D.R. v. Upper Grand District School Board, 2011 HRTO 1187

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.R.

Applicant

• and-

Upper Grand District School Board and Linda Benalick

Respondents

-and-

Elementary Teachers’ Federation of Ontario

Intervenor

INTERIM decision

Adjudicator: Ena Chadha

Date: June 22, 2011

Citation: 2011 HRTO 1187

Indexed as: D.R. v. Upper Grand District School Board

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 17, 2011, alleging discrimination with respect to services, goods and facilities on the basis of disability. Although the Application cites “disability”, based on the narrative, it appears that the applicant’s concerns pertain to the respondents’ alleged discrimination of the applicant’s disabled son and the applicant’s family’s interactions with the respondents over the son’s education.

2The Tribunal notes that, in accordance with Rule 3.11.1 of the Tribunal’s Rules of Procedure, the Tribunal will use initials in its decisions to identify a child under age 18, the next friend of that child, and the names of other participants in the proceeding if necessary to protect the identity of the minor child.

3On April 14, 2011, the respondents filed a Response and identified the Elementary Teachers’ Federation of Ontario as an affected party.

4On May 3, 2011, the Tribunal issued a Notice to Affected Person noting that the Elementary Teachers’ Federation of Ontario (“Federation”) was identified as a party that may be affected by the Application.

5The purpose of this Interim Decision is to address a Request for intervenor status made by the Federation. The respondents consent to intervention by the Federation, while the applicant strenuously opposes the proposed intervention. The parties seek a decision on this matter prior to mediation.

BACKGROUND

6The applicant is the father of a 10-year boy who is a student enrolled in the respondent school board. The applicant’s son, J.R., has a developmental and intellectual disability. The Application alleges that J.R. and the applicant’s family have been subjected to mistreatment by J.R.’s principal, teachers, and the personal respondent, the superintendent of the respondent school board. The applicant alleges that the respondents have failed to understand J.R.’s needs, implied that police involvement may be necessary because of J.R.’s alleged conduct, attempted to block the applicant’s wife from attending school field trips with J.R., and suggested that J.R. be relocated to another school because of tension between the family and the school. Generally, the Application alleges that the school board’s teachers and administration have treated the applicant’s family in an unfair manner because of J.R.’s disability.

7The respondents deny the allegations of discrimination and submit that they have made all reasonable efforts to meet J.R.’s needs. The respondents allege that these efforts were often undermined by the parents’ aggressive and confrontational approach in communicating with the school and staff. The respondents allege that personnel involved in J.R.’s education were frequently judged as deficient by his parents who would insist that those individuals be excluded from further involvement with J.R.’s education. The respondents indicate that, in order to placate the applicant and his wife, the school acceded to the parents’ unreasonable demands, thereby effectively resulting in an expanding number of respondent staff excluded from dealing with J.R.’s education. The respondents allege that the parents have verbally attacked school staff and have behaved inappropriately in their interactions with the school. The respondents assert that the applicant’s allegations do not make out an arguable breach of the Code and that the personal respondent should be removed as a party to the Application.

PROPOSED INTERVENTION

8The Federation is the union providing professional and protective representation to all public elementary school teachers and education workers in Ontario, including the teachers directly and indirectly identified in the Application. The Federation submits that the factual and legal issues and, in particular the remedial requests, raised in the Application have ramifications for those individuals, as well as J.R.’s future teachers.

9The Federation points out that the Response confirms that the respondents have taken certain actions to appease the applicant, which have compromised the teachers’ interests and, therefore, the Federation seeks intervenor status in order to represent and protect the interests of its members. The Federation submits that the Application alleges that its members acted in an unprofessional manner and that only it is uniquely positioned to address these allegations. The Federation indicates that, as a result of the applicant’s and his wife’s intimidating behaviour, it has filed a formal harassment complaint on behalf of the local teachers. The Federation seeks intervenor status to represent and protect its members’ rights under the collective agreement, the Education Act and the Occupational Health and Safety Act (“OHSA”). The Federation contests the allegations of discrimination and submits that it has a perspective different from both parties and that perspective should be present in any mediation and hearing because of the important rights and interests at stake. The Federation seeks full party status in order to be able to participate in any mediation and call evidence and make submissions at any hearing.

10The respondents support the Request for intervention. The respondents assert that they cannot purport to speak for the teachers who have been the subject of the allegations. The respondents submit that the Federation will bring a valuable perspective to the issues. The respondents acknowledge that they have experienced difficulty in trying to balance between the applicant’s concerns and the teachers’ concerns and, as such, it is necessary for the Federation to participate in order to speak to the perspective of the teachers and address the interests of the teachers.

11The applicant opposes the Request to Intervene on a number of bases. The applicant asserts that the respondents and the Federation do not have different perspectives – they both deny the allegations of discrimination and the respondents will rely on the teachers to make out their defense. The applicant indicates that the respondents will likely call the teachers as witnesses so the teachers’ versions of the events will be presented at the hearing. The applicant contends that the Federation is seeking intervenor status to join the respondents in their attack of the applicant and to further its OHSA harassment complaint. The applicant argues that intervention will unduly delay and protract the process. The applicant submits that the allegations surrounding the applicant’s and his wife’s conduct are irrelevant to the central issue of whether the respondents fulfilled their obligations to provide educational services free of discrimination and appropriate accommodation. The applicant submits that the Request to Intervene should be denied or, in the alternative, strict conditions should be placed on the intervention with no right to call evidence and limited written submissions.

DECISION

12In accordance with Rule 11 of the Tribunal’s Rules of Procedure, the Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. Tribunal jurisprudence has articulated a number of factors for consideration in assessing a request for intervention:

i. Whether the intervenor has a significant interest or special contribution to make on the issues;

ii. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

iii. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

iv. If intervention is appropriate, are there conditions that should be placed on the intervention.

See for example, Jeppesen v. Ancaster (Town) Fire & Emergency Services 2001 CanLII 26209 (ON H.R.T.) and Forrester v. Peel (Regional Municipality) Police Service Board, 2005 HRTO 3.

13I find that the Federation’s intervention will be of assistance to the Tribunal in addressing the matters at issue in the proceeding and would not unduly delay the proceeding.

14Based on the parties’ submissions, it appears that the Federation has a significant interest in the allegations and that its members may be impacted by the potential factual findings. Given the respondents’ acknowledgement of difficulties in balancing the competing interests, it is clear that the Federation’s position and interests are, in various respects, different from both parties. I accept that the Federation has a unique perspective on the facts and that its teacher members may provide specific information about the facts and issues different from that which will likely be put forward by the parties. As such, I accept that the Federation’s perspective may assist the Tribunal in achieving a more fulsome understanding of the factual and legal issues.

15I understand that the Federation is concerned, and the parties do not dispute, that a mediated settlement or a remedial order may impact the teachers’ interests or possibly may have ramifications to the collective agreement. On this basis, I find that the Federation’s participation may be necessary to facilitate a resolution of the Application or to remedy any alleged Code violation.

16I find that permitting the Federation to intervene as a party at this stage will not cause any significant disruption and delay to the proceeding given that mediation is over a month away and hearing dates have yet to be scheduled.

17Accordingly, I hereby grant the Federation status as an intervenor and order that the Federation may participate in the mediation. The adjudicator overseeing the hearing on the merits will determine the scope of the Federation’s intervention and what extent the Federation will be permitted to participate in the hearing in regards to evidence and submissions. The request to remove the personal respondent will be addressed after mediation if this matter is not resolved at mediation.

18I am not seized of this matter.

Dated at Toronto, this 22^nd day of June, 2011

”signed by”____________

Ena Chadha

Vice-chair