Richards v. Brackendale Montessori, 2013 HRTO 879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sheena Richards

Applicant

-and-

Brackendale Montessori

Respondent

DECISION

Adjudicator: David Muir

Date: May 22, 2013

Citation: 2013 HRTO 879

Indexed as: Richards v. Brackendale Montessori

APPEARANCES

Sheena Richards, Applicant

Pasquale Maiolo, Representative

Brackendale Montessorri, Respondent

Shereen Pathak and Rick Pathak, Representatives

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 goods and services because of race, colour and receipt of social assistance.

2In her Application the applicant alleges that she has noticed that Black children in receipt of tuition subsidy for after school care have had difficulty in the respondent’s school since Ms. Pathak took over management of it. The applicant alleges that her daughter began struggling in the school in fall 2011 and Ms. Pathak had no suggestions to assist her daughter. The applicant alleged that she believed that Ms. Pathak was attempting to remove all of Black students in receipt of subsidy and alleges that all of the students on subsidy are Black.

3The applicant made a number of other allegations about Ms. Pathak’s qualifications to teach. The respondent has not yet filed a Response (Form 2).

4In a Case Assessment Direction (“CAD”) issued on October 31, 2012, the Tribunal directed on its own initiative that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

5Rules 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.

6Details 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.

7A summary hearing was held by telephone conference call on March 7, 2013. The applicant did not participate in the hearing but was represented by a licenced para-legal.

8At the summary hearing the applicant reiterated the allegations made in the Application. The applicant also indicated that she would produce two or more other witnesses who would describe their perceptions that their children were treated differently. A letter was produced at the hearing which appeared to be drafted by the mother of a student who according to the respondent had left the school in the summer of 2010. The letter describes the mother’s impression that her child was being singled out. The child would have been 3 to 4 years old at the time.

9I asked the applicant to describe the evidence of differential treatment or disadvantage that her daughter experienced at the school. The applicant indicated that she was struggling with spelling and did not get any assistance from Ms. Pathak. The applicant also alleges that her daughter was placed at the back of a group performance in December 2011 to single her out.

10In anticipation of the summary hearing the respondent provided submissions and documents in support of its decision to remove the applicant’s daughter from the school. The respondent states that the primary reason for the removal of the child was delinquent fee payments. At the hearing the respondent indicated that the regular fee for the school program was $850 per month. The respondent states that it agreed to a discounted fee of $600 per month which the applicant did not pay in a timely manner and was in arrears in excess of $2000 by December 2011.

11In her Application the applicant makes no reference to the fee dispute, but at the hearing took the position that there was a verbal agreement that her fee would be $200 per month.

12The respondent made a number of further assertions contrary to allegations made in the Application to which the applicant made no response. The respondent states that approximately 25% of its students receive a subsidy which applies only to pre- and post-school care. The respondent also asserted that between 15 and 20% of its students are Black. The respondent asserts that students in receipt of subsidy come from all racial and ethnic backgrounds and not all Black students are in receipt of subsidy as alleged by the applicant in her Application.

13This Application is dismissed. I am not satisfied that the applicant has any substantial evidence beyond mere speculation from which the inference might be drawn that a factor in the decision to remove the applicant’s daughter from the school was her race or colour. In answer to the respondent’s position that the reason for the removal was non-payment of fees, the applicant argued that the respondent had made an oral agreement that the applicant pay only $200 per month in order to set her up for removal when she did not pay the normal fee. This assertion seems implausible on its face. It is also contradicted by all of the contemporaneous documentation of the respondent that it sought the payment of delinquent fees beginning in September 2011, and the applicant making total payments of $900, which I note is more than the total of $800 that the applicant claims would have been owing pursuant to the alleged oral contract.

14More importantly, the applicant can point to no evidence of differential treatment or disadvantage that her daughter may have experienced in the fall of 2011. The applicant suggests that her daughter was thriving in the school until there was a change in management of the school at some unspecified point in time. The respondent was founded in 2006 by the individuals identified as the respondent’s representatives above and has been operated by them since that time. There has been no change of management. The applicant’s daughter has been enrolled in the school since 2008 and was well-known to the respondent’s staff, one of whom spent a great deal of time with the applicant’s daughter in the spring of 2011 reading with her in anticipation of her moving into Grade 1 in the fall. The applicant made no response to these assertions although invited to do so.

15It seems to be agreed by all that the applicant’s daughter did have some difficulties with reading and spelling in Grade 1. However, the applicant’s vague and general assertion that she did not receive any assistance from the respondent because of her race or colour is merely that, an assertion or speculation on her part. The conduct complained of is, at its highest, best described as indifference on the part of the respondent’s staff. The allegation lacks substance and even if capable or proof, there is no evidence that such indifference was informed in whole or in part by the applicant’s race or colour. There appears to me to be no reasonable prospect that the allegation of indifference even if proved is sufficient to support the inference the applicant seeks to draw.

16The other evidence that the applicant intends to rely on is of the same nature, vague and general allegations of indifference on the part of the respondent’s staff by one or two other parents involving different children of different ages at different times. Even if admissible as similar fact evidence, it is entirely unclear how an inference might be drawn from it that the applicant’s daughter might have experienced discrimination in the fall of 2011.

17In coming to these conclusions I have not had regard to the respondent’s response to the allegation except in the limited way outlined above. Suffice it to say that the respondent denies the allegations that its treatment of the applicant and her daughter was less than appropriate.

18For all of these reasons I find that the Application should be dismissed because it has no reasonable prospect of success.