R.P. by her Litigation Guardian R.P. v. Toronto Catholic District School Board, 2014 HRTO 122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.P. by her Litigation Guardian R.P.

Applicant

-and-

Toronto Catholic District School Board; Toronto District School Board;

Catholic Children’s Aid Society

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 28, 2014

Citation: 2014 HRTO 122

Indexed as: R.P. by her Litigation Guardian R.P. v. Toronto Catholic District School Board

APPEARANCES

R.P. by her Litigation Guardian R.P., Applicant

Mercedes Ibghi, Counsel

Toronto Catholic District School Board, Respondent

Paul Matthews, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race, colour, place of origin, ethnic origin, disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

2The Application was filed on October 18, 2012. As against the respondent Toronto Catholic District School Board (“TCDSB”), the last alleged incident of discrimination took place in January of 2011, more than a year before the filing of the Application. The applicant is a minor. Her mother is her litigation guardian.

3It is alleged that the TCDSB discriminated against the applicant by failing to accommodate her linguistic needs when she moved from Quebec to Toronto and enrolled in the respondent’s school. The family had moved because the applicant’s mother was fleeing an abusive spouse.

4At the direction of the Tribunal a summary hearing was held on January 13, 2014 to determine whether, as against TCDSB, the Application should be dismissed for delay and, if not, whether it should be dismissed as having no reasonable prospect of success.

5The applicant acknowledges that the Application was filed more than a year after the last alleged incident of discrimination. However, she argues that the allegations against the TCDSB are connected to the allegations against the respondent Toronto District School Board and form a series of incidents that make the allegations against the TCDSB timely. In the alternative she maintains that the Tribunal should extend the time for filing as the delay in making her Application was incurred in good faith. The following paragraphs set out the applicant’s explanations for the delay in filing.

6In relation to the period from the last alleged incident of discrimination in January of 2011 until October of 2011, the applicant states that her mother was concerned with removing the applicant from the school run by the TCDSB and settling her in a new school run by the respondent Toronto District School Board. The mother’s preoccupation with this challenge explains why she did not file an Application against the TCDSB. She argues that her mother does not differentiate between school boards and the fact that two respondent Boards are separate legal persons is not something her mother understood at the time.

7From October 20, 2011 to May 18, 2012 the applicant was in the care of the respondent Catholic Children’s Aid Society. Criminal charges were filed against the mother in this period alleging improper treatment of the applicant. The charges were then withdrawn and custody was returned to the applicant’s mother.

8The applicant argues that her mother could not file an Application on her behalf in this period for two reasons. One is that she did not have custody of the applicant and this disqualified her as a litigation guardian. The other is that, while the criminal charges were pending, the mother’s interests were in conflict with the applicant’s and this also disqualified her as a litigation guardian. If she could not act as the litigation guardian then she could not file an Application.

9The applicant did not cite any authority in support of this assertion, except to refer to Rule A.10 of the Tribunal’s Rules of Procedure and the Practice Direction on Litigation Guardians before Social Justice Tribunals Ontario. She argues that where a parent has lost custody of a child, the Rule and the Practice Direction both exclude the possibility of that parent filing an Application as the child’s litigation guardian.

10In relation to the period following the return of the applicant to her mother’s custody, the five months from May of 2012 to the time of filing the Application, the applicant provided no explanation for the delay in making the Application.

11The respondent argues that nothing in the Rule or the Practice Direction preclude a non-custodial parent from filing an Application as the litigation guardian of their child.

Analysis

12Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

34. (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.

13In this case the one year period runs from October 18, 2011, which is one year before the Application was filed.

Is there a series of incidents of discrimination?

14Although the two respondent school boards are separate entities, the applicant argues that the alleged acts of discrimination by the two boards constitute a series of events that, taken together, make the allegations against the TCDSB timely.

15In deciding whether events constitute a series of incidents within the meaning of s.34(1) (b) of the Code, the Tribunal looks at the nature of the events and whether they can be reasonably seen as constituting a pattern of conduct, or whether they involve discrete and separate issues.

16Here the applicant was enrolled in an English language school of the TCDSB and the allegations against it are a failure to accommodate the applicant’s linguistic needs. By contrast, when the applicant’s mother transferred her daughter to the Toronto District School Board, she enrolled her in a French immersion school. The allegations against the Toronto District School Board are that it failed to accommodate her disability. The respondents are distinct legal entities and they run school systems which are functionally independent of one another.

17In my view the fact that the allegations of discrimination against the two respondents are distinct in nature, and the fact that the respondents are unconnected to one another leads to the conclusion that there is no pattern of conduct here that would connect the alleged incidents of discrimination into a series.

Was the delay in filing incurred in good faith?

18The Tribunal has set a high onus on applicants to demonstrate that a delay was incurred in good faith (see Klein v. Toronto Zionist Council, 2009 HRTO 241). In the following paragraphs I examine the applicant’s arguments in relation to each of the time periods mentioned above.

January to October of 2011

19In the period from when the applicant was withdrawn from the TCDSB school to the time that the applicant’s mother lost custody, the applicant claims that her mother was focused on settling the applicant in a new school and waiting to see whether the applicant’s problems with school would clear up. In other words her mother was looking forward and not back on the alleged discrimination by the TCDSB. It is only when these problems did not resolve, and in fact worsened because of the alleged acts of discrimination by the respondents Toronto District School Board and the Catholic Children’s Aid Society that her mother formed the intention to file an Application.

20She also argues that her mother, as litigation guardian, did not appreciate that the TCDSB and the Toronto District School Board are distinct entities, running separate school systems and each possessing a distinct legal personality. For this reason she saw her daughter’s difficulties in school as a single problem, and did not separate responsibility for the alleged discrimination at the TCDSB school from that allegedly committed at the Toronto District School Board’s school.

21There is no doubt that the applicant and her mother were in a very difficult position at the time, having fled an abusive husband and father to settle in Toronto. The trauma of that experience was surely compounded by the difficulties in adjusting to a new environment and a different language. However, by the applicant’s own account her mother felt that her daughter was being neglected in the TCDSB school and that the problem was severe enough that she had to withdraw her daughter rather than try to work through the issues with the TCDSB staff. She saw a refusal to accommodate the daughter’s linguistic needs at the root of the problem. In other words, the alleged discrimination by the TCDSB is what led her to withdraw her daughter from its school.

22The fact that she hoped that this problem would resolve itself through a transfer to another school is not a justification for not having filed the Application in the 10 month period that followed her withdrawal of her daughter from the TCDSB school. Given that she regarded the actions of the TCDSB as discriminatory at the time of the withdrawal, the litigation guardian made a conscious choice not to seek redress but rather to wait and see if the problems her daughter was facing would improve. In these circumstances the resulting delay in this period is not a delay incurred in good faith.

October 2011 to May of 2012

23In relation to this period the applicant argues that her mother was unable, as a matter of law, to act as her litigation guardian because she had lost custody of the applicant and was facing criminal charges. The first issue to be determined is whether Rule A.10 of the Tribunal’s Rules of Procedure or the Practice Direction preclude a non-custodial parent from being a litigation guardian.

24Nothing in Rule A.10 expressly precludes a non-custodial parent from filing a declaration to become a litigation guardian. Further, as I read Rule A10.3(d), the possibility of a non-custodial parent filing a declaration is contemplated by the Rule. The relevant excerpt reads:

A litigation guardian for a minor under the age of 18 is required to file a signed declaration in the form designated by the tribunal, confirming:

d. that any other person with custody or legal guardianship of the minor has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians (emphasis added)

25In my view this language indicates that a non-custodial parent can in fact file a declaration, because the Rule requires the person filing the declaration to put the custodian or legal guardian of the minor on notice that he or she intends to act as the child’s litigation guardian despite not having custody or legal guardianship of the minor. Whether the non-custodial parent is the most appropriate person to remain as litigation guardian is – as I indicate below - another question, but nothing stops the non-custodial parent from filing the declaration in the first place.

26The default position under the Rule is that a person who files the declaration becomes the litigation guardian unless the Tribunal decides otherwise (see A10.5 of the Rules). In this case, had the applicant’s mother filed the Application and the declaration in time, then the applicant’s mother would have become the litigation guardian and would have remained so unless the Tribunal had grounds to think that she should be removed for one or more of the reasons set out in A.10.7 of the Rules. It appears from the applicant’s submissions that the applicant’s mother decided for herself that she could not act as litigation guardian, but that decision is not hers to make. The Tribunal has the duty to decide that issue.

27In any event, whether or not the applicant’s mother was a suitable litigation guardian is a separate question from whether or not she could have filed an Application in time on the applicant’s behalf. A determination by the Tribunal about the suitability of a litigation guardian is a determination about which person should have carriage of an Application on behalf of a minor or a person who lacks mental capacity, not about whether the Application can be filed in the first place. In other words, if the Tribunal decides that a litigation guardian should be removed as unsuitable, this does not lead to the Tribunal then retrospectively rejecting an Application because it happened to have been filed by someone who should no longer continue as a litigation guardian.

28There is also nothing in the Practice Direction which suggests that a non-custodial parent is precluded from acting as a litigation guardian. Moreover, the Practice Direction has to be interpreted in a manner that is consistent with the Tribunal’s Rules. For these reasons I conclude that the mother could have filed both an Application and a declaration during the period when she lost custody of the applicant, and the applicant’s argument on this point is rejected.

29The other argument advanced by the applicant is that her mother was facing criminal charges, that the charges alleged that her mother had abused her and that her mother’s interests in defending herself against criminal charges conflicted with her interests in filing and pursuing an Application. She maintains that this conflict of interests precluded her mother from acting as her litigation guardian and therefore from filing an Application on her behalf.

30Rule A.10.7 reads as follows:

Upon review of the declaration, or at any later time in the proceeding, the Tribunal may refuse or remove a litigation guardian on its own initiative or at the request of any person because:

a. the litigation guardian has an interest that conflicts with the interests of the person represented;

b. the appointment conflicts with the substitute decision making authority of another person;

c. the person has capacity to conduct or continue the proceeding;

d. the litigation guardian is unable or unwilling to continue in this role;

e. a more appropriate person seeks to be litigation guardian; or

f. no litigation guardian is needed to conduct the proceeding.

31First, it is not clear to me that the applicant’s mother would have been in a conflict of interest in filing and pursuing an Application on behalf of her daughter while simultaneously facing criminal charges. The purpose of the Application is to address the alleged acts of discrimination committed by the TCDSB. The criminal charges were laid after the applicant had been withdrawn from the TCDSB’s school and appear to relate to events that took place after the withdrawal from that school. The applicant did not explain to me how the filing of an Application against the TCDSB would have compromised the mother’s defence against pending criminal charges and I cannot see a connection between the two issues that would support a finding of a conflict of interest.

32In any event, my view of the merits of the applicant’s claim that there was a conflict of interest is not determinative of this issue. This is because, as noted above, it is the responsibility of the Tribunal and not a putative litigation guardian to determine whether a person who has filed a declaration as litigation guardian can carry on in that capacity. Here it seems that the applicant’s mother pre-emptively determined this question. However, the fact that she did so rather than filing a declaration and waiting for the Tribunal to see whether it would have been a problem for her to continue as litigation guardian at that time is not a justification for the delay in filing this Application.

33For these reasons I reject the applicant’s argument that pending criminal charges against the applicant’s mother precluded the filing of a declaration and an Application in the period that those charges were outstanding.

May of 2012 until October of 2012

34The applicant offered no explanation as to why an Application was not filed until five months after her litigation guardian recovered custody of her.

35For the reasons set out above I conclude that the applicant has not shown that the delay in filing an Application against the TCDSB was incurred in good faith.

36Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

Order

37The Application against the Toronto Catholic District School Board is dismissed for delay and the style of cause amended accordingly.