S.T. v. Paige, 2013 HRTO 1660

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend A.T.

Applicant

-and-

Cheryl Paige

Respondent

A N D B E T W E E N:

T.T. by his next friend A.T.

Applicant

-and-

Cheryl Paige

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: October 2, 2013 Citation: 2013 HRTO 1660 Indexed as: S.T. v. Paige

WRITTEN SUBMISSIONS

S.T. and T.T., Applicants

A.T. and A.T., Next Friend

Cheryl Paige, Respondent

Glorie Alfred, Counsel

Introduction

1These are two Applications filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods, services and facilities because of ancestry, ethnic origin, place of origin, race and reprisal. They were filed on S.T.'s and T.T.'s behalf by their mother and father respectively. S.T. and T.T. will be referred to as the "claimants" and their parents will be collectively referred to as the "applicants." The Applications with respect to each claimant are identical, but for the name of the claimant.

2The purpose of this Interim Decision is to address the issue of whether some of the allegations in these Applications should be dismissed for delay.

3The Applications originally named two individuals, Nimet Kara and Cheryl Paige ("Paige"), as respondents, but in an earlier summary hearing, the allegations against Nimet Kara were dismissed for delay (see 2013 HRTO 473). The summary hearing was supposed to have addressed the preliminary issues with respect to both respondents, but it was not possible to hear them all on that day, and it was agreed that the delay issues involving Paige would be dealt with in writing.

background

4Paige was the Principal of the school attended by the claimants. She has since retired. The Applications detail a lengthy history of allegations involving conflict between the school (for which the respondent appears to be regarded as the representative) and the applicants, which the applicants allege has impacted on the educational service received by their children, the claimants.

5The Applications do not set out this history in strict chronological order, but it would appear that the allegations date back to at least 2006. Some of the incidents are not dated, but the respondent has given dates, where they are known, and the applicants do not dispute these dates. The Applications were initially filed with the Tribunal on December 23, 2011. While many of the incidents pre-date December 23, 2010, there are some allegations that the parties acknowledge took place in 2011, within the one-year time limit.

Decision and Analysis

Delay

6Sections 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Are the Incidents Outside the One-Year Time Limit?

7The applicants argue that, although some of the allegations pre-date the one-year time limit, they are part of a "series of incidents" of which the last incident occurred within the appropriate time frame. In order to analyze this, the following summary of the allegations is a useful starting point:

• In January 2006, the applicants were referred to the Hincks-Dellcrest Centre without "scientific justification." Although the parents asked for an explanation, none was given.
• At the same time, the school advised the applicants that it was reducing T.T.'s school time by an hour.
• In November 2007, the respondent took a picture of T.T. after instructing him to climb onto a dangerous rail. The respondent refuses to give the applicants a copy of this picture despite a request by them for it. According to the respondent, the applicants raised this issue again with the school and Board officials on September 17, 2008, and again in the first half of 2010.
• In September 2008, T.T. was kicked in the face by another student and lost a baby tooth. The school determined that this was an accident, even though in other such altercations, T.T. was deemed to be the aggressor.
• In November 2009, the school prepared an Individual Education Plan ("IEP") for T.T., without involving the applicants. This IEP was missing a significant page, which the school has yet to give the applicants.
• In April 2010, the school caused the school council to record the arrival time of the applicants for a school council meeting, although no other family's arrival time was noted.
• In May 2010, the school made a false report about the family to the Children's Aid Society ("CAS") and the police, resulting in the police visiting the applicants on May 31, 2010.
• In the fall 2010, the school raised the fees for snacks, which was discussed at the October 2010 school council meeting. After this was rectified, children whose parents could not afford the snack fee were singled out by the school, thus causing embarrassment for some of these children.
• In the fall of 2010, the school prepared an IEP for S.T., which was withdrawn as "unnecessary" when the applicants indicated they wanted to participate in the process. This decision was reversed after the applicants complained and a further meeting was set up for January 2011. It is their view that S.T. was improperly called a "flight risk" on her safety plan.
• T.T. fell and hit his head on February 4, 2011. The school did not initially contact the father (although told he was the first contact), did not call 911 and then blamed T.T. for his injuries. When the father arrived at the school, he confronted staff there, as a result of which the respondent called the police to complain about his behaviour. The school refused to give him a copy of the incident report.
• The police visited the applicants on February 7, 2011, and a trespass notice was delivered on February 8, 2011, preventing the father from attending or contacting the school.
• The school would call the police when S.T. was late for school as part of an apparent campaign suggesting the school was "seeking any opportunity for the police arrest the [family] or CAS to be involved with the care of the children." There are no dates attached to this allegation, but the respondent states that the school called the police on March 28, 2011, when S.T. and a friend did not come to school at the regular starting time.
• On May 3, 2011, the mother was sent a letter inviting her to attend the school for a meeting, which the father was banned from attending. She refused to participate without him.

In addition to these allegations, for which some date could be attached, the applicants also allege:

• The school gave "false information" about the applicants to the other parents on school council.
• School council meetings were held earlier than the times given to the applicants for them. The respondent indicates that she has letters relating to an incident in October 2006, but nothing further.
• The mother attempted to attend a school council meeting that was being held at an earlier time, but was asked to leave because the school council was having a pre-meeting. (Initially, the respondent said this occurred on November 3, 2010, but in its most recent submissions on delay, has suggested that it – or a related incident – occurred prior to the December 2009 council meeting.)
• Since calling for reforms at the school, the applicants stopped receiving important forms and newsletters from the school.

8It is important to note that the respondent disputes these allegations, in particular the applicants' interpretation of events. Without hearing evidence or further argument, I am not in a position to make any assessment of these allegations, other than to note that, on the face of them, some appear to be unrelated to Code grounds.

9I am not prepared to find the 2006-2009 allegations are part of a series of incidents of which the most recent incident was within the one-year limit. The incidents occurring in January 2006 took place nearly five years before the Application was filed. The next alleged incident occurred in November 2007, nearly two years later. This is too large a gap to make it part of a "series" as interpreted by the Tribunal. See AlSaigh v. University of Ottawa, 2012 HRTO 2 at para. 15.

10Likewise, the incidents involving T.T. in November 2007 and September 2008 are separated by more than two years from the next arguably related incident involving him, which is alleged to have occurred in February 2011. The IEP issue involving T.T. in 2009 appears that it may be arguably related to the earlier incidents involving him in 2005-2006. There are, however, no subsequent allegations relating to T.T.'s educational issues.

11The allegation that the school notified the CAS and police about a letter written by the applicants is out of time, but may possibly be seen as part of a series of incidents in which the school has reported concerns about the applicants to outside authorities, the more recent of which occurred in 2011 (i.e., within the one-year time frame).

12With respect to the difficult relationship the applicants have with the school council, it would appear that this problem is an ongoing one. It may be that the evidence does not bear this out, in which case these allegations may be ultimately dismissed as untimely. I am, however, not prepared to dismiss them at this time.

13I would note that these allegations have not been adequately particularized, and should this matter proceed to a hearing, the applicants will be required to provide further detail concerning dates and information about what happened and who was involved.

Was the Delay Incurred in Good Faith?

14As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, "the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim." When filing outside this one year time limit, it is incumbent upon the applicants to provide the Tribunal with an explanation as to why they did not pursue their rights under the Code in a timely manner.

15As noted in my earlier Interim Decision (2013 HRTO 473) dismissing the allegations against the other respondent for delay, the applicants assert that they did not file their Applications in a timely fashion because they were not clear about the reason for the difficulties they experienced with the respondent (i.e., the connection with the Code) until they had access to a CAS report in which certain statements about the claimants' father were attributed to the respondent. As I found in that Interim Decision, they had access to this CAS material in early May 2010, 19 months before they filed the Applications.

16Other than that explanation, the applicants rely on the fact that they at first attempted to address their concerns by dealing with the respondent's superiors. They indicate that they had a meeting with the Director of Education in January 2011, and were told that he would look into their allegations and get back to them. They also sought the assistance of their elected representatives. However, the cases are clear that pursuing one's rights in other proceedings does not constitute a good faith explanation for delay in pursuing rights before this Tribunal: See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Moreover, this does not explain the delay in filing the Applications, which occurred 11 months after the meeting with the Director.

17Given that I have not found good faith, it is unnecessary for me to address the issue of prejudice to the respondent.

18On the basis of the material before me, the allegations against the respondent Cheryl Paige pre-dating April 2010 are dismissed as untimely. In the event these Applications proceed to a hearing, I leave it to the assigned adjudicator to determine the issues of admissibility should the parties feel the need to lead evidence relating to these earlier incidents to provide context to the later allegations.

Next Steps

19The March 20, 2013 Interim Decision indicated that, if necessary, the issue of "no reasonable prospect of success" would be dealt with after the issue of delay. Given that some allegations have not been dismissed for delay, this issue remains outstanding. The Tribunal will address this and the issue of consolidation in a half-day teleconference.

20The Tribunal will refer to the cases and documents provided by the parties in advance of the earlier summary hearing. If the parties wish to rely on additional cases or documents, these must be provided one week in advance of the scheduled teleconference hearing.

order

21In sum, I have made the following orders/directions:

a. The Applications against the respondent Cheryl Paige predating April 2010 are dismissed as untimely.

b. The Registrar will schedule a half-day summary hearing continuation by conference call.

c. The parties shall deliver to each other and file with the Tribunal copies of any additional documents or cases they intend to rely upon no later than seven days prior to the teleconference.