A. P. v. Toronto District School Board, 2010 HRTO 818

Human Rights Tribunal of Ontario

Between:

A. P. by his litigation guardian, G. P. Applicant

-and-

Toronto District School Board Respondent

Decision

Adjudicator: Janice Sandomirsky Date: April 14, 2010 Citation: 2010 HRTO 818 Indexed as: A.P. v. Toronto District School Board

Appearances By:

A. P., Applicant ) G. P., Litigation Guardian Toronto District School Board, Respondent ) Kate Waters, Counsel

1This Application was filed on April 24, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent filed a Request for an Order during Proceedings seeking early dismissal of the Application on the basis of delay, section 45.1, issue estoppel and abuse of process. The parties filed written submissions and also made oral submissions at a preliminary issue hearing held on March 8, 2010.

2At the outset of the hearing the litigation guardian requested that the name of the applicant be anonymized on the basis that the applicant is a minor. The respondent had no objection. I agreed to the request. Given the litigation guardian is the applicant's father and shares the same surname, the anonymization order includes his name as well. The Tribunal's communications to the parties from this point forward, and any decisions in this matter, will use initials in place of the names of the applicant and the litigation guardian.

Background

3The litigation guardian claims that the respondent discriminated against the applicant on the basis of disability in the provision of educational services. The relevant chronology of events is as follows:

a. On October 20, 2005, the applicant, a grade 8 student, was allegedly involved in an incident with other students which led to him being suspended for 45 days between October 24 and December 23, 2005.

b. The applicant attended at the Alternative to Suspension program ("A2S") from November 7 to the end of the expulsion period. He enrolled in a different junior high school beginning in January 2006.

c. The litigation guardian appealed the discipline decision to the Committee of Board of Trustees (the "Committee"). A hearing was held on October 3, 2006. The Committee rendered an oral decision upholding the discipline decision, and issued a written decision on March 28, 2007.

d. The litigation guardian filed an appeal of the Committee's decision to the Child and Family Services Review Board ("CFSRB"). A hearing was held on June 13, 2007, to consider jurisdictional arguments. On September 17, 2007, the CFSRB issued a preliminary decision finding it had the jurisdiction to hear the appeal.

e. The applicant tried to enrol in his home school in April 2007, but was excluded from doing so for reasons related to the expulsion in 2005.

f. On November 21, 22, and 23, 2007, the CFSRB held a hearing de novo into the October 20, 2005, incident. In a decision dated March 21, 2008, the CFSRB overturned the discipline decision and ordered that any record of the expulsion be expunged.

Was there a delay?

4The Tribunal's power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides that:

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 section 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.

5This section ensures that human rights applications are addressed in a timely manner by setting a limitation period of one year, absent a good faith reason for a delay. Therefore, the first question to determine is whether the applicant filed the complaint within one year after the incident to which the application relates, or if there was a series of incidents, within one year of the last incident in the series.

6In this case, the litigation guardian, on behalf of the applicant, filed the complaint underlying this Application on November 11, 2007. The complaint identifies September 17, 2007, the date the CFSRB decided it had the jurisdiction to hear an appeal, as the last incident where the respondent contravened the Code. In the written submissions, the litigation guardian identifies a continuing series of incidents, starting with the expulsion in October 2005, and concluding in March 2008, when the decision to expel was overturned. He submitted that the original complaint was filed while the expulsion appeal process was still in progress and within five months of the time he requested to attend his home school and was not permitted to do so.

7The respondent takes the position that the complaint was filed more than two years after the material incident, which was the expulsion in 2005. Even assuming a series of incidents, the respondent submits that the last incident where there might have been an issue regarding the provision of services was the last day the applicant attended the A2S program at the end of 2005.

8I find that there was a delay in filing the complaint in this case. The original complaint was filed more than two years after the applicant was expelled from school. The expulsion resulted in a number of decisions about the applicant's school placement and was the basis of the allegation of discrimination in the provision of educational services. I am not satisfied that the subsequent events identified in the Application, including the incident involving the application to attend the home school in 2007, can be characterized as a series of discriminatory incidents, but rather relate to the steps taken by the litigation guardian to respond to and dispute the original expulsion decision.

Was the delay incurred in good faith?

9The Tribunal has no authority to consider an application that is filed more than one year after the alleged discriminatory incident unless the applicant can establish that the delay was incurred in good faith.

10The onus on the applicant to establish a good faith explanation for the delay under section 34(2) requires more than proving the absence of bad faith: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. At a minimum, this requires that the applicant provide some reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424. The Tribunal has held that, where the applicant has clearly been active in pursuing litigation involving the same respondent in a number of processes and has given no valid reason he could not pursue his rights under the Code in a timely manner, the delay cannot be considered to be in good faith: Dokis v. Lambton (County), 2009 HRTO 975.

11In this case, there is no issue that the litigation guardian was very active in pursuing his objection to the expulsion decision. It is clear that he never thought that the expulsion was appropriate and exercised every avenue of review available; ultimately, he was successful in having the decision overturned. However, as stated in Dokis, supra, pursing litigation in a number of other processes does not establish a good faith explanation for failing to pursue allegations of discrimination under the Code in a timely manner.

12As a result, I cannot conclude that the delay was incurred in good faith. Having reached this conclusion I do not need to consider the issue of whether the respondent experienced prejudice as a result of the delay: Corrigan, supra. Nor do I have to consider the other grounds argued by the respondents for dismissal of this Application.

13The Application is dismissed for delay.