D.S. and A.C. v. London District Catholic School Board, 2010 HRTO 2027

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.S. by his litigation guardian L.S. and A.C. by his litigation guardian P.S.-C. Complainants

-and-

Ontario Human Rights Commission Commission

-and-

London District Catholic School Board Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: October 5, 2010 Citation: 2010 HRTO 2027 Indexed as: D.S. and A.C. v. London District Catholic School Board

WRITTEN SUBMISSIONS BY

D.S., Complainant ) L.S., Litigation Guardian A.C., Complainant ) P.S-C., Litigation Guardian

London District Catholic School Board, ) Gary Clarke, Jeff Gillies, Joseph Rapai, ) Eric M. Roher and Terry Grand, Anne Kavelaars, ) Kate Zavitz, Counsel Evelyn Paparella, Tamara Nugent, ) and Des Desalaiz, Respondents )

Ontario Human Rights Commission ) Tony Griffin, Counsel

1This Interim Decision addresses the respondents’ request for the removal of all personal respondents and for an order prohibiting the Commission and complainants from making allegations of Code violations or leading evidence relating to any event more than one year prior to the filing of the complaints and dismissing such allegations. This Interim Decision also will address certain case management matters in anticipation of the hearing scheduled for November 24 and December 2, 2010.

2The names of the complainants and their litigation guardians have been anonymized in order to be consistent with the changes made to the Tribunal’s Rules governing new applications, and specifically new Rule 3.11.1, which took effect on July 1, 2010.

Personal Respondents

3The respondents seek removal of all personal respondents in accordance with the criteria set out in Persaud v. Toronto District School Board, 2008 HRTO 31. The respondents note that the respondent Board is alleged to be liable for the same conduct as the personal respondents, that the respondent Board does not raise any issue as to its deemed or vicarious liability for the personal respondents, that there is no issue as to the respondent Board’s ability to respond to or remedy any alleged Code infringement, that there is no compelling reason to continue this proceeding as against the personal respondents, and that no prejudice would be caused to any party as a result of removing the personal respondents.

4The Commission’s response to the respondents’ request states that it agrees with the removal of the personal respondents as parties to this proceeding. Despite being afforded an opportunity to file submissions in response to the respondents’ request, no submissions were received from the complainants on this issue.

5Accordingly, I order that all personal respondents be removed as parties to this proceeding, and the title of proceeding be amended accordingly.

Untimely Allegations

6The underlying complaints in these matters were filed on June 12 and 14, 2006, respectively, and were referred by the Commission to this Tribunal under the former Code in 2007.

7Pursuant to s. 55(2) of the current Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the new Part IV applies to complaints referred to the Tribunal prior to June 30, 2008 as though such complaints were applications made to the Tribunal under the new Part IV and are to be dealt with by the Tribunal in accordance with the new Part IV.

8Part IV of the current Code, which is the “new Part IV” referenced in s. 55(2) of the Code, includes s. 34(1), which provides that a person may apply to the Tribunal within one year after the incident to which the application relates or, if there was a series of incidents, within one year after the last incident in the series. No issue was taken by the Commission or the complainants as to the applicability of s. 34(1) to this matter.

9For applications filed under s. 53 of the Code (called “transitional applications”), this Tribunal has held that the one year period prior to the filing of the underlying complaint is the relevant period for the application of s. 34(1) of the Code: Taylor-Wright v. York University, 2010 HRTO 312. In my view, in light of s. 55(2) of the Code, the same approach should apply to complaints referred to this Tribunal by the Commission.

10The respondent Board acknowledges that allegations relating to the 2005-06 school year are within the one-year period prescribed by s. 34(1). However, the Board takes the position that allegations pertaining to prior school years should be dismissed as being beyond the one-year time period. The Commission takes the position that all allegations are timely within the meaning of s. 34(1)(b) of the Code, on the basis that they form a series of incidents with the last incident in the series falling within the one-year period.

11Accordingly, the first issue before me is whether the allegations regarding prior school years can be regarded as forming part of a “series of incidents” within the meaning of s. 34(1)(b) of the Code that extends to and includes the allegations pertaining to the 2005-06 school year. In this regard, I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most cases interrupt the series” (see para. 11).

12With regard to the D.S. complaint, the hearing brief filed by the Commission references events relating to D.S.’s attendance at Our Lady of Lourdes school (the “school”) in the 2000-2001 and 2001-2002 school years. In particular, there is an allegation in paragraph 7 that, in these years, school staff did not consult the school board’s psychologist, did not provide the family with information about special education, did not establish an Identification Placement and Review Committee (“IPRC”) for D.S., and did not prepare an Individual Education Plan (“IEP”) for D.S.

13Following these school years, D.S. was home schooled and did not return to the school until the 2005-06 school year. In my view, the gap of at least three years between the prior school years in relation to which allegations are raised and the 2005-06 school year is more than sufficient to interrupt the series, and I find that the allegations relating to the prior school years do not form part of a series of incidents that includes the 2005-06 school year.

14With regard to the A.C. complaint, the Commission’s hearing brief raises allegations dating back to the 1999-2000 school year. However, while some particulars are provided of allegations during the period up to November 2001, there is then a gap of a year and a half before the next allegation, which relates to an IPRC meeting held on June 17, 2003. The only allegation raised regarding this IPRC meeting is that A.C’s parents were not told what placement options were available.

15The next allegations relate to the development by A.C. of “school phobia”, which is attributed to the school not following recommendations made in 2001. There is then reference to a meeting held on October 15, 2003, to prepare the IEP. No allegation is raised regarding the content of the IEP or as to the accommodations provided during the 2003-04 school year. It is alleged in the complainant’s hearing brief only that the IEP took effect with “no proper IPRC” and without the parent’s guide to special education having been provided. In the complainant’s written submissions, reference is made to “intense support” having been provided to A.C. during the 2003-04 school year, which is stated to have been precipitated by the diagnosis of “school phobia”.

16Allegations are then raised regarding an IPRC meeting held on May 26, 2004, where A.C.’s exceptionality was recorded as “multiple”. It is alleged that no explanation for this change was provided to A.C.’s parents. And then on October 29, 2004, A.C.’s parents received his IEP for the 2004-05 school year, and it is alleged that concerns were raised about the timing of the IEP, the lack of learning expectations and instructional and assessment accommodations, and the removal of resource support. In the complainants’ submissions, it is alleged that the intense support that had been provided during the 2003-04 school year was drastically reduced and the IEP accommodations were also drastically reduced and/or provided on an ad hoc basis.

17The remaining allegations then relate to the 2005-06 school year.

18In my view, the gap of a year and a half between the allegations pre-dating November 2001 and the next allegation in June 2003 prevents the earlier events from being regarded as part of a “series of incidents” that includes the allegations pertaining to events within one year of the filing of the complaint in June 2006. Further, in my view, the recognition that A.C. was provided with “intense support” during the 2003-04 school year and the absence of any specific issues being raised as to either the content of the IEP or the accommodations provided by the school during that year serve to create a further gap in the allegations.

19The allegations pertaining to the failure to provide a “proper IPRC” and the failure to provide a copy of the parent’s guide to special education are examples of issues under the Education Act, R.S.O. 1990, c. E.2, that, in my view, are not a sufficient basis, in and of themselves, to support an allegation of a violation of the Code: see Schafer v. Toronto District School Board, 2010 HRTO 403. I express the same view regarding the allegation pertaining to the May 26, 2004 IPRC meeting, at which it is alleged that no explanation was provided for the change in A.C.’s exceptionality to “multiple”.

20Once we get to October 2004, when A.C.’s parents state that they received A.C.’s IEP for the 2004-05 year, I find that there are specific allegations regarding the school’s failure to accommodate A.C.’s needs, by drastically reducing the support that had been provided to him in the previous school year and by drastically reducing or failing to consistently provide required accommodations. These allegations, if proven at the hearing, may, in my view, be sufficient to support a finding of a violation of the duty to accommodate under the Code and lead directly into the allegations regarding the 2005-06 school year. Accordingly, I find that the allegations relating to the 2004-05 school year pertaining to A.C. and the failure to properly or sufficiently accommodate his needs do form part of a series of incidents that extends to and includes the allegations relating to the 2005-06 school year, and therefore the allegations pertaining to the 2004-05 school year are not untimely.

21Having found that the allegations in respect of D.S. pertaining to the school years prior to 2005-06 and the allegations in respect of A.C. pertaining to the school years prior to 2004-05 do not form part of a series of incidents that extends to the allegations pertaining to the 2005-06 school year, I find that these allegations are beyond the one year period prior to the filing of the underlying complaints and are therefore untimely within the meaning of s. 34(1) of the Code.

22Having made this finding, I next need to address s. 34(2) of the Code, which states that a person may nonetheless apply to the Tribunal after the expiry of the one year time limit, if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23In 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.

24In the instant case, no explanation has been provided by the complainants or the Commission regarding the delay in raising the untimely allegations. As a result, as no reasonable explanation has been provided to justify the delay in proceeding with the untimely allegations, I do not find that the delay was incurred in good faith as that phrase has been interpreted by this Tribunal. As both good faith and a lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for me to consider the question of whether any substantial prejudice would be caused to the respondent.

25As a result, the hearing in this matter will be restricted to consideration of the allegations raised by D.S. relating to the 2005-06 school year and to consideration of the allegations raised by A.C. relating to the 2004-05 and 2005-06 school years.

26The respondent Board also has requested an order prohibiting the Commission and the complainants from calling evidence relating to events preceding the period which is one year prior to the filing of the underlying complaints. In my view, such an order is not warranted. Having said that, any evidence led in this proceeding by the Commission and the complainants must be relevant to the allegations that the respondent Board failed to fulfil its duty to accommodate D.S.’s needs in the 2005-06 school year and A.C.’s needs in the 2004-05 and 2005-06 school years.

27With regard to D.S., I find that evidence pertaining to his experience in the 2000-2001 and 2001-02 school years is not relevant to the issue of whether his rights under the Code were violated in the 2005-06 school year. However, evidence relating to meetings attended by D.S.’s parents with the school and communications with the school in the spring of 2005 pertaining to their decision to return D.S. to the school in the fall of 2005 may be relevant to the issue of whether D.S.’s rights under the Code were violated in the 2005-06 school year, and I will allow the introduction of such evidence.

28With regard to A.C., I find that evidence pertaining to his experience in the school years preceding 2003-04 is not relevant to the question of whether his needs were appropriately accommodated in the 2004-05 and 2005-06 school years. With regard to the 2003-04 school year, I find that evidence regarding the supports and accommodations provided to A.C. may be relevant to my determination as to whether A.C.’s rights were violated in subsequent school years, as it is alleged that necessary supports and accommodations that were provided in the 2003-04 school year were subsequently reduced or withdrawn. As a result, I will hear evidence regarding the supports and accommodations provided to A.C. during the 2003-04 school year for this purpose.

Case Management

29The Tribunal received correspondence from the Commission dated September 16, 2010 seeking direction from the Tribunal regarding the conduct of the hearing in this matter. Specifically, the Commission requested direction regarding the witnesses the Tribunal wishes to hear, and the Tribunal’s expectation as to the length of time for each witness’s evidence.

30This proceeding already has been bifurcated, such that the only issue to be determined at the hearing as currently scheduled is whether or not the respondent Board has violated the complainants’ rights under the Code. The Commission’s hearing brief indicates that the Commission and the complainants intend to call two witnesses in their case in chief, D.S.’s mother L.S. and A.C.’s mother P.S.-C. The respondent Board has not yet indicated what witnesses it intends to call in response.

31The Tribunal proposes the following process for the hearing as currently scheduled. The Tribunal will not require opening statements, as it already is fully familiar with the issues raised and the positions of the parties from the material filed to date.

32The Tribunal proposes that the Commission and the complainants prepare complete statements of all of the evidence proposed to be given by their two witnesses together with all supporting documents, and for these statements and documents to be filed within three weeks of the date of this Decision.

33With regard to the evidence of L.S., her statement of evidence should address at least the following points:

a. What accommodations were requested for D.S. prior to his return to the school in September 2005;

b. To what extent can these requests for accommodation be regarded as needs related to or arising from D.S.’s disabilities;

c. During the period that D.S. attended the school from September 2005 to October 11, 2005, how specifically is it alleged that the school and the respondent Board failed to meet D.S.’s needs, and to what extent were any such deficiencies identified and raised with the respondent Board at the time;

d. Why was D.S. not able to attend the school on a full-time basis as requested by the school, and in particular why is it alleged that this was too difficult and not appropriate for his needs as stated in paragraph 29 of the Commission’s hearing brief;

e. How specifically did the draft IEP sent to D.S.’s parents in January 2006 fail to meet D.S.’s needs related to or arising from his disabilities, and to what extent were any such deficiencies identified and raised with the respondent Board at the time;

f. How specifically did the draft IEP sent to D.S.’s parents in February 2006 fail to meet D.S.’s needs related to or arising from his disabilities, and to what extent were any such deficiencies identified and raised with the respondent Board at the time; and

g. How specifically did the draft IEP and other material prepared by Mr. Grand in March 2006 fail to meet D.S.’s needs related to or arising from his disabilities, and to what extent were any such deficiencies identified and raised with the respondent Board at the time.

34With regard to the evidence of P.S.-C., her statement of evidence should address at least the following points:

a. What accommodations were requested for A.C. prior to and for the purpose of the 2004-05 school year;

b. To what extent can these requests for accommodation be regarded as needs related to or arising from A.C.’s disabilities;

c. During the 2004-05 school year, how specifically is it alleged that the school and the respondent Board failed to meet A.C.’s needs, and to what extent were any such deficiencies identified and raised with the respondent Board at the time;

d. How specifically did the IEP sent to A.C.’s parents in October 2004 fail to meet A.C.’s needs related to or arising from his disabilities, and to what extent were any such deficiencies identified and raised with the respondent Board at the time;

e. What accommodations were requested for A.C. prior to and for the purpose of the 2005-06 school year;

f. To what extent can these requests for accommodation be regarded as needs related to or arising from A.C.’s disabilities;

g. During the 2005-06 school year, how specifically is it alleged that the school and the respondent Board failed to meet A.C.’s needs, and to what extent were any such deficiencies identified and raised with the respondent Board at the time;

h. How specifically did the program plans prepared by Mr. Grand following the March 2006 meeting fail to meet A.C.’s needs related to or arising from his disabilities, and to what extent were any such deficiencies identified and raised with the respondent Board at the time.

35The intention of these complete statements of evidence is that they should cover all of the evidence that the Commission and the complainants intend to provide in their case-in-chief. The Tribunal nonetheless proposes to allow these two witnesses one hour each at the hearing day on November 24, 2010 to speak to their statements. The Tribunal further proposes to allow one and a half hour each for cross-examination of these witnesses. In conducting cross-examination, the respondents would not be required to comply with the rule in Browne v. Dunn, as these two witnesses would have an opportunity to respond to contrary evidence in their statements of evidence and oral evidence. If some new and unanticipated contrary evidence arises at the hearing, this could be addressed by these two witnesses in reply evidence. It is the Tribunal’s intention that the Commission’s and complainants’ case-in-chief, including cross-examination and any re-examination, would be completed at the hearing day on November 24, 2010.

36With regard to the respondent’s evidence, the Tribunal would like to hear from the school principal Mr. Gillies, the special education teacher Ms. Ayers-Toong, the superintendent of education Mr. Grand, and perhaps also D.S.’s classroom teacher in the fall of 2005 and A.C.’s classroom teachers for the 2004-05 and 2005-06 school years. This direction is not intended to restrict the relevant evidence of any other witnesses the respondent wishes to call as part of its case.

37The Tribunal proposes that complete statements of evidence with supporting documents upon which these witnesses propose to rely be served on the Commission and the complainants and filed with the Tribunal within five weeks of the date of this Decision. The intent of these complete statements of evidence is that they fully respond to the allegations raised by the Commission and the complainants and the statements of evidence filed by the complainants’ mothers, and fully set out the evidence that the respondent Board intends to rely upon. Upon receipt and consideration of these complete statements of evidence and documents, the Tribunal would set time estimates for any supplementary evidence in chief to respond to the oral evidence given by the complainants’ mothers and for the completion of cross-examination. It is the intention of the Tribunal that the respondent’s evidence, including cross-examination and any re-examination, would be addressed and completed at the hearing day on December 2, 2010, as well as any reply evidence from the Commission or the complainants. At the conclusion of the evidence, the Tribunal would discuss with the parties an appropriate process for receiving final submissions and argument.

38In setting time estimates for examination and cross-examination, the Tribunal notes that these are estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then the Tribunal would hear from counsel or the party what further areas of evidence they believe they need to cover to complete the examination or cross-examination and the Tribunal would rule on what further evidence it wishes to hear.

39If the parties have any submissions regarding the hearing process proposed by the Tribunal, they shall make these submissions within one week of the date of this Decision.