HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R.H. as represented by her Litigation Guardian A.H.
Applicant
-and-
Simcoe County District School Board
Respondent
A N D B E T W E E N:
A.H. as represented by her Litigation Guardian A.H.
Applicant
-and-
Simcoe County District School Board
Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: A.H. v. Simcoe County District School Board
INTRODUCTION
1A.H. filed these Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on October 15, 2014, on behalf of her minor daughters, R.H. and A.H. The Applications allege discrimination in the area of goods, services and facilities. The Application filed on behalf of R.H. alleges that she has a disability, and that she was subjected to discrimination on the basis of disability. The Application filed on behalf of A.H. alleges tht she was subjected to discrimination on the basis of association with a person identified by a Code ground.
2The applicants also filed Requests for Interim Remedy and Requests to Expedite with the Applications. On October 29, 2014, the respondent filed Responses to the Requests in the Application filed on behalf of A.H., and, on October 31, 2014, the respondent filed Responses to the Requests in the Application filed on behalf of R.H.
3The purpose of this Interim Decision is to address the Requests for Interim Remedy and to Expedite.
The Allegations in the Applications
4The applicants' litigation guardian alleges that she, and R.H. and A.H.'s father, had to switch their daughters from their home school to a different school with the respondent due to a history and culture at the first school of staff not assisting children with special needs. She alleges that this happened with her son, who also has a disability, when he was in Grade 2 at the school.
5The applicants' litigation guardian also alleges that her daughters had transportation with a private van at the first school (provided by the school board), along with her son, but a "malicious event" made her and R.H. and A.H.'s father immediately switch their daughters to a different school, due to a "past situation" with their son at the school. R.H. and A.H. no longer have transportation (provided by the school board), and are not attending school. She alleges that the respondent told her that her daughters would have transportation if they attended their home school.
6The remedies requested in the Applications include transportation in a private van for both siblings, and an "EA" for R.H. to catch up.
INTERIM REMEDY
7The applicants' litigation guardian seeks an interim remedy that her children "somehow" be transported to school, as her daughters are falling behind socially and academically from not attending school. The applicants' litigation guardian attached a doctor's note indicating that R.H. has a disability, "remains a significant flight risk", and requires supervised transporation to and from school. The applicants' litigation guardian also provided signed declarations indicating that her daughters are not attending school, and are falling behind socially and academically.
8In its Responses to the Requests for Interim Remedy, the respondent submits that, in May 2014, the applicants' parents sought to have their daughters change schools, from their home school, under the respondent's "out of area school request process." The respondent submits that the reason for the request was not specifically articulated, but it came only days after a member of the school staff, after hearing A.H. make a "disclosure", made a report to the Children's Aid Society. The respondent also submits that R.H. and A.H.'s father communicated his anger to the school's Principal about such a report being made.
9The respondent submits that R.H. and A.H. are entitled to transporation to and from their home school, and transporation would be available if they returned to their home school. The respondent explains that the request for R.H. and A.H. to change schools was granted on the condition that transporation would be the responsibility of their family, and would not be provided by the respondent. The respondent submits that the applicants' parents indicated that they accepted this condition, and would make their own arrangments for transportation. After R.H. and A.H. began attending the new school, their father and the applicants' litigation guardian appealed the respondent's decision to not provide R.H. and A.H. with transportation to and from the new school, which the respondent denied.
10The respondent explains that, on September 17, 2014, the applicants' parents met with the respondent, and again requested that their daughters be provided with transporation to and from the new school. They indicated that they did not want to change their daughters' attendance back to their home school, even though they could do so in September with minimal disruption to their daughters' learning, and they would be entitled to transporation to the home school.
11The above submissions of the respondent are supported by signed declarations from either the respondent's Superintendent of Education, or Superintendent of Facility Services with responsibility for Transporation.
12The respondent also confirms that R.H. and A.H. attended the new school in May and June of 2014, as their parents made arrangments for them to do so; however, A.H. has not attended school in the current school year, and R.H. has not attended school since September 11, 2014.
13The conditions for awarding an interim remedy are set out in Rule 23.2 of the Tribunal's Rules of Procedure:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
14In TA v. 60 Montclair, 2009 HRTO 369 at paras. 15-27, the Tribunal stated that, since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is "whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found."
15Normally, the Tribunal's power to order respondents to do, or refrain from doing something, is contingent upon a finding that they have violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, an applicant bears a "significant onus" in establishing that the Tribunal should award an interim remedy: See TA at paras. 28-29.
16With respect to the three factors set out in Rule 23.2 of the Tribunal's Rules, above, the Tribunal in TA indicated as follows:
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (at paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (at paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (at para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (at para. 36).
17Tribunal is also more reluctant to order a proposed interim remedy that would create a new state of affairs, than one which would preserve an existing state of affairs. See Cochrane v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8. It is also a relevant factor if the result of the interim remedy would be to grant the applicant part of the final remedy sought. See Vella v. Toronto (City), 2011 HRTO 1831.
18Having regard to the various principles set out above, the Requests for Interim Remedy are denied at this stage of the proceeding. I am not satisfied that the applicants' litigation guardian has met the significant onus of establishing that an interim remedy should be awarded.
19First, the allegations in the Application are not very clear. The applicants' litigation guardian alleges that she and R.H. and A.H's father had to switch their daughters to a different school due to a history and culture of staff not assisting children with special needs at their home school. She also alleges that a "malicious event" made them immediately switch their daughters to a different school, due to a "past situation" with their son at the school. The Applications do not describe the "malicious event" or the "past situation".
20The applicants' litigation guardian also alleges that R.H. and A.H. had transportation at their home school, but do not have transporation at their new school, and are not attending school. The applicants' litigation guardian acknowledges that the respondent told her that her daughters would have transportation if they attended their home school.
21Based on the applicants' materials, it is not entirely clear to me what actions of the respondent are alleged to have resulted in discrimination against R.H. on the basis of disability, and discrimination against A.H. on the basis of association with a person identified by a Code ground. I also note that Rule 23.3 of the Tribunal's Rules requires that applicants seeking interim remedies provide one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the applicant relies, as well as submissions on the merits of the Application. In the present case, the applicants' litigation guardian did not answer the question in the Requests for Interim Remedy, "What arguments support your claim that the Application has merit?" Also, the applicant's signed declarations only confirm that R.H. and A.H. are not attending school, and are falling behind. The declarations do not address any actions of the respondent that are alleged to be discriminatory. In the circumstances, I am not able to conclude, based on the limited information before me, that the applicants have established a sufficiently arguable case for the purposes of satisfying the first element of the test for granting an interim remedy.
22I am also not satisfied that the balance of harm or convenience favours granting the interim remedy requested. While it is very concerning that R.H. and A.H. are not attending school, it appears undisputed that they would have transporation if they returned to their home school. In my view, the applicants' litigation guardian has not adequately explained in the materials why R.H. and A.H. cannot return to their home school where transporation would be provided by the resondent, or why alternate means of transportion to and from the new school cannot be arranged pending the resolution of the Applications. I also note that the applicants are effectively seeking as an interim remedy what is primarily sought as a remedy in the Applications, and the respondent submits that the cost of creating or amending a route, or providing an independent form of transportion, would be extraordinary.
23For the same reasons, I am also not satisfied that it would be just and appropriate to award the requested interim remdy. Based on the limited information provided by the applicants' litigation guardian, I am not satisfied that the requested interim remedy is necessary to further the remedial purposes of the Code, and that it would be fair in all of the circumstances to grant the Requests.
24At this stage of the proceedings, the Requests for Interim Remedy are denied.
EXPEDITE
25Rule 21.1 of the Tribunal's Rules provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances that require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application, and the harm that would result if the request is denied.
26In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner, as compared with the time required to complete the Tribunal's regular process.
27In the present case, the applicants' litigation guardian submits that her daughters have missed school, and the respondent will not provide transportation to their new school. With respect to the harm that would result if the Requests to Expedite are denied, the applicants' litigation guardian submits that her daughters will continue to miss school, and that they are falling behind socially and academically. The applicants' litigation guardian submits that these Applications should be given priority in order to enable her daughters to return to school.
28The respondent consents to the Requests to Expedite. However, the consent of the parties, while a factor the Tribunal will consider in determining expedite requests, is not determinative. See Martinez v. 2012342 Ontario, 2009 HRTO 111 at para. 7, and Griffiths v. Toronto District School Board, 2009 HRTO 545 at para. 11.
29Having regard to all of the circumstances, the Requests to Expedite are granted in part. There appears to be urgent circumstances justifying expediting the proceedings as the applicants, R.H. and A.H., are not attending school, and the respondent consents to the Requests. On the other hand, as set out above, the applicants' litigation guardian has not adequately explained why R.H. and A.H. cannot return to their home school where transporation would be provided by the respondent, or why alternate means of transportion to and from the new school cannot be arranged pending the resolution of the Applications.
30I note that the parties agree to mediation. At this stage of the proceeding, the Tribunal will schedule mediation on an expedited basis. Should these Applications not resolve at mediation, the applicants' litigation guardian may renew the Requests to Expedite with respect to further steps in the proceedings.
ORDER
31The Requests for Interim Remedy are denied, at this stage of the proceedings.
32The Requests to Expedite are granted in part. The Tribunal will schedule a joint mediation of these Applications on an expedited basis.
33I am not seized of this matter.
Dated at Toronto, this 5th day of November, 2014.
"Signed by"
Brian Eyolfson
Vice-chair