HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J. N.
Applicant
-and-
Thames Valley District School Board
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: J.N. v. Thames Valley District School Board
1This Interim Decision addresses the respondent’s request for early dismissal of the Application because of timeliness and based on the scope of the Tribunal’s jurisdiction (power to decide).
2This is an Application filed on October 17, 2011 under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) alleging breach of settlement. Although the Tribunal’s Rules of Procedure require her to do so, the applicant did not initially file Minutes of Settlement along with the Application.
3The respondent has filed a Response to the Application in which it takes the position that the Tribunal does not have jurisdiction over the Application because the applicant did not include a copy of the Minutes of Settlement with the Application and did not serve the Application on other parties to the Minutes of Settlement. The respondent denies any contravention of settlement and states that, in any event, the Application was filed more than one year after any contravention of the agreement and is therefore out of time, pursuant to section 34 of the Code.
4The Tribunal issued a Case Assessment Direction (“CAD”) on November 2, 2011, directing the Applicant to:
a. deliver a copy of the Minutes of Settlement to the respondent and file with the Tribunal a Form 23 confirming that the Minutes of Settlement and the submissions requested by the Tribunal had been delivered to the respondent;
b. deliver to the respondent and file with the Tribunal written submissions addressing the respondent’s allegation that the Application was filed more than one year after any alleged breach of settlement; and
c. deliver to the respondent and file with the Tribunal written answers to a number of questions regarding whether, in addition to the respondent school board, individual signatories to the Minutes of Settlement are alleged to have breached the settlement agreement.
5The applicant filed Minutes of Settlement and written submissions as directed. I understand from these written submissions and from the fact that the individual signatories to the Minutes of Settlement are not named as respondents in the Application that the allegations of breach of settlement are as against the respondent school board only.
6The Minutes of Settlement provide:
a. that the parties have agreed on primary and secondary points of contact for the applicant to address issues of accommodation in her school; and
b. that the respondent school board “affirms a commitment to parental engagement rather than mere parental consultation, in the accommodation process”.
7In essence, the Application alleges that the respondent breached the Minutes of Settlement by failing to provide appropriate accommodation measures. More specifically, the Application alleges that in June 2011 the respondent failed to implement a learning plan, that it does not listen to the applicant’s parents regarding grade retention, that it does not provide appropriate playground support, that it has insufficient support personel, and that it fails to do curriculum-based monitoring and measurements. Among other things, the remedy the applicant seeks is “a full say in every decision-making process.”
8The respondent argues that the Application was filed more than one year after the last alleged breach of the Minutes of Settlement. It states that the issues that gave rise to the Minutes of Settlement arose in 2007 and that the applicant has been attending a new school since that time. The respondent states that the individual parties to the Minutes of Settlement have not interacted with the applicant since she began attending a new school. The respondent states that the allegations contained in the Application are more properly the subject of a new Application.
DECISION
9The applicant has now filed a complete breach of settlement Application. The Application does not name the individual signatories to the minutes of settlement as respondents. There is no basis to conclude that the Tribunal has no jurisdiction over the Application because either the Application or the Minutes of Settlement were not served on individuals who are not parties to this Application.
10Based on my review of the materials filed, I find that the Application contains allegations of a breach of settlement that fall within the limitation period set out in section 34 of the Code. The Application includes allegations that the respondent did not respond to parental concerns (in essence, failing to allow “full parental engagement”) as late as September of 2011.
11I reject the respondent’s argument to the effect that the Minutes of Settlement no longer apply because the applicant has changed schools. In the Minutes of Settlement, the respondent school board specifically committed to “full parental engagement”. There is no apparent time limit to this commitment, nor is it tied to the applicant’s attendance at a particular school within the respondent school board.
12The respondent’s request for early dismissal on the basis of timeliness and the Tribunal’s jurisdiction is denied.
13The Tribunal may provide further direction to the parties regarding the next steps in these proceedings.
Dated at Toronto, this 30th day of November, 2011.
”signed by”
Michelle Flaherty
Vice-chair