S.T. v. Paige, 2013 HRTO 473

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

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

Applicant

-and-

Cheryl Paige and Nimet Kara

Respondents

A N D B E T W E E N:

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

Applicant

-and-

Cheryl Paige and Nimet Kara

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend Date: March 20, 2013 Citation: 2013 HRTO 473 Indexed as: S.T. v. Paige

APPEARANCES

S.T. and T.T., Applicants A.T. and A.T., Next Friends

Cheryl Paige, Respondent Glorie Alfred, Counsel

Nimet Kara, Respondent Laura K. Williams, Counsel

Introduction

1These are two Applications filed by the parents of S.T. and T.T. 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 the applicants’ behalf by the applicants’ mother and father. The Applications with respect to each applicant are identical, but for the name of the applicant.

2The Applications name two individuals as respondents. The first, Cheryl Paige (“Paige”), was the Principal of the school attended by the applicants. She has since retired. The second, Nimet Kara (“Kara”), is the Executive Director of the daycare formerly attended by the applicants.

3On February 21, 2013, the Tribunal held a Summary Hearing at which time some, but not all, of the preliminary issues were addressed. This Interim Decision confirms the oral ruling dismissing the Applications against the respondent Kara, on the basis of delay, as well as the oral ruling indicating the Tribunal would dismiss the Applications against the respondent Paige as an abuse of process unless the applicants’ parents provided their permission to her use of the applicants’ respective Ontario Student Record (“OSR”).

4It also sets out next steps with respect to the delay issue against the respondent Paige and asks the parties for their position on consolidation.

decision and analysis

Ontario Student Records

5The respondent, Cheryl Paige, filed a Request for an Order During Proceeding (Form 10) in each file asking the Tribunal to direct the applicants’ respective next friend to permit her to “use, disclose and submit as evidence to the Tribunal, information and documents” from the applicants’ respective OSR.

6The respondent Paige submits that to prepare for both the summary hearing and any subsequent hearing on the merits, she will need to have access to, and to disclose and rely upon documents found in the applicants’ OSRs. However, under Section 266 of the Education Act, R.S.O. 1990, c. E.2, such records are privileged and cannot be used in this proceeding without the written permission of the applicants’ parents:

266(1) In this section, except in subsection (12),

“record”, in respect of a pupil, means a record under clause 265(1) (d).

(2) A record is privileged for the information and use of supervisory officers and the principal and teachers of the school for the improvement of instruction of the pupil, and such record,

(a) subject to subsections (2.1), (3), (5), (5.1), (5.2) and (5.3), is not available to any other person; and

(b) except for the purposes of subsections (5), (5.1), (5.2) and (5.3), is not admissible in evidence for any purpose in any trial, inquest, inquiry, examination, hearing or other proceeding, except to prove the establishment, maintenance, retention or transfer of the record,

without the written permission of the parent or guardian of the pupil or, where the pupil is an adult, the written permission of the pupil.

7The applicants’ parents do not argue that this interpretation of the Education Act is incorrect, merely that they are not prepared to give their permission until they have had full access to the OSRs themselves. They argue that the applicants’ mother attended the school at which the OSRs were then housed to view them, but was told that there were other documents as well. She interpreted this to mean that there were other documents in the OSRs to which she was not being given access.

8Counsel for Paige explained that, in addition to the OSRs, the contents of which are strictly prescribed by Ministry Guidelines, the school maintains other records, such as behaviour logs. The applicants’ mother appears to believe that these other records are properly part of the applicants’ OSRs, and ought to have been available to her on the day that she attended the school.

9Neither of the applicants’ parents disputed Paige’s position that the documents not found in the OSRs (namely the behaviour logs) were mailed to them in the summer of 2012, and that they refused to sign for and pick up the envelope containing these supplementary records.

10Whether or not the applicants’ parents’ position that these supplementary records ought to form part of the OSRs has any validity, the respondent Paige clearly believes that these records are not properly part of the OSRs. Accordingly, the respondent Paige does not feel these supplementary records are privileged under s. 266(2) of the Education Act and does not require the applicants’ parents’ permission to use them for the purpose of this proceeding. She is only seeking permission to be able to access and use the OSRs as they are currently constituted.

11In Campbell v. Toronto District School Board, 2010 HRTO 463, this Tribunal stated at para. 11 that failure to grant a respondent access to, and disclosure of, the OSR could be an abuse of process. The respondent Paige persuaded me that she needed access to and use of the respective OSRs in order to make a “meaningful response” to some of the allegations against her and I had previously ruled in an Interim Decision, 2013 HRTO 220, that the applicants’ parents were required to give their permission to the respondent Paige to “use, disclose and submit as evidence” information and/or documents from the applicants’ OSRs in any upcoming hearings on these Applications.

12As of the date of the summary hearing, no such permission was given. After hearing argument concerning the failure of the applicants’ parents to give their permission, I issued an oral ruling on the day of the summary hearing, that I would dismiss the Applications against the respondent Paige as an abuse of process unless the applicants’ parents gave their written permission by 4:30 p.m. that day.

13I have not dismissed these Applications because the applicants’ parents provided this written permission before the deadline. I would note that the respondent’s counsel made arrangements for the applicants’ parents to pick up a copy of the OSRs at a school attended by one of their other children on March 7, 2013.

Dismissal of Applications against Nimet Kara for Delay

14The applicants were advised in a Case Assessment Direction (“CAD”) dated July 10, 2012 that portions of the Applications may be untimely. Section 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.

15The CAD specifically advised that the Tribunal would deal with the allegations against the respondents Kara and Paige separately. Following argument at the summary hearing, I issued an oral ruling dismissing the Applications against the respondent Kara on the basis of delay, but indicated that I would prepare written reasons as well. My written reasons are as follows.

16The Applications were filed with the Tribunal on December 23, 2011. The allegations against the daycare of which Kara was the Executive Director largely address the 2007-2008 period, although they deal with the termination of the relationship by Kara as well. In argument, counsel for the respondent Kara said the relationship between the applicants and respondent ended on June 11, 2010, at which time the applicants’ parents were asked to withdraw the applicants from the daycare. This date is not disputed.

17The applicants’ parents say that one of the daycare teachers asked how one of the applicants spent the summer, which prompted the applicants’ parents to write a letter to the respondent Kara in September 2010. Assuming that this might constitute an incident of discrimination, it is still outside the one-year time period.

18The applicants further argue that the allegations against the two respondents cannot be seen as distinct from one another and that the allegations against the respondent Kara can, therefore, be seen as part of a “series” of incidents also involving the respondent Paige. Some of the allegations against the respondent Paige occurred within the one-year time limit.

19The applicants did not challenge respondent counsel’s statement that there is no structural connection between the daycare and the school, other than the fact that the daycare shares space with the school on Toronto District School Board (“TDSB”) property. The daycare is not run by the TDSB, but by a Board of Directors, and administered under the Day Nurseries Act, R.S.O. 1990, c. D.2.

20Despite the lack of any structural link, the applicants argue that there is a connection. One of their allegations is that one of the teachers at the school is/was the President of the Board of Directors of the daycare, even though she does not have a child in the daycare. They also argue that the two respondents acted in concert when they reported the applicants’ parents to the Children’s Aid Society (“CAS”) in 2007. Finally, they asserted (for the first time) at the summary hearing that the two respondents were seen meeting the day before the respondent Kara sent the withdrawal letter to the applicants’ parents.

21I would note, first, that the allegations in the Applications against the two respondents are distinctly set out in the Schedules attached to them. The fact that both respondents may have been involved in a CAS investigation of the parents is not, itself, surprising and does not suggest a link. Likewise, the fact that a teacher at the school may have sat on the Board of Directors at the daycare does not make the two organizations linked legally – or, for that matter, factually. In any event, as counsel for the respondent Kara points out, it is not the organizations that are named as respondents, but the two individuals.

22The allegation, emerging for the first time at the summary hearing, that the two respondents were seen meeting in June 2010, is an insufficient basis on which to draw any inference of a collaboration or connection between them. Viewed as a whole, the allegations and/or proposed evidence of the applicants are insufficient to suggest a link between the named respondents such that I could conclude that the actions of one could be seen as part of a series of incidents involving the other.

23The applicants suggest 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 respondents (i.e., the connection with the Code) until they had access to a CAS report in which certain statements about the applicants’ father were attributed to the respondent. They submit that these statements are discriminatory and led them to see a pattern in the other interactions they had with the respondents. However, they do not dispute the respondent’s position that they had access to this CAS material in early May 2010, 19 months before they filed the Applications.

24As 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.

25On the basis of the material before me, I do not accept that the applicants pursued their Applications against the respondent Kara within one year of the last of a series of incidents involving her or the daycare which she headed. The allegations against the respondent Kara are out of time and are outside the Tribunal’s jurisdiction unless the applicants can demonstrate that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

26The only explanation proffered by the applicants for the delay in filing highlights that the applicants were aware of the problem 19 months before they filed. Thus, the applicants have failed to meet their onus to demonstrate that the delay was incurred in good faith. It is not necessary, therefore, for the Tribunal to address the question of prejudice to the respondent.

27The allegations against the respondent Nimet Kara are dismissed as untimely, and she will be removed from the style of cause in all subsequent decisions concerning these Applications.

Next Steps

28The CAD directing the summary hearing in this matter states that the Tribunal will deal with whether some of the allegations against the respondent Paige should be dismissed as untimely, and whether the Applications against her should be dismissed in whole or in part, because there is no reasonable prospect of success. This portion of the summary hearing was not reached before the end of the day on which the hearing was held.

29The parties agreed to deal with the issue of delay in writing. After some discussion, the parties agreed that the respondent Paige will file her submissions by April 10, 2013; the applicants by May 15, 2013. If necessary, the issue of reasonable prospect of success will be dealt with after the issue of delay.

Consolidation

30These Applications were initially filed on one form, but because they involved two applicants were divided into two Applications. There was no effort to separate out the allegations involving the individual applicants. There is clearly much overlap between the two, and both name the same respondents (now respondent). Given the overlap it would appear that consolidation may be appropriate. The parties are directed to deliver to each other and file with the Tribunal any written submissions concerning consolidation of these Applications by May 15, 2013.

order

31In sum, I made the following orders/directions:

a. The Applications against the respondent Cheryl Paige would have been dismissed as an abuse of process unless the applicants’ parents gave their written permission for the respondent to “use, disclose and submit as evidence” information and/or documents from the applicants’ OSRs in any upcoming hearings on these Applications by 4:30 p.m., February 21, 2013.

b. The allegations against the respondent Nimet Kara are dismissed as untimely, and she will be removed as a respondent from the style of cause in all subsequent decisions concerning these Applications.

c. The parties will deliver to each other and file with the Tribunal their written submissions on the issue of delay by the following dates: April 10, 2013 (respondent Cheryl Paige) and May 15, 2013 (applicants).

d. The parties are directed to file any written submissions on the issue of consolidation of the two Applications by May 15, 2013.

Dated at Toronto, this 20th day of March, 2013.

“Signed by”

Naomi Overend

Vice-chair```