HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deryn Henry
Applicant
-and-
Waterloo Catholic District School Board and Tom Forestell
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as : Henry v. Waterloo Catholic District School Board
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 16, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on October 16, 2007.
2The purpose of this Interim Decision is to address the Request for Order made by the respondents dated June 3, 2010 seeking the following relief: (1) dismissal of a portion of the Application for delay; (2) a ruling on the proper scope of the Application; (3) dismissal of the Application pursuant to s. 45.1 of the Code; (4) removal of the personal respondent; and (5) production of documents.
3The parties have agreed that these issues be dealt with in writing, and have filed fulsome submissions. I will address each issue in turn. I also will address certain case management matters at the conclusion of this Decision.
Delay
4The parties are in agreement that, for a transitional application filed under s. 53 of the Code, the one year time period for the filing of an application runs from the last incident until the filing of the underlying complaint with the Commission: see Boncori v. TRW Canada Limited, 2009 HRTO 564.
5As noted above, the underlying complaint in the instant case was filed on October 16, 2007. The last incident cited in the complaint is an incident that occurred on April 16, 2007 resulting in the suspension of the applicant and his subsequent expulsion, which was confirmed by the respondent school board on August 29, 2007. There is no dispute that both the April 16, 2007 event and the confirmation of expulsion on August 29, 2007 are within the one year time period.
6The issue between the parties relates to certain prior events set out by the applicant in his complaint, which relate to prior suspensions. The applicant takes the position that these prior suspensions form part of a “series of incidents” that culminates in the suspension resulting from the April 16, 2007 incident, and therefore fall within the one year period as a result of s. 34(1)(b) of the Code. The respondent disputes that these prior suspensions properly can be considered to be part of a “series of incidents”.
7The applicant relies upon this Tribunal’s decision in Pakarian v. Chen, 2010 HRTO 457, wherein it is stated that the question to be determined when deciding whether there is a “series of incidents” is “whether the applicant has alleged a number of events relating to discrimination which can be said to have occurred one after another in temporal succession”: see para. 25. While the applicant made submissions about the specific facts of that case, I note that the adjudicator expressly did not find that the allegations raised by the applicant in that case gave rise to a series of events within the meaning of s. 34 of the Code: see para. 30. Accordingly, I do not find this decision of much assistance in resolving the issue before me.
8Rather, in my view, whether and to what extent an application alleges a “series of incidents” very much depends upon the specific facts of each case and the nature of the incidents which are alleged to form part of the series. In the instant case, the next most recent incident cited in the complaint occurred on April 18, 2006 and relates to a three day suspension imposed upon the applicant because he was heard to have been swearing by a secretary in the school’s office. This incident occurred almost a year prior to the April 16, 2007 incident and a year and a half prior to the filing of the complaint.
9The next most recent incident occurred in November 2005, some five months earlier, which resulted in a 5 day suspension of the applicant. Prior to this, there were five suspensions imposed upon the applicant in the preceding 2004-2005 school year, during the period from December 2004 to May 2005. In particular, the December 2004 incident appears to have been of some significance, as it is alleged to have involved the use of an extremely offensive racial epithet by a white student and resulted in an outcry from racialized students and appears also to have been addressed in the media.
10In my view, given that this Application relates to an allegation of racial discrimination raised by a student against his school board and high school principal, it is appropriate to examine the incidents alleged in the complaint in relation to the school years in which they occurred. In the 2006-2007 school year, there is only one incident cited, which occurred in the spring of that year on April 16, 2007. The next most recent incidents occurred in the preceding 2005-2006 school year, one in the fall in November 2005 and one in the spring on April 18, 2006. As stated above, the five earliest incidents cited in the complaint all occurred in the 2004-2005 school year.
11In my view, it is also significant that the next most recent incident, which is alleged to have occurred on April 18, 2006, involves a different person, a secretary in the office as opposed to the school principal, and a different set of circumstances, swearing as opposed to allegedly assaulting the school principal. In my view, the material before me does not support that the April 18, 2006 incident is sufficiently related to the April 16, 2007 incident for them to form part of a series of incidents. With regard to the November 2005 incident, there is insufficient information provided in relation to this incident to determine whether the school principal was involved in this incident or whether it is otherwise sufficiently related to the April 16, 2007 incident to form part of a series.
12In my view, due to the gap of almost one year between the most recent two incidents and the lack of any sufficient factual relationship between these two incidents, I find that they do not form part of a series of incidents. I also find that I do not have sufficient material before me to establish that the November 2005 incident has a sufficient factual relationship to form part of a series with the April 16, 2007 incident, and in any event I find that the gap of almost a year and a half between these two incidents prevents me from concluding that they form part of a series. Finally, I find that the incidents from the 2004-2005 school year, which is two years prior to the 2006-2007 school year when the April 16, 2007 incident occurred, are too remote to form part of a series with the April 16, 2007 incident. Accordingly, I find that the prior incidents cited in the applicant’s complaint do not form part of a “series of incidents” that culminates in the April 16, 2007 incident. As a result, all of these prior incidents fall beyond the one year time period prior to the filing of the complaint.
13The applicant submits that, if I find that the prior incidents do not form part of a series with the April 16, 2007 incident, that I nonetheless should allow these allegations to continue to form part of this proceeding pursuant to s. 34(2) of the Code, because the delay in raising them was incurred in good faith and no substantial prejudice is caused to the respondents as a result of the delay.
14In relation to the requirement to establish that the delay was incurred in good faith, this Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.
15The applicant submits that I should find that the delay in raising these allegations was incurred in good faith as the applicant’s mother was involved with the respondent school board to try to resolve the issues and because the applicant was still enrolled in the same school. The applicant submits that it was only after the applicant’s expulsion from the school in 2007 that he realized he had no choice but to file a human rights complaint, and that he shouldn’t be faulted for his desire to protect his academic interests.
16I do not find this to be a sufficient justification to excuse the delay in raising the allegations in this case. While the complaint does reference the efforts of the applicant’s mother to resolve the matter with the respondent board, the specific efforts referenced in the complaint relate to the final incident on April 16, 2007 and do not provide an explanation for the delay in raising the prior alleged incidents of discrimination. I am aware that the Response filed with the Tribunal states that an ad hoc committee was formed in the spring of 2005 which included the applicant’s mother and that this committee met over a period of one and a half years and developed suggestions for improving relations within the school. The reply that was filed by the applicant together with her Application takes issue with some of the respondents’ assertions about this committee, and states that “the committee ceased after the parents became disillusion[ed] with the process and problem”. In view of this disillusionment, efforts by the applicant’s mother to resolve issues relating to the applicant’s school appear to have stopped and accordingly this does not explain why steps were not taken then to assert the applicant’s rights under the Code.
17With regard to the applicant’s attendance at the school where these issues arose, this is a fact that is shared by students and indeed employees who continue to have ongoing relationships with their school or employer at the time alleged infringements of their rights are occurring. However, in the absence of establishing a “series of incidents” within the meaning of s. 34(1)(b) of the Code, I find that the existence of an ongoing relationship does not justify waiting until the relationship has ended before raising human rights allegations.
18Accordingly, I find that the applicant has not provided a sufficient explanation for the delay in raising his allegations relating to the incidents prior to April 16, 2007 to establish that the delay was incurred in good faith. As a result, it is not necessary for me to consider whether any substantial prejudice was caused to the respondents as a result of the delay.
19For all of the foregoing reasons, the respondents’ request for dismissal of the allegations in the complaint prior to April 16, 2007 is allowed.
Scope of the Application
20The respondents request a direction from the Tribunal that the applicant be restricted to the allegations raised in his complaint. This request is made on the basis that other materials submitted by the applicant together with the Application may not be limited to the matters raised in the complaint.
21In my view, this request is premature. This Tribunal has held in numerous cases that a transitional application must be based upon the subject-matter of the complaint or amended complaint filed with the Commission. While, from time to time, applicants file additional materials with their applications, these materials do not form part of the subject-matter of the complaint that forms the basis of the application.
22In the instant case, no statement of additional facts has been filed by the applicant that seeks to expand the subject-matter of the Application, nor has any request for amendment of the complaint to raise allegations beyond the scope of the complaint been made. Accordingly, there is no basis upon which to grant the order requested.
Section 45.1 of the Code
23The respondents request that the Application be dismissed pursuant to s. 45.1 of the Code on the basis of the proceeding under the Education Act which upheld the applicant’s expulsion or on the basis of certain criminal proceedings arising out of the April 16, 2007 incident.
24Section 45.1 of the Code permits this Tribunal to dismiss an application where another proceeding already has appropriately addressed the substance of the application.
25With regard to the proceeding under the Education Act, the only material before me is a one page Decision and Order of the respondent school board which states that after hearing the evidence and submissions of the parties, the board confirms the expulsion. There are no reasons provided that discuss the evidence led or submissions made, no identification of what the issues were that were addressed by the board, and no analysis or findings made to support the decision simply to confirm the expulsion. The absence of reasons in this instance makes it impossible for me to determine whether the proceeding before the board appropriately dealt with the substance of the Application.
26With regard to the criminal proceeding, once again, no material is before me to indicate what occurred in that proceeding or what findings were made, for reasons that will be addressed below in relation to the Youth Criminal Justice Act S.C. 2002, c. 1, as amended, (“YCJA”). As a consequence, the respondents’ request is premature. Once the transcript from the criminal proceeding has been disclosed to the respondents, if this is authorized by the Youth Court, they may renew their request pursuant to s. 45.1 of the Code in relation to this proceeding if they deem it advisable as discussed under Case Management below.
Removal of Personal Respondent
27The respondents request the removal of Mr. Forestell as a personal respondent. There is no dispute between the parties that the applicable principles are set out in Persaud v. Toronto District School Board, 2008 HRTO 31, (“Persaud”).
28In my view, as in most cases where this issue arises, the significant issue relates to the fourth criterion, which is whether any compelling reason exists to continue the proceeding as against the personal respondent. In the Persaud decision, one example of such a compelling reason is stated to be “where it is the individual conduct of the personal respondent that is a central issue”.
29The instant case, in my view, is a case where it is the individual conduct of the personal respondent that is a central issue. The April 16, 2007 incident relates to an alleged assault by the applicant against the personal respondent. It is the personal respondent who decided to suspend and expel the applicant for this incident, and it is alleged that the personal respondent was directly responsible for criminal charges being laid against the applicant. I appreciate that the underlying facts are in dispute, as well as the issue of whether the personal respondent racially discriminated against the applicant. However, in my view, the personal respondent’s actions are sufficiently central to the allegations raised in this proceeding to justify him continuing as a party respondent.
30Accordingly, the respondents’ request for removal of the personal respondent is denied.
Production of Documents
Video of April 16, 2007 incident
31The respondents state that the applicant was given a compact disk with relevant video images of the April 16, 2007 incident apparently as part of the expulsion appeal process. The respondents request an order requiring the applicant to disclose this video.
32It is not clear to me why the respondents are seeking disclosure of a video file that they themselves appear to have provided to the applicant. Should the respondents confirm that they no longer have a copy of this video file for some reason, the applicant shall disclose a copy to the respondents at the respondents’ expense.
33While the applicant in his submissions states that this video formed part of the Crown brief and is therefore subject to the YCJA, it appears that this video was provided separate and apart from any proceeding under the YCJA and therefore would not fall within the purview of that legislation.
Letter from former counsel
34The respondents request a complete and unredacted copy of a letter dated June 5, 2008 that sets out a factual report of the criminal proceedings. The applicant objects to such disclosure on the ground of solicitor-client privilege.
35None of the parties have addressed the issue of whether the applicant has waived privilege over this letter by submitting a redacted version of it to the Tribunal. In any event, the only arguable relevance asserted by the respondents is that this letter may contain counsel’s report of what occurred in the criminal proceeding. As set out below, the issue of the disclosure of a copy of the transcripts from the criminal proceeding requires determination by a Youth Court judge. As a result, in my view, it is premature to determine whether any report by the applicant’s former counsel as to what he believes occurred in the criminal proceeding ought to be disclosed or is even arguably relevant to the matters at issue. Accordingly, the request for disclosure of this letter is denied at this time.
Records of criminal proceeding
36The respondents have requested production of any transcript of the criminal proceeding, “complete records and other information concerning the criminal proceeding”, and the Crown brief. While the applicant in his submissions raised certain concerns under the YCJA relating to the disclosure of this material, the applicant subsequently stated that he does not object to the disclosure and use of any information related to the criminal prosecution of the April 16, 2007 incident in the event that this Tribunal decides that it has jurisdiction to order such disclosure. The applicant further stated that he has obtained transcripts for three of the trial dates of his criminal proceeding and is seeking to obtain the transcript from the last date of that proceeding, and that he does not object to the disclosure and use of this information in this hearing in the event that this Tribunal decides that it has jurisdiction to order disclosure.
37The primary concern raised by the applicant in relation to disclosure of this material is the provisions of the YCJA. The YCJA addresses criminal proceedings brought against youths under the age of 18, and contains prohibitions against the publication of the name or other identifying information about the youth (s. 110(1)), against gaining access to records kept under the YCJA (s. 118(1)) and against the subsequent disclosure of a record or information obtained under the YCJA (s. 129).
38It appears clear to me that the records sought by the respondents are records kept under ss. 114 to 116 of the YCJA. As a result, s. 118(1) of the YCJA prohibits the respondents from being given access to these records “except as authorized or required by this Act”, and s. 129 of the YCJA prohibits the applicant from disclosing these records to the respondents “unless the disclosure is authorized under this Act”.
39The question for me, then, is whether disclosure of the records sought by the respondents is “authorized” by the YCJA. In my view, as I previously expressed in Persaud v. Toronto District School Board, 2008 HRTO 92, I believe it is so authorized.
40In the Persaud decision, I relied upon s. 110(3) of the YCJA, which permits a youth, after he or she attains the age of 18 years, to “publish or cause to be published information that would identify him or her as having been dealt with under this Act”. In Persaud I was dealing with a witness who had attained the age of 18 years and in relation to whom there was evidence relevant to the proceeding that may have constituted a “record” under the YCJA. I held that by testifying and putting in issue his having been dealt with under the YCJA, the witness had “caused to be published” such information and that as a matter of procedural fairness in the context of the hearing, the respondents and police witnesses should be entitled to provide information from their perspective as to how the youth was dealt with in order to fairly be given an opportunity to respond.
41The matter in Persaud, however, did not end there. The police witnesses, who were not parties to the proceeding before me, were not willing to provide their evidence in relation to how they dealt with the youth in question in the absence of an order of a Youth Court judge. Accordingly, an application was brought before a Youth Court judge and heard on February 26, 2009. In her decision dated March 30, 2009 (Court File No. YO293284), Justice Cohen ultimately authorized the police witnesses to testify before me, but while she held that the police witnesses could have access to their notes for the purpose of refreshing their memory and while she authorized counsel to have access to these notes to review them for the purpose of questioning these witnesses, she did not authorize the production of the notes themselves and the notes were not put into evidence before me.
42In her decision, Justice Cohen stated as follows (at para. 7):
Under section 124 of the [YCJA], [the youth] is entitled to access to the records, which would therefore include a copy of the notes. Section 110(3) may well include by extension [the youth’s] right to publish the notes. I am not so ruling at this time. In this case, the notes are brief and I see no inconvenience in proceeding in the manner I have indicated. I wish to note that this matter proceeded on consent and, while I did receive submissions from the parties, I did not have the benefit of full argument on the questions raised. I therefore leave to another day the possibility of a more satisfactory resolution of the issues raised in this matter.
43Given Justice Cohen’s decision, and while I am of the view that s. 110(3) of the YCJA includes the right of an adult youth to publish records to which he is entitled to have access under that legislation, it is clear that the interpretation of this provision has not been settled by the court. In these circumstances, it is my view that it would be unwise for me to require the applicant to disclose the transcripts of the criminal proceeding or any other documents relating to that proceeding, in the absence of an order of a Youth Court judge. Given that it is an offence under the YCJA for any person to have unauthorized access to records protected under that legislation, I do not wish to put any of the parties to this proceeding, or myself for that matter, in jeopardy of having breached the YCJA’s requirements.
44I will, however, offer my view that once a youth has become an adult and has chosen to raise issues in a legal proceeding that necessarily put in issue the manner in which he was dealt with under the YCJA, it is unclear to me what privacy issues remain to be engaged by the provisions of that legislation. In the instant case, the nature and circumstances of the interaction between the applicant and the school principal on April 16, 2007 and the decision to suspend and expel the applicant as a result are squarely in issue before me. The identical interaction between the applicant and the school principal also was in issue in the criminal proceeding, and the transcripts from the criminal proceeding and other documents from the criminal proceeding relating to that interaction are directly relevant to the factual determinations that need to be made in the case before this Tribunal.
45Depending upon the disposition of the criminal proceeding and the factual findings that may have been made by the court, the respondents have indicated an intention to seek dismissal of the Application either under s. 45.1 of the Code as having been appropriately dealt with in another proceeding or as an abuse of process. In addition, the applicant himself has taken the position that I should be bound by factual findings made by the court in the criminal proceeding. The inability of the parties to this proceeding and of the Tribunal to have access to the transcripts from the criminal proceeding would effectively prevent these issues from being addressed. Further, the inability of the parties and this Tribunal to have access to relevant documents would seriously impair the parties’ entitlement to a full and fair hearing and this Tribunal’s ability to make a proper disposition of the issues before it on the basis of a full record. A lack of disclosure of these materials also would raise the spectre of inconsistent findings being made as between the criminal court on the one hand and this Tribunal on the other. In my view, none of these consequences of non-disclosure would serve the interest of the proper administration of justice.
46The next question for me to address is which party properly should bring the Youth Court application. In my view, it is the applicant’s responsibility to bring this application. The applicant has in his possession documents which are relevant to the issues to be determined in this proceeding, and under the Rules has an obligation to disclose these documents. He is also in the position of knowing precisely what these documents are, and therefore is in the best position to frame the order sought in the application. The proper disposition of the costs of the application is a matter for determination by the Youth Court.
47Accordingly, within 30 days of the date of this Decision, I order the applicant to commence an application to a Youth Court judge to obtain authorization to disclose to the respondents and file with this Tribunal the transcripts from the criminal proceeding and any other documents from the criminal proceeding that are arguably relevant to the matters at issue in the proceeding before this Tribunal.
48Justice Cohen’s decision was issued with a warning indicating that this was a case under the YCJA and was subject to subsections 110(1) and 111(1) and section 129 of that Act, which are reproduced in the warning and set out restrictions regarding the publication of the name of a youth or information related to a youth as being dealt with under that Act and against the unauthorized disclosure of a record under that Act. The warning also includes express reference to s. 138 of the YCJA, which makes it an offence not to comply with the foregoing provisions. In light of this warning, I am reluctant to directly disclose a copy of this decision to the parties, and suggest that they seek to obtain a copy from the Youth Court.
Medical records
49The respondents seek production of the chart and any other records maintained by the applicant’s family doctor over the past five years, all medical records concerning consultation and treatment for emotional issues including anger management, and the applicant’s decoded OHIP summary for the past five years.
50In response, the applicant states that he has disclosed his medical records in the possession of the therapist that he saw for counselling in 2007-2008 and states that she is the only health professional that he has ever seen for mental or emotional health issues. The applicant submits that the respondents’ request for disclosure is overbroad, as there is no issue or claim in this proceeding relating to any physical injury.
51In reply, the respondents state that they are entitled to receive the decoded OHIP summary in order to confirm whether what the applicant says is true, as this summary will show who he has seen for emotional and mental health issues, including whether he received any treatment respecting banned substances in light of his behaviour as shown on the security video recordings made on April 16, 2007.
52The respondents’ request is denied. The applicant has confirmed that he already has disclosed the records from the only person he saw for emotional or mental health issues. In the absence of any evidence from the respondents to indicate otherwise, it is my view that the respondents are engaged in a fishing expedition.
Ontario Student Record
53The respondents have requested that the applicant grant permission for the use and disclosure of his entire Ontario Student Record (“OSR”). In response, the applicant has stated that he is willing to grant permission for the use and disclosure of the portion of his OSR relating to his high school years, but not dating back to elementary school. In my view, that is reasonable, particularly in light of the fact that I have restricted the matter at issue in this proceeding to the April 16, 2007 incident and sequelae. In my view, the applicant’s OSR relating to his elementary school education is too remote to be arguably relevant to the matters at issue in this proceeding.
54As it appears that the applicant already has provided to the respondents his signed consent for the use and disclosure of the high school portion of his OSR and as these documents are in the respondent school board’s possession, no further order is required.
Case Management
55As a result of this decision, the applicant will need to proceed with an application to the Youth Court. I understand that the Youth Court application in the Persaud matter, which proceeded on consent, took several months before a hearing date was obtained and another month before the decision was issued. As a result, it appears unlikely that the Youth Court application will have been determined by the hearing date in this matter, currently scheduled for October 5, 2010.
56In addition, assuming that an order from a Youth Court judge authorizing disclosure of the transcripts and other documents from the criminal proceeding is obtained, this Tribunal may need to receive submissions from the parties regarding the respondents’ request to dismiss this Application pursuant to s. 45.1 of the Code or as an abuse of process as a result of the disposition and findings made in the criminal proceeding. This issue will need to be determined prior to this matter proceeding on the merits.
57Accordingly, the hearing date currently scheduled for October 5, 2010 is hereby cancelled. The applicant is directed to proceed with the Youth Court application as expeditiously as possible, and it is my expectation that such application would proceed on consent. The applicant is to advise the Tribunal once the Youth Court application has been commenced and shall file a copy of the Notice of Application, and also shall advise the Tribunal when a hearing date has been set and once a decision from the Youth Court has been received and shall file a copy of the Youth Court decision.
58If the Youth Court does order disclosure of the transcripts from the criminal proceeding, then within 30 days the respondents shall file a Request for Order (Form TR-4) in respect of their request for dismissal as a result of the disposition and findings from the criminal proceeding or for any other relief arising out of any disclosure ordered by the Youth Court. The applicant shall file his Response to Request for Order (Form TR-5) within 14 days in the normal course, and respondents shall file any reply submissions within a further three business days.
59The Tribunal will not schedule a further hearing date in this matter until the Youth Court application has been determined.
Dated at Toronto, this 18th day of August, 2010.
”signed by”_______________
Mark Hart
Vice-chair