HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

LB by his next friend SB; PB by his next friend HB; NC by his next friend JC; CB by his next friend BC; WE by his next friend LE; MF by his next friend LF; MG by his next friend SG; RH by his next friend HL; JW by his next friend SL; MB by his next friend GM; EA-P by his next friend FP; ZR by his next friend PR; MP by his next friend NP; KR by his next friend YR; JR by his next friend LR; KR by his next friend LR; TF by his next friend RS; AF by his next friend AT; JC by his next friend LM

Applicants

-and-

Ontario Federation of School Athletic Associations

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: February 22, 2013

Citation: 2013 HRTO 308

Indexed as: LB by his next friend SB v. Ontario Federation of School Athletic Associations

WRITTEN SUBMISSIONS

Applicants

R. Paul Marshall, Counsel

Ontario Federation of School Athletic Associations, Respondent

Stephen J. MacDonald, Counsel

Introduction

1The applicants filed these Applications under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of ancestry and ethnic origin.

THE ALLEGATIONS

2The applicants are francophone students who have enrolled in École Louis-Riel, a school in the Eastern Ontario Public School Board (Conseil des écoles publiques de l’Est de l’Ontario). École Louis-Riel is a designated francophone Sports School which attracts athletic students who wish to play their preferred sports at higher levels than can be found at regular schools. École Louis-Riel is the only designated francophone Sports School within the Board so that many francophone students who wish to attend a designated Sports School must attend École Louis-Riel even though they do not live within its geographical boundaries or it is not the closest school to their residences.

3The applicants all live outside of École Louis-Riel’s boundaries or it is not the closest school to their residences, and they allege that they will be adversely affected by the respondent’s recent modification to its by-laws.

4The modification prevents any student who does not live within the boundaries of a designated Sports School, or who lives closer to another school, from playing his or her self-declared best or “designated” sport of specialty in certain competitions governed by the respondent. The applicants allege that the modification is disproportionately affecting them, as opposed to anglophone students. The Application of each applicant states:

This amendment would have a disproportionate impact on me and the other francophone students in Ontario. Since there are so few of us, compared to students in English language schools, we have a very limited choice of secondary schools that we can attend if we want to continue our education in French while also maintaining our involvement in competitive sports. Accessibility to a specialized program at a specific school helps to provide a sufficient pool of students in order to ensure the viability of the program. Since the francophone population in Ontario is widely dispersed, it is difficult to automatically access a program of our choice at the French language public school closest to our residence. [TRANSLATION]

5Section 11 of the Code makes clear that a seemingly neutral policy, one that on its face does not appear to distinguish on the basis of personal characteristics identified by Code grounds, may still be discriminatory if it excludes or restricts groups identified by Code grounds. It would appear, then, that the applicants are alleging that the modification is a seemingly neutral policy (to not allow a student living out of a Sports School’s boundaries, or living closer to another school, to participate in certain competitions) which disproportionately restricts or excludes them, as compared to anglophone students, and therefore violates the Code.

REQUEST FOR INTERIM REMEDY

6The applicants filed Requests for Interim Remedy (“Requests”). In the Requests, the applicants seek that the Tribunal order that the by-law modification is ineffective and unenforceable until the Applications are decided, and that any decisions affecting the applicants that were made by the respondent pursuant to the modification be declared ineffective and unenforceable.

ANALYSIS

7The Tribunal has held that an order for an interim remedy is an extraordinary power that should be exercised only in appropriate circumstances for furtherance of the Code’s remedial objective and that the applicant bears a significant onus to demonstrate that the interim remedy is necessary: TA v. 60 Montclair, 2009 HRTO 369, (“TA”).

8Rule 23.2 of the Tribunal’s Rules of Procedure sets out the specific conditions that an applicant must satisfy in order for the Tribunal to award an interim remedy:

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.

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). Despite the low threshold, I am not satisfied that the Applications meet the first element of the test. For their allegations to arguably be violations of the Code, the applicants would need to establish that 1) anglophone students have more opportunities than francophone students to attend Sports Schools while living within those Sports Schools’ boundaries; or 2) anglophone students attending regular schools closest to them or within their boundaries have a greater chance of participating on sports teams that participate in competitions governed by the respondent than francophone students attending regular schools closest to them or within their boundaries. Nothing in the Applications indicates that this is the case.

10The Requests are therefore denied at this time.

SUMMARY HEARING

11Given the appearance that there is no arguable violation of the Code contained in the applicants’ allegations, the Tribunal directs, on its own initiative, that a summary hearing be held to determine whether these Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications or parts of the Applications will succeed.

12Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

13Details about the nature of a summary hearing were set out as follows 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.

14The 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 Applications, it appears that the applicants may be unable to prove a link to the grounds alleged.

15The Registrar will schedule a half-day summary hearing by teleconference. The applicants will proceed first during this summary hearing. The applicants shall make argument about why the Applications should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicants will prove a link between the respondent’s actions and the grounds cited. No witnesses will give evidence during the summary hearing.

16If the Tribunal determines that the Applications have no reasonable prospect of success, they will be dismissed. The Applications may be dismissed in whole or in part. If the Tribunal does not find that the Applications should be dismissed under Rule 19A, they will continue in the Tribunal process, and the applicants may renew their requests for interim remedies at that time.

17A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

18The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

DIRECTION

19The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

20I am not seized.