HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
S. L.-M. by his next friend H. L.
Applicant
-and-
York Region District School Board, Al Mainprize, Asah Rathod,
Clayton LaTouche, Jossette Sassoon, Kathy Williams,
Ruth Lambert and Scott Yake
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: S. L.-M. v. York Region District School Board
APPEARANCES
S. L-M. by his next friend H.L., ) Bob Ebrahimzadeh, Counsel Applicant )
York Region District School Board, ) Al Mainprize, ) Clayton La Touche, Jossette Sassoon, ) Brenda Bowlby, Counsel Kathy Williams, Ruth Lambert, and ) Scott Yake, Respondents )
Asha Rathod, Respondent ) No one appearing
1The applicant, who was initially self-represented, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on June 18, 2009 alleging discrimination in educational services on the basis of race, colour, ancestry, place of origin, ethnic origin, sex, family status and marital status. Attached to the Application was a 48 page document containing 128 paragraphs of allegations mostly in chronological order (“the chronology”). As a remedy, the applicant seeks $20 million from the respondents.
2A previous Interim Decision, 2010 HRTO 153, was issued by the Tribunal in January 2010 (“the January Interim Decision”) dismissing the Application against 5 individual respondents who were previously named. The allegations raised by the applicant did not pertain to those 5 individual respondents. The Application was dismissed against one of the personal respondents because the allegations against her were made by the applicant’s sister. The Tribunal noted in the January Interim Decision that the sister was not named as a party to the proceeding.
3The respondents have not yet filed a Response. In a Request for Order During Proceedings (“RFOP”) dated March 1, 2010, the respondents raised the following issues:
a) the allegations and remedies set out in the chronology pertaining to the applicant’s mother and his sisters should be dismissed as they are not applicants to the Application;
b) that particulars of 14 identified paragraphs be provided by the applicant; and
c) that the Tribunal extend the time for filing a Response.
4The corporate respondent also returned the Application sent to the individual respondent, Asha Rathod, at her work address because, at the time, she was on pregnancy leave and out of the country.
5On April 13, 2010, the applicant, who is now represented by counsel, filed a Response to a Request for an Order (“Response to RFOP”) as well as his own RFOP. In his RFOP, the applicant seeks to add his two sisters and his mother as applicants to the Application. In his Response to RFOP, the applicant asks the Tribunal to decide his request to add applicants before ruling on the respondents’ request to dismiss the allegations and remedies pertaining to his sisters and mother. He does not oppose the respondent’s request for an extension of time to file their Response.
6The respondents object to the adding of additional applicants on the basis that the allegations all fall outside the one year limitation period established by section 34(2) of the Code. The respondents also take the position that the applicant’s mother should not be named as an applicant because there are no allegations of discrimination specifically pertaining to her.
7In Interim Decision, 2010 HRTO 1141 (the “May Interim Decision”), the Tribunal scheduled a conference call hearing to address the following issues:
a) Should the applicant’s sisters and mother be added as parties?
b) Are the applicant’s sisters and mother prevented from proceeding with their allegations on the basis of delay and whether their delay was incurred in good faith?
c) The parties’ position on the particulars requested by the respondents in relation to paragraphs 5, 14, 21, 22, 65, 78 and 95; 6 and 10; and 8, 39, 41, 51 and 101 of the chronology.
d) Should the Application continue as against Asah Rathod?
8The parties were invited to deliver and file additional written materials in advance of the hearing. The applicant filed legal submissions and case law. The respondents did not file any further material.
9The conference call hearing was held on August 5, 2010 and the Tribunal heard submissions from the parties’ counsel. At the beginning of the conference call, the Tribunal identified the issues upon which it would hear submissions, as identified in para. 7 above, and stated that it had received additional material filed by the applicant. Counsel for the respondents stated that she had not received this material despite it being emailed to her on June 10, 2010 by the applicant’s counsel. She explained that a new data communication system was being used by her firm. The hearing was adjourned for 30 minutes to give counsel time to review the material. Counsel confirmed she had been provided with a sufficient amount of time to review the new material.
10During the conference call, the respondents’ counsel was satisfied with the details provided by the applicant in the Response to the RFOP and during the conference call hearing in relation to the respondents’ request for particulars. Accordingly, in these circumstances the Tribunal will not order production of any particulars.
Should the Applicant’s Sisters and Mother be added as Parties to the Application?
The Applicant’s submissions
11The applicant submits that his sisters, V. and S., and mother were always intended to be included as applicants. He did not file four separate Applications because the Application as filed was believed to have been filed on behalf of all four family members with the allegations constituting a series of events that affected them all. The applicant pointed out that the chronology contains a number of allegations beyond those of the applicant; family status is identified as being a Code ground upon which the Application is based, and the identified witnesses on the Application form demonstrate that the intention was to file the Application on behalf of all four family members. In his view, it does not matter that one individual’s allegations are out of time because all the family members were impacted by what happened to the other family members by the “series of incidents”.
12The Application was filed at the “11th hour” by the applicant’s mother who was following advice she had received from the Legal Support Centre in getting the Application filed and is not sophisticated in filing applications. The applicant’s mother wrote on the Application form that the Application may not be correctly completed, requested assistance in its proper completion, and indicated that she was filing it in its current form to have it filed within the Tribunal’s time limits. She did not obtain the written consent from the sisters, as required by Form 1C, because they were not with her when she filed the Application.
The Respondents’ Submissions
13The respondents dispute that there was an intention to file the Application on behalf of the four family members, submit that the Application was only filed on behalf of the applicant, S. L-M., and submit that four separate Applications should have been filed by the four family members with a request to consolidate. The sisters and mother cannot be added as applicants to the currently filed Application because an applicant cannot be added as a party on the request of another applicant. Unlike the consent that was filed by the applicant (the son), the sisters have not provided written consent to have an Application filed on their behalf. Further, the sisters are beyond the Code’s time limits to file an Application and the mother has not alleged in the Application or the chronology that the respondents discriminated against her personally.
Analysis
Who is/are the Applicant(s)?
14Without deciding whether an application can be filed on behalf of more than one applicant, I am satisfied, after reviewing this Application and supporting forms, that the applicant in this proceeding is S. L-M. and none of his other family members. Although the section 34 Application form names H.L. as the applicant, the completed Form 1-C identifies S. L-M. as being the applicant by his litigation guardian, H.L. Further, two Form 4s were filed, one dated “6/10/2009” and the other dated “16/6/2009”, and both clearly identify only S. L-M. as the applicant in response to question A1, which asks for the name of the minor’s name on whose behalf the Application is made, and question B1, which asks for the name and contact information of the person on whose behalf the Application is filed. The only consent to have the Application filed on his behalf was signed by S. L-M. Finally, I note that a header appears on each of the 48 pages of the chronology which identifies only S. L-M. as being “the complainant”. Accordingly, I find that the Application was filed only on behalf of S. L-M., the son, by his litigation guardian, H.L., his mother.
The Sisters
15Having found the sisters were never properly named as applicants to the Application, I must decide whether the applicant can now add them as parties to his Application. Again, I need not decide whether an Application can have multiple applicants because, in the circumstances of this Request, I am satisfied that I have no jurisdiction to add the sisters as parties because their allegations are based on events which occurred more than one year ago and there is no good faith explanation for the delay.
16Section 34 of the Code provides as follows:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under subsection 45.2,
(a)within one year after the incident to which the application relates; or
(b)if there was a series of incidents, within one year after the last incident in the series.
(2)A person may apply under subsection (1) after the expiry of the time limit under that subsection 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.
17The last allegation in the chronology pertaining to the applicant’s sister V. is para. 99, dated June 25, 2007, and is in relation to assessment tests conducted on her by her school. The last allegation pertaining to the applicant’s sister S. is para. 100, dated June 28, 2007, and alleges she was wrongly academically assessed. These allegations are almost two years before the Application was filed in June 2009 and almost three years before the RFOP to add the sisters as applicants was filed. Clearly these allegations, by themselves, are outside the one year limitation period established under the Code.
18While one or both of the sisters are referenced or referred to in paras. 103, 104, 117, 126, 127 and 128 of the chronology, after para. 100 there are no allegations about the sisters. Instead, the remaining chronology contains allegations entirely related to the applicant. Para. 128 concludes the chronology by stating:
Finally, my children had to leave [public school] again, in June, 2008 not by choice, but by force because of the terrible things that the Principals and teachers were doing to them at the school.
19In Pakarian v. Chen, 2010 HRTO 457, the Tribunal adopted the following definition of the word “series” as being “a number of things or events of the same class coming one after another in spatial or temporal succession”. Furthermore, although the Tribunal has not specified what size of time gap will interrupt a series of incidents, in one case it was noted that a gap of more than one year between incidents would, in most cases, interrupt the series. See Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.
20In the circumstances of this case, I do not see how the subsequent allegations about the applicant after 2007 fall within a “series of incidents” relating to or connected with discriminatory actions against his sisters. While I do accept that a “series of incidents” can pertain to more than one person, and that one applicant can be impacted by incidents that pertain to another person, I am not satisfied that the incidents described after the last allegations pertaining to the sisters fall within the same class. After para. 100, the allegations are about the applicant’s alleged behavioural issues for which the school suspended him and as such are in a different class of events than the faulty academic assessments which are the last allegations pertaining to the sisters.
21Further, I accept that H. L. may have decided to remove her daughters from the school board for a number of reasons, including the incidents that were allegedly happening to her son. However, other than the bald assertion that the children “had” to leave the school “not by choice, but by force”, there are no allegations that describe why the sisters were removed from the school or the school board, or even connect their departure to the actions that allegedly occurred to the applicant. Accordingly, I find that the allegations about the sisters are untimely. Therefore, I turn to whether their delay in raising these allegations was made in good faith as required by section 34(2).
22In order to satisfy the Tribunal that the delay was incurred in good faith, the individual must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants (in this case individuals) to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
23Other than submitting that any delay was incurred in good faith, for the reasons set out in paras. 10 and 11 above, the sisters did not advance any further explanation for the delay in filing applications pertaining specifically to them. I find that the sisters have not provided any information on which the Tribunal could conclude that the delay was incurred in good faith and accordingly they will not be added as applicants to this Application.
The Applicant’s Mother
24I need not determine whether or not Rule 1.7(b) and the Code permit the Tribunal to add applicants to an already filed Application as I have decided that the applicant’s mother will not be added as an applicant because her allegations are beyond the one year limitation period required by section 34(2).
25I disagree with respondents’ counsel’s submissions that there are no allegations set out in the chronology that the applicant’s mother was personally discriminated against by some of the respondents. There are allegations of harassment or discrimination against the mother contained in the chronology. (See, for example, but not limited to, paras. 20, 23, 51, and 71.) Para. 125 contains the last allegation made by the mother, in which she alleges that a suspension issued to the applicant in June 2008 was
triggered by a letter that I wrote to [the superintendent]… in response to a letter that she wrote me regarding my son….I believed that the suspension was a way of getting back at me….
26The mother’s request to be added as an applicant was not made until the applicant’s RFOP was filed in April 2010. This means the mother’s last allegations in the chronology occurred 22 months prior to requesting that she be added as an applicant. Even if I accept, without determining, that the mother’s allegations fall within a “series of incidents” in relation to her son, it is clear from the filed Application that the mother was aware that she was running out of time to file the applicant’s Application, let alone her own application, when she wrote, “Please note that today is the last day that I have to file. Time is running out on me…”. An application filed now on behalf of the mother is untimely.
27As with the submissions of the sisters, other than the position advanced in paras. 10 and 11 above, the mother did not advance any further explanation for the delay in filing an application pertaining specifically to her. I find that the mother has not provided any information on which the Tribunal could conclude that the delay was incurred in good faith and accordingly she will not be added as an applicant to this Application.
Continuing the Application against the personal respondent Asah Rathod
28During the conference call hearing, Ms. Bowlby explained that Ms. Rathod was on pregnancy leave and out of the country and had not received the Application. Ms. Bowlby was representing the other respondents for the purposes of the conference call hearing, and stated that she did not have instructions to confirm that the school board would be liable for Ms. Rathod’s actions if there was any violation of the Code.
29Mr. Ebrahimzadeh stated that if the school board assumed liability for Ms. Rathod, the applicant would agree to remove her as a respondent.
30At this point, the Application as against Ms. Rathod will continue. If the school board assumes liability for her actions, then her Response will be due at the same time as the other respondents’ Responses as set out below. If the school board does not assume liability for her actions, then Ms. Rathod will have 35 days from the date the Tribunal re-delivers the Application to her to file her Response.
Order
31The Tribunal orders:
The request to add additional applicants is refused;
The respondents, except for Ms. Rathod, have 10 days from the date of this Interim Decision to file their Response(s);
If the school board does not assume liability for Ms. Rathod, the tribunal will re-deliver the Application to her and she will have 35 days from the date the application is re-delivered to file her Response.
32I am not seized of this matter.
Dated at Toronto, this 29th day of November, 2010.
”signed by”________________
Alison Renton
Vice-chair