D.V. v. Georgian Bay Secondary School Association, 2013 HRTO 1420

Human Rights Tribunal of Ontario

Between:

D.V. by her next friend D.S.J. Applicant

-and-

Georgian Bay Secondary School Association and Ontario Federation of School Athletic Associations Respondents

Interim Decision

Adjudicator: Naomi Overend Date: August 19, 2013 Citation: 2013 HRTO 1420 Indexed as: D.V. v. Georgian Bay Secondary School Association

Written Submissions

D.V., Applicant Self-represented

Ontario Federation of School Athletic Associations and Georgian Bay Secondary School Association, Respondents Stephen MacDonald, Counsel

Introduction

1This Interim Decision deals with the applicant’s Request for Interim Remedy (Form 16), which was filed at the same time as her Application.

2The applicant’s mother filed this Application on behalf of the applicant, who is a minor, on May 21, 2013. The Application alleges discrimination in services on the basis of ancestry, place of origin, citizenship, ethnic origin and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

3The applicant was a grade 10 student at the time the Application was filed. She will be starting grade 11 in the fall. The applicant transferred schools in April 2013. She had, in fact, attended her current school, which is a French-language school, for grades 7 and 8, but had transferred to an English-language school with an extended French program for grade 9 and part of grade 10.

4The Application states that the applicant was dissatisfied with the level of French-language instruction in the extended French program at the English-language school and that this was a factor in her decision to transfer back to her original school.

5The Application alleges that the respondents maintain a discriminatory Transfer Policy, which restricts the applicant’s ability to play on any “interschool” teams at the new school. Specifically, the applicant is precluded from playing on an interschool team at the new school if she had been played for an interschool team (in the same sport) at the school from which she transferred. This restriction is time-limited (one year) and subject to a number of exemptions, none of which apply to the applicant.

6The applicant transferred to her “new” (French-language) school in April 2013. She had played sports on two interschool teams at her English-language school and so will not be eligible to play these sports on such teams at her new school until April 2014. The applicant seeks to be relieved from this restriction by way of interim remedy.

Decision

7Rule 23.2 of the Tribunal’s Rules of Procedure, relating to requests for interim remedies, states:

23.2 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.

8In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal held that an order for an interim remedy is an extraordinary power that should be exercised only in appropriate circumstances in furtherance of the Code’s remedial objective. The applicant bears a significant onus to demonstrate that the interim remedy is necessary.

9To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious. (See TA, at paras. 30-32).

10The applicant alleges that she was caught by the policy because she wished to exercise her right to French-language instruction as enshrined in s. 12 of the Canadian Charter of Rights and Freedoms (the “Charter”) and the Education Act, R.S.O. 1990, c. E.2, as amended. She is not suggesting that the Transfer Policy is directly discriminatory, but that it has an adverse impact on persons who are part of the francophone linguistic minority.

11It is not disputed that the applicant was caught by this policy, and that she is a francophone. However, having said that, it is not immediately apparent how the Transfer Policy has an adverse impact on the group of which the applicant is a member, which would be a requirement for a finding constructive discrimination under section 11 of the Code.

12In any event, the applicant also argues that the exemptions to the Transfer Policy are also discriminatory, in that they draw distinctions between groups defined by grounds under the Code. For example, the applicant argues that because her parents are married and living together, she cannot take advantage of the exemption which allows for children who transfer schools after moving to live with a custodial parent. On the face of this argument, it is difficult to see how being required to move and transfer schools in order to live with a parent puts an individual at an advantage over the applicant.

13The applicant does point to one exemption based on the grade the student is in at the time of transfer, which is related to the student’s age. Students in grades lower than grade 10 are exempted from the Transfer Policy. If the applicant had transferred in the previous year (i.e., when she was 15 rather than 16) she apparently would have been exempt from the Transfer Policy.

14Age is defined in s. 10(1) of the Code as “an age that is 18 years or more” and so would not encompass the differential treatment accorded to those under 16 years of age. The applicant has responded to this jurisdictional barrier by bringing a Notice of Constitutional Challenge, in which she asserts that the definition of age in the Code offends s. 15 of the Charter.

15In Toussaint v. Ontario (Health and Long Term Care), 2010 HRTO 2102, the Tribunal was asked to provide an interim remedy in a situation where the applicant asserted that she had been discriminated against on the basis of citizenship. In that case, an issue arose because it appeared that the definition of citizenship in the Code was not sufficiently broad to encompass that applicant’s situation.

16The Associate Chair discusses at paras. 40 and 41 the impact of this hurdle on the first element of the interim remedy test:

In TA, supra, at para. 32, the Tribunal held that in considering the stage of the test, “[t]there may be circumstances where a higher onus [than whether the applicant has an arguable case] is required…” In my view, a strong factor militating against an interim remedy in this case is that based on the Code and the jurisprudence cited to the Tribunal, there is a serious issue about whether the Tribunal has the power to deal with this Application.

There are both legal and practical reasons to be more reluctant to award an interim remedy because of the doubt about the Tribunal’s jurisdiction and whether the defence in s. 16 applies. First, as discussed above, the Tribunal’s power to award interim remedies stems from its jurisdiction over the subject matter of the dispute itself and ability to award final remedies in that dispute. The Tribunal only has jurisdiction over allegations of discrimination on the grounds and under the social areas covered by the Code. It has no inherent jurisdiction to award injunctive relief. It should be particularly cautious in awarding an extraordinary remedy where there is good reason to doubt the Tribunal’s jurisdiction. [Emphasis added.]

17This is just such a case. For the reasons discussed above, there is serious reason to question whether the Tribunal has jurisdiction over this matter. The Tribunal’s jurisdiction may be dependent on the applicant successfully challenging the definition of the ground of age in the Code under the Charter.

18This would, therefore, be an inappropriate case in which to exercise my discretion to grant the interim remedy sought by the applicant. In the circumstances, the Request for Interim Remedy is denied.