Doxtador v. Hamilton-Wentworth District School Board, 2012 HRTO 933

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony Doxtador Applicant

-and-

Hamilton-Wentworth District School Board Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: May 9, 2012

Citation: 2012 HRTO 933

Indexed as: Doxtador v. Hamilton-Wentworth District School Board

APPEARANCES

Anthony Doxtador, Applicant ) Self-represented

Hamilton-Wentworth District School Board, ) Jane Gooding, Counsel

Respondent )

1This is an Application filed on May 21, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in goods, services or facilities because of race, ancestry, ethnic origin, sex, family status, marital status and reprisal.

BACKGROUND

2The applicant is an aboriginal man (specifically Haudenosaunee) who is divorced and has two children. His former wife has sole custody of the children. In his Application, the applicant describes the difficulties he has experienced in becoming involved in his children’s school activities and in receiving information about his children from their schools. He alleges that he did not receive report cards, school reports and information about his children’ progress or difficulties on a regular basis, despite persistent requests to teachers and principals. He concluded that the respondent did not have a policy for dealing with divorced or separated parents. The applicant also asserts that the respondent failed to confirm that an assessment of his son took into consideration his Haudenosaunee culture, traditions and history.

3By Case Assessment Direction (“CAD”) dated May 19, 2011, the Tribunal ordered a Summary Hearing to determine whether the Application should be dismissed because there is no reasonable prospect that it will succeed. The hearing was held on November 17, 2011.

Summary Hearings

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

The Parties’ Submissions

5In his submissions, the applicant recounted in greater detail the allegations set out in the Application with respect to the history regarding his divorce and the difficulties he experienced dealing with the teachers and principals at the two schools his children attended in the respondent school board. He stated that he and his wife divorced in 2005. The divorce was contentious and the Children’s Aid Society was involved, conducting seven separate investigations. His ex-wife has sole custody of the children and the applicant has only supervised access to the children. His children have attended two schools in the respondent board’s system and at both schools he had difficulty getting information about his children despite a court order entitling him to such information. He persisted in his attempts to get information in a timely manner and took his concerns to a superintendent of the respondent, to no avail. He learned from his son’s teacher that his son was to undergo a psychological assessment and stated that the assessor should consider his son’s First Nations background. He heard nothing further about the assessment. The applicant stated that the respondent prevented him from attending school events because the respondent accepted his ex-wife’s interpretation of the court orders regarding custody and access of his children, which he submitted was gender discrimination. He submitted that the respondent was not coordinating the court orders to ensure that all parties are satisfied. The complainant submitted that the respondent’s failure to meet his needs and to act as a neutral arbiter between him and his ex-wife is evidence of reprisal.

6The respondent submitted that the applicant did not establish a reasonable prospect of success for the Application. The respondent noted, as did the Tribunal in the CAD ordering the Summary Hearing, the legal analysis is not about whether the respondent treated the applicant fairly, but whether the respondent breached the Code in some way. The respondent submitted that the applicant did not present anything in his submissions that linked the respondent’s alleged actions to a prohibited ground of discrimination. The respondent also submitted that the applicant must meet a high threshold to establish reprisal under section 8 of the Code. Section 8 requires proof of intentional action or a threat of such against the applicant because he sought to enforce his human rights. The respondent submitted that the applicant made no submission of a retaliatory action or threat against him related attempts to enforce his rights under the Code.

7The respondent also contradicted some of the applicant’s factual assertions. The respondent submitted that the respondent had in fact gone a long way to meet the applicant’s requests for information about his children. The respondent ultimately concluded that a formal assessment of the applicant’s son was not needed and none was conducted. Had the respondent assessed his son, the issue of considering his aboriginal background would relate to his son’s human rights, not the applicant’s. The respondent stated that it had also tried to help reach a compromise to allow the applicant supervised access to his children at school and to attend school events. However, the latest court order regarding the applicant’s access to his children gave the applicant access to his children for only three hours on Saturdays at the YMCA supervision centre and the Children’s Aid Society would not give permission for the applicant to visit the children’s school. The respondent submitted that in these circumstances its hands were tied. The applicant may not agree with the respondent’s conclusion that he was not entitled to attend at his children’s school, but there was nothing in their decisions that violated the Code.

Analysis and Decision

8For the reasons that follow, I find the Application has no reasonable prospect of success.

9The applicant’s submission largely recounted in greater detail the allegations set out in the Application that the respondent did not provide him with information regarding his children, may not have assessed his son properly and took his ex-wife’s side regarding his ability to visit his children’s schools. In my opinion, the applicant did not point to any evidence that would connect the respondent’s alleged actions to a prohibited ground of discrimination. For the purposes of a Summary Hearing, I assume that that the applicant could prove the respondent did not provide him with information regarding his children. That seems unfair, but the applicant pointed to no evidence that he has or is reasonably available to him that could support a finding that any of the prohibited grounds under the Code were a factor in the respondent’s actions towards him. The applicant did not point to evidence that the respondent actually assessed his son. Therefore, there is no basis to conclude that the respondent failed to consider the applicant’s son’s background. Even if this had been the case, and assuming such a failure violates the Code, it would relate to his son’s rights, not his.

10This Application arises out of the custody and access orders made by the Court following the applicant’s divorce. The respondent is not a party to the family law proceedings between the applicant and his ex-wife, but seems to have been thrust into the midst of the dispute to the extent that the Court orders affect the applicant’s right to attend at his children’s schools. The applicant clearly wanted the respondent to facilitate an arrangement whereby he would be able to visit his children’s schools to attend functions. The applicant pointed to no evidence that would suggest that the respondent is required to take on such a role and the respondent noted that the latest access order, as well as the direction of the CAS, did not permit the applicant to attend the children’s school. It may be that the respondent is incorrect regarding its role in connection to the applicant’s access issues or has incorrectly interpreted the applicant’s entitlements regarding access to his children at school. However, the applicant pointed to no evidence that prohibited grounds of discrimination were a factor in the respondent’s decisions regarding his access at his children’s school. The fact that his ex-wife may support the respondent’s conclusion is not in my view evidence that the respondent decided against allowing the applicant to attend at his children’s school because of his gender.

11The applicant did not point to any evidence that he has or is reasonably available to him that could establish the necessary elements of reprisal, pursuant to section 8 of the Code. Section 8 of the Code states as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

12The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

13The Application contains no allegations of reprisal and in his submissions the applicant stated that he considers the respondent’s alleged ongoing failure to provide him information regarding his children and to facilitate a compromise regarding his access entitlements amounted to a reprisal. The applicant did not indicate that he had claimed or tried to enforce his rights under the Code. To be sure, the applicant described his ongoing attempt to enforce what he sees as his rights to receive information regarding his children from their school and to attend their school for functions. These are important matters, but are not within the ambit of the Code; therefore, retaliation for seeking to enforce them does not come within the protection afforded under section 8. In any event, the applicant pointed to no evidence – other than his bare assertion – that the respondent’s actions towards him were intended as retaliation against him.

14The applicant has not pointed to any evidence that he has or may be reasonably available to him linking the respondents alleged behaviour to any prohibited ground of discrimination under the Code or that would establish the necessary elements of a reprisal under section 8. Consequently, I find the Application has no reasonable prospect of success.

Order

15The Application is dismissed.