M.R. by his next friend C.R. v. Halton District School Board, 2012 HRTO 477

Human Rights Tribunal of Ontario

B E T W E E N:

M.R. by his next friend C.R. Applicant

-and-

Halton District School Board Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: March 7, 2012 Citation: 2012 HRTO 477 Indexed as: M.R. by his next friend C.R. v. Halton District School Board

1This is an Application filed on March 9, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2The applicant, who is represented in these proceedings by his mother, alleges that the Halton District School Board (the Board) has discriminated against him by denying him appropriate education services on the ground of a disability or perceived disability. He disagrees with the Board's identification of him as a student with a developmental disability, and its decision to place him in a self-contained special education class.

3By Interim Decision dated November 4, 2010, the Tribunal deferred the Application pending the completion of an appeal before the Special Education Tribunal.

4On January 25, 2012, the applicant filed a Request for Order seeking to re-activate the Application. The respondent filed a Response to the Request, and the applicant made further submissions on February 24, 2012.

5Having regard to the submissions of the parties, it does not appear to be in dispute that the Special Education Tribunal (SET) made a decision on the appeal brought by the applicant's parents. It also appears that following the decision of the SET, on February 15, 2011, there have been ongoing issues regarding implementation and compliance with the directions of the SET. Although the respondent submits, as an alternative position, that the Application should continue to be deferred until the applicant's next friend has complied with her obligations under the SET's orders, from my review of the material before me, no party is arguing that the appeal process is still ongoing.

6I therefore find it appropriate to re-activate this Application.

7That does not mean, however, that the Tribunal will proceed to deal with the merits of this Application. The respondent takes the position, among other things, that the subject matter of this Application has been dealt with through the SET appeal. Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. In these circumstances this matter will be scheduled for a two-hour hearing by conference call to hear submissions on the respondent's request to dismiss under section 45.1. The parties will also be asked to address whether any issues not dealt with by the SET nonetheless raise issues under the Code, such as the applicant's allegation that his name was contained on a list of students published in August 2011.

9The parties' attention is directed to the decision of the Supreme Court of Canada in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, as well as the Tribunal's decision in Campbell v. Toronto District School Board, 2008 HRTO 62. These and other decisions of the Tribunal may be found on the website of the Canadian Legal Information Institute at: www.canlii.org.

10A Notice of Hearing with call-in information will follow. The parties must deliver any additional documents or case law that they want the Tribunal to consider to each other and file them with the Tribunal no later than 14 days prior to the hearing.

11I am not seized of this matter.