J.N. v. Thames Valley District School Board, 2012 HRTO 1777

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.N.

Applicant

-and-

Thames Valley District School Board

Respondent

A N D B E T W E E N:

J.N. by her next friend S.N.

Applicant

-and-

Thames Valley District School Board, Paul Cook, Karen Edgar, Susan Nugent, Lorraine Por, and Barb Aharan

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: September 19, 2012 Citation: 2012 HRTO 1777 Indexed as: J.N. v. Thames Valley District School Board

WRITTEN SUBMISSIONS

Thames Valley District School Board, ) Paul Cook, Karen Edgar, ) Lorraine Por, Counsel Susan Nugent, Lorraine Por, ) and Barb Aharan, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the two Applications should be consolidated, and to address case management issues with respect to the two Applications.

BACKGROUND

2J.N. is a student with disabilities who attends a school in the Thames Valley District School Board. On November 25, 2008, the parties signed Minutes of Settlement to settle a complaint that the applicant’s mother had filed on the applicant’s behalf with the Ontario Human Rights Commission. The relevant provisions of the Minutes of Settlement stated:

1. The parties have agreed on primary and secondary points of contact for the applicant to address issues of accommodation in her school.
2. The respondent affirms a commitment to parental engagement, rather than merely consultation, in the accommodation process.

3On October 17, 2011, the applicant’s parents, who are her representatives, filed an Application for Contravention of Settlement (file no. 2011-10087-S) under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). In section 6 of the Application (“What terms of the settlement do you allege have been contravened or breached? Provide all the material facts you are relying upon to support your claim that the settlement has been contravened or breached.”), they stated: “Failure to accommodate a child with disabilities in a public school system.” They also stated:

• Failure to follow through on plan from June 28/2011.
• Failure to listen to parents about grade retention.
• Failure to do curriculum-based measurements and progress monitoring.
• Failure to provide playground support.
• Constant frustration for lack of support personnel to provide PPM 81 for our daughter (on hold due to inconsistency of delivery of care).

4On October 26, 2011, the respondent filed a Response, which denied that it had breached the settlement. The respondent stated that the applicant has not set out the details of the alleged breach of settlement, and that it has satisfied all its obligations pursuant to the settlement.

5On December 23, 2011, the applicant’s father filed a new Application on the applicant’s behalf (file no. 2012-10604-I) under s. 34 of the Code, which alleged that the Thames Valley District School Board and several of its employees had discriminated against the applicant with respect to services because of her disabilities. The specific allegations contained therein are similar to the allegations in the Application for Contravention of Settlement, including allegations that the respondents failed to accommodate the applicant at school, and failed to listen to her parents about retention.

6On June 12, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that a teleconference hearing was scheduled for September 20, 2012, with respect to the Application for Contravention of Settlement.

7On July 9, 2012, the Tribunal served the new Application on the respondents, and requested submissions from the parties on whether the Application should be deferred pending the resolution of the Application for Contravention of Settlement and a complaint before the Ontario College of Teachers.

8None of the parties provided submissions on the deferral issue. Instead, they requested that the September 20, 2012 teleconference hearing be turned into an in-person hearing, and filed voluminous amounts of witness statements and documents which appear to indicate that they want the September 20, 2012 hearing to be a hearing of the merits of both Applications.

9On August 29, 2012, the Tribunal issued a Case Assessment Direction (“CAD”), which directed the parties to provide written submissions on whether the two Applications should be consolidated. The applicant’s submissions were due on September 5, 2012, and the respondents’ submissions were due on September 12, 2012.

10On September 7, 2012, the applicant sent the Tribunal a letter, which stated that she had received the Tribunal’s CAD on September 4, 2012, that she needed an extension of time to obtain legal advice, and that she would be providing a response to the CAD as soon as possible. On September, 13, 2012, the respondents filed brief written submissions, which stated that the two Applications should be consolidated.

11To date, the applicant has not filed written submissions on the issue of consolidation. In view of the fact that a hearing is scheduled to begin tomorrow, the Tribunal cannot grant the applicant any further time to provide submissions on this issue.

ANALYSIS

12Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

13In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

14In my view, the two Applications should be consolidated. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating the Applications will result in prejudice to any person.

15In the circumstances, the hearing scheduled for September 20, 2012, with respect to the first Application (file no. 2011-10087-S) is cancelled, and the second Application (file no. 2012-10604-I) will not be deferred. The Tribunal directs the respondents to file a Response to the second Application within 35 days of the date of this Interim Decision. The applicant may deliver to the respondents and file a Reply 14 days after receiving the Response.

16In order to proceed expeditiously, if the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision. If the parties do not contact the Registrar, or indicate that they are not interested in mediation, the Registrar shall schedule a three-day hearing of the merits of the Applications.

ORDER

17The Tribunal makes the following orders and directions.

1. The two Applications are consolidated.
2. The hearing scheduled for September 20, 2012, with respect to the first Application (file no. 2011-10087-S) is cancelled.
3. The second Application (file no. 2012-10604-I) will not be deferred.
4. The respondents shall file a Response to the second Application within 35 days of the date of this Interim Decision.
5. The applicant may deliver to the respondents and file a Reply 14 days after receiving the Response.
6. If the parties are interested in mediation, they shall contact the Tribunal’s Registrar within two weeks of the date of this Interim Decision.

18I am not seized of this matter.