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: Brian Eyolfson

Date: March 30, 2012

Citation: 2012 HRTO 636

Indexed as: M.R. v. Halton District School Board

INTRODUCTION

1This is an Application filed on March 9, 2010, under section 34 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 respondent discriminated against him by denying him appropriate education services on the ground of disability or perceived disability. He disagrees with the respondent’s identification of him as a student with a developmental disability, and its decision to place him in a self-contained special education class.

BACKGROUND

3By Interim Decision dated November 4, 2010, 2010 HRTO 2211, the Tribunal deferred the Application pending the completion of an appeal before the Special Education Tribunal (the “SET”).

4In a subsequent Interim Decision dated March 7, 2012, 2012 HRTO 477, the Tribunal re-activated the Application. The Tribunal also indicated that a conference call would be scheduled in this matter to hear submissions on, among other things, the respondent’s request that the Application be dismissed under section 45.1 of the Code on the basis that the subject matter of the Application has been dealt with by the SET.

5On March 8, 2012, the applicant filed a Request for Interim Remedy (“Request”), and on March 14, 2012, the respondent filed a Response to a Request for Interim Remedy (“Response”). The purpose of this Interim Decision is to address the applicant’s Request.

REQUEST FOR INTERIM REMEDY

6The applicant seeks an interim remedy that he be placed back at his “neighbouring high school”. In support of his Request, the applicant submits, among other things, that he has been at home for two years and is not receiving an education. With respect to the harm that would result if the Request is denied, the applicant submits that not being in school will ultimately impact his social, emotional, psychological, and educational skills, which will affect his post-secondary and adult education. He submits that if the Request is denied, he will remain at home and not receive an education.

7In its Response to the Request, the respondent submits that the applicant’s educational identification and placement were determined following an exhaustive educational tribunal process, and that the applicant’s mother is in breach of her obligations under Orders of the SET. The respondent submits that the applicant’s mother refuses to allow the applicant to attend school. In its Response, the respondent makes a “cross-application for an interim remedy” directing the applicant’s mother to comply with her obligations under the SET’s Orders.

8With respect to the alleged harm that would result if the Request is denied, the respondent submits that harm would result to the applicant, school staff, and the students at the high school in question if the Request were granted, whereas an order requiring the applicant’s mother to comply with her obligations under the SET’s Orders is in the best interests of the applicant. The respondent submits that it is imperative that the applicant be returned to full-time self-contained special education classes, as ordered by the SET.

DECISION

9The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

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.

10Normally, the Tribunal’s power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a “significant onus” in establishing that the Tribunal should award an interim remedy: See TA v. 60 Montclair, 2009 HRTO 369, at paras. 28-29.

11Assuming, without deciding, that the Application appears to have merit, I am not satisfied that it has been established that the balance of harm or convenience favours granting the interim remedy requested, or that it is just and appropriate in the circumstances to do so.

12With respect to the balance of harm and convenience, in requesting that he be placed back at his neighbouring high school, the applicant appears to be seeking an interim remedy that is contrary to the SET’s Orders arising out of the SET appeal referred to above. Based on the signed Declaration of the respondent’s Superintendent of Special Education, as accompanying the Response, it appears that, after a four-day hearing into the applicant’s case, the SET ordered that the applicant be placed in a self-contained special education classroom.

13Further, the Tribunal has directed that a hearing be held to address preliminary issues including, in particular, whether or not the Application should be dismissed in whole or in part pursuant to section 45.1 of the Code as having been appropriately dealt with through the SET appeal. This Tribunal has held that interim remedies are generally awarded in anticipation of a hearing on the merits by the Tribunal: See Rudnicki v. Liquor Control Board of Ontario, 2010 HRTO 1980, at para. 18. At this point in time, it is not clear if this Application will proceed to a hearing on the merits, in light of the preliminary issues that have yet to be determined.

14In my view, having regard to all of the circumstances at this time, including that the Tribunal has not yet determined whether the Application will proceed to a hearing on the merits, it would neither be fair nor appropriate to grant the requested interim remedy.

15With respect to the respondent’s “cross-application for an interim remedy”, the Tribunal’s Rules do not provide for respondent requests for interim remedies.

ORDER

16The applicant’s Request for Interim Remedy is dismissed, and the respondent’s cross-application for an interim remedy is also dismissed.

17I am not seized of this matter.