L.P. v. Ottawa-Carleton District School Board, 2011 HRTO 532

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.P. by her litigation guardian, L.P.

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: March 16, 2011

Citation: 2011 HRTO 532

Indexed as: L.P. v. Ottawa-Carleton District School Board

Appearances

N.P., Applicant L.P., Representative

Ottawa-Carelton District

School Board, Respondent Roger Mills, Counsel

1This Application was filed under s. 53 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The parties have agreed that the Application raises the following four issues:

Issue A: that on June 8, 2001, the applicant was locked out of her home elementary school (Castor Valley) because it did not provide special education in French immersion;

Issue B: that on September 1, 2003, the respondent school board removed certain supports and services that had been provided to the applicant at a second elementary school (Sawmill Creek);

Issue C: that on October 27, 2004, the applicant was injured following an incident at the school; and

Issue D: that on February 7, 2005, the applicant was berated by members of staff.

3The respondent has sought the early dismissal of the Application. In an earlier Interim Decision, 2010 HRTO 2422, the Tribunal addressed part of the respondent’s Request. It concluded:

a. The portions of the Application relating to Issue A have been withdrawn by the applicant;

b. The portions of the Application relating to Issue C are dismissed because it would be an abuse of process to allow them to proceed; and

c. The respondent’s request to dismiss the portions of the Application relating to Issue D is denied.

4The Tribunal refused to dismiss the portions of the Application that relate to Issue B on the grounds that either (a) they were the subject matter of a complaint before the Commission and thus barred by section 53(8); or (b) another proceeding had appropriately dealt with the substance of the issue pursuant to section 45.1. However, based on the material before it and because there was a factual dispute, the Tribunal was unable to determine whether those portions of the Application relating to Issue B ought to be dismissed because it would be an abuse of process to proceed.

5In the earlier Interim Decision, the Tribunal set out a process for addressing the abuse of process issue. The parties have filed further written submissions and documents. The Tribunal held a further oral hearing on March 8, 2011 during which it heard submissions from the applicant and from counsel for the respondent.

6For the reasons that follow, the portions of the Application that relate to Issue B are dismissed. It would be an abuse of process to allow those portions of the Application to proceed.

7Accordingly, the Application may proceed only on Issue D.

ANALYSIS

The 2009 Complaint filed with the Commission

8In addition to this Application, the parties have been involved in a number of legal proceedings. In particular, the applicant filed a complaint with the Ontario Human Rights Commission (“Commission”) on December 19, 2000 (“Complaint”) pursuant to the old Part IV of the Code.

9The Complaint contains allegations Castor Valley Elementary School failed to accommodate the applicant (Issue A). On its face, however, the Complaint does not allege ongoing discrimination, nor does it allege discrimination or removal of services by Sawmill Creek Elementary School (Issue B).

10The Commission did not to refer the Complaint to the Tribunal. Its conclusion that there was insufficient evidence to do so was based, in part, on its finding that the applicant failed to cooperate in the accommodation process. The applicant’s request for reconsideration of that decision by the Commission was denied.

11In the earlier Interim Decision, the Tribunal made the following comments regarding the Commission’s decision not to refer the Complaint to Tribunal and its relevance to the abuse of process issue:

The Commission has determined that, in regards to Issue A, the applicant did not collaborate in the accommodation process. It found that the respondent’s ability to accommodate the applicant was compromised because the applicant refused to provide assessment information or allow the respondent to conduct an assessment.

The respondent argues that it was unable to accommodate the applicant in 2003 at Sawmill Creek Elementary School for the very same reason. It states that the applicant did not provide any assessment information beyond what was referred to in the investigator’s report. In essence, the respondent argues that because no additional assessment information was made available to the respondent, the Commission’s conclusion that the respondent could not have accommodated the applicant also applies to the 2003 allegations.

The applicant disputes that she failed to collaborate in the accommodation process with Sawmill Creek Elementary School. In particular, she states that she submitted a formal medical psychological assessment dated January 27, 2004 to the respondent.

I accept the respondent’s argument. Absent evidence not considered by the Commission that the applicant provided assessment information to the respondent, the Commission’s conclusions regarding Issue A effectively subsume Issue B.

In other words, I agree that it would be an abuse of process for the applicant to argue before the Tribunal that the respondent’s accommodation process was discriminatory unless she can establish that she collaborated and gave assessment information to the respondent beyond what was considered by the Commission.

12There was a factual dispute as to whether any additional assessment information (not available to the Commission) was provided to respondent since the applicant began attending Sawmill Creek Elementary School. The Tribunal directed the applicant to file any additional information that she had provided.

13The applicant has provided the following three documents in response to this direction:

a. A letter from the applicant’s treating physician, dated January 27, 2004;

b. A speech and language services re-assessment report, dated November 30. 2004; and

c. An educational assessment prepared for the 2004-2005 and dated December 8, 2004.

14The applicant argues that these documents establish that she did provide assessment information to the respondent beyond what was considered by the Commission. She argues that this additional information was sufficient for the respondent to maintain or put in place appropriate support measures and that the Commission’s decision does not address this aspect of the Application.

15In her oral submissions, the applicant also seemed to dispute conclusions reached by the Commission, namely that she had failed to collaborate in the accommodation process. The Tribunal’s role is not to revisit the Commission’s conclusions. Rather, I must determine whether it would be an abuse of process to proceed with Issue B because that issue has essentially been addressed in the Commission’s earlier determination. If it has been addressed, it is not for the Tribunal to determine whether the Commission’s conclusions are correct.

16The respondent argues that the documents provided by the applicant do not constitute assessment information that would have allowed it to evaluate what, if any, support measures were necessary. It argues that, in essence, these documents do not go beyond what had previously been provided and do not amount to collaboration. The respondent maintains that the Commission’s conclusions subsume Issue B.

17According to the respondent, the January 27, 2004 letter from the applicant’s treating physician simply refers to a 1997 report, which the Commission had explicitly found to be outdated and insufficient to allow the respondent to accommodate the applicant in 2001. The other two documents were only provided to the respondent in late 2004. While these documents triggered discussions about accommodation in the 2004-2005 school year, they are not relevant to Issue B and the alleged removal of services in 2003.

18The applicant argues that the January 27, 2004 letter essentially reactivates the 1997 report. The treating physician states that he or she sees no reason to repeat the assessments that formed the basis of the 1997 report. The applicant argues that this letter establishes that the 1997 report remains valid. She argues that the letter constitutes further assessment information, and that it ought to have triggered the accommodation process in the 2003-2004 school year.

19At the hearing, there was considerable controversy about whether or not the respondent removed services in 2003. Counsel for the respondent argued that no specific services had been assigned to the applicant and that, therefore, none could have been removed in 2003. The applicant vigorously disputed this. She states that a number of accommodation measures were in place in 2003, and she referred to documentary evidence which she says supports this argument.

20If the Application had proceeded on Issue B, the existence or non-existence of services in 2003 would have been material to the Tribunal’s determination of the merits of the case. However, I do not need to resolve this factual dispute in order to determine the preliminary question before me.

21I have previously concluded that it would be an abuse of process for the applicant to argue before the Tribunal that she collaborated with Sawmill Creek Elementary School’s accommodation process unless she can provide evidence that she did provide additional assessment information to Sawmill Creek Elementary School.

22For the reasons that follow, I find that the applicant did not give assessment information to Sawmill Creek Elementary School that she had not, in essence, already provided. The portions of the Application that relate to Issue B are dismissed on this basis and it is not necessary for me to determine whether or not services were in place in 2003.

Abuse of process

23The Tribunal has the jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. This discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

24In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of abuse of process as follows (at para. 55):

The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.

25The abuse of process inquiry focuses on whether it would be fair to proceed in the circumstances.

26The Commission has determined that, in regards to Issue A, the applicant did not collaborate in the accommodation process. It found that respondent’s ability to accommodate the applicant was compromised because the applicant refused to provide assessment information or allow the respondent to conduct an assessment.

27The applicant states that she submitted additional information and that, in light of this, the Commission’s finding that she failed to cooperate with the accommodation process regarding Issue A does not carry over to Issue B.

28I cannot accept this argument.

29First, I agree with the respondent that the two documents dated in late 2004, have no bearing on the issue of whether or not the respondent removed services in 2003 in violation of the Code. Those documents did not exist in 2003 or even during the 2003-2004 school year and could have no bearing on the respondent’s evaluation of the situation at the time.

30Second, I cannot accept that the January 27, 2004 letter from the applicant’s physician is assessment information that had not, in essence, already been provided to the respondent.

31The January 27, 2004 letter is brief and it is useful to quote it in its entirety:

To whom it may concern:

[...]

The parents [L.] and [J.] recently asked me to re-evaluate this problem because of ongoing conflict at school and discussion with her mother. The patient apparently is doing quite well according to her latest report cards which I am in receipt of. She attends school as well as (sic) home schooled by her mother. This lovely patient with Down’s Syndrome is doing quite well despite her limitations, but obviously there is a significant degree of delay in certain aspects. I am supporting her mother’s bid quite strongly for special assistance at school as in special education. It is obvious when services were withdrawn that her performance has deteriorated academically particularly this fall. I again see no indication for a need to repeat the original psychological assessment of this child at the present time as monitoring has been done by the school and the assessment seemed to identify her strengths and weaknesses. In summary, I am pleased with her progress and I definitely think she needs supplemental (special education) help at school as well as her mother’s dedicated efforts at home in order for her to progress satisfactorily in her academic achievements. Of course, I know special education services hasn’t been available to this child since September 1, 2003 and I think this is definitely a retrograde move which has slowed progress of this child in school this year. [Emphasis added.]

32I question whether this letter could be interpreted as a validation or reactivation of the 1997 report, which at that stage was seven years old. In any event, I have difficulty concluding that this letter could be characterized as a form of collaboration by the applicant; the physician is essentially restating a position that he or she had taken years earlier in documents provided to the respondent.

33In a letter dated April 25, 2000, the applicant’s treating physician wrote:

It is obvious to me that this child is doing quite well despite her limitations and she certainly is a relatively healthy happy child when examined in the office recently. Obviously there is still a significant degree of delay as per the previous psychological assessment. However at this (sic) I am recommending against a repeat psychological assessment as I feel it would not be constructive to the child’s progress and that monitoring her academic performance testing would probably suffice at the present time... Her mother seems quite upset at the idea of repeat psychological assessment at this particular point in time and I see no strong evidence that indicates that this repeat test will change the approach to this child. [Emphasis added.]

34In addressing Issue A, the Commission concluded that the applicant’s failure to undergo a further psychological assessment constituted a failure to collaborate and inhibited the accommodation process. At that stage, the April 2000 letter had been provided to the respondent.

35While I appreciate that the applicant disagrees with Commission’s decision, I cannot conclude that she has taken any meaningful steps to collaborate with the accommodation process in regards to Issue B since the Commission rendered its decision.

36Having reviewed the documents filed by the applicant, I cannot conclude that she has provided additional assessment information to the respondent that is relevant to Issue B. While the applicant provided the January 27, 2004 letter, it is essentially a reiteration of information and an opinion already available.

37The applicant’s 2009 Complaint was not referred to Tribunal because she was found to have been uncooperative with the respondent’s accommodation process. In particular, the Commission was concerned with the applicant’s refusal to undergo another psychological assessment and her insistence on the continued relevance of the 1997 report. The applicant is now arguing that a letter restating this very position is material and amounts to collaboration such that it would not be an abuse of process to proceed with the Application in circumstances.

38In my view, this is an attempt to relitigate issues that have been determined by the Commission. It would constitute an abuse of process to proceed with Issue B.

39Those portions of the Application that relate to Issue B are dismissed.

40The Application may proceed only on Issue D.

41I am not seized of this matter.