R.D. v. Toronto District School Board, 2012 HRTO 1606

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.D. by his next friend L.D.

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: August 22, 2012

Citation: 2012 HRTO 1606

Indexed as: R.D. v. Toronto District School Board

APPEARANCES

R.D. by his next friend L.D., Applicant ) L.D., Next Friend

Toronto District School Board, ) Wendy Lopez,

Respondent ) Counsel

1On April 10, 2012, the Tribunal conducted a summary hearing in this and two related matters. At that time, I heard submissions from the parties as to whether there was no reasonable prospect that the matters could succeed.

2In an Interim Decision issued on April 16, 2012, I dismissed the two other matters because the Tribunal does not have jurisdiction over the issues they raise: 2012 HRTO 749. In regards to this matter, based on the material before me at the summary hearing, I could not determine whether L.D. had the authority to proceed with this Application as a next friend of R.D. I therefore directed the parties to file further materials on the issue of whether this Application can proceed.

3The parties have now filed further materials. For the reasons that follow, I am satisfied that L.D. has the authority to proceed with this Application. However, I find that the Application has no reasonable prospect of success and it is dismissed for that reason.

Authority to proceed

4At the summary hearing, the respondent took the position that this Application may not proceed because R.D. is in the care and custody of the Children’s Aid Society (“CAS”) and has been since November 2011.

5The applicant argued that the Application may proceed because it was filed before R.D. was taken into care and also because, under the terms of the care arrangement, L.D. retains the authority to proceed with the matter on R.D.’s behalf.

6As I have indicated, neither party had filed any documents concerning R.D.’s care and custody arrangement with the CAS. In response to my Interim Decision directing her to file additional materials, the applicant filed a letter from the CAS, which states:

This letter is to advise you that R.D. [...] is in the care and custody of the Children’s Aid Society of Toronto under a Temporary Care Agreement. Ms. D. still has legal rights and responsibilities for R.D.

7The respondent has not filed any materials with the Tribunal in response to this letter.

8In the circumstances, I am satisfied that the L.D, has the authority to proceed with this Application on behalf of R.D.

The Allegations

9This is an Application filed on May 14, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant, who is represented in this proceeding by his mother, alleges discrimination on the basis of race, colour, ancestry, place of origin, and ethnic origin in the provision of goods, services or facilities.

10The Application contains the following allegations:

a. the applicant refused to play in French because he is afraid of the teacher and believes what happened in the past will happen again;

b. the applicant’s grades were tampered with, because they dropped from “A” to “B”;

c. the applicant refused to attend a particular school and his mother transferred him to another;

d. the applicant began acting strangely after he received his report card and he threatened another child at school;

e. a school principal collected information but did not send it to the hospital because she wished to attend a meeting;

f. the school principal refused to believe that the applicant was not abused by his mother;

g. When the applicant hurt his arm and covered his injury with a bandage, the school contacted the Children’s Aid Society.

Analysis

11Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

12The issue before me in determining this summary hearing is whether the applicant has no reasonable prospect of establishing that the respondent discriminated against him based on the Code grounds identified. In this case, the issue I must address is whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the alleged events and a prohibited ground.

13In considering these issues, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. Further, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

14At the outset of the summary hearing, I gave L.D. an opportunity to clarify the allegations contained in the Application and to explain how they could constitute discrimination within the meaning of the Code. In particular, I asked L.D. to explain why she believes the alleged incidents are linked to an identified Code ground.

15L.D. explained that the applicant is a very bright child who had done well in school in the past. She argues that the only way the applicant could have failed is if the respondent tampered with his grades or factored the applicant’s Code grounds into its evaluations. I understood L.D. to argue that the respondent’s other conduct and decision-making was also influenced by the applicant’s Code grounds and, more specifically, that these were a factor in the respondent’s decision to contact CAS and to exclude the applicant from a field trip. The Application also alleges that the applicant was made to sit some distance from the blackboard.

16In response to my questions about how these alleged incidents are linked to a Code ground, L.D. explained that the applicant is clearly racialized and that the respondent could not fail to notice his dark skin colour and other features associated with his race.

17As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 (at para. 25), while discrimination based on grounds such as race or colour can be subtle and hard to detect, an applicant must nevertheless provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to him can show a link between the events alleged and a prohibited ground.

18While L.D. and the applicant may be dissatisfied with the respondent and its treatment of R.D., they have provided no basis beyond mere speculation and accusations to suggest discrimination. The applicant has identified as a member of protected groups, but he has not pointed to any evidence or any prospective evidence that might assist him in establishing that his Code grounds were a factor in the respondent’s behaviour and decision-making. The speculative arguments, described above, do not meet the summary hearing test and are not sufficient to allow the matter to proceed.

19In closing, I note that the respondent has objected to certain parts of the Application proceeding based on the limitation period and because they were the subject-matter of a previous application. Given my conclusion that the allegations have no reasonable prospect of success, it is not necessary for me to address these arguments.

20For these reasons, the Application is dismissed. I find that it has no reasonable prospect of success.