Schafer v. Toronto District School Board, 2010 HRTO 884

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eli Schafer by his litigation guardian Reva Schafer

Applicant

-and-

Toronto District School Board, Georgina Balascas, Deb Massey and Rick Tarasuk

Respondents

reconsideration DECISION

Adjudicator: Kaye Joachim

Date: April 23, 2010

Citation: 2010 HRTO 884

Indexed as: Schafer v. Toronto District School Board

1This Decision addresses a Request for Reconsideration of the Tribunal’s Decision 2010 HRTO 403 dated February 23, 2010 dismissing the Application on the basis that the applicant had not established that that he had been discriminated against with respect to educational services on the basis of disability.

2On March 11, 2010, the applicant filed a Request for Reconsideration under section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”). Section 45.7 of the Code provides:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

3Rule 25 of the Tribunal’s Rules of Procedure for Transitional Applications provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

4The basis of the Request for Reconsideration is alleged jurisdictional confusion, misuse and misapplication of the legal tests for discrimination, omission of relevant evidence, failure to consider the public interest and lack of natural justice and procedural fairness.

Jurisdictional Confusion

5The applicant alleges that the Tribunal focused inappropriately on whether the respondents complied with the Education Act rather than with the Code. I disagree. I specifically stated at paragraph 15 of the Decision that “it is not the role of this Tribunal to oversee the implementation of the Education Act”. I did consider the interrelationship between these two statutes but I determined only whether the Code had been complied with. I concluded that it had.

Wrong Legal Test

6The applicant alleges that I applied the wrong legal test of discrimination. I held that the respondents must establish that they complied with their procedural and substantive duty to accommodate. I fail to see how this is the wrong legal test and the applicant has not pointed to me any case law to support her position.

7The applicant asserts that I failed to consider whether the respondents had established undue hardship. The issue of undue hardship did not arise in this case. I found that the respondents had in fact met their duty to accommodate, not that they were excused from meeting their duty because to do so would cause them undue hardship.

8The applicant asserts that I placed the onus on the applicant to prove a failure to accommodate. To the contrary, I stated in paragraph 14 of the Decision:

In special education cases, it is self-evident that a child with special needs is unable to access the education system equally without accommodations. Generally the burden will rest with the respondent school board to establish the procedural and substantive steps they have taken to accommodate the child’s special needs.

Omission of relevant evidence

9The applicant submitted Ministry documents about provincial education trends in the development of Individual Education Plans. Those documents do not affect my analysis and decision. These documents are neither potentially determinative of the case nor are they document that could not reasonably have been obtained earlier.

Public Interest

10The applicant asserts that I failed to recognize the public importance of using the Code as a mechanism to achieve equality in education for children with special needs. The criteria for reconsideration is more that the decision raises a matter of public importance. Rule 25.5(c) requires that the decision which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.

Natural Justice and Procedural Fairness

11The applicant asserts that the Tribunal made its final Decision available to the public prior to issuing it to the applicant and this is procedurally unfair. However, that is not the case. The Tribunal has addressed this issue in prior correspondence to the applicant. The Tribunal sent the final Decision, as it did all previous Interim Decisions in this matter, by courier to the applicant’s mother’s home address. The Decision was sent to both parties the same day. The applicant asserts that she did not receive the courier notice and therefore did not pick up the Decision in a timely fashion. Rather, she learned of the Decision from another source. That is unfortunate; however, the Tribunal did not circulate the Decision to any person prior to sending the Decision to the parties.

12The Request for Reconsideration is denied.