HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.M. by his next friend A.M.

Applicant

-and-

Halton District School Board

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: April 4, 2012

Citation: 2012 HRTO 689

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

APPEARANCES

) D.M., Applicant ) A.M., Next Friend ) ) Halton District School Board, Respondent ) Bob Keel and Jasmeet Kala, Counsel ) Krista Moreau, Student-at law

1The Application was filed under section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), by D.M. by his next friend A.M. The Application alleges discrimination in services, goods or facilities on the basis of race, colour, ethnic origin, and place of origin.

2In essence, the Application relates to allegations these Code grounds were factors in the respondent’s decision to exclude D.M. from school following a behavioural incident that occurred on May 12, 2011.

3I appreciate that the Application arises out of difficult circumstances. While I understand that D.M. may feel frustrated with the respondent’s decision and decision-making process, I find that in all of the circumstances, there is no reasonable prospect of establishing that the respondent treated D.M. differently from others on the basis of any of the Code-related factors identified in the Application.

OVERVIEW

4D.M. is a student in the respondent school board. While there is a factual dispute as to the exact nature of D.M.’s behaviour on May 12, 2011, the parties agree he behaved uncharacteristically and that it was appropriate for him to be removed from school on that day.

5The respondent states that D.M. had become aggressive and emotionally unstable and that he spoke incoherently and exhibited strange behaviour. D.M.’s next friend disputes this, although she does acknowledge that, when she attended at the school to pick up D.M., he was high-strung and acting out. She does not dispute that it was appropriate for him to leave the school at that time.

6The allegations of discrimination relate to the fact that D.M. was not permitted to return to school for 17 days, until May 30, 2011. The Application states that the respondent discriminated against D.M. on the basis of his race, ethnic origin, colour, and place of origin because:

a. It required him to produce a doctor’s note attesting to his fitness to return to school;

b. It did not immediately allow D.M. to return to school, notwithstanding the doctor’s note stating that he was fit to return;

c. It sought to communicate with the doctor;

d. It conducted an investigation and a complete threat risk assessment before it would allow D.M. to return to school;

e. It decided to exclude D.M. from school property under section 265(1)(m) of the Education Act, which the applicant states was punitive; and

f. It did not keep the applicant fully informed of its decision-making process in a timely manner.

7I note that the Application does not identify disability as a ground of discrimination. In the Application and at the summary hearing, the applicant’s next friend vigorously disputes that D.M. had a disability at the material times. She argues that while it was appropriate for her son to leave school on May 12, 2011, his subsequent exclusion from school is discriminatory on the basis of his race, colour, ethnic origin, and place of origin. She argues that, had D.M. been Caucasian, he would have been treated differently.

8The respondent has filed a detailed Response in which it denies the allegations of discrimination. It states that based on its observations of D.M.’s behaviour on May 12, 2011, and based on information provided to it by D.M.’s sister and other students, it had reason to believe that D.M. was a threat to himself or to others. It states that it has a duty to ensure security in schools and to provide a safe learning environment for all students. In all of the circumstances, the respondent states that it was justified in taking the position it did. In any event, it argues that there is no reasonable prospect that the Application can succeed in demonstrating any differential treatment based on the grounds identified.

9In a Case Assessment Direction (“CAD”) dated December 2, 2011, the Tribunal ordered that a summary hearing be held pursuant to Rule 19A of the Rules of Procedure to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The summary hearing was conducted by telephone conference on March 28, 2012. I heard submissions from the applicant’s next friend and from counsel for the respondent.

ANALYSIS

10Section 1 of the Code states:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

11The issue before me in determining this summary hearing is whether the applicant has no reasonable prospect of establishing that the respondent discriminated against D.M. based on his race, colour, place of origin, or ethnic origin by refusing to allow him to return to school until May 30, 2011.

12In considering this issue, I am mindful that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination on the grounds set out in the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

13For the purposes of the summary hearing, it is not necessary or appropriate for me to resolve the factual dispute as to D.M.’s behaviour on May 12, 2011. As counsel for the respondent pointed out, even based only on the applicant’s submissions, it is clear that D.M.’s behaviour was uncharacteristic and disruptive, and that it warranted his removal from the school on that day.

14The respondent has filed a detailed Response in which it explains why it was concerned about D.M. returning to school. It states that, not only did it observe unusual and troubling behaviour by D.M. on May 11 and May 12, 2001, but also:

a. It received complaints from students on May 17, 2011. The students pointed to photos and text messages and indicated that they were afraid for and of D.M.; and

b. On approximately May 18, 2011, the respondent learned from D.M.’s sister that an emergency room physician had diagnosed D.M. as having had a psychotic break and that a follow-up appointment was made for him with a psychiatrist.

15The respondent states (and the applicant does not dispute) that the applicant gave permission for the respondent to contact the doctor who authored the medical note. The respondent states that it was concerned that the physician had not been given sufficient information regarding the May 12, 2011 incident to make a proper diagnosis. The respondent made several attempts to reach the doctor, but was never successful in doing so. It did, however, forward the vice-principal’s notes of the incident to the physician.

16The applicant filed two letters along with the Application, these are dated May 24, 2011 and July 6, 2011 respectively. In the May 24, 2011 letter, the school principal advised of his decision to exclude D.M. from school pursuant to the Education Act. On July 6, 2011, a superintendent wrote to provide a more detailed explanation for this decision. In its Response, the respondent further states that, on different occasions between May 12 and May 30, 2011, a superintendent, the principal and the vice-principal spoke to the applicant’s next friend on the telephone. The applicant states that the May 24, 2011 letter was not received until May 30, 2011. However, the applicant has not, in his Reply or in oral submissions, disputed that the applicant’s next friend spoke to a superintendent, the principal or the vice-principal, as alleged by the respondent.

17On May 30, 2011, D.M. and his mother attended at the school. They reviewed and signed a safety management plan and D.M. was allowed to return to school.

18As I have indicated, the applicant disputes the significance and the severity of May 12, 2011 incident. He believes the respondent overacted to this incident, and that D.M.’s race, colour, ethnic and place of origin were factors in the respondent’s assessment of the situation. He also argues that the respondent overreacted to the students’ complaints and that the pictures and text messages these students showed the respondent did not warrant D.M.’s continued exclusion from school.

19At the summary hearing, I asked the applicant’s next friend to explain why she believes D.M.’s race, colour, place of origin and ethnic origin were factors in what occurred. She, quite correctly, points out that discrimination can be subtle. She states that she has no overt evidence to show discrimination, but that D.M. is one of a small number of racialized students in the school. She argues that, had D.M. been Caucasian, he would not have been excluded from the school in this way. Further, she argues that, as D.M.’s mother, she would have had access to more timely information about the respondent’s decision and decision-making but for her or D.M’s race, colour, place of origin or ethnic origin.

20I fully accept that discrimination can be subtle and difficult to prove. I appreciate that, in some instances, the information or evidence that may give rise to a finding of discrimination rests with the respondent and needs to be adduced at a merits hearing. In light of this, I have carefully considered whether, in the circumstances of this case, it would be appropriate for the matter to proceed to a full hearing on the merits of the allegations.

21In all of the circumstances, however, I have decided that a merits hearing is not necessary. I am able to conclude, at this stage of the proceeding, that the Application has no reasonable prospect of success. In reaching this conclusion, I am influenced by the fact that the respondent has provided a very detailed Response that appears to present a reasonable and non-discriminatory basis for the decisions it made. The applicant had an opportunity, in his Reply and at the summary hearing, to challenge the respondent’s position and to point to elements of its explanation that he believes are flawed or discriminatory.

22While it is clear that the applicant disagrees with the respondent’s assessment of the situation, he has not provided any basis beyond speculation to suggest that it was discriminatory. Further, as I explain in more detail, below, the respondent appears to have presented a cogent and non-discriminatory explanation for its behaviour. In light of the detailed Response and the applicant’s inability to (based on the Code) challenge the respondent’s explanation for its behaviour, the allegations in the Application appear all the more speculative.

23The respondent had observed uncharacteristic and troubling behaviour by D.M., had received student complaints, and had been informed by D.M’s sister that D.M. had had a psychotic break that required psychiatric follow-up. While I make no finding as to whether or not D.M. had a psychotic break, there is no dispute that D.M.’s sister so advised the respondent. In the circumstances, it not unreasonable for the respondent to have considered this information in its decision-making. I note as well that the respondent attempted to communicate with D.M’s psychiatrist but was unable to speak to her.

24As I have indicated, the respondent has provided an explanation for D.M.’s 17-day exclusion that, based on the information available to it, appears to be a reasonable and non-discriminatory basis for its decision. Beyond speculating that D.M.’s race, colour, place of origin or ethnic origin was a factor in that decision, the applicant has provided no basis to suggest that the respondent discriminated against D.M. While he clearly believes that the respondent overreacted to the May 12, 2011 incident and misapprehended the seriousness of the matter by giving too much credence to the information it received from D.M.’s sister and from other students, the applicant has not provided any basis (beyond speculation) to suggest that this is based in a Code-related ground.

25I accept that the respondent has an obligation to consider the safety of all of the students at the school. While the applicant feels strongly that D.M. was not a threat to his or anyone else’s safety as of at least May 13, 2011, this does not mean that it was inappropriate for the respondent to take further steps to ensure this was, in fact, the case.

26Finally, there were a number of communications between the respondent and the applicant’s next friend in the period between May 12 and May 30. While I understand that the applicant would have preferred more timely information, beyond speculating that D.M. would have been treated differently but for his race, ethnic origin, place of origin and colour, the applicant has not provided any evidence or referred to any expected evidence that would assist in establishing that any failure to communicate in a timely way amounts to discrimination.

DECISION

27For all of these reasons, the Application is dismissed. I find that it has no reasonable prospect of success.