Klassen v. Toronto District School Board, 2012 HRTO 1730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thomas Klassen Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 13, 2012 Citation: 2012 HRTO 1730 Indexed as: Klassen v. Toronto District School Board

WRITTEN SUBMISSIONS

Thomas Klassen, Applicant Self-represented

Toronto District School Board, Respondent Glorie Alfred, Counsel

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Education, Proposed Respondent Karen Inselsbacher, Counsel

Elementary Teachers’ Federation of Ontario, Proposed Respondent Adam Beatty, Counsel

INTRODUCTION

1This Application was filed on October 18, 2011 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, goods and facilities because of disability. The applicant self-identifies as an individual with a communication disability affecting his speech.

2The applicant is the father of twins who are elementary students in the respondent’s school board system. The applicant alleges that his children’s school has a policy which limits communications between teachers and parents to telephone discussions or in-person interviews and does not permit email correspondence between parents and teachers. The applicant alleges that the respondent’s refusal to allow email as a regular means of communication between parents and teachers is discriminatory towards people with communication disabilities and fails to accommodate his disability-related needs.

3The respondent filed a Response on November 29, 2011. The respondent denies the allegations of discrimination. The respondent alleges that the applicant’s request was accommodated by the principal and the children’s teachers and, in addition to alternate arrangements being proposed for the applicant, there are other reasonable means of communication available to all parents. The respondent asserts that the applicant’s concerns were properly addressed.

4The applicant filed a Reply on December 7, 2011. The applicant argues that any accommodation provided thus far has been ad hoc and outside of the respondent school board’s formal policies and procedures.

5On April 26, 2012, the Tribunal issued a Notice of Hearing indicating that a hearing of the Application is scheduled for December 13 and 14, 2012.

REQUEST TO ADD TWO RESPONDENTS

6On May 3, 2012, the applicant filed a Request for an Order During Proceedings (“Request”) asking that the Tribunal add the Ministry of Education (“Ministry”) and the Elementary Teachers’ Federation of Ontario (“ETFO”) to his Application. The applicant alleges that the issue in dispute, namely the use of email by teachers for communicating with parents, is the subject of collective bargaining tables between Ministry and ETFO and any agreement reached by the Ministry and ETFO on this topic would form the basis of the collective agreements between the union and local school boards. The applicant contends that the personal and public interest remedies sought in his Application (acceptance of his regular use of email and the development of a policy for email communication with parents with disabilities) necessitate the addition of the Ministry and ETFO as respondent parties.

7The respondent filed a response on May 15, 2012 opposing the applicant’s Request. The respondent submits that it is not an agent or employee of the proposed respondents and there are no allegations in the Application or the Reply that could lead to a finding that the proposed respondents violated the Code. The respondent asserts that there is a risk of substantial prejudice in the form of complication of the proceedings and delay if the applicant’s Request was granted.

8The Ministry filed a response on May 17, 2012 opposing the applicant’s Request. The Ministry disputes the applicant’s claim that the accommodation requested by him cannot be achieved without adding the Ministry to the Application. The Ministry further disputes that the issue of email communications is the subject of discussion or bargaining at the Provincial Discussion Tables. The Ministry contends that any agreements negotiated at the Provincial Discussion Tables are between ETFO and local school boards and not the Ministry. The Ministry alleges that it has no knowledge of the respondent school board’s policy on email communications between teachers and parents.

9The ETFO filed a response on May 29, 2012, also opposing the applicant’s Request. The ETFO asserts that the applicant has not made any allegations against it and adding it as party would significantly lengthen the proceeding. The ETFO requests that it be named as affected person with notice and copies of all correspondence between the parties and the Tribunal.

10Neither person filed submissions in response to the ETFO’s request that it be identified as an affected person.

ANALYSIS & DECISION

11The applicant asserts that the Ministry and ETFO ought to be added as respondent parties to this Application because they engage in collective bargaining discussions which affect the agreements that operate local school boards. The applicant argues that the addition of the proposed respondents to the Application is necessary in order for him to achieve his public interest remedy of the development of a formal policy for email communication with parents with disabilities.

12The respondent and proposed respondents oppose the request on the basis that neither the Ministry nor the ETFO were in any way involved in the events alleged in the Application and that it would be unfair and inefficient to add them.

13Rule 1.7(b) of the Tribunal’s Rules of Procedure (“Rules”) states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.

14The Tribunal’s test for adding respondents has been articulated at paragraph 12 of Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

15The onus rests with the applicant to establish that either of the proposed respondents should be added as a party. As the applicant is seeking to add organizational entities, only the first and third factors are relevant to determining his request. I find that the applicant has failed to persuade me that these factors, or any other compelling considerations, favour adding the Ministry and/or the ETFO.

16The first factor contemplates whether there are allegations made in relation to the Application that could lead to a finding that the proposed respondents violated the Code.

17The applicant’s request can be disposed of at this first step because the applicant does not specifically allege that the proposed respondents violated his rights. The applicant does not allege that the Ministry or the ETFO denied him services or failed to accommodate his needs in the provision of services. The applicant does not allege that the proposed respondents were in any way connected to or involved in the circumstances surrounding his request to the respondent school board for email communications. I find that adding the Ministry and the ETFO as respondents would not assist the Tribunal to answer the question of whether the respondent school board violated the applicant’s rights.

18While the Application discloses no allegations as against either the Ministry or the ETFO, it appears the applicant seeks to add these entities for the purposes of achieving a public interest remedy of a formal disability communication policy. However, the applicant’s materials do not establish why it is necessary to go beyond the sphere of the respondent school board for the creation and implementation of any proposed formal policy.

19Even if I were to assume that the Application would be upheld and that a public interest remedy was appropriate and warranted in the circumstances, the applicant has not demonstrated that the development and adoption of a formal accommodation policy by the respondent school board will necessarily engage the ETFO at a provincial level of collective bargaining discussions with the Ministry.

20I further determine, considering all the circumstances, that it would not be fair to add the Ministry and/or the ETFO as a respondent party to this Application.

21In my view, permitting the applicant to add the proposed respondents would detract from the central allegations of the Application; specifically, whether the applicant was discriminated against and whether his disability-related needs were accommodated by the respondent school board. I agree with the respondent and proposed respondents that the addition of the Ministry and the ETFO will unduly complicate and protract the proceeding by extending the scope of the Application from the allegations regarding how the applicant was treated to broader issues and concerns regarding the role of the Ministry and the ETFO in the planning and provision of accommodation.

22In these circumstances, the applicant’s request to add the Ministry and the ETFO is denied.

AFFECTED PERSON

23The ETFO claims that the outcome of the Application may have a direct impact on its members and on that basis requests that it be recognized as an affected person with full notice of the proceeding.

24Rule 1.4 defines a trade union as an “affected person” and the Tribunal routinely treats unions as “affected persons” in employment-related applications filed by bargaining unit members. While the present Application is not an employment-related matter, the ETFO appears to have an interest in the issues and perceives that it may be impacted by the outcome.

25Given that neither the respondent nor the applicant have opposed ETFO’s request, I find that it is appropriate that ETFO be named as an affected person in this proceeding.

ORDERS

26The applicant’s request to add the proposed respondents is denied and the ETFO is named as an affected person.

27I am not seized of this matter.