Human Rights Tribunal of Ontario
BETWEEN:
Jared Clough by his next friend Susan Clough Complainant
-and-
Ontario Human Rights Commission Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education Respondent
INTERIM DECISION
Adjudicator: David A. Wright Date: July 24, 2013 Citation: 2013 HRTO 1293 Indexed as: Clough v. Ontario (Education)
APPEARANCES
Jared Clough by his next friend Susan Clough, Complainant E.M. Venhola, Counsel
Ontario Human Rights Commission, Commission Anthony D. Griffin, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Respondent Robin Basu, Counsel
1This Interim Decision relates to a Complaint that was filed on January 13, 2003, with the Ontario Human Rights Commission and referred to the Tribunal by the Ontario Human Rights Commission on August 23, 2005. On May 9, 2012, based on the wording of the materials submitted by counsel for all parties, the Tribunal issued an Order finally disposing of the proceedings without further hearing. The Tribunal and the Commission understood that the matter was concluded, although the complainant and respondent did not. The complainant did not contact the Tribunal until July 2013, at which time it became clear that through an error of counsel, the Order and Minutes of Settlement did not properly reflect the parties’ agreement that parts of this complaint would proceed.
2On a telephone conference on July 23, 2013, the parties asked that the Tribunal amend its order disposing of the complaint in its entirety. Reluctantly, in view of the long delay since the Order was issued, the Tribunal grants the request of the parties that the consent order be amended to provide that the parts of the complaint that do not relate to IBI (intensive behavioural intervention) may proceed.
3There is no need to reiterate the long history of negotiations and process on this file. I remain concerned that at no time since the order of May 9, 2012, until this month, did the complainant or respondent alert the Tribunal to the fact that the complainant and respondent intended for this matter to move forward. In the circumstances, however, given that the complainant and respondent agree that it was their intention to settle only part of the complaint, I amend the Order to provide that the parts of the complaint not relating to IBI are not settled. In light of the parties’ consent and agreement between the complainant and respondent as to their intention, I apply Rule 96 of the Rules of Practice for Commission-Referred Complaints and find there was an error in the Order since it did not reflect the parties’ intention in their Minutes of Settlement. I waive the 30-day delay for making such a request.
4The Tribunal is adamant that this matter must move forward in an expeditious, fair and just manner. The Commission does not intend to participate further in this matter, except to the extent that it may involve legal issues related to the interpretation of Moore v. British Columbia (Education), 2012 SCC 61.
5In reviewing the materials following the case conference, it came to my attention that the complainant, who was nine years old when the complaint was filed, is now over 18. It appears that in other related files he has brought an application through a litigation guardian: Clough v. Simcoe County District School Board, 2012 HRTO 958. If the complainant does not have capacity to conduct the litigation, counsel for the complainant should bring a request to have a litigation guardian appointed. If he does have capacity to pursue the litigation, J.C. should proceed in his own name. See generally Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 and 2012 HRTO 366.
6The Tribunal set the following dates for the next steps in this complaint:
The complainant shall file a complete pleading and any request for the appointment of a litigation guardian on or before August 9, 2013. The complainant must ensure that the pleading includes a complete description of the complainant’s theory of discrimination and all facts upon which the complainant relies. This deadline will not be extended absent exceptional circumstances.
The respondent shall file a complete pleading and the appropriate request in light of the fact that the complainant is now above 18 years, on or before August 28, 2013. The respondent must ensure that the pleading includes a complete description of the respondent’s theory of the case and all facts upon which the respondent relies. This deadline will not be extended absent exceptional circumstances.
The respondent shall advise the Tribunal by August 28, 2013, whether it agrees to participate in mediation.
The parties shall attend at the Tribunal’s hearing centre on September 24, 2013, commencing at 9:30 AM. Formal notice will follow from the Registrar-Transition. This date shall be used for mediation and case management or, if there is no agreement to mediate, for case management only, and will not be rescheduled absent exceptional circumstances. The parties shall be prepared to set early dates for production, witness statements, and the hearing and must have their calendars available. If the date is used for mediation and there is no settlement, dates will be set for these next steps at the conclusion of the mediation.
7I am not seized of this complaint.
Dated at