C. v. Waterloo Catholic District School Board, 2013 HRTO 491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C., by litigation guardian, Darcy Balak

Applicant

-and-

Waterloo Catholic District School Board

Respondent

AND B E T W E E N:

C., by litigation guardian, Darcy Balak

Applicant

-and-

Waterloo Catholic District School Board, Glenn Sheculski, Rick Boisvert, Dawna Ward, Jodie Schnarr, and Roger Lawler

Respondents

DECISION

Adjudicator: Lorne Slotnick Date: March 22, 2013 Citation: 2013 HRTO 491 Indexed as: C. v. Waterloo Catholic District School Board

APPEARANCES

C., Applicant Darcy Balak, Litigation Guardian

Waterloo Catholic District School Board, Glenn Sheculski, Rick Boisvert, Dawna Ward, Jodie Schnarr, and Roger Lawler, Respondents Melanie McNaught, Counsel

Introduction

1This Decision deals with two Applications filed under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The first Application, 2012-11174-I, under Section 34 and dated March 29, 2012, alleges discrimination with respect to educational services because of disability. The second Application, 2012-11215-I, under section 45.9 and dated July 27, 2012, alleges contravention of a settlement reached in 2009 in an earlier, related Application.

2By Case Assessment Direction dated October 10, 2012, the Tribunal directed that a summary hearing be held by teleconference. The direction stated as follows:

Having reviewed the materials filed in these Applications, the Tribunal directs, on its own initiative, that a summary hearing be held to determine whether the Applications should be dismissed, in whole or in part, on the basis (1) of abuse of process, (2) of delay, and/or (3) that there is no reasonable prospect that the Applications or part of the Applications will succeed….

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Applications should not be dismissed on the basis of abuse of process, delay, and having no reasonable prospect of success. No witnesses will give evidence during the summary hearing.

3The summary hearing was held on February 22, 2013, at which time the applicant's litigation guardian and counsel for the respondents were given a full opportunity to address the relevant issues.

BACKGROUND FACTS

4The applicant is a high school student, currently in Grade 10, and a resident of the Regional Municipality of Waterloo. There is no dispute that the applicant has a disability that requires accommodation. In early 2009, while attending a school operated by the respondent Waterloo Catholic District School Board ("Waterloo CDSB"), the applicant filed an Application ("the 2009 Application") against Waterloo CDSB, the Ministry of Education and four of the individual respondents named in Application 2012-11215-I – Boisvert, Sheculski, Schnarr and Ward – claiming discrimination on the basis of disability.

5In September, 2009, a settlement of the 2009 Application was signed between the applicant and the Waterloo CDSB and the individual respondents, who are all employees of the Waterloo CDSB. Because the settlement is confidential, I will provide its details only to the extent necessary to explain and decide the issues in the summary hearing of the two current Applications.

6In the 2009 settlement, the parties agreed to take all reasonable steps to transfer the applicant to a school in the neighbouring Grand Erie District School Board ("Grand Erie DSB"). The Waterloo CDSB agreed to provide money toward the cost of transportation to a specified Grand Erie DSB elementary school, for a specified period of time, which has now expired. The Waterloo CDSB also agreed that, once the Tribunal disposed of the 2009 Application, its counsel would arrange for the shredding of documents related to it and would request the Tribunal and the Canadian Union of Public Employees – an interested party in the 2009 Application – to shred or return the documents. The agreement further states that the settlement does not constitute an admission of liability by Waterloo CDSB, and also contains a release signed by the applicant's parents.

7The applicant began attending a Grand Erie DSB elementary school in the 2009-10 year, has since transferred to a high school at the same school board, and is expected to continue attending school there.

8The Tribunal did not dispose of the 2009 Application until late in 2011, after the applicant reached a settlement with the remaining respondent, the Ministry of Education.

9As noted above, the current Application 2012-11215-I alleges a breach of the 2009 settlement by the Waterloo CDSB and the individual respondents, who are all employees of the Waterloo CDSB. There are two alleged breaches: first, that the respondents did not transfer the applicant's complete Ontario Student Record to the Grand Erie DSB in 2009; and second, that the documents from the 2009 application that were to be destroyed were either not destroyed quickly enough or not destroyed at all.

10Application 2012-12117-S alleges discrimination on the basis of disability by the Waterloo CDSB. It includes the same allegations related to the destruction of documents and the Ontario Student Record as are contained in Application 2012-11215-S. It also alleges that the respondent is violating the Code by not providing or paying for transportation of the applicant to school in the Grand Erie DSB. It further alleges a violation of the Code because the respondent did not prepare a transition plan for the applicant's move to high school from elementary school, and continuing failure to provide accommodation for the applicant's disability.

CONTRAVENTION OF SETTLEMENT

11The respondents raise the following arguments related to Application 2012-11215-I:

• The allegation related to the Ontario Student Record is untimely;
• The Application is an abuse of process;
• Even if the allegation about the destruction of documents is true, it is not a breach of the settlement; and
• There is no evidence that the documents were not destroyed, and clear evidence that they were destroyed, so that there is no reasonable prospect of success on this aspect of the Application.

12With regard to timeliness, the applicant does not dispute that that the allegation related to the Ontario Student Record arose in 2009, shortly after the settlement was reached. Subsections 45.9(3) and (4) of the Code require applications alleging contravention of a settlement to be brought within six months of the alleged contravention, unless the Tribunal is satisfied the delay was incurred in good faith and no substantial prejudice would result.

13Those subsections read as follows:

49.5 (3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),

(a) within six months after the contravention to which the application relates; or

(b) if there was a series of contraventions, within six months after the last contravention in the series.

(4) A person may apply under subsection (3) 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.

14In cases involving timeliness issues, the language in the Code is identical for breach of settlement applications and for applications alleging discrimination, except for the time limit. The Tribunal has set a high onus on applicants to provide an explanation for their delay. See, for example, Deane v. Ford Motor 2011 HRTO 693. The test for good faith is more than merely the absence of bad faith.

15In this case, the applicant's litigation guardian stated during the summary hearing that the delay was caused by problems he was having at work. He said he was focused on other matters, including keeping his job and ensuring the applicant was succeeding at school, and was too tired to fight about the alleged failure of the Waterloo CDSB to convey the complete student record, which he said was missing a key document.

16In my view, the applicant's litigation guardian has not demonstrated that his delay of more than two years in raising this allegation was incurred in good faith. The issue he raises was known to him in late 2009, at the latest. His Application alleging a breach of the settlement agreement was not filed until mid-2012. Whatever issues he was facing at work, issues that are undoubtedly very real to the applicant's litigation guardian, cannot excuse such a lengthy delay. Moreover, it seems probable that the respondents would face substantial prejudice in having to recall events from 2009, particularly when it appears that documents related to the applicant have been shredded by the school board respondent at the applicant's request.

17The allegation related to the student record must be dismissed as untimely.

18The applicant's second allegation in the breach of settlement Application relates to the destruction of documents from the 2009 Application. While the settlement with these respondents was signed in 2009, the destruction of documents, by terms of the settlement, was not to take place until the Tribunal disposed of the 2009 Application. That disposition did not take place until November, 2011, after a settlement was reached with the remaining respondent, the Ministry of Education. The 2009 settlement contains no time frame for destruction of the documents after the Tribunal disposed of the Application.

19It appears that the applicant's litigation guardian first raised the issue of destruction of materials from the 2009 Application in February, 2012. The respondents assert that this was the first indication they had that the 2009 Application had been finally disposed of by the Tribunal, and I find there is no evidence to the contrary. Counsel for the respondents wrote to the applicant less than two weeks after the issue was raised, advising that the documents had now been shredded. The applicant's litigation guardian then wrote to say he wanted confirmation that the Ministry of Education and CUPE had destroyed their copies of the documents. Counsel for the respondents wrote to those parties, as well as to the Tribunal, requesting them to destroy the documents. Lawyers for both the Ministry of Education and CUPE confirmed in signed notes provided to the applicant's litigation guardian that the documents had been destroyed; the Tribunal, however, refused the request to destroy any part of its file.

20The applicant has been provided with signed statements from lawyers for the Ministry of Education and CUPE confirming that the documents have been destroyed. With regard to the CUPE lawyer, the applicant's litigation guardian stated at the hearing that "I don't know if that's his signature." However, he has not pointed to any evidence that the documents were not in fact destroyed, or that the signature is somehow not genuine.

21In the absence of any evidence to the contrary, it appears from the material filed that the documents were destroyed shortly after the applicant made the first request to do so. Therefore, there is no evidence that the 2009 settlement was breached by failure to destroy the documents. In any event, the respondents' obligation under the 2009 settlement was to destroy counsel's copy of the documents and to make a request of CUPE and the Tribunal, which was not a party to the 2009 settlement, that they also destroy their copies. There appears to be no factual basis for the applicant's allegation that this part of the settlement was breached.

22Therefore, I find this aspect of the Application has no reasonable prospect of success and must be dismissed.

23In conclusion, I have found that one of the two allegations made in Application 2012-11215-I is untimely, and that the other has no reasonable prospect of success. The Application based on breach of the 2009 settlement is therefore dismissed in its entirety.

DISCRIMINATION

24Application 2012-12117-S names only the Waterloo CDSB as respondent. It raises several allegations. It is worth noting here the statement at the hearing by the applicant's litigation guardian that the only remedy he is seeking in this Application is payment by the Waterloo CDSB of transportation costs from the applicant's home to the applicant's Grand Erie high school.

25Among the matters raised in this Application are the same two allegations that are raised in Application 2012-12117-S. For the same reasons as set out above, these allegations cannot proceed.

26The respondent asserts that Application 2012-12117-S also contains allegations that arose before the settlement of the 2009 Application, which the respondent argues are an abuse of process, given the release that was signed as part of the 2009 settlement. I am satisfied, based on statements made in the summary hearing, that the applicant is not seeking to reopen issues that were settled in 2009, and that comments in Application 2012-12117-S about events prior to September, 2009, are meant to provide historical context. In any event, because of the release signed in 2009, the Tribunal will not deal with any allegations that arose prior to the settlement of the 2009 Application.

27The respondent also asserted that Application 2012-12117-S contains an allegation of reprisal. In my view, this is not clear, but in any event, the applicant's litigation guardian stated at the hearing he was not pursuing any allegation of reprisal.

28The remaining allegations in Application 2012-12117-S relate to the Waterloo CDSB's refusal to pay transportation costs to the Grand Erie high school that the applicant attends, and the Waterloo CDSB's failure to prepare a transition plan for the applicant and to assess the applicant's needs for the move to high school in 2011. The respondent's position, simply put, is that no discrimination can possibly be established given that the applicant has not attended a Waterloo CDSB school since 2009.

29The applicant's litigation guardian was asked at the hearing why he filed an application against Waterloo CDSB when the applicant has not attended a school there since 2009 and has no plans to transfer there. The applicant's litigation guardian replied that he is paying out-of-pocket for transportation costs when every other household in his community with a high school student receives transportation, since there are no high schools close by in either the Waterloo CDSB or the Waterloo public school board. He also said that because the applicant lives in the Waterloo Region, he should not have had to beg the Waterloo CDSB to undertake transition planning for the applicant's transfer to high school from elementary school.

30The respondent argues that the transportation issue must be dismissed as either an abuse of process or as an allegation with no reasonable prospect of success.

31In my view, both arguments of the respondent are correct.

32First, the transportation issue was clearly addressed in the 2009 settlement. As noted above, the respondent agreed to provide transportation compensation for the applicant for a specific period of time, which has now expired. Through this Application, the applicant now seeks to extend the time agreed to in 2009. At that time, the applicant was a Grade 7 student. It would of course have been anticipated at the time that the applicant would be attending school for at least several more years. Given the history of this matter, it would also be reasonably anticipated that the applicant would not be attending any of the respondent's high schools. Nevertheless, the parties agreed on a specific period of time for which transportation compensation would be provided. By filing this Application claiming transportation costs – even though the applicant does not attend any of the respondent's schools – the applicant is seeking to use the Tribunal to effectively reopen the 2009 settlement and amend its terms to derive benefits that could have been, but were not, negotiated at the time. In my view, given the terms of the 2009 settlement and given that the applicant has not attended any of the respondent's schools since 2009, the request for further transportation money is an abuse of the Tribunal's process.

33Second, because the applicant has not attended any of the respondent's schools for more than three years, and does not anticipate transferring to any of the respondent's schools, the allegation of discrimination because transportation is not being provided has, in my view, no reasonable prospect of success. Even though the applicant lives within the jurisdiction of the Waterloo CDSB, the applicant's parents have chosen enrolment in a high school operated by another board, the Grand Erie DSB. In those circumstances, it is not discriminatory on the basis of disability for the Waterloo CDSB not to provide transportation. The applicant does not dispute that the Waterloo CDSB provides transportation only to students who attend its own schools, or to facilities where the Waterloo CDSB has placed special needs students. This policy is not on its face discriminatory, since it applies to all students, those with a disability or not.

34By virtue of living in the Waterloo Region, the applicant can attend a Waterloo CDSB school. However, the applicant's parents made a choice to enroll the applicant outside Waterloo CDSB jurisdiction. The applicant's litigation guardian argues the Grand Erie school was not his choice, that it was chosen for him by the Ministry of Education. However, it is clear the applicant could at any time transfer to a Waterloo CDSB school and receive transportation from the Waterloo CDSB. In fact, this possibility was explored in a meeting between the parties in March, 2012, at which time the applicant's parents decided the applicant would be better off staying in Grand Erie.

35In these circumstances, there is no evidence on which the Tribunal can reasonably be expected to find a link between the respondent's refusal to pay transportation costs and the applicant's disability. In particular, there is no evidence that non-disabled students are being transported to schools beyond Waterloo CDSB jurisdiction. In addition, the applicant's litigation guardian appears to acknowledge that transportation would be provided if the applicant transferred to a Waterloo CDSB school. In sum, transportation is being refused not because of the applicant's disability but because the applicant is not attending any of the respondent's schools. While the applicant's litigation guardian argues that the only reason the applicant does not attend the respondent's schools is that proper accommodation was not available there, that claim was settled in 2009 with no admission of liability by the respondent, and furthermore there is no evidence that, three or four years later, the respondent is currently being asked to accommodate the applicant or has refused to do so.

36Thus, on the issue of transportation, the applicant has not pointed to any link between the allegation and the prohibited ground of discrimination, necessary for a finding that the matter has a reasonable prospect of success. See Dabic v. Windsor Police Service 2010 HRTO 1994.

37The remaining allegation relates to transition planning. Ontario Regulation 181/98, as amended, made pursuant to the Education Act, R.S.O. 1990,c. E.2, as amended, which is titled Identification and Placement of Exceptional Pupils, requires the development of an individual education plan for students with exceptionalities receiving a special education program. Section 6(4) of O. Reg. 181/98 goes on to state that "where the pupil is 14 years of age or older, the individual education plan must also include a plan for transition to appropriate post-secondary school activities, such as work, further education and community living." However, the Regulation makes it clear that the individual education plan is developed at the school the student is attending.

38The Application says the respondent did not develop a transition plan for the applicant, nor did it contact the applicant's parents regarding moving to high school, or notify them about any information days or tours of the local Waterloo CDSB high school.

39The respondent argues it cannot possibly be held responsible for any failure on these matters because the applicant had not attended one of its schools since Grade 6.

40In my view, the respondent is correct on this issue. It is clear from the Regulation that the individual education plan, including transition to post-secondary school activities for students aged 14, is not the responsibility of the respondent in this case, since the applicant was not attending one of the respondent's schools at age 14, nor since. Requiring a school or school board to devise a plan for someone who has not attended a school within that school board for two years is neither contemplated by the regulation, nor is it logical. This aspect of the allegation has no reasonable prospect of success.

41The Application also cites the respondent's failure to contact the applicant's parents before the applicant was moving to high school. The respondent does not deny this, but says it had no obligation to individually contact parents of any student who is already attending schools operated by another school board. In any event, it points to advertisement placed in the applicant's local newspaper advising parents of registration dates and times. In addition, the applicant's litigation guardian held a meeting with representatives of the respondent in March, 2012, to discuss special education programs at Waterloo CDSB. This meeting was in response to a request by the applicant's litigation guardian, who sent an e-mail afterward saying the "meeting was nice, the people looked like they had good intentions," but that he felt the applicant's needs would not be met at Waterloo CDSB. During the hearing, the applicant's litigation guardian said the respondent should have provided an individual invitation to the registration events at its high schools.

42I find that this aspect of the allegation also has no reasonable prospect of success for the following reasons. First, there is no indication that any individual invitations to high school events were sent to any households without a student in the respondent's schools, nor would I expect there to be. Second, the applicant acknowledges that the respondent did advertise in the newspaper, which constitutes a general invitation to all Waterloo Region residents that the respondent is registering students at its high schools. Third, the applicant's litigation guardian was able to obtain, on his own request, an individual meeting with representatives of the respondent to discuss the special education needs of the applicant. Fourth, there is no evidence that the applicant suffered any detriment by the respondent's actions; in fact, there is no indication that there was ever any desire to have the applicant attend high school within the respondent school board, since it has been stated numerous times by the applicant's litigation guardian that the applicant is doing well at the Grand Erie school. Fifth, the settlement with the Ministry of Education, which is also signed by a representative of the Grand Erie DSB, indicates that transition planning for the applicant was ongoing by that school board at the time. In any event, the applicant is not requesting any remedy based on this allegation.

43In summary, for the reasons above, there are no allegations in Application 2012-12117-S that have any reasonable prospect of success, and this Application must be dismissed in its entirety.

CONCLUSION

44For the reasons above, both Applications are dismissed.

Dated at Toronto, this 22nd day of March, 2013.

"signed by"

Lorne Slotnick Member

CORRECTION

The Decision released on March 22, 2013 quoted an incorrect file number 2012-11174-I in paragraph 27. The correct file number is 2012-12117-S. The error has been corrected.