T.S. v. Toronto District School Board, 2011 HRTO 1630

Human Rights Tribunal of Ontario

B E T W E E N:

T.S. by his next friend P.S. Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: August 31, 2011 Citation: 2011 HRTO 1630 Indexed as: T.S. v. Toronto District School Board

Decision

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant through his next friend, his mother, alleges discrimination on the basis of disability in the provision of education services. In general, the applicant alleges that the respondent failed to appropriately accommodate his needs arising out of disabilities, and treated his behaviour as disciplinary issues rather than as manifestations of his disabilities.

2On August 5, 2011, I issued an Interim Decision in this matter, directing the following:

• The applicant's next friend shall state, within two weeks of the date of this Interim Decision, whether she consents to the respondent's use and disclosure of documents and information from the OSR (for the period from September 2007 to the date of the Application) for the purpose of this proceeding; [emphasis in original]
• If the respondent receives such consent, the respondent may file its amended Response within three weeks of the date of this Interim Decision, disclosing portions previously redacted to the extent that they relate to the period from September 2007 to the date of the Application;
• The applicant may file an amended Reply, responding to issues raised by the portions of the Response that were previously redacted, within five weeks of the date of this Interim Decision;
• The time lines for disclosure and production under Rules 16 and 17 remain as stipulated in the Tribunal's correspondence of June 28, 2011;
• If the applicant does not provide her consent in the terms specified above within two weeks of the date of this Interim Decision, the Tribunal will consider whether the Application should proceed and may seek submissions on whether it should be dismissed as an abuse of process.

3The applicant's next friend has not provided her consent in the manner specified in my decision, i.e. consent to the respondent's use and disclosure of documents and information from the OSR (for the period from September 2007 to the date of the Application) for the purpose of this proceeding. The date for doing so has passed. Instead, in email correspondence, the applicant's next friend proposes to place certain conditions on her consent. Further, she has filed a Form 12 (Request for a Tribunal-Ordered Inquiry), seeking orders from the Tribunal that govern the manner in which the applicant's OSR is dealt with.

4The respondent has filed a Response to the Request, taking the position that there is no basis for a Tribunal-ordered inquiry.

5The Tribunal denies the Request. Section 44, authorizing the Tribunal to appoint a person to conduct an inquiry, does not apply to these circumstances. It is clear that the purpose of the Request is not to obtain evidence that may assist the Tribunal in the determination of the merits of the Application but rather, to monitor and restrict the respondent's use of the OSR.

6The applicant's next friend's submissions, both in email correspondence following the Interim Decision and in the Request, in effect seek to modify the directions given in my Interim Decision, before giving her consent. They reiterate certain concerns she expressed previously, and which were considered by me before I made my directions. In the Interim Decision, I stated:

I am not satisfied that the restrictions she seeks to place are necessary to protect the privacy of the OSR documents and information. The respondent is not receiving documents, through a disclosure process, in which it otherwise has no interest or responsibilities. It is still subject to its obligations under the Education Act. To the extent that it may use or disclose documents or information from the OSR for the purposes of the proceeding before the Tribunal, it is also subject to the Tribunal's Rules on the confidentiality of documents. The applicant cannot rely on documents and information from the OSR in the Application, while seeking to prevent the respondent from using the same in order to present its case. I find it necessary, for a fair and just proceeding, for the respondents to be able to use and disclose documents and information from the OSR, subject to the time limitation addressed below.

In E.P. v. Ottawa Catholic School Board, 2009 HRTO 1702, the Tribunal stated: "In my view, the respondents must be permitted to rely upon the entire IPRCs and IEPs from June 2006 to October 2007 in order to hold a fair and just hearing. It would be abuse of process for the applicant's litigation guardian to withhold consent to the production of documents that are crucial to the resolution of the Application."

7Given the refusal by the applicant's next friend to provide consent to the respondents in the terms expressed in the Interim Decision, the Tribunal will consider whether the Application should proceed, or whether it should be dismissed as an abuse of process.

8Section 43 of the Code provides that an application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules. The Tribunal will schedule a one-hour conference call for the purpose of hearing the parties' submissions on whether, in the absence of consent as specified in the Interim Decision, the Application should be dismissed as an abuse of process. The conference call will be held on Wednesday, September 14, 2011, starting at 10 AM.

9The timelines for production and disclosure under Rules 16 and 17 are placed in abeyance pending further direction of the Tribunal.

10A notice of the conference call will follow. The Tribunal's normal procedures for requesting rescheduling of the conference call do not apply. Any request for an adjournment will be determined by the Vice-chair assigned to the conference call.

11I am not seized of this matter.