Andrew Persaud v. Toronto District School Board, 2010 HRTO 1084

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Persaud

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Mark Hart

Date: May 14, 2010

Citation: 2010 HRTO 1084

Indexed as: Persaud v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Andrew Persaud, Complainant ) Martha MacKinnon, Counsel

Ontario Human Rights Commission ) Prabhu Rajan, Counsel )

Toronto District School Board, ) Sheila MacKinnon and Respondent ) Gaynor Roger, Counsel )

1This Decision addresses the written submissions on remedy in this proceeding, which were filed by the parties in accordance with the directions given in my previous Decision in this matter, 2009 HRTO 1728.

Public Interest Remedies

2The Commission and the complainant have requested a number of public interest remedies pursuant to s. 45.2(1).3 of the Code.

3In accordance with the direction given in my previous Decision, the respondent filed an affidavit from the Executive Officer of Student and Community Equity for the respondent school board setting out anti-racism, human rights and equity activities that the respondent board has undertaken generally and specifically in relation to Vaughan Road Academy (“VRA”). In response, the Commission has sought extensive particulars and disclosure arising out of the contents of this affidavit, and has requested an opportunity for cross-examination. In my view, in order to dispose of the request for public interest remedies, it is not necessary for me to rely upon the respondent’s affidavit, except in the most general way, such that further disclosure and cross-examination is not necessary. Accordingly, the Commission’s request for disclosure, particulars and cross-examination is denied.

4The Commission and the complainant first request that the respondent board be ordered to establish a system to collect and analyze data on “exclusions” and “transfers” under the Education Act to determine the extent to which the Act is having an adverse impact on individuals protected under the Code, in particular students from racialized communities. This data would be analyzed by the respondent board to identify any disproportionate impacts of exclusions and transfers based, at least in part, on race, and measures to address any disproportionate impacts would be identified and implemented.

5In my view, a systemic remedy of this nature is not warranted by the specific circumstances of this case. From the specific circumstances of this case, where I have found that the complainant engaged in serious misconduct at VRA and failed to respond to attempts by the investigator to contact him in the period leading up to the 2005-06 school year, I am not prepared to find that the evidence supports a systemic concern sufficient to warrant the exercise of my discretion to grant the kind of extensive board-wide remedy sought by the Commission and the complainant.

6I also note that, in its reply submissions, the Commission defined what it meant by “exclusions” with reference to the complaint having been told to leave VRA when he came to school on September 6, 2005 and then, after being allowed to return to school, being told to leave again shortly thereafter. As I did not make any finding of a violation of the Code in relation to these events, the request for data collection relating to “exclusions” is not supported the finding of discrimination that I made in this proceeding.

7The Commission and the complainant next request that the respondent board be ordered to revise its disciplinary policies and procedures to clearly indicate that exclusions and transfers are not legitimate forms of discipline and are not to be used in lieu of discipline, to provide guidance on when exclusions and transfers might appropriately be used, to explain that such decisions must take into account the best interests of the child, and to confirm that the Code applies to these decisions and has primacy over the Education Act and related requirements.

8Once again, in my view, this requested remedy does not flow from the specific findings of discrimination that I made in this proceeding. I did not find that the decision to transfer the complainant was an illegitimate form of discipline imposed by the respondent board, nor was that the issue before me. The issue before me and the finding that I made was that the complainant’s race and colour were factors in the transfer decision. Nor did my decision address whether or not the board appropriately took into account the “best interests of the child”. Rather, I found that the respondent board also had discriminated on the basis of race and colour in its failure to consult with the complainant and his mother prior to making the transfer decision. Finally, in my view, the request for a policy to confirm that the Code applies to transfer decisions and has primacy over the Education Act is unnecessary for the purpose of promoting compliance with the Code in this case, where the board already has extensive policy documents confirming its commitment to the Code.

9The Commission and the complainant next request that the respondent board provide mandatory, annual training to all board “trustees, administrators, principals and teachers on racial discrimination, including the discriminatory practices of ‘othering’ and ‘demonization’ . . .” In my view, mandatory annual training of this magnitude and nature is not warranted in the specific circumstances of this case. The board has just delivered mandatory equity training for all school-based staff, which would have been a significant undertaking given the size of the respondent board and the number of teachers, principals, vice-principals, superintendents and school support staff involved. To require the respondent to conduct mandatory annual training of this magnitude with the specific focus sought by the Commission and the complainant would in my view not be an appropriate or warranted allocation of the board’s resources, in light of the broad range of Code-related challenges confronted by the respondent board with a student body and staff as diverse as is found in the Toronto area.

10I do, however, believe that a more targeted and measured approach to sharing the lessons learned from this proceeding is warranted. Given the extent of public resources expended on this proceeding, it indeed would be a shame if the circumstances giving rise to this case were not used in some way to promote learning and future compliance with the Code. In my view, a more targeted and measured approach would be to develop a scenario or other learning materials drawn from the facts of this proceeding to illuminate the concepts of “othering”, “demonization” and the more subtle forms of racial discrimination, and to integrate such materials into education and training measures already being undertaken by the respondent board.

11For example, the respondent board publishes an “Equitable Schools Newsletter” five times per year, which provides a forum where exemplary staff and student practices are highlighted and where staff and students also can write about their experiences with equity by contributing articles and reflection pieces. This newsletter could be used as an appropriate forum to share a case scenario or discussion piece based on this proceeding, as a means of highlighting the concepts of “othering”, “demonization” and the more subtle forms of racial discrimination. This case scenario or discussion piece also could be posted on the board’s equity website. In addition, a case study developed from the facts of this proceeding could be integrated into existing equity training initiatives being undertaken by the respondent board, such as the Equity in Education Course, Parts One and Two, the Equity in Education course for Principals and Vice-Principals, or the Courageous Conversations about Race seminar.

12In my view, it would not be appropriate for me to micro-manage the precise manner in which the respondent board engages in this learning exercise. In my view, how this learning is implemented is best left to the respondent board, through its Executive Officer of Student and Community Equity. Accordingly, I order the respondent board, through its Executive Officer of Student and Community Equity, to develop materials drawn from the facts of this proceeding to illuminate the concepts of “othering”, “demonization” and the more subtle forms of racial discrimination, and to integrate such materials into education and training measures already being undertaken. This is to be done over the next six months from the date of this Decision, and copies of these materials and information about how they are being integrated into education and training measures are to be provided to the Commission and the complainant and filed with the Tribunal.

13The Commission and the complainant further request that a hard copy of the Tribunal’s decisions in this case on the merits and on remedy and a hard copy of the Commission’s Policy and Guidelines on Racism and Racial Discrimination be provided to all board trustees and staff in positions of authority, including administrators, principals and teachers, and that the Tribunal’s decisions in this case also be posted prominently on the board’s website. In my view, this request is unnecessary and unwarranted and is not likely to promote compliance with the Code. The more targeted and measured order that I already have made in my view sufficiently serves the purpose of appropriately incorporating the learning from this proceeding into measures that may assist in the objective of promoting future compliance.

14Finally, the Commission and the complainant have requested that I remain seized regarding implementation of my order. Given the limited nature of the order that I have made, I do not believe this is necessary.

Individual Remedies sought by the Complainant

15The complainant seeks significant compensation arising out of the infringement of his rights, including: general damages for injury to his dignity, feelings and self-respect in the amount of $80,000.00; special damages to compensate him for specific losses, including the cost of psychological counselling and for transportation and schooling expenses in the total amount of $25,143.40; general or special damages to compensate him for legal expenses, in the amount of $27,217.87; and pre- and post-judgment interest on all of these amounts.

16In support of these claims, the complainant has filed his own affidavit and also an affidavit from his psychologist. This material states that the complainant started to see this psychologist in November 2005 and continues to see him to this day, albeit less frequently. The psychologist states that he diagnosed the complainant with depression and post-traumatic stress disorder, which he states in his opinion were caused by the respondent’s decision to transfer the complainant from VRA to Oakwood Collegiate Institute (“Oakwood”). The psychologist opines that the complainant “may never be able to re-establish a normal stress response” and continues to be traumatized to this day, that the effects on him of the discriminatory treatment are permanent, that the complainant will not succeed in the future due to an inability to trust authority figures and institutions, and that his ability to obtain gainful employment in the future has been significantly impaired.

17The respondent objects to this material on the basis that it fails to disclose significant and relevant material that is in the possession, power or control of the complainant and/or his psychologist, and invites me to disregard this affidavit material in its entirety. I decline to do so. In my view, if there is an issue about a lack of disclosure, the appropriate means to remedy this is by ensuring that appropriate disclosure is made, rather than by disregarding the affidavit material.

18In his reply submissions, the complainant has stated that he is willing to provide certain further information requested by the respondent and is prepared to submit to cross-examination on his affidavit. In particular, the complainant has agreed to provide the following documentary information requested by the respondent: education records from York University; a list of academic achievements from September 2005 to the present; a list of the complainant’s extra-curricular activities from September 2005 to present; the complainant’s employment history from September 2005 to present; and details of the youth conference the complainant attended the week of February 27, 2006. These materials are to be provided to the respondent and filed with the Tribunal within 30 days of the date of this Decision.

19The only other non-medical information that I could discern was being requested from the complainant is any receipts for payments of alleged transportation costs and documents supporting his alleged inability to obtain a student TTC card for discounted fares during the 2005-06 school year. This relates to the complainant’s claim for $683.40 as the cost of transportation to Oakwood, for which he states he was required to pay the full adult fare. In this regard, I note the material filed by the respondent from the TTC indicating that there was no policy at the time preventing an eligible student from obtaining a student TTC card after the start of the school year. While it is unlikely that the complainant has any receipts for these costs or any documents supporting his alleged inability to obtain a student TTC card, if any such documents do exist, they are to be disclosed and filed within 30 days of the date of this Decision.

20The more significant issue around disclosure pertains to the medical evidence being relied upon by the complainant, both in his own affidavit and in the affidavit of his psychologist. While the Commission and the complainant both correctly note that medical evidence is not required in order to support a claim for compensation for injury to dignity, feelings and self-respect, such medical evidence does become relevant if tendered by the complainant in support of such a claim. As a result, where a complainant chooses to advance and rely upon medical evidence in support of a claim for such compensation, a respondent is entitled to appropriate disclosure in order to test the assertions being made in support of the claim.

21In this case, the issue for me in considering this medical evidence is the extent to which it can be established that any medical conditions diagnosed by the complainant’s psychologist are in fact attributable to the specific and limited nature of the discrimination I found in this case, as opposed to the much broader allegations of discrimination and reprisal that the complainant raised in this proceeding or perhaps other matters. In order to properly make such an assessment, the respondent is properly entitled to review all notes or records made by the psychologist during the time period from November 2005 to the present in order to be in a position to make submissions to me about whether and the extent to which the complainant’s other unfounded allegations of discrimination and reprisal or perhaps other matters may have contributed to any medical conditions he may have or may have had.

22In his reply submissions, the complainant has expressed a willingness to disclose certain medical records, but “only insofar as such information does not reveal the substance of his medical information or undermine his right to personal privacy”. With respect, it is the complainant himself who has chosen to raise the substance of his medical information as an issue in relation to his claim for compensation. While I agree that appropriate steps need to be taken to prevent unnecessary incursions into an individual’s personal privacy, a complainant’s privacy interests need to give way to a respondent’s entitlement to disclosure of all arguably relevant material and my obligation to ensure procedural fairness. In some cases, steps can be taken to circumscribe either the time period for which disclosure of medical records need be made or the nature of the records that need be disclosed, in order to protect a complainant’s privacy to the greatest extent possible. In this case, however, given the nature of the assertions made by the complainant and his psychologist, I find that all of the notes and records made by the psychologist during the entire period that he was treating the complainant would be arguably relevant to the complainant’s claim for compensation and would need to be disclosed.

23As previously stated, it is the complainant’s choice whether to rely upon medical evidence in support of his claim for compensation. Given the position taken by the complainant in his reply submissions, he may not have fully appreciated the extent of the disclosure he would need to make as a consequence of his decision to raise and rely upon this evidence. As a result, in light of this Decision, I am going to give the complainant a choice. If the complainant chooses not to rely upon the affidavit of his psychologist or any information of a medical nature included in his own affidavit in support of his claim for compensation for injury to feelings, dignity and self-respect, then I find that the medical records sought by the respondent would no longer be arguably relevant to my assessment of this claim and disclosure of medical records would not be required. If the complainant made this decision, he also would need to withdraw his claim for compensation for his visits to his psychologist, as an assessment of that claim also would necessarily entail an examination of the extent to which these visits were related to and required by the specific and limited nature of the discrimination that I found.

24In addition, if the complainant were to make this choice, it is my view that I could conduct an appropriate assessment of the quantum of compensation for injury to dignity, feelings and self-respect and the complainant’s other claims for compensation without the necessity of cross-examination on the applicant’s affidavit, subject to any submissions made by the parties in response to the additional non-medical disclosure made by the complainant.

25Accordingly, within 30 days of the date of this Decision, the complainant is to advise the other parties and the Tribunal whether he has decided no longer to rely upon medical evidence in support of his claim for compensation.

26Alternatively, if the complainant chooses to continue to rely upon the medical evidence currently tendered in support of his claim for compensation, then within 60 days of the date of this Decision, I order him to produce to the respondent and file with the Tribunal the following materials which I find are arguably relevant to the claim he has made:

a. The complete notes and records of Dr. Raghunan relating to the complainant from November 2005 to the present; and

b. A detailed breakdown of the invoice dated December 17, 2009 totalling $23,360.00, plus copies of any original invoices rendered contemporaneously with the services provided, together with information as to whether any such invoices were paid, by whom, when, and whether any services provided to the complainant were covered by insurance, OHIP and/or any other benefit provider.

27At this stage, in the absence of evidence that the applicant sought treatment for his alleged conditions from any other medical or health service provider, I am not prepared to order broader disclosure of the applicant’s medical records from the complainant’s family physician or from any other treating physician, or a decoded OHIP summary of physician attendances.

28I will reserve on the respondent’s request for the complainant to submit to a medical examination by its own doctor, pending receipt by the respondent of the complainant’s medical disclosure and an ability to review that material within an expert. Within 60 days of receiving the medical disclosure from the complainant, the respondent shall advise the other parties and the Tribunal whether it intends to renew its request for a medical examination and if so shall serve and file any further written submissions in support of any such request. If such submissions are received, the Tribunal will establish a schedule for submissions from the other parties and for reply.

29In addition, if the complainant decides to continue to rely upon the medical evidence tendered, both he and his psychologist will need to be cross-examined on their affidavits. If such decision is made, then within 45 days of the date of this Decision, all parties shall provide the Tribunal with all of their availability for a one day evidentiary hearing in November and December 2010.

30Finally, with regard to the complainant’s claim for legal expenses, I note that in my prior Interim Decision, dated February 15, 2008, 2008 HRTO 12, I ruled that I had no jurisdiction to make such an award on the basis of the then existing case law. The complainant and the Commission correctly have noted that, since that time, the legislation has changed and the Divisional Court decisions in Karumanchiri v. Ontario Liquor Control Board, 1988 CanLII 8926 (ON HCJDC), 25 O.A.C. 161 and Quereshi v. Ontario (Human Rights Commission) 2006 CanLII 63704 (ON S.C.D.C.), (2006), 268 D.L.R. (4th) 281, O.J. No. 1782 may no longer strictly apply. Nonetheless, this Tribunal consistently has held that it does not have jurisdiction to award costs under the current Code or its Rules: see Macdonald v. Downtown Health Club for Women, 2009 HRTO 1647; Dunn v. United Transportation Union, Local 104, 2008 HRTO 405; Ugbay v. Eston Manufacturing, 2009 HRTO 61; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. As a result, no award will be made for the complainant’s claim for legal expenses.

ORDER

31For all of these reasons, I make the following order:

a. Within six months from the date of this Decision, the respondent board, through its Executive Officer of Student and Community Equity, shall develop materials drawn from the facts of this proceeding to illuminate the concepts of “othering”, “demonization” and the more subtle forms of racial discrimination, and integrate such materials into education and training measures already being undertaken. Copies of these materials and information about how they are being integrated into education and training measures are to be provided to the Commission and the complainant and filed with the Tribunal.

b. Within 30 days of the date of this Decision, the applicant shall provide to the respondent and file with the Tribunal the following materials: education records from York University; a list of academic achievements from September 2005 to the present; a list of the complainant’s extra-curricular activities from September 2005 to present; the complainant’s employment history from September 2005 to present; details of the youth conference the complainant attended the week of February 27, 2006; any receipts for payments of transportation costs claimed; and any documents supporting his alleged inability to obtain a student TTC card for discounted fares during the 2005-06 school year.

c. Within 30 days of the date of this Decision, the complainant is to advise the other parties and the Tribunal whether he has decided no longer to rely upon medical evidence in support of his claim for compensation. If the complainant makes this choice, the respondent shall serve and file any further written submissions relating to the individual remedies sought by the complainant arising out of the non-medical disclosure within a further 14 days, and the complainant and the Commission shall serve and file any reply submissions with a further five days.

d. In the alternative, if the complainant chooses to continue to rely upon the medical evidence tendered, then within 60 days of the date of this Decision, the complainant shall produce to the respondent and file with the Tribunal: the complete notes and records of Dr. Raghunan relating to the complainant from November 2005 to the present; and a detailed breakdown of the invoice dated December 17, 2009 totalling $23,360.00, plus copies of any original invoices rendered contemporaneously with the services provided, together with information as to whether any such invoices were paid, by whom, when, and whether any services provided to the complainant were covered by insurance, OHIP and/or any other benefit provider.

e. Within 60 days of receiving any such medical disclosure from the complainant, the respondent shall advise the other parties and the Tribunal whether it intends to renew its request for a medical examination and if so shall serve and file any further written submissions in support of any such request. If such submissions are received, the Tribunal will establish a schedule for submissions from the other parties and for reply.

f. In addition, if the complainant decides to continue to rely upon the medical evidence tendered, then within 45 days of the date of this Decision, all parties shall provide the Tribunal with all of their availability for a one day evidentiary hearing in November and December 2010 for cross-examination of both the complainant and his psychologist on their affidavits.