HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peter Davidson by his Litigation Guardian Michelle Davidson
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Lambton Kent District School Board, G. Wayne Brown and Her Majesty the Queen in Right of Ontario as represented by the Minister of Education
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Davidson v. Lambton Kent District School Board
WRITTEN SUBMISSIONS
Peter Davidson by his Litigation Guardian ) Michelle Davidson, Complainant ) On her own behalf
Lambton Kent District School Board and ) G. Wayne Brown, Respondents ) No submissions
Her Majesty the Queen in Right of ) Ontario as represented by ) No submissions the Minister of Education, Respondent )
Ontario Human Rights Commission ) Cathy Pike, Counsel
INTRODUCTION
1In this complaint a student with Attention Deficit Hyperactivity Disorder (“ADHD”) alleges that the Lambton Kent District School Board (the “Board”) and a principal with the Board discriminated against him on the basis of a disability. The complainant alleges that he was treated unfairly by school officials because of his ADHD, including being denied access to accommodations through the Identification, Placement and Review Committee. The complainant is represented by his mother, referred to as his litigation guardian.
2In a previous Interim Decision, 2008 HRTO 294, the Tribunal added the Ministry as a party respondent to this complaint on a limited basis.
3This Interim Decision deals with the request by the Ontario Human Rights Commission (the “Commission”) to withdraw from the proceedings. The complainant has filed submissions which, although not specifically opposing the Commission’s withdrawal, request that the Tribunal make certain directions. The respondents did not make submissions.
4It is clear from decisions of the Tribunal as well as the courts that the Commission may withdraw from participating in a hearing before the Tribunal when its public interest mandate has been satisfied. It is also clear that the complainant is entitled to continue with a hearing even where the Commission has withdrawn. See, for instance, Perth v. Human Resources Capital Group Inc., 2008 HRTO 21. The Tribunal does not require the Commission to justify its decision to withdraw.
5The Commission recognizes, rightly, that the Tribunal can nevertheless make transitional orders in connection with its withdrawal. In Perth, the Tribunal described the purpose of such orders as follows:
The Tribunal will make directions as necessary to minimize the prejudice to the complainant in making the transition from a case in which the Commission has the burden of putting forward the case for hearing, to one in which the complainant will take on that burden.
6It is not apparent to the Tribunal that the orders sought by the complainant in paragraphs (a) and (b) of her submissions arise out of transition issues. If the complainant’s mother wishes to amend her hearing brief, she may file a Request for an Order During Proceedings, on notice to the respondents. With respect to the request to be able to provide additional disclosure to the Tribunal, again, it is not apparent that this is a transition issue. The complainant’s mother has already submitted materials that she intends to rely on for the hearing. If she wishes to submit additional material, she may do so, subject to any objection to the late filing of the material or any other objection.
7The Tribunal does not grant the request in paragraph (c) of the complainant’s submissions, as it amounts to a request that the Commission continue its active participation in the complaint and would be inconsistent with withdrawal. Given that all hearing dates have now been adjourned, the complainant has ample time before the hearing to seek legal assistance.
8If the Commission has not already done so, it is directed to provide a copy of its investigation file to the complainant. The Tribunal makes no direction with respect to any clarification sought by the complainant as the purpose of any of the documents in it. The complainant is free to raise this with the Commission directly.
9The Tribunal makes no further direction with respect to transition issues.
Dated at Toronto, this 14th day of June, 2010.
“Signed by”
Sherry Liang
Vice-chair