S.T. v. Toronto District School Board, 2009 HRTO 744

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: Mark Hart

Date: June 3, 2009

Citation: 2009 HRTO 744

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 filed October 24, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on July 10, 2006.

2The Case Resolution Conference in this matter commenced on May 25, 2009. At the start of the Case Resolution Conference, I advised the parties that I would first like to obtain clarification from the applicant as to the specific allegations being raised in this Application regarding violations of the Code. In light of the fact that the applicant and her next friend, the applicant’s grandmother, are not represented by counsel, I ended up hearing the totality of the grandmother’s evidence in chief regarding the events at issue as they relate to the applicant, from which I was then able to obtain clarification as to the allegations being raised in this proceeding.

3Once the allegations had been clarified in this manner, the respondents then made a request that some of the allegations be dismissed for various reasons. In keeping with the highly expeditious manner in which s. 53(3) applications are to be conducted, I issued the following oral decision after hearing submissions on this request from the parties.

1. The respondents have raised an objection that the allegations as now framed by the applicant through her litigation guardian at the hearing are beyond the scope of the complaint as filed with the Commission.

2. The complaint underlying this Application was filed with the Commission on July 10, 2006. The complaint includes allegations about sexually-related issues raised by the school relating to the applicant that on one occasion resulted in a teacher speaking with the applicant and her litigation guardian on or about April 7, 2006 and that on a later occasion resulted in the issues being raised with the Children’s Aid Society. The complaint also includes a specific allegation about another teacher making a comment referring to the applicant as a “cheerleader” in the presence of other children and alleges that the children started shouting the same remark. In addition, the complaint includes general allegations that the applicant was called all sorts of names at the school and that the teachers and the children have joined together to bully her.

3. At the hearing, I have heard the evidence of the applicant’s litigation guardian and have identified that, at least at the time of the hearing, the applicant is raising the following allegations of racial discrimination:

1. It is alleged that the applicant was experiencing name-calling by other students, and that the school and the Board failed to take appropriate steps to address that. In particular, it is alleged that:

a) During the first couple of months that the applicant attended the school, she was subjected to racial name-calling from students on the school bus who would stick their heads out the bus windows and make comments such as “get out of our school” and “you black nigger”. It is further alleged that the Principal at the time was present when these comments were made.

b) The applicant was subjected to name-calling going on in the classroom that she reported to her grandmother.

c) On or about May 18, 2006, the applicant’s grandmother was in the hallway outside the applicant’s classroom and heard a boy say “you don’t belong here, get out of the school”. It is alleged that the applicant’s grandmother went into the class and asked the teacher to put a stop to this, and that the teacher said only that she would speak to the children’s parents.

d) On or about May 23, 2006, there was an incident where a boy had made a racial comment to the applicant which resulted in a handwritten apology being provided to the Principal.

e) That sometime in late May or June 2006, a student called out of a bus and referred to the applicant as a “black pig” and said she should “go back to Africa” and “get out of our schools”.

f) That there was an occasion sometime in the spring 2006 when the applicant sustained an injury after being pushed off the monkey bars by another student who said “you don’t belong here, get out of the playground”

2. It is alleged that sometime in the spring 2006, the applicant’s teacher made a derogatory comment about her in the classroom to the effect of, “what is that smelling, are you wearing cologne or something, the smell stinks”. It is alleged that the smell was caused by another student who was using hand cleanser. It is alleged that this is related to racism, because the teacher wouldn’t do that to other children.

3. It is alleged that on another occasion in the spring 2006, another teacher made a comment referring to the applicant as a “cheerleader” in front of other children and the children laughed at the applicant. It is alleged that this is racism, because the applicant was appropriately dressed and the teacher disgraced her in front of other children at the school.

4. It is alleged that racism underlies the raising of the sexually-related issue on April 7, 2006 and the report to CAS in May 2006.

5. It is alleged that certain discussions with the principal regarding the applicant’s report card and with her teacher about her grades and a work assignment were racially discriminatory.

4. Rule 6.3 of the Tribunal’s Transitional Rules provides that:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject-matter of the complaint or add parties to the Application.

5. At the same time, the Tribunal recognizes that not all factual particulars will have been provided by the applicant to the Commission on the face of the complaint as filed, and affords the applicant the opportunity to file a statement in advance of the hearing setting out any additional facts that the applicant intends to rely upon.

6. The statement of additional facts was to have been filed by January 19, 2009 and the Tribunal did receive some material from the applicant’s litigation guardian by that date. However, in March 2009, in response to certain preliminary issues raised by the respondents, the Tribunal also received from the applicant a detailed reply to the response that had been filed by the respondents. This detailed reply includes reference to many, although not all, of the allegations raised by the applicant through her litigation guardian at the hearing.

7. In my view, with one exception, the applicant is not improperly seeking to expand the subject-matter of the complaint in contravention of Rule 6.3. The complaint on its face makes reference to the applicant being called names and being subjected to bullying. While the respondents object that there is no explicit allegation of racial name-calling or bullying, the complaint on its face is filed on the grounds of race, colour and ethnic origin. In my view, in relation to the allegations of name-calling and bullying, what I have heard at the hearing is more in the nature of particulars of the general allegations made in the complaint.

8. Further, while the detailed document filed by the applicant in March 2009 was not framed as a statement of additional facts, it is not merely a response to the respondents’ preliminary objections, but includes a detailed reply to the respondents’ position on the facts alleged in the complaint. This document, in my view, does include with sufficient particularity the allegations raised at the hearing.

9. The one exception relates to the allegation that the discussion with Principal about the applicant’s report card and the discussion with the teacher about the applicant’s grades and work assignments were related to racial discrimination. This allegation does not appear anywhere on the face of the complaint and is beyond the subject-matter for this hearing.

10. The respondents have raised a concern that the allegations now being raised are beyond the one year time limit set out in s. 34 of the Code. This time limit refers to the filing of an application. In the context of transition applications, this time limit has been held to refer to the one year time period preceding the filing of the underlying complaint with the Commission, which in this case was on July 10, 2006. It is clear that the allegations now raised relate to events in the early part of 2006 and are within the one year time period. The respondents’ concern about the lapse of time before which they were put on notice of the particulars underlying the general allegations raised in the complaint can be addressed in the context of the weighing of the evidence by me as the adjudicator.

11. In the result, the respondents’ preliminary objection is dismissed except with respect to the one allegation relating to the report card, grades and work assignments which is beyond the scope of this hearing.

4In light of the allegations as clarified at the case resolution conference, the respondents requested an adjournment in order to prepare to respond. This adjournment request was granted and the case resolution conference is now scheduled to continue on June 22 and 25, 2009.

5By no later than June 17, 2009, the respondents shall serve on the applicant and file with the Tribunal any supplemental written response and shall identify any further witnesses or provide any revised witness summaries as may be necessary to respond to the allegations as now clarified.