Resolution Conference.

Request to direct the Respondents to call Witnesses

11The applicant asked the Tribunal to direct the respondents to call various witnesses. The respondent school board has identified all these persons as proposed witnesses with the exception of the respondent's Chair and the Safe Schools Advisor but reserves the right to elect not to call all the proposed witnesses and resists the request to call its Chair and the Safe Schools Advisor.

12A party is expected to call the evidence upon which they wish to rely and there is no property in a witness. The applicant is free to summons the Chair and the Safe Schools Advisor and any of the other identified individuals as its own witnesses. In the circumstances, the applicant's Request is refused.

Request to direct the Respondent to provide Legal Counsel to the Applicant

13The applicant requests the Tribunal to direct the respondent school board to provide legal counsel for the applicant, due to the complexities of the evidentiary and legal issues raised by this Application and the imbalance of resources between the applicant and the respondent school board. The order requested by the applicant is an extraordinary one. I see no basis to depart from the usual process whereby each party takes responsibility to present the evidence in support of their position.

Respondents' Preliminary Requests

14The respondents have advised that they intend to request the removal of the named personal respondents, challenge the Tribunal's jurisdiction to hear the Application on the basis that the Special Education Tribunal has exclusive jurisdiction and to argue that, in any event, the issues and remedies sought in this Application are now moot. The respondents intend to raise these issues at the outset of the CRC hearing.

15Consideration of these matters and the dispute with respect to the expert witness will likely take the entirety of the two days scheduled. In these circumstances, the parties are not required to attend with their witnesses on May 11 and 12, 2009. All parties must attend the CRC with their calendars to allow the Tribunal to schedule further hearing dates expeditiously.