Eli Schafer v. Toronto District School Board, 2009 HRTO 785

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 Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: June 8, 2009 Citation: 2009 HRTO 785 Indexed as: Schafer v. Toronto District School Board

APPEARANCES BY

Eli Schafer, Applicant ) Reva Schafer, ) Litigation Guardian

Toronto District School Board, ) Eric Roher, Georgina Balascas, Deb Massey and ) Counsel Rick Tarasuk, Respondents )

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 commenced on May 11, 2009 at which time I heard several preliminary matters raised by the parties.

2The applicant is Eli Schafer and is represented by his mother and litigation guardian, Reva Schafer. The respondents are the Toronto District School Board (the "school board"), Rick Tarasuk, Deb Massey and Georgina Balascas. At the time of the events, Rick Tarasuk was the Principal at Central Technical School ("Central Tech"), Deb Massey was the Safe Schools Advisor and Georgina Balascas was the Superintendent of Education.

3Eli Schafer began grade nine at Central Tech in September 2005 and left in April 2006. After a short stint at another public high school, he withdrew from the respondent school board and enrolled in a private independent school where he is currently in grade 12. He alleges that while he was enrolled at the respondent school board he was denied equal treatment with respect to educational services because of disability, contrary to section 1 of the Code.

4There are two main aspects to the applicant's allegations of discrimination. First, the applicant alleges that the respondents did not provide an appropriate special education program or services in accordance with his disability-related needs.

5The respondents assert that it is not the role of this Tribunal to determine whether the applicant received an appropriate special education program or services because that determination is within the exclusive jurisdiction of the Special Education Tribunal set up under the Education Act, R.S.O. 1990, c. H.19 for the identification and placement of exceptional pupils.

6In the alternative, they also allege that they did provide appropriate special education programs and services and therefore did not breach the applicant's right to equal treatment.

7The second aspect of the complaint relates to two suspensions issued by Central Tech against the applicant, one in November 2005 for five days and one in March 2006 for 20 days. The applicant alleges that the respondents did not take adequate account of the impact of his disabilities in determining his culpability in those events or in determining an appropriate penalty. The applicant believes that the failure to implement appropriate special education programs contributed to his actions on November 10, 2005. The applicant continued to experience the discriminatory effects of the suspensions by the respondents' failure to implement appropriate re-entry plans and/or provide sufficient educational supports during and after the suspensions.

8The respondents assert that the applicant availed himself of the procedures under the Education Act to appeal the suspensions up to and including a hearing before a Committee of the school board established under the Education Act, and the decision of the Committee has finally disposed of the suspension issues.

9In the alternative, the respondents assert that the applicant's disabilities were appropriately considered and taken into account in issuing the suspensions and appropriate plans for re-entry and educational supports were provided during and after the suspensions.

Applicant's Preliminary Requests

10The applicant sought reconsideration of my Interim Decision 2009 HRTO 571 (the Interim Decision) declining to add Sheila Ward, who was Chair of the Board of Trustees of the respondent school board at the time of the events in question. The applicant did not raise any new evidence or arguments and I declined to reconsider that decision.

11The applicant also renewed his request that the Tribunal take steps to record and transcribe the proceedings and to order the respondent school board to provide legal counsel for the applicant in order to ensure a fair hearing. Apart from citing some cases which are not persuasive authority for the requests, the applicant essentially re-argued the issues and I ruled that I would not make the orders requested.

Respondents' Preliminary Requests

12The respondents requested that the personal respondents be removed from these proceedings. In the Interim Decision I declined to remove these personal respondents prior to the hearing, on the basis that section 53(3) applications are designed to be dealt with in a highly expeditious manner and preliminary requests are discouraged. However, as the hearing in this matter has commenced and is scheduled for a further seven days, I find that this is an appropriate time to determine the merits of the request to remove the personal respondents.

13The power of the Tribunal to remove parties from Transitional Applications is found in section 4.3(b) of the Rules Governing Transitional Applications under Section 53(3) and 53(5) of the Code (the "Transitional Rules").

14In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a list of factors that are helpful in assessing whether an individual respondent should be removed, including:

Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or whether the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

Would any prejudice be caused to any party as a result of removing the personal respondent?

15I am satisfied that all the above factors point towards removing the personal respondents from these proceedings. Mr. Tarasuk is the Principal who imposed both suspensions, Ms. Balascas is the Superintendent who upheld the suspension upon review, and Ms. Massey is the Safe Schools Advisor who offered an opinion that the March 2006 suspension was appropriate in the circumstances. The personal respondents are all employees or officials of the respondent school board which is a named respondent. The school board acknowledges vicarious liability for the conduct of these personal respondents and there is no issue as to the corporate respondent's ability to respond or remedy the alleged Code infringement. The applicant has not sought any remedies against the personal respondents.

16The applicant is concerned that removing these respondents, who are responsible for the provision of special education services and/or proper enforcement of the disciplinary provisions of the Education Act, will discourage individuals in positions of responsibility from carrying out their duty to uphold the requirements of the Code. However, I am satisfied that in light of the particular factual allegations against the personal respondents and the liability of the respondent school board for the acts of its employees and officials imposed by section 46.3 of the Code, there is no compelling reason to continue the proceedings against the personal respondents or any prejudice to the applicant in removing them. The style of cause is amended accordingly.

Mootness

17The respondent asserted that the issues and remedies raised by the applicant are moot. The aspect of the complaint that relates to the applicant's suspensions has been resolved by the decision of the Suspension Appeal Committee of the Board issued orally on March 1, 2007, while the aspect of the complaint relating to the alleged failure to accommodate the applicant's disability-related needs has been rendered moot by the applicant's withdrawal from the respondent school board.

18A case is moot when there is no longer any dispute between the parties. An adjudicative body will generally not decide a case that has become moot, unless there are exceptional factors that justify the exercise of discretion to hear the matter.

19The respondents pointed to two examples in the human rights context where the Tribunal or the Court have applied the doctrine of mootness. In Burrows v. Ontario (Community and Social Services), 2004 HRTO 6, the Tribunal refused to determine the request of the Ontario Human Rights Commission (the "Commission") for injunctive relief on the basis that a Court had already granted the relief requested. In Lanark, Leeds and Grenville County Roman Catholic Separate School Board v. Ontario (Human Rights Commission) [1989] O.J. No. 513, the Court of Appeal declined to hear an appeal from the Divisional Court where the Commission conceded that restoring the order of the board of inquiry would no longer be appropriate as the facts had changed, and the applicable legislation had been amended. Neither of those factual situations are similar to the one before me.

20In my view, the matters raised by this Application are not moot.

21With respect to the alleged failure to accommodate the applicant's disability-related needs during the 2005/06 school year, there are several aspects of the Application that are not moot, although some of the remedies sought may no longer be available. There is an ongoing dispute between the parties whether the respondent breached the applicant's rights under the Code during the 2005/06 school year. The fact that the passage of time has made it impossible to provide the educational supports sought for the years 2005/06 to 2008/09 does not mean that no remedy is available. There is considerable importance to a declaration with respect to a breach of the Code and the possibility of general damages. In addition, the applicant has claimed special damages in the form of the cost of attending a private independent school as a result of the respondents' inability or unwillingness to provide him with an appropriate special education program. The applicant is currently in grade 12 and is not expected to graduate this year. He asserts that he is entitled to register with the respondent school board until he reaches the age of 21 and that he may yet do so, if the appropriate educational supports are put into place.

22With respect to the suspensions, the Suspension Appeal Committee ordered that all documents relating to the suspension be removed from the applicant's Ontario Student Record ("OSR") and the school board files. However, the Committee also stated that since the applicant was no longer registered with the school board, it would not make any findings respecting any facts or issues relating to the applicant's activities and the subsequent suspensions.

23The respondent school board was unable to comply with that part of the order removing the suspension information from the applicant's OSR because by March 2007, the OSR was in the hands of the independent private school where the applicant was registered. The applicant is no longer seeking a remedy from this Tribunal to remove the suspensions from his OSR.

24However, I find that the issue of whether the suspensions amounted to discrimination on the basis of disability is not moot. If discrimination is found, the applicant may be entitled to a remedy including a declaration of a breach of the Code, general damages and special damages if he can establish that the suspension breached his rights under the Code and effectively forced him to purchase a non-discriminatory education elsewhere.

Has the decision of the Suspension Appeal Committee finally determined the suspension issues set out in the Application?

25The respondent argued that the decision of the Suspension Appeal Committee is final and cannot be reviewed by this Tribunal. I agree that it is not my role to review the correctness of the decision of the Suspension Appeal Committee. However, my task in hearing the evidence into the two suspensions is not to review the correctness of the Committee decision, but to address quite different questions: did the school board discriminate against the applicant by imposing the two suspensions, by failing to provide appropriate educational services during the suspensions, or by failing to prepare appropriate re-entry plans following the suspensions? To embark on such an inquiry is not to review the correctness of the Suspension Appeal Committee decision.

26The respondent did not specifically raise s. 45.1 of the Code, but argued that the Tribunal should exercise its discretion not to hear the matters in the Application relating to the suspension in light of the decision of the Suspension Appeal Committee. In my view, it is clear that the Committee did not address the issues of discrimination before me, and therefore cannot be said to have appropriately dealt with the substance of the Application.

Exclusive Jurisdiction of the Special Education Tribunal

27The respondent argued that the matters raised by the applicant relate to the provision of special education programs, which falls within the exclusive jurisdiction of the Special Education Tribunal (the "SET").

28The Education Act sets out a comprehensive statutory scheme for special education. An "exceptional pupil" is defined under section 1(1) as a student whose "behavioural, communicational, intellectual, physical or multiple exceptionalities" are such that he or she is considered to need placement in a special education program by a committee of a school board. The Regulations under the Education Act establish a school board's obligation in respect of special education programs and services: O. Reg. 181/98, Identification and Placement of Exceptional Pupils, and O. Reg. 306, Special Education Programs and Services. These Regulations establish the process for the identification and placement of exceptional students and include a comprehensive appeal mechanism for decisions of an Identification Placement and Review Committee ("IPRC") up to and including an appeal before the SET.

29The SET was established pursuant to section 57 of the Education Act. Subsection 57(3) provides a right of appeal to a parent or guardian where the parent or guardian is dissatisfied with the identification or placement decision. Subsection 57(4) provides SET with specific powers to resolve an appeal made before it. The SET may:

(a) dismiss the appeal; or

(b) grant the appeal and make such order as it considers necessary with respect to the identification or placement.

30Pursuant to subsection 57(5), a decision of the SET is final and binding on the parties to the decision.

31In Campbell v Toronto District School Board, 2008 HRTO 62, the Tribunal considered the statutory scheme for special education in Ontario and its relationship with the Ontario Human Rights Code. The Tribunal concluded that the statutory scheme for special education has "as its central purpose the accommodation of children with special needs, including those with disabilities."

32While the theme of accommodation is also central to the Tribunal's mandate, the respondent submits that the creation of a specialized, expert tribunal in matters of special education indicates a legislative intention to oust the Tribunals' jurisdiction where the accommodation in question essentially raises a question of special education of an exceptional pupil.

33The respondent relies on the case of Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] S.C.J. No. 15, for the proposition that jurisdictional issues should be decided in a manner that is consistent with the respective statutory schemes governing the parties. In Regina, the regulation of police officers was shared between two statutory regimes. Matters of discipline were to be dealt with under the Police Act and its Regulations and matters relating to the interpretation, application administration or violation of the collective agreement were to be determined by an arbitrator appointed under the collective agreement. The Supreme Court of Canada determined, after a review of the applicable statutory regimes, that the legislature intended that all matters regarding discipline of police officers should fall within the exclusive jurisdiction of the Police Act and Regulations.

34In my view, having reviewed the provisions of the Education Act and Regulations regarding special education, I am not satisfied that the legislative intention was to oust the jurisdiction of the Human Rights Tribunal of Ontario with respect to the factual disputes before me.

35In the current situation, the applicant does not challenge the identification of his exceptionality as learning disabled and language impaired. Nor does he challenge his placement in a regular classroom with specific identified supports. Rather, he is asserting either that the identified supports were not reflected in the Individual Education Plan used by the respondent and/or were not actually delivered by the respondent such that, practically speaking, he experienced discrimination.

36I specifically questioned the respondent whether the applicant has a right, under the Education Act, to appeal the supports identified in the Individual Education Plan or to appeal whether the supports set out in either the IEP or the IRPC were actually being delivered by the respondent. The respondent stated that the applicant had no right to appeal those matters.

37Further, the respondent does not assert that the SET had exclusive jurisdiction with respect to whether a suspension decision was discriminatory.

38Further, there are issues before me as to whether the re-entry plans following the suspensions or the educational supports provided during the suspensions breached the applicant's rights under the Code.

39In my view, in light of factual disputes before me, some of which fall clearly within my jurisdiction and which are inextricably linked to the facts which may or may not fall within the jurisdiction of the SET, I am satisfied that I have the jurisdiction to undertake the factual inquiry to determine whether the applicant's rights have been infringed under the Code.

40If, after hearing the evidence and argument, the applicant asserts facts or arguments that could have been appealed to the SET, nothing in this decision is intended to preclude the respondent from arguing that those factual determinations or issues fall within the exclusive jurisdiction of the SET.

Bifurcation

41The respondent has asked the Tribunal to bifurcate this Application to hear the issues of liability and remedy separately. The applicant opposed this request. The applicant has sought extensive personal and systemic remedies. Although the bifurcation of the hearing may require recalling some witnesses, I am satisfied that bifurcation would be more fair, just and expeditious in this case. Accordingly, I will first hear and determine whether the respondent has violated the rights of the applicant under the Code, and if so, will reconvene this hearing to hear the evidence respecting remedy, if any.

ORDERS

42The personal respondents Balascas, Massey and Tarasuk are removed as parties to this Application.

43The hearing in this matter will be held in two stages. The first stage will deal with whether the respondent school board breached the applicant's rights under the Code. The second stage, if required, will deal with remedy.

44This hearing will continue on June 16, 18, 22, September 15, 17, 24 and October 1, 2009.