E.A. and K.A. v. Simcoe-Muskoka Catholic District School Board, 2013 HRTO 1453

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.A. and K.A. by their next friend M.A.

Applicants

-and-

Simcoe-Muskoka Catholic District School Board

Respondent

DECISION

Adjudicator: David Muir

Date: August 26, 2013

Citation: 2013 HRTO 1453

Indexed as: E.A. v. Simcoe-Muskoka Catholic District School Board

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, colour, ancestry, place of origin and ethnic origin.

2The applicants allege that the respondent school board has discriminated against them by failing to provide E.A. with adequate educational support and treating him differently from other pupils, by calling the Children’s Aid Society (the “CAS”) to investigate the applicants’ family on two occasions and by allowing the respondent’s staff to insult both applicants with racial slurs. The applicants maintain that the respondent’s treatment of them caused their parents to remove them from the school and to move them to live with their grandparents in another town. They maintain that the respondent is the cause of this separation from their parents.

3A hearing is scheduled for September 4, 2013 and the Tribunal’s Notice of Confirmation of Hearing has set out timelines for the parties to exchange arguably relevant documents and for the exchange and filing with the Tribunal of documents and witness statements that they intend to rely on at the hearing. To date the respondent has delivered its arguably relevant documents to the applicants, but they have not sent theirs to the respondent.

4The respondent made two requests. One was for the Tribunal to order the applicants to produce all of their arguably relevant documents, including the applicants’ Ontario School Records (“OSR”); their CAS file and any correspondence from the CAS in the period January 2010 to the present; and a kinship agreement (if it exists) providing for the applicants’ residence with their grandparents.

5The second request was for the applicant to provide particulars which would shed light on a number of the applicants’ allegations. These include when and with whom the applicants’ mother met in her first encounter with the respondent’s school staff; specifics of the acts of discrimination alleged by the applicants, including the names of staff, dates of the alleged acts and the particulars of those acts; any evidence that would support the applicants’ claims of the impact the alleged discrimination has had upon them; and any evidence of the applicants’ academic progress since leaving the respondent’s school.

6A case management conference call was scheduled for July 26, 2013 to address these requests. The respondent participated but the applicants’ next friend did not, despite having been given notice of the call. After allowing the applicants a grace period of half an hour to participate, the call proceeded in their absence.

7Both requests of the respondent were granted in 2013 HRTO 1335 and further Directions were made as follows:

The applicants, through their next friend, are directed to indicate in writing to the Tribunal and the respondent within five days of this Interim Decision whether they consent to the disclosure of the OSRs. If they do not respond, their Application may be dismissed as abandoned. If they do not consent to disclosure, they must set out in writing why they do not consent and why they believe their Application should not be dismissed as an abuse of process.

If the applicants consent to the disclosure of the OSRs, then these documents must be provided to the respondent by August 9, 2013.

The applicants must also provide the respondent with the following documents by August 9, 2013: those parts of the CAS file and any related correspondence that deal with the two incidents referred to in paragraph 10 above; the kinship agreement referred to in paragraph 11 above; and any other arguably relevant documents. If they do not provide these documents to the respondent by this deadline their Application may be dismissed as abandoned.

The applicants are to provide to the respondent and file with the Tribunal their witness list, witness statements, and copies of documents they intend to rely upon at the hearing by August 12, 2013. If they do not do so by this deadline, their Application may be dismissed as abandoned.

The respondent is directed to provide to the applicants and file with the Tribunal its witness list, witness statements, and copies of documents it intends to rely upon at the hearing by August 19, 2013. If the respondent does not do so by this deadline, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.

8The applicants have not complied with any of these Directions above and have not communicated with the Tribunal in any way. In all of the circumstances described above I find that the applicants have abandoned this Application and accordingly it is dismissed.