Sells v. Kawartha Pine Ridge District School Board, 2013 HRTO 1403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Sells Applicant

-and-

Kawartha Pine Ridge District School Board Respondent

-and-

Elementary Teachers’ Federation of Ontario Intervenor

INTERIM DECISION

Adjudicator: Brian Cook Date: August 15, 2013 Citation: 2013 HRTO 1403 Indexed as: Sells v. Kawartha Pine Ridge District School Board

WRITTEN SUBMISSIONS

Robert Sells, Applicant Self-represented and now represented by Muneeza Sheikh, Counsel

Kawartha Pine Ridge District School Board, Respondent Colin Youngman, Counsel

INTRODUCTION

1This Application is scheduled for hearing on September 13, 2013.

2This Interim Decision deals with the applicant’s request to amend the Application and with issues raised by the respondent in its response to that request. It also deals with an adjournment request.

3The applicant was, at all relevant times, employed by the respondent as a teacher. The Application was filed on June 24, 2011 and concerned events that occurred in May and June 2010 when the applicant was experiencing problems related to his vision and headaches. He was off work on a medical leave but wanted to participate in two end-of-school events. He was not allowed to participate in one event and was dissatisfied with the way the respondent dealt with the other event.

4On July 30, 2013, the Tribunal received a Request for Order During Proceedings from the applicant, asking that he be permitted to amend the Application. The proposed amendment includes various events that occurred in 2012 and 2013. The applicant advised that he retired at the end of June 2013. The Request suggests that the various alleged events were discriminatory and/or that they were reprisals for having filed the original Application.

5On August 6, 2013, the respondent filed a Response to the applicant's Request for Order During Proceedings. The respondent opposes the Request primarily because of the lateness of the request to amend and also because the respondent submits that the allegations in the proposed amended Application do not raise any Code-related issues.

CONCLUSIONS ON THE REQUEST TO AMEND

6When considering a request to amend an Application, the Tribunal will generally consider the nature of the proposed amendments, the timing of the request to amend and whether granting the amendment would be unfair to the respondent.

7In this case, the proposed amendment would very significantly alter the nature of the Application. The original Application dealt with relatively discrete events in May and June 2010. The proposed amendment involves a large number of events and interactions over a much longer period of time. The request to amend the Application has been submitted only a matter of weeks before the scheduled hearing. Given the scope of the allegations, the respondent would have difficulty preparing an amended Response or preparing for a hearing based on the additional allegations and in my view, it would be unfair to require it to do so.

8For these reasons the applicant’s request to amend the Application is denied.

CONCERNS ABOUT DOCUMENTS

9The applicant appended a large number of documents to the Request for Order During Proceedings concerning the request to amend the Application.

10According to the respondent, some of these documents are records regarding pupils that are protected by the Education Act and that the applicant should not have these records and should not have disclosed them. The respondent asks the Tribunal to issue an Order directing the applicant to destroy the protected documents although the respondent has not explained how the Tribunal would have the authority for such an order. The applicant has not replied to the respondent’s request for an Order.

11The respondent has not identified which of the documents submitted by the applicant are protected by the Education Act. However, it does appear that some of the documents are of a nature that some of them may have come from Ontario Student Record files and may be protected by the Education Act.

12The documents filed by the applicant are apparently filed in support of his request to amend the Application. It is not clear how the documents concerning individual students are relevant to the amendment request. However, it appears that they are not relevant to the original Application. The applicant may wish to consider the concerns raised by the respondent about records concerning individual students and advise the respondent if he is prepared to return any such documents in his possession.

13I direct the following regarding the documents filed by the applicant in support of the request to amend the Application:

• The documents forwarded to the Tribunal will be immediately sealed.
• Any issues that are within the jurisdiction of this Tribunal to determine concerning these documents may be raised at the hearing on September 13, 2013. If the respondent wishes to pursue a request about specific documents as they relate to provisions of the Education Act, the respondent should identify the specific documents.

ADJOURNMENT REQUEST

14On August 13, 2013, the Tribunal received an email from Muneeza Sheikh, stating that he has been retained by the applicant in respect to the Application. The email asks that the hearing scheduled for September 13, 2013 be adjourned as counsel is not available on that date.

15The Tribunal’s Practice Direction on Scheduling states as follows about adjournment requests:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

16The Tribunal typically does not grant an adjournment if the only basis for the request is that a party has retained counsel shortly before the scheduled hearing (see, for example, Siddall v. St. Clair College of Applied Arts and Technology, 2013 HRTO 444).

17The applicant’s request for adjournment is denied.

MEDIATION/ADJUDICATION

18At the hearing on September 13, 2013, the Tribunal adjudicator will offer to assist the parties with settlement discussions if the parties are interested in pursuing settlement options. This offer will be made pursuant to the Tribunal’s mediation/adjudication process, described in Rule 15A of the Tribunal’s Rules of Procedure. The main feature of this process is that the parties agree that the adjudicator will continue to adjudicate the Application if the parties do not settle some or all of the issues.