Campbell v. Durham District School Board, 2013 HRTO 1490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kriston Campbell

Applicant

-and-

Durham District School Board

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: September 4, 2013

Citation: 2013 HRTO 1490

Indexed as: Campbell v. Durham District School Board

WRITTEN SUBMISSIONS

Durham District School Board, Respondent

Kathryn Bird, Counsel

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, age and association with a person identified by a Code ground. Following an altercation on April 25, 2012, involving several students from one of the respondent’s schools the respondent took a number of actions including expelling the applicant. The Application alleges these actions are discriminatory.

2This Interim Decision addresses a request by the respondent to consolidate this Application with two other Applications and to refer it to a summary hearing.

REQUEST FOR AN ORDER DURING PROCEEDINGS

3On August 14, 2013, the respondent filed a Request for an Order during Proceedings (“RFOP”) requesting that the Application be consolidated with Applications 2013-14271-I and 2013-14570-I which were filed by the next friend of two other students attending the same school as the applicant. The respondent requests that the Application be referred to a summary hearing. Currently Applications 2013-14271-I and 2013-14570-I are scheduled to be heard together at a summary hearing on October 31, 2013.

4The respondent submits that the majority of the factual circumstances that give rise to the present Application and Applications 2013-14271-I and 2013-14570-I are identical. It submits that all three Applications relate to the altercation on April 25, 2012, the subsequent investigation by the respondent and the eventual expulsion of all three applicants from the Durham District School Board. It notes that the applicants had previously agreed to have a consolidated hearing before the committee that considered whether to expel the three applicants (and one further student).

5The respondent submits that the essential question raised by all three applicants is whether the decision to expel them following the events of April 25, 2012, is related to their race, colour or age. It submits that the potential oral and documentary evidence that the three applicants will want to rely on will largely be identical.

6The respondent submits that allowing the Application to proceed separately from Applications 2013-14271-I and 2013-14570-I would raise significant risks of inconsistent results, repetition of evidence and inconvenience for the witnesses. It submits that there is no prejudice to the parties in consolidating the Applications.

7The respondent submits that the Tribunal has already determined that a summary hearing would be held for Applications 2013-14271-I and 2013-14570-I in order to determine whether the applicants in these two Applications have a reasonable prospect of success in demonstrating a link between the grounds of discrimination cited and the respondent’s actions. The respondent submits that as the allegations in the present Application arise from the identical factual circumstances and raise identical questions of law it is appropriate to refer the present Application to the same summary hearing scheduled for Applications 2013-14271-I and 2013-14570-I.

8Copies of the respondent’s RFOP were sent to the applicant and the applicants in 2013-14271-I and 2013-14570-I. The Tribunal has not received a response to the RFOP from any of the applicants.

ANALYSIS

Should this Application be set down for a summary hearing?

9I have first considered whether the Application should be set down for a summary hearing. Rule 19A of the Tribunal’s Rules of Procedure states that the Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

10Details about the nature of a summary hearing were set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

11The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the grounds of discrimination alleged.

12The Application makes the allegation that following an altercation on April 25, 2012, the applicant was subject to unwarranted and discriminatory treatment including expulsion. In my view a summary hearing is required to determine whether there is a reasonable basis to believe that the applicant could establish a link between the grounds cited (race, colour, age and association with a person by a Code related ground) and the respondent’s alleged actions.

Should this Application be Consolidated or Heard Together with Applications 2013-14271-I and 2013-14570-I?

13Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. Some of the factors the Tribunal considers in deciding whether to consolidate or hear proceedings together include the public interest in avoiding a multiplicity of proceedings, the risk of inconsistent results and the potential prejudice to the parties that could result from a single hearing. See Persaud v. Toronto District School Board, 2008 HRTO 25.

14In my view, the Applications should be heard together. I am satisfied that the public interest in avoiding a multiplicity of proceedings and the risk of inconsistent results are significant factors in favour of hearing these Applications together. I do not see the prejudice to the applicants that would result from holding a single hearing.

15The Registrar’s Office will issue a Notice of Hearing to the Applicant for the half-day summary hearing scheduled to take place by teleconference on October 31, 2013 from 1:30 p.m. to 4:30 p.m.

16The applicants will proceed first during this summary hearing. The applicants shall make arguments about why their Applications should not be dismissed for having no reasonable prospect of success, and point to the evidence on which the applicants will establish a link to the grounds alleged and a link to the respondent’s alleged actions. No witnesses will give evidence during the summary hearing.

17If the Tribunal determines that the Applications have no reasonable prospect of success, they will be dismissed. If the Tribunal does not find that the Applications should be dismissed under Rule 19A, they will continue in the Tribunal process. The Applications may be dismissed in whole or in part.

18The respondent need not file any materials or Responses to the present Application unless directed to do so by the Tribunal. If the parties wish to rely on any further documents or cases at the summary hearing they shall deliver copies of these materials to each other and file with the Tribunal copies no later than 14 days prior to the teleconference.

19The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

20I am not seized of this matter.

ORDER

21The Application will be heard together with Applications 2013-14271-I and 2013-14570-I at a summary hearing scheduled for on October 31, 2013 from 1:30 p.m. to 4:30 p.m. A Notice of Summary Hearing from the Registrar’s Office will follow.