HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.C.

Applicant

-and-

Durham Catholic District School Board, Andy J. Fedak and Susan Duane

Respondents

A N D B E T W E E N:

B.C.

Applicant

-and-

Durham Regional Police Services Board and Sara Foote

Respondents

-and-

The Crown in Right of Ontario (Ministry of the Attorney General)

Third Party

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 2, 2011

Citation: 2011 HRTO 1448

Indexed as: B.C. v. Durham Catholic District School Board

[1] These are two Applications made under s. 53(5) of the Ontario Human Rights Code, both dated June 23, 2009. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on June 27, 2008.

[2] The purpose of this Interim Decision is to address various matters that have arisen in anticipation of the hearing in this matter, which currently is scheduled to proceed on September 14, 2011, and also to address case management matters.

Request for adjournment on consent

[3] By letter dated July 27, 2011, counsel for the applicant wrote to the Tribunal to request that the hearing currently scheduled for September 14, 2011 be adjourned and re-scheduled to a later date. Applicant’s counsel also requested that the deadlines for exchanging and filing lists of witnesses, witness statements and a list and copies of the documents the parties intend to rely upon at the hearing be extended, with the applicant filing her material 20 days in advance of the re-scheduled hearing date and the respondents filing their materials 15 days in advance of the re-scheduled hearing date. Applicant’s counsel advised that this request was made on consent of all parties.

[4] The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

The HRTO discourages requests for adjournments outside the ten-day period to request rescheduling of a hearing . . . . Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax, copied to the other parties.

[5] As the Practice Direction makes clear, the consent of the parties alone is not a sufficient basis to grant an adjournment in the absence of exceptional circumstances. There are broader institutional interests at stake, including this Tribunal’s commitment to fair and timely access to justice.

[6] Nonetheless, as this is the first request for adjournment of the hearing in this matter and is on consent of all parties, I reluctantly am prepared to grant the adjournment, particularly in light of other preliminary issues that need to be addressed in advance of the hearing as discussed below. However, all parties should be aware that no further requests for adjournment of the hearing, even on consent, will be granted except in the most extraordinary circumstances.

[7] Within 14 calendar days of the date of this decision, the parties are directed to canvass their availability for the hearing amongst themselves and to advise the Tribunal of no less than three days when all parties and their witnesses are available for the hearing. Upon receipt of this information, the Tribunal will proceed to schedule two days for the hearing in accordance with the adjudicator’s availability.

Request for extension of time to file pre-hearing materials

[8] From the recent correspondence between the parties, I am aware that the applicant may intend to call expert evidence in support of her allegations. This may give rise to issues as to the proper scope of proposed expert evidence and the admissibility of the proposed expert evidence, and may give rise to the potential for the respondents to call their own expert evidence in response. In such circumstances, I am not prepared to grant an extension to the applicant to file her pre-hearing material, including any proposed expert evidence, until 20 days in advance of the re-scheduled hearing, with the possibility that addressing any issues arising out of the proposed expert evidence or need to respond to any such expert evidence may further delay the hearing in this matter.

[9] In addition, it seems to me that in order for the respondents and the Tribunal to properly understand and have an appropriate context in which to assess any such proposed expert evidence, the respondents and the Tribunal should have access to a full record of the statements of the applicant’s proposed witnesses and the documents upon which she intends to rely.

[10] Accordingly, the applicant is directed to serve and file all of her pre-hearing material in accordance with Rule 18.6 of the Tribunal’s Rule of Procedure for Transitional Applications, including a statement or report of any proposed expert evidence, the curriculum vitae of any proposed expert witness and a copy of any other material upon which any proposed expert witness intends to rely at the hearing, by no later than September 14, 2011.

[11] The respondents are directed to serve and file all of their pre-hearing material in accordance with Rule 18.6 of the Tribunal’s Rule of Procedure for Transitional Applications, including any submissions regarding the scope and/or admissibility of the applicant’s proposed expert evidence with reference to applicable case law and a statement or report of any proposed expert evidence they intend to call in response, the curriculum vitae of any proposed expert witness and a copy of any other material upon which any proposed expert witness intends to rely at the hearing, by no later than September 28, 2011.

[12] If any of the respondents file submissions objecting to the applicant’s proposed expert evidence and/or intend to call their own expert evidence, the applicant shall serve and file any submissions in response and any submissions regarding the scope and/or admissibility of any expert evidence proposed by any of the respondents, with reference to applicable case law, by no later than October 7, 2011. The respondents shall serve and file any submissions in reply by no later than October 14, 2011. If and only if any of the respondents propose to call their own expert evidence to which the applicant has objected, the applicant shall serve and file any submissions in reply on this point only by no later than October 19, 2011.

[13] Any issue as to the scope and/or admissibility of expert evidence in this proceeding shall be addressed by the Tribunal on the basis of the written material and submissions, unless the Tribunal otherwise directs.

Request for removal of personal respondents

[14] I note that in the Response filed by the Durham Catholic District School Board, Andy J. Fedak and Susan Duane, a request was made for the removal of the latter two individuals as personal respondents. Any submissions in response to this request, with reference to applicable case law, shall be served and filed by the applicant by no later than September 14, 2011, and any submissions in reply shall be served and filed by these respondents by no later than September 28, 2011.

[15] This issue shall be addressed by the Tribunal on the basis of the written submissions filed by the parties.

Paragraphs 9 to 11 of the applicant’s statement of additional facts

[16] In the statement of additional facts filed by the applicant on April 28, 2011, paragraphs 9 to 11 raise allegations regarding the alleged failure by the Durham Catholic District School Board, Mr. Fedak and Ms. Duane to facilitate the applicant’s prompt return to school or to promptly arrange for homework to be sent to her.

[17] An issue arises as to whether these allegations are within the scope of the subject-matter of the complaint, as required by s. 53(5) of the Code and Rule 12.3 of the Tribunal’s Transitional Rules: see [DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281](https://www.minicounsel.ca/hrto/2010/281).

[18] The applicant shall serve and file submissions, with reference to applicable case law, regarding whether these allegations are within the scope of the subject-matter of her complaint or are otherwise relevant to the subject-matter of her complaint by no later than September 14, 2011. The respondents shall serve and file any submissions in response by no later than September 28, 2011, and the applicant shall serve and file any reply by no later than October 7, 2011.

Proposed bifurcation of the hearing

[19] The Tribunal proposes to bifurcate the hearing in this matter, so that at the initial stage of the hearing, the Tribunal would deal only with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy if a violation were to be found. At a separate and later stage, and only if the Tribunal first finds a violation of the Code, the Tribunal would establish a process to deal with any issue regarding remedy. Bifurcation of hearings in this manner is quite common for transitional applications.

[20] All parties shall advise the Tribunal and the other parties if they consent to the bifurcation of the hearing within 14 calendar days of the date of this Decision. If any party objects to the bifurcation of the hearing, they shall so advise the Tribunal and the other parties together with submissions as to why they object within this same time period. If any party wishes to file submissions in response to any such objection, they shall do so within a further three business days.

Order re disclosure of documents

[21] On July 5, 2011, counsel for the applicant appeared in the Ontario Court of Justice, Youth Court before Justice Bellefontaine pursuant to an application to obtain access to certain information and records pursuant to the Youth Criminal Justice Act, S.C. 2002, C.1, to disclose such information and records to the other parties to this proceeding, and to use such information and records in this Tribunal’s process.

[22] On that date, Justice Bellefontaine issued the order requested on certain terms and conditions, including that the applicant could not gain access to the requested information and records except pursuant to a further order of this Tribunal obtained on notice to the Attorney General for Ontario, Crown Law Civil.

[23] Accordingly, by Request for Order during Proceedings dated July 12, 2011, the applicant sought the required order from this Tribunal and confirmed service of this Request on the respondents and the Attorney General. The Durham Regional Police Services Board and Constable Foote have consented to this request. No responses have been filed by the remaining respondents or by the Attorney General, despite having been properly served.

[24] Accordingly, the Tribunal hereby orders the Durham Regional Police Services Board, the Durham Region Police Service and/or the Attorney General, as the case may be, to grant access and disclose to the applicant all information and records under the care or control of the Durham Region Police Service relating to the investigation, arrest, and charge of the applicant B.C. arising out of the incident on April 10, 2008, including but not limited to the specific items listed in paragraph 2 of Justice Bellefontaine’s order dated July 5, 2011, on the terms and conditions prescribed in said order. This shall be done by no later than 14 calendar days from the date of this Decision.

[25] The Tribunal further orders that the applicant be granted permission to provide all information and records relating to the April 10, 2008 incident, including those that have already been provided to the applicant during the course of the youth justice proceedings, to the respondents to this proceeding and to the Tribunal, once again on the terms and conditions prescribed in said order.

[26] The Tribunal notes that paragraph 6 of Justice Bellefontaine’s order refers to a warning to be inserted into the “court file” in “the related civil action”. I am not aware of any related civil action in this matter, and if any such civil action has been commenced, the applicant is directed forthwith to so advise the Tribunal and to file a copy of any Statement of Claim or other originating process. In the event that it was intended that paragraph 6 refer to this Tribunal proceeding, and in any event out of an abundance of caution, the Tribunal shall ensure that a copy of said warning shall be placed in both Tribunal files in this matter.

Order

[27] For all of these reasons, the Tribunal hereby makes the following order:

a) Within 14 calendar days of the date of this decision, the parties are directed to canvass their availability for the hearing amongst themselves and to advise the Tribunal of no less than three days when all parties and their witnesses are available for the hearing;

b) by no later than September 14, 2011, the applicant is directed to serve and file all of her pre-hearing material in accordance with Rule 18.6 of the Tribunal’s Rule of Procedure for Transitional Applications, including a statement or report of any proposed expert evidence, the curriculum vitae of any proposed expert witness and a copy of any other material upon which any proposed expert witness intends to rely at the hearing, by no later than September 14, 2011;

c) By no later than September 28, 2011, the respondents are directed to serve and file all of their pre-hearing material in accordance with Rule 18.6 of the Tribunal’s Rule of Procedure for Transitional Applications, including any submissions regarding the scope and/or admissibility of the applicant’s proposed expert evidence with reference to applicable case law and a statement or report of any proposed expert evidence they intend to call in response, the curriculum vitae of any proposed expert witness and a copy of any other material upon which any proposed expert witness intends to rely at the hearing;

d) If any of the respondents file submissions objecting to the applicant’s proposed expert evidence and/or intend to call their own expert evidence, the applicant shall serve and file any submissions in response and any submissions regarding the scope and/or admissibility of any expert evidence proposed by any of the respondents, with reference to applicable case law, by no later than October 7, 2011. The respondents shall serve and file any submissions in reply by no later than October 14, 2011. If and only if any of the respondents propose to call their own expert evidence to which the applicant has objected, the applicant shall serve and file any submissions in reply on this point only, by no later than October 19, 2011;

e) Any submissions in response to the request for the removal of personal respondents Andy J. Fedak and Susan Duane, with reference to applicable case law, shall be served and filed by the applicant by no later than September 14, 2011 and any submissions in reply shall be served and filed by these respondents by no later than September 28, 2011;

f) The applicant shall serve and file submissions, with reference to applicable case law, regarding whether the allegations set out in paragraphs 9 to 11 of her statement of additional facts filed on April 28, 2011 are within the scope of the subject-matter of her complaint or are otherwise relevant to the subject-matter of her complaint by no later than September 14, 2011. The respondents shall serve and file any submissions in response by no later than September 28, 2011, and the applicant shall serve and file any reply by no later than October 7, 2011;

g) All parties shall advise the Tribunal and the other parties if they consent to the bifurcation of the hearing within 14 calendar days of the date of this Decision. If any party objects to the bifurcation of the hearing, they shall so advise the Tribunal and the other parties together with submissions as to why they object within this same time period. If any party wishes to file submissions in response to any such objection, they shall do so within a further three business days;

h) By no later than 14 calendar days from the date of this Decision, the Durham Regional Police Services Board, the Durham Region Police Service and/or the Attorney General, as the case may be, shall grant access and disclose to the applicant all information and records under the care or control of the Durham Region Police Service relating to the investigation, arrest, and charge of the applicant B.C. arising out of the incident on April 10, 2008, including but not limited to the specific items listed in paragraph 2 of Justice Bellefontaine’s order dated July 5, 2011, on the terms and conditions prescribed in said order;

i) The applicant is granted permission to provide all information and records relating to the April 10, 2008 incident, including those that have already been provided to the applicant during the course of the youth justice proceedings, to the respondents to this proceeding and to the Tribunal, on the terms and conditions prescribed in Justice Bellefontaine’s order dated July 5, 2011; and

j) If any civil action has been commenced by the applicant arising out of the April 10, 2008 incident, the applicant is directed forthwith to so advise the Tribunal and to file a copy of any Statement of Claim or other originating process.

Dated at Toronto, this 2nd day of August, 2011.

“Signed by”

Mark Hart

Vice-chair