HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.L. by his next friend J.L.
Applicant
-and-
York Region District School Board
Respondent
A N D B E T W E E N:
R.L. by her next friend J.L.
Applicant
-and-
York Region District School Board
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: J.L. v. York Region District School Board
WRITTEN SUBMISSIONS
J.L. and R.L. by their next friend J.L., Applicants
J.L., Next Friend
York Region District School Board, Respondent
Brenda Bowlby, Counsel
1The applicant siblings are grade five and seven students at a school in the respondent school board. They are not eligible for bus service from home to school because they live less than 1.6 kilometers from school. Both applicants have been diagnosed by a physician with pes planus, also known as flat foot, and prescribed orthotics. The physician describes the prognosis for both as “good”. They state that they have been experiencing foot pain exacerbated by carrying heavy backpacks. Through their father, their next friend, the applicants allege that the school board has discriminated against them because of disability by refusing their request to provide bus service. This Interim Decision addresses the applicants’ requests for interim remedy and to expedite proceedings.
FACTUAL BACKGROUND
2The applicants live approximately 1.1 kilometers from the school. They had school-provided bus service until last school year. According to the respondent, this was because of an error in determining eligibility for bus service, and they were given a one-year grace period that ended last year before service was discontinued. According to the applicants, this was not a grace period but an accommodation of their pes planus.
3The entirety of the medical evidence filed about the applicants consists of physician’s notes on prescription pads signed by an MD. Each is identical, and reads in its entirety as follows:
Dx: Pes Planus
Rx: Orthotics to fit
Prognosis: good
4The applicants’ mother filed a declaration in support of the Requests, which is identical in relation to each child. It states:
I… am aware that [child’s name] has been experiencing physical pain walking to and from school on a daily basis. [She/he] has been taking stopping breaks to get to school as a result [she/he] has been frequently late to school. This had [sic] directly impacted on [his/her] learning and school since [he/she] is constantly late due to [his/her] medical disability.
5Subsequent submissions by the applicants suggest that their pain is aggravated by having to carry heavy backpacks, although this is unsupported by medical evidence linking carrying of schoolbags to their foot condition. The applicants have filed a study, which appears not to have been peer reviewed, by physiotherapists regarding the average weight of schoolbags for secondary school students in Ireland.
6The respondent opposes the Request for Interim Remedy, and takes no position on the Request to Expedite.
INTERIM REMEDY
7Rule 23.2 reads as follows:
23.2 The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
8The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA v. 60 Montclair, 2009 HRTO 369 (“TA”). TA and subsequent decisions have articulated various principles that apply to requests for interim remedies. They include the following:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (TA at paras. 15-27).
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (TA at paras. 28-29).
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (TA at paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (TA at paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (TA at para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (TA at para. 36).
The Tribunal is more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. (Cochrane v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8).
9Applying these principles, the Request for Interim Remedy is denied. First, there is no medical evidence supporting the applicants’ claims that they are unable to walk the distance to and from school without pain or explaining why that pain cannot be alleviated through treatment, requiring accommodation in the form of an exception to the respondent’s bussing policy and consequent expense to the Board. Indeed, this claim appears to be inconsistent with the brief medical note that suggests the prognosis is good. Moreover, the applicants assert no reason that transportation to and from school cannot be and has not been obtained privately pending the resolution of the Application. An interim remedy is not awarded merely because a person may experience financial costs. It would not be just and appropriate in the circumstances to order an interim remedy.
REQUEST TO EXPEDITE
10The Request to Expedite is denied, without reasons, in accordance with Rule 21.1.2 as it does not meet the test set out in Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53.
NEXT STEPS
11In the Tribunal’s Notice of Application dated November 15, 2012, the respondent was directed to file a full Response to the Application by December 20, 2012. Although evidence is not usually required at this stage of the proceedings, in view of the nature of the parties’ submissions on the interim remedy, in my view more detailed medical information should be required of the applicants before the respondent is required to file a full Response.
12The applicants’ submissions suggest that they believe they have a right to the specific accommodation of funded bussing based merely on a general diagnosis of flat feet from a physician. This is not correct. To be successful, a Code claim of this nature requires, among other things, detailed medical information regarding these children’s conditions and the reason they are experiencing pain despite the prescription of orthotics. They must establish that they have a disability within the meaning of the Code. At a hearing, the physician might be required to give testimony. In my view, before requiring any further steps by the respondent, the applicants should be required to provide the detailed medical information upon which they rely in support of their Application.
13Accordingly, the obligation of the respondent to file Responses is suspended pending further direction of the Tribunal. The Tribunal directs that within 35 days of the date of this Interim Decision, the applicants deliver to counsel for the respondent and file any further information about their particular medical condition upon which they rely. The Tribunal will give further directions after that time.
ORDERS
14The Tribunal makes the following orders and directions:
The Request for Interim Remedy is denied.
The Request to Expedite is denied.
The respondent need not file a Response pending further direction of the Tribunal.
Within 35 days of the date of this Interim Decision, the applicants shall deliver to counsel for the respondent and file any further medical information upon which they rely.
15I am not seized of this Application.
Dated at Toronto, this 28th day of November, 2012.
“signed by”
David A. Wright
Associate Chair