Campbell v. Toronto District School Board, 2010 HRTO 783

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Campbell by his Litigation Guardian Jacqueline Lewis-Campbell

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 8, 2010

Citation: 2010 HRTO 783

Indexed As: Campbell v. Toronto District School Board

1The Tribunal is in receipt of a Request for a Tribunal Ordered Inquiry.

2It is unnecessary for the other parties to provide a response. The Request is denied.

3The Tribunal has the authority to order an inquiry by section 44 of the Code in certain circumstances:

44. (1) At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,

(a) an inquiry is required in order to obtain evidence;

(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and

(c) it is appropriate to do so in the circumstances.

4The Tribunal has not yet exercised the power granted in this section of the Code and has yet to determine the circumstances where such an inquiry will be appropriate. However, a Tribunal ordered inquiry will not be a routine event and will not be a substitute for the usual production process contemplated by the Rules. In the normal course the parties are required to produce all arguably relevant documents in their possession. If the parties cannot agree or if one party has reason to believe that there are documents in the possession of a party or other person that have not been produced, the Tribunal has the authority to order the production of materials.

5The reasons given for the Request include concerns about inadequate disclosure. This is not a basis for granting a request under section 44. These concerns could have been raised through the usual production process. In any event, it is simply too late to raise them now, on the eve of the conclusion of the hearing. As the Tribunal has noted before, the parties received disclosure of the respondent’s documents in early 2008. No issues about inadequate production were raised prior to the hearing. During the course of the hearing, the Commission and the complainant’s litigation guardian have been given several opportunities to review the Board’s documents and their own, and to raise any concerns.

6The Request also makes submissions about the identification of the complainant, and asserts that the Tribunal’s decision to limit the scope of the present hearing to exclude the issue of identification can “no longer be upheld.” In this respect, the Request appears to ask the Tribunal to change the scope of the issues before it.

7The Tribunal sees no reason to consider this submission. The Tribunal’s interim decision of September 2, 2008, Campbell v. Toronto District School Board, 2008 HRTO 62, made findings about the scope of the issues to be heard. Reconsideration of that decision was denied in Campbell v. Toronto District School Board, 2008 HRTO 423. There is no basis to re-open the Tribunal’s determinations.

8The Request is denied.

9After the above reasons were drafted, the Tribunal received correspondence from counsel for the respondent. Given my ruling on the Request, it is unnecessary to address the respondent’s submissions on the Request.

10The Tribunal will address the respondent’s request that it should prohibit Ms. Marinac-Jaffer from appearing as the complainant’s representative when Ms. Marinac-Jaffer arrives at the hearing. Ms. Marinac-Jaffer should be prepared to address whether she is an individual who “occasionally provides assistance to a friend or relative for no fee” and to respond to the respondent’s question about whether her role as advocate for a number of families before the Special Education Tribunal qualifies her for this exemption.

11The other issues raised by the respondent will be addressed by the Tribunal at the hearing if necessary. The parties are reminded of the Tribunal’s powers to:

• give directions to prevent abuse of its processes
• limit examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding and
• exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.