J.Y. by his next friend R.Y. v. Hamilton-Wentworth Catholic District School Board, 2013 HRTO 806

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.Y. by his next friend R.Y.

Applicant

-and-

Hamilton-Wentworth Catholic District School Board and Her Majesty the Queen in Right of Ontario as represented by the Minister of Education

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: May 14, 2013

Citation: 2013 HRTO 806

Indexed as: J.Y. by his next friend R.Y. v. Hamilton-Wentworth Catholic District School Board

APPEARANCES

J.Y. by his next friend R.Y., Applicant

R.Y., Next Friend

Hamilton-Wentworth Catholic District School Board, Respondent

Mary Cipolla, Representative

Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Respondent

Janet Pounder, 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 on the basis of disability and reprisal or threat of reprisal. In particular, the applicant alleges that he was discriminated against by the respondents when he was denied access to a program, Tutors in the Classroom, to assist him in respect of his learning disabilities.

2By Case Assessment Direction, the Tribunal scheduled a summary hearing, for the purpose of hearing submissions about whether the Application should be dismissed, as against the Ministry respondent, as having no reasonable prospect of success.

3A summary hearing was held by conference call and oral submissions were heard from all parties.

4For reasons that follow, the Application is dismissed against the Ministry respondent. I find that there is no reasonable prospect that the Application will succeed against the Ministry.

BACKGROUND

5The applicant is a student in grade four attending one of the elementary schools of the respondent Board. The Application is filed by his father as his next friend.

6The Application arises out of the efforts of the applicant’s father to have his son have access to Tutors in the Classroom, a program recommended to the applicant’s father by the individual who conducted the applicant’s educational assessment.

7Tutors in the Classroom is a program in which school boards hire post-secondary students enrolled in Ontario colleges and universities to work as tutors in the junior kindergarten to grade 6 classrooms. The details of the program are set out in a memorandum to superintendents of education at school boards and others from the Ministry. The Ministry funds 50 percent of the salary and benefits of post-secondary students employed in the program. The structure and purpose of the program is described as follows:

The tutors will support the work of classroom teachers through working directly with students to reinforce previously taught skills and concepts. The goal of the intervention is to assist in closing the gap in achievement in order to achieve equity of outcomes for specific populations. We ask that as you determine the schools and students that will take part in the Tutors in the Classroom program, you review current achievement data within your board to inform your participant selection process. This will ensure that the schools and students in greatest need, will receive additional support.

8As is apparent from the above extract, the Ministry leaves it up to an individual board to determine the schools and students that will take part in the program.

9In the Application, the applicant states that he was denied access to the program because the tutors in the respondent Board are sent to schools identified as “Equal Opportunity Schools (i.e schools that are in a challenged social economic area)”. In essence, the applicant alleges that he is unable to access the program because he does not attend any of the schools where the Board has assigned the tutors.

10The applicant’s father raised concerns about his son’s exclusion with the Board as well as the Ministry. With respect to his contact with the latter, the applicant’s father suggested that his son was being discriminated against by the Ministry because of its failure to monitor the program and ensure that it was being delivered in a similar manner in every school board. The Ministry representatives provided the applicant’s father with information about the program but advised that the Ministry does not control or direct whether the individual boards use the tutors so referred the applicant back to the respondent Board to address his concerns.

11Responses have been filed by both respondents denying any violation of the Code.

12In its Response, the Ministry submits that it is not a proper respondent. The Ministry relies on the legislative foundation of public education in the province and submits that public education, including special education services, is delivered through school boards and not the Ministry (see section 8(3) of the Education Act, R.S.O. 1990, c. E.2, as amended). The Ministry states that in a number of cases dealing with special education in the courts as well as the Tribunal, the distinct roles of the Ministry and school boards are recognized. For example, in Wynberg v. Ontario 2006 CanLII 22919 (ON CA), [2006] O.J. no 2732, leave ref’d [2006] S.C.C.A. No. 441, the Ontario Court of Appeal at paras. 87 and 88 held:

In general,…the Minister of Education does not directly provide education programs to students… This reflects the broad scheme of the Act which provides for a decentralized system of local school boards managed by elected trustees to administer the educational system at the operational level.

The Act requires boards to ensure that their exceptional pupils get special education programs and services they need, either by providing them directly or by contracting with other boards to do so.

13This division of responsibilities has also been recognized in the Tribunal’s jurisprudence: See for example Davidson v. Lambton Kent District School Board, 2008 HRTO 294 and E.P. v. Ottawa Catholic School Board, 2009 HRTO 499.

14Relying on this legislative scheme, the Ministry states that the actual delivery of programs and services is the function of the school board and not the Ministry (except in relation to provincial and demonstration schools, which is not at issue in this case). The Ministry argues that in this case, the applicant has failed to establish any connection between the discrimination alleged and any area for which the Ministry is responsible under the Education Act, as recognized in Wynberg and E.P..

15The applicant filed a Reply to the Responses. In his Reply, the applicant did not take issue with the Ministry’s submissions on the legislative framework for regulating and delivering special education services.

DECISION AND ANALYSIS

16In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations regarding summary hearings:

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.

17In the Case Assessment Direction and in the summary hearing, the applicant was specifically directed to point to the evidence that he relies on to show a link between the Ministry’s actions and the grounds cited. I note that the claim against the Ministry is based on disability discrimination alone. The applicant’s allegations of reprisal pertain only to the conduct of the respondent Board.

18The applicant’s father argues that the Ministry discriminated against his son on the basis of disability by “omission”. In essence, he argues that it is the Ministry’s job to instruct compliance with its Tutors in the Classroom program and although he alerted the Ministry to his feelings of discrimination regarding the misuse of the program, the Ministry chose to do nothing. According to the applicant’s father this omission makes the Ministry also responsible for the discrimination.

19In its submissions at the summary hearing, the Board takes the position that the Ministry should not be a party given that the Ministry left it up to the Board to determine where it would be best to offer the Tutors in the Classroom program.

20The Ministry relies on its submissions in its Response and cites the recent decision of Moore v. British Columbia, 2012 SCC 61 in which the Supreme Court of Canada reaffirms the position adopted by the Ministry with respect to the role of the province in the administration of an educational regulatory regime.

21I find that there is no reasonable prospect that the applicant can succeed with his claim against the Ministry.

22The applicant’s central allegation is that he was discriminated against with respect to services (the Tutor in the Classroom program) based on disability. While the applicant does not expressly use the terminology of “accommodation” I presume the applicant’s alleged discrimination is that he was not accommodated by being provided with a service that he requires because of his learning disabilities. This is a service provided by the Board. It falls within the purview of the Board’s responsibilities as set out above i.e. the delivery of education services including special education. In respect of this central allegation, I fail to see how the Ministry can be responsible.

23In this respect, I note that the applicant does not take issue with the statutory scheme and the applicable case law emphasizing the separate roles of the Ministry and school boards in providing education services. In fact, the applicant acknowledges that given Moore, his claim against the Ministry is “not probable” although he continues to “stand on the nexus of lack of auditing”.

24With respect to auditing, the Ministry did outline in its submissions that it is involved in monitoring and auditing as elements of an accountability framework associated with its funding of education generally. However, even accepting that the Ministry audits this program periodically, I am not satisfied that there is a reasonable prospect of establishing that the Ministry is a proper party. The applicant has not pointed to any evidence that he has or that could reasonably be available to him that would support any link between any monitoring of this program and the applicant’s disability and/or the alleged discrimination that he experienced.

25The Application is therefore dismissed against the Respondent Ministry.

NEXT STEPS

26The applicant has not indicated whether or not he wishes to participate in mediation. The applicant will be contacted regarding his interest in mediation.

27The applicant has filed several documents which appear to raise new allegations and/or new particulars. The applicant shall confirm that he is seeking to amend the Application to include these allegations and/or particulars within seven days of the date of this Interim Decision. If the applicant confirms that he is seeking to amend the Application with these filings, the respondent Board shall file a Response to a Request for Order During Proceeding (Form 11) responding to what appears to be several requests to amend the Application.

28The respondent Board filed a Form 3 on October 29, 2012 which appears to provide a further response to the allegations. The applicant may file a further reply to this response within 14 days of the date of this Interim Decision.

SUMMARY OF ORDERS AND DIRECTIONS:

29The Tribunal orders:

i. The Application is dismissed against the respondent Ministry;

ii. The Application will continue to be processed against the remaining respondent Board;

iii. The applicant will be contacted by the Tribunal regarding his interest in mediation;

iv. Within seven days of the date of this Interim Decision, the applicant shall advise the Tribunal in writing if he is seeking to amend the Application to include the additional particulars filed May 7, 2012, June 26, 2012, February 19, 2012, March 4, 2013 and April 5, 2013, with a copy to the respondent;

v. Subject to the applicant confirming that he is seeking to amend the Application, the respondent Board shall file a Response to a Request for Order During Proceeding (Form 11) responding to the additional allegations being made within 14 days of the date of the receipt of the applicant’s confirmation of the requested amendment; and

vi. Within 14 days of the date of this Interim Decision, the applicant may file a reply (Form 3) to the respondent’s additional submission filed October 29, 2012.

30The Tribunal will address any objections to the additional filings following mediation if necessary. If the parties do not consent to mediation, the Tribunal will address the status of the various filings following the receipt of the parties’ submissions as directed above.