HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.B. by his next friend S.F.
Applicant
-and-
Keewatin-Patricia District School Board
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: R.B. v. Keewatin-Patricia District School Board
WRITTEN SUBMISSIONS
R.B. by his next friend S.F., Applicant
Meryl Zisman Gary, Counsel
Keewatin-Patricia District School Board, Respondent
Donald B. Shanks, Counsel
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”), alleging discrimination with respect to services because of disability and reprisal. This Interim Decision addresses a contested request for an extension of time made by the respondent to respond to the applicant’s Request for Interim Remedy and Request to Expedite. The responses are due tomorrow, August 16, 2012. The respondent seeks an extension of time to respond until August 31, 2012, based on the fact that counsel for the respondent was retained on this matter on August 13, 2012, and is in a trial from August 15 to August 24, 2012. For the reasons that follow, the respondent’s extension request until August 31, 2012, is denied and an extension is granted until one week from today’s date, August 22, 2012.
2The Application relates to the provision of educational services to the applicant, an eight-year-old entering grade three in September 2012, who has various disabilities. Among the allegations in the Application are that the respondent has failed to provide the support of an educational assistant, and has treated the applicant differentially, including forcing him to eat lunch alone and sit alone away from his class. The Application alleges that since December 2011, the respondent has refused to communicate with the applicant’s next friend and sole custodial parent except through a superintendent, barring her from direct communication with the school her son attends. A trespass notice was also issued preventing her from attending at the school. The Application alleges that this is a reprisal. The applicant alleges that as a result of the “communications ban”, last year the school failed to contact her about a urinary accident the applicant had at school.
3The Interim Remedies requested are: (1) that the applicant receive the assistance of a full-time educational assistant in his classroom when the 2012-13 school year commences; and (2) that the respondent immediately contact the applicant’s mother and next friend in case of emergency (including a urinary or fecal accident), whether or not the current trespass notice and communication ban remain in place. In the Request to Expedite, the applicant seeks an abridgment of the tribunal’s timelines and a hearing on the merits of the Application in December 2012 or January 2013.
4Counsel for the parties were involved in discussions prior to the filing of the Application, although it appears that counsel for the applicant did not advise counsel for the respondent that the Request to Expedite or Request for Interim Remedy would be filed. Counsel for the applicant states that she served these documents on counsel for the respondent by courier on August 3, 2012, and they were received on August 7, 2012. By letter sent by e-mail at 5 p.m. three days later on August 10, 2012, counsel for the respondent stated that he was refusing service because he had not consented to service on him rather than his client and because he was not provided with notice. He states that applicant counsel failed to serve the respondent as required and states that he should not be blamed for delay because of applicant counsel’s “strategic decision not to give notice”. Counsel for the respondent bases the request for an extension on the fact that he is in trial from August 15 until August 24, 2012, and will have no time to review the materials served or speak with his client about them.
5I address first the issue of delivery. Under the Tribunal Rules the applicant was not required to serve the respondent with the Request to Expedite, Application, or Request for Interim Remedy. These materials are delivered by the Tribunal to the respondent together with a notice directing a Response where necessary. This is, among other reasons, because the Tribunal conducts an initial review and in some cases does not require a Response. While it would have been preferable for applicant counsel to advise respondent counsel of the forthcoming filing of the requests even before sending them, the applicant’s delivery of the materials to counsel for the respondent, which he received on August 7, 2012, led to the respondent having more time to prepare than he would have had under the Rules. The Tribunal delivered the Application to the respondent on August 9, 2012, by courier. It was received on August 13, 2012. Respondent counsel made this request for an extension on August 14, 2012.
6The time period under the Tribunal rules to respond to a Request for Interim Remedy or Request to Expedite is one week. The respondent seeks a further two weeks and one day, which would lead to the Response being due on the Friday before Labour Day, when school starts on the day after the holiday. The remedies requested relate to next school year, and include a request about the respondent’s actions in case of an emergency. The timeline requested by the respondent would mean that the Tribunal would be unable to put in place the requested interim remedies at the beginning of the school year, if it found they were appropriate.
7The respondent’s lawyer is counsel in a firm, and gives no reason why he himself is required to consult with his client and prepare the response to the Request for Interim Remedy and Request to Expedite. The respondent is a large District School Board. While it may wish to have Mr. Shanks personally handle this matter, in my view the extension should not be granted in light of the need for timeliness in determining the applicant’s request, and the nature of the respondent’s reasons for requesting an extension. The applicant seeks to have his Request for Interim Remedy decided at a time that would allow him to obtain the interim relief requested when school starts, if the Tribunal finds that it is appropriate. The timing of the requested extension would not allow the Tribunal to make a decision before school starts. The applicant has acted in accordance with the Tribunal Rules and the respondent’s reason for requesting more time is based solely on the availability of particular counsel. In these circumstances, the extension requested is too long.
8I am prepared to grant the respondent a further week from today to prepare the required Responses. Accordingly, the deadline for Responses to the Request for Interim Remedy and Request to Expedite is extended until the close of business on August 22, 2012. Following a review of all the materials, the Tribunal may grant or deny the requests, or schedule an oral hearing by telephone or in person on the requests. The parties should expect that if an oral hearing is scheduled, it will be during the week of August 27, 2012.
9I am not seized of this Application.
Dated at Toronto, this 15th day of August, 2012.
“Signed by”
David A. Wright
Associate Chair```