HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
D.R. by his Litigation Guardian S.R.
Applicant
-and-
Toronto District School Board; Verna Lister; Ira Applebaum; Louise Ouimet and Kathy Chiu
Respondents
Interim decision
Adjudicator: David Muir
Indexed as: D.R. v. Toronto District School Board
Written Submissions
D.R by his Litigation Guardian, Applicant ) Vickie McPhee,
) Representative
Toronto District School Board; )
Verna Lister; Ira Applebaum; ) Glorie Alfred,
Louise Ouimet and Kathy Chiu , Respondents ) Counsel
1This is an Application filed June 30,2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that his right to be free from discrimination in the provision of services on the basis of sex, ancestry, colour, ethic origin, race and reprisal were infringed by the respondents. This Interim Decision deals with two issues: first, whether it would be fair, just and expeditious to entertain further largely “similar fact” evidence in this case; and, secondly whether the applicant should be allowed to summons a witness, a former respondent, Stephanie Payne. For the reasons set out below I have concluded that it would not be appropriate to entertain further evidence in this case.
Background
2A hearing respecting this Application was held of over a number of days in October 2010 and January 2011. The evidence was closed subject to the resolution of the two issues set out above. The issue with respect to the evidence of Ms. Payne arose at the end of the respondents’ case when the respondents confirmed that they were not intending to call the then respondent Payne as a witness. The applicant indicated that he wanted to question Ms. Payne. After some discussion I directed that the most fair, just and expeditious manner of proceeding was for the parties to make written submissions on whether the pleadings and evidence tendered to that point established a prima face case of discrimination on the part of Ms. Payne. In 2011 HRTO 441 I determined that the evidence tendered did not disclose a prima facie case of discrimination by Ms. Payne and the Application was dismissed as against her.
3The applicant now indicates that he wants to summons Ms. Payne to give evidence with respect to the allegation made in the complaint that Ms. Payne did not respond to the applicant’s concerns. The only allegation which implicates Ms. Payne is paraphrased as follows:
a. The applicant alleges that his mother and others organized a community meeting (to discuss issues of concern in the school) with Ms. Payne and the respondent Lister. The applicant alleges that his mother was appalled at the actions and responses of the Trustee and her assistant. The applicant alleges that although the parents were promised a response from Ms. Payne and the respondent Board after the holidays none were ever received.
4The other issue had been identified prior to the hearing when the applicant proposed calling a number of witnesses with no direct knowledge of the allegations in the complaint but who appeared to be proposed by the applicant for purposes of giving “similar fact” evidence. In a Case Assessment Direction dated October 7, 2010, I directed, pursuant to my authority under Rules 4.3(e) and (h) to determine the order in which evidence will be presented and issues determined, that I would not hear the evidence of the “similar fact” witnesses at that stage. I further directed that after hearing the evidence of the other witnesses identified by the parties I would entertain their submissions on the following points:
a) Whether it is appropriate for the Tribunal to hear any further evidence;
b) Whether it is appropriate in all the circumstances to hear similar fact evidence having regard to the issues raised in the complaint;
c) Whether the systemic issues raised in the will-says such as the alleged streaming of black children are appropriately raise in this Application and whether further evidence is required on this issues;
5There are two issues for determination. One being whether, having determined that there is no prima facie case of discrimination made out as against Ms. Payne, it would be appropriate to now entertain her evidence under summons served on her by the applicant. The second issue is whether or not it would be appropriate to allow the applicant to lead further “similar fact” evidence.
6The starting point in a discussion of either issue is the allegations made in the human rights complaint filed with the Ontario Human Rights Commission on June 5, 2007. In that complaint alleging discrimination in the provision of services on the basis of sex, ancestry, colour, ethic origin, race and reprisal, the applicant provided the following particulars:
a. The applicant alleges that the respondent Applebaum caused an Occurrence Report (Report) to be created which implicated him an occurrence. The applicant alleges that the author of the Report was instructed by Applebaum to observe and document his actions for a period of time. The applicant alleges that the Report was part of a pattern of differential treatment of him on the basis of sex, ancestry, colour, ethic origin and race. The applicant alleges that the only child not identified by name in the Report was white. The applicant alleges that all of the other children identified were racialized persons, of African heritage or of dual culture.
b. The applicant alleges that his mother became aware of the Report at a parent teacher interview and was asked to discuss it then with his home room teacher and not the author.
c. The applicant alleges that his mother made an appointment to speak with Applebaum and the author of the Report but that the author did not attend. The applicant alleges that his mother was offered a false explanation for the author’s failure to attend.
d. The applicant alleges that when his mother asked about the purpose of the Report and what the author wanted to accomplish with it, the respondent Applebaum stated that he would ask the author.
e. The applicant alleges that when he was assaulted by two Grade 5 students in October 2006, no Occurrence Report was created although the respondent Applebaum initially stated that one had been created. In contrast to that circumstance, the applicant alleges that when he does something immediate action is taken against him.
f. The applicant alleges that his mother advised the respondent Applebaum that she would be withdrawing him from Ouimet’s classroom until the letter was discussed.
g. The applicant alleges that the respondent Applebaum offered to destroy the Report if that is what his mother and father “would like”.
h. The applicant alleges that his mother and others organized a community meeting with the respondents Payne and Lister on December 14, 2006. The applicant alleges that his mother was appalled at the actions and responses of the Trustee and her assistant. The applicant alleges that although the parents were promised a response from Ms. Payne and the respondent Board after the holidays none had been received by mid-January.
i. The applicant alleges that on December 22, 2006 his mother contacted the school to remind them that there was no day care for the students that day and that he needed to be reminded to get on the Home bus at the end of the day and not the bus that would take him to Day Care. The applicant alleges that the message was never delivered to him and as a result he got on the wrong bus and was lost for a period of time. The applicant alleges that inappropriate handling of this was deliberate and caused him and his family considerable distress.
j. The applicant alleges that his mother received a harassing phone call from respondent Applebaum on January 15, 2007 enquiring about his whereabouts.
k. The applicant alleges that his mother learned by accident on January 17, 2007 that he had been removed from a jazz class the prior October. The applicant alleges that the instructor for the program did not think he was participating in the class but did not speak to him or his parents about her concerns.
l. The applicant alleges that he was assaulted in October 2006 but that respondent Applebaum reported that no assault had taken place. The applicant alleges that among his assailants were school peer mediators. The applicant also alleges that the respondent Applebaum told his mother that one of the children was punished but that he would not tell her who.
m. The applicant alleges that on April 27, 2007 he was assaulted by a student at school. He further alleges that he was picked up by Applebaum and taken into the school, restrained by him causing him further pain. The applicant alleges that he was eventually released and given a detention. The applicant also alleges that he was assaulted by Applebaum on another occasion when he walked through the wrong door.
n. The applicant alleges that his mother asked Applebaum for the curriculum for the Grade 3 computer course. The applicant alleges that Applebaum responded that she could not have it and he did not teach that course.
o. The applicant also alleges that the respondent Applebaum harassed and interfered with his mother’s attempts to resolve these issues by intruding in conversations with other staff and other actions.
Similar Fact Evidence
7The law with respect to when it would be appropriate to entertain similar fact evidence is set out in Sinclair v. London (City) 2008 HRTO 48, the relevant portions of which are set out here:
While there is a general rule against admission of evidence relating to a person’s character or reputation, the Commission argued that this evidence properly falls within an exception to that principle permitting the admission of “similar fact evidence”. Evidence of similar facts will be admitted if the probative value of the evidence outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, 2002 SCC 56; Chacko v. Transpharm Canada Inc. (c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11 at para. 11. This requires a weighing by the Tribunal of the benefits of the evidence in assisting the Tribunal in determining the issues before it against the potential prejudice to the hearing process and the party whose character is placed into question through such evidence.
Various factors may affect this balancing process, depending upon the issues in the case: see Handy, supra at paras. 49-97. Probative value often, but not always, arises from the degree of similarity of the alleged similar facts in relation to the disputed issues in the case. Prejudicial effect generally arises from the fact that it may lead to distraction from the central issues in the case, inordinate consumption of hearing time, and reasoning based on the general character of a witness. As noted by the Supreme Court, “[i]ts potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value”.
The balancing of probative value against prejudicial effect, developed primarily in criminal cases such as Handy, must be applied with consideration of the nature of human rights cases and the values relevant to human rights proceedings. These include the fact that discrimination is often subtle and may be difficult to prove, and that a pattern of conduct may be particularly probative in many human rights cases. At the same time, the Tribunal is committed to fair, just and expeditious resolution of human rights cases, and the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case. There is also often prejudice to respondents in having to defend themselves against allegations that never formed the subject matter of human rights proceedings at the time they occurred. These factors must be taken into account in the balancing analysis.
8The applicant states that it would be appropriate to entertain the similar fact evidence because the respondents have already heard the evidence at the December 14, 2006 community meeting and did not respond to it:
All the respondents were well aware that there were a number of parents from a specific community; all racialized parents; Parents of Black student alleging discrimination and differential treatment. All the respondents had a role to address such serious allegations. Respondent Payne as an elected Trustee had a role in addressing these parents concerns. Her lack of acknowledgement and response begs the answer to the questions;
Has there ever been a community of parents from any other ethnic group alleging racism, discrimination and differential treatment at a school in her Ward?
Why did trustee Payne ignore all the parents from the Community Meeting in December 06?
Why did trustee Payne ignore the Applicant’s Litigation Guardian Mrs. Richards?
Why was trustee Payne not working with her Superintendent; respondent Lister to assist parents?
9The applicant takes the view that the discrimination he experienced was part of a systemic pattern of discriminatory treatment of racialized children at the hands of the respondent Board and Lamberton Public School. This underlying position is reflected in the positions taken on the similar fact evidence issue as well as the allegations of discrimination flowing from the community meeting on December 14, 2007 which I have previously dealt with.
10It is important to recall from the outset the scope of this Application and consequently the issues that can be addressed. The evidence which the Tribunal is able to entertain is defined by the subject matter of the complaint. It is also important to note that the applicant is the party making the allegations, not his litigation guardian or the other parents of children at the school at the time. The substance of this Application are a number of allegations of differential treatment of one student by a number of individuals associated with the school he attended, principally the respondent Applebaum, and less centrally so, Ouimet, Chiu, Lister and Payne. There are no systemic issues raised and clearly no allegation that D.R. or anyone else was being streamed.
11The evidence the applicant proposes to call through five additional witnesses, three former students and two parents, was described in general terms by the applicant as follows:
All witnesses will speak to the knowledge and experience explaining similar or the same pattern of denial of educational services provide by Mr. Ira Applebaum, Verna Lister, Stephanie Payne and or all Respondents for Tribunal File # TR-0945-09. In addition each witness will speak to their experience and knowledge of racism, differential treatment, harassing and streaming of young black children, specifically their own at Lamberton Public School.
12More specifically the three proposed parent witnesses were each expected to speak to the events of the community meeting, and issues of alleged differential treatment of their children in particular allegations that their children were streamed by the school. The parents are also expected to give evidence of alleged differential treatment of their children in the form of unfair discipline and other treatment allegedly intended or having the effect of damaging their children’s self-esteem and engendering a dislike of school.
13One of the student witnesses is expected to give evidence of an alleged assault by the respondent Applebaum and other allegedly differential treatment in the form of unfair discipline. The other student witness is expected to give evidence that the respondent Applebaum called him to a room with a piano and asked him to play, and on another occasion played a CD for the student. He is also expected to say that the respondent Applebaum told him not to play with the applicant, allegedly his best friend at the time. Both students are expected to give evidence that the respondent Applebaum called them to the office often for no reason.
14After considering the factors outlined in Sinclair above, I am not satisfied that it would be appropriate to entertain the evidence of the five additional witnesses the applicant has proposed calling. To begin with, as set out above, the complaint forming the subject matter of this Application did not raise systemic issues of race discrimination in the Board generally or Lamberton Public School in particular. The applicant’s litigation guardian may sincerely believe that systemic concerns were at play at the school, however that it not how the complaint was framed and there is simply no basis in the complaint to find that such issues are a part of this Application. Accordingly, such evidence is not relevant to the issues in this case per se, except of course to the extent that any evidence would be admissible under the test for admissibility of similar fact evidence.
15As regards the evidence with respect to the December 14, 2006 meeting, to the extent that such evidence has not already been given by the applicant’s litigation guardian and Ms. Lister, such further evidence can only relate to systemic issues beyond the scope of this Application or issues of concern to the other proposed witnesses which again are beyond the scope of this Application.
16As for the other evidence of differential treatment of two other students of the school, I am not satisfied that the minimal value of such evidence outweighs the significant prejudice in the respondents having to answer un-particularized allegations from four or more years ago which are being raised now for the first time. More specifically, in the context of the evidence I have heard in this case, the probative value of, for example, several allegations of unfair discipline as against two other racialized students would be extremely low as compared to its prejudicial effect. Such evidence would not assist me in this case in evaluating the specific treatment of the applicant or in making comparative evaluations of potential differential treatment of the applicant as against the broader student body.
The evidence of Ms. Payne
17The question of Ms. Payne’s role as a respondent in this Application has been raised on a couple of occasions. In a Case Assessment Direction dated October 7, 2010 I indicated to the parties, in the context of a broader discussion of the scope of the Application and the applicant’s proposed witnesses. that it was unclear at that stage how the incident described above could give rise to Code concerns. The issue came up again at that the end of the hearing when the respondents indicated that they would not be calling Ms. Payne as a witness.
18The applicant’s allegations with respect to Ms. Payne relate entirely to a community meeting organized by the applicant’s mother and other parents. The purpose of the meeting was to discuss with Ms. Payne, the school Trustee and Ms. Lister, issues of concern to the parents at the school. The applicant did not attend the meeting and it is not clear that he was even aware of it at the time. At the hearing the applicant’s mother testified that the meeting was a success but for what she described as her disappointment that the respondent Payne did not get back to the parents as promised at the meeting. The applicant’s mother elaborated that there were serious allegations made by a number of parents and they were told that the respondents Lister and Payne would get back to them after the respondent Payne returned from being away. The applicant’s mother testified that so far as she is aware the respondent Payne did not ever provide a response to the concerns raised at the public meeting. The respondent Lister did give evidence about her involvement in the meeting and its aftermath. She was cross-examined by the applicant.
19The question of whether or not the evidence established a prima facie case of discrimination against Ms. Payne was dealt with in 2011 HRTO 441. The applicant evidently disagrees with that decision and believes that if the respondent Payne was called upon to give evidence, her evidence would support his position that she and therefore the respondent Board had discriminated against him in not responding appropriately to the concerns expressed at the meeting. However, in my view, that question has been dealt with in the earlier Interim Decision. That being the case, there would be no purpose served in hearing the evidence of Ms. Payne and pursuant to the authority granted in Rules 1.4(f) and (g) of the Rules of Procedure for Transitional Applications I will not hear the evidence of Ms. Payne.
11What remains are the parties’ final submissions addressing the ultimate question of whether the evidence supports the conclusion that the respondents have violated the Code. If there are any particular difficulties with the timelines below the parties may request an extension in writing:
a. the applicant will deliver and file his submissions on or before June 30, 2011:
b. the respondents will deliver and file their submissions on of before July 31, 2011
c. the applicant will deliver and file his reply, if any, on or before August 15, 2011.
12I am seized of this Application.
Dated at Toronto, this 7th day of June, 2011,
”signed by”__________
David Muir
Vice-chair