S.T. v. Paige, 2014 HRTO 586

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend A.T.

Applicant

-and-

Cheryl Paige

Respondent

A N D B E T W E E N:

T.T. by his next friend A.T.

Applicant

-and-

Cheryl Paige

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: April 25, 2014 Citation: 2014 HRTO 586 Indexed as: S.T. v. Paige

APPEARANCES

S.T. and T.T., Applicants A.T. and A.T., Next Friend

Cheryl Paige, Respondent Glorie Alfred, Counsel

Introduction

1These are two Applications filed under section 34 of the Human Rights Code, R.S.O. 1990, c H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of ancestry, ethnic origin, place of origin, race and reprisal. They were filed on S.T.’s and T.T.’s behalf by their mother and father respectively. S.T. and T.T. will be referred to as the “claimants” and their parents will be collectively referred to as the “applicants.” The Applications with respect to each claimant are identical, but for the name of the claimant.

2The purpose of this Interim Decision is to address the issue of whether some or all of the allegations in these Applications should be dismissed as having no reasonable prospect of success. It also directs the parties to file submissions on the issue of consolidation of the two Applications.

background

3The respondent was the principal of the school attended by the claimants. She has since retired. The Applications detail a lengthy history of allegations involving conflict between the school and the applicants, which the applicants allege has impacted on the educational service received by their children, the claimants.

4These Applications have had a protracted procedural history. The Case Assessment Direction setting up this summary hearing advised the parties that there would be an in-person hearing to deal with the issue of delay and no reasonable prospect of success. This in-person hearing was scheduled for February 21, 2013.

5Unfortunately, of those issues, only the delay allegations against a second respondent were dealt with at that February 2013 hearing. The allegations against this second respondent were dismissed for delay and she was accordingly removed as an individual respondent. See S.T. v. Paige, 2013 HRTO 473.

6The remaining parties were then asked to make written submissions on the issue of delay with respect to the allegations against the remaining respondent. In an Interim Decision, 2013 HRTO 1660, I dismissed those portions of the allegations against her which predated April 2010. In that same decision, I advised the parties that the issue of no reasonable prospect of success with respect to the remaining allegations would be addressed at a half-day teleconference. This took place on April 3, 2014.

Decision and Analysis

No Reasonable Prospect of Success

7Although the Applications do not set out the history between the parties in strict chronological order, I set out a chronology in my previous decision with respect to the issue of delay. A number of the allegations, which pre-dated April 2010, were dismissed for delay. The allegations that were not dismissed are as follows:

• In April 2010, the school caused the school council to record the arrival time of the applicants for a school council meeting, although no other family’s arrival time was noted.
• In May 2010, the school made a false report about the family to the Children’s Aid Society (“CAS”) and the police, resulting in the police visiting the applicants on May 31, 2010.
• In the fall 2010, the school raised the fees for the snacks, which was discussed at the October 2010 school council meeting.
• In the fall of 2010, the school prepared an IEP for S.T., which was withdrawn as “unnecessary” when the applicants indicated they wanted to participate in the process. This decision was reversed after the applicants complained and a further meeting was set up for January 2011. It is their view that S.T. was improperly called a “flight risk” on her safety plan.
• T.T. fell and hit his head on February 4, 2011. The school did not initially contact the father (although told he was the first contact), did not call 911 and then blamed T.T. for his injuries. When the father arrived at a school, he confronted staff there, as a result of which the respondent called the police to complain about his behaviour. The school refused to give him a copy of the incident report.
• The police visited the applicants on February 7, 2011, and a trespass notice was delivered on February 8, 2011, preventing the father from attending or contacting the school.
• The school would call the police when S.T. was late for school as part of an apparent campaign suggesting the school was “seeking any opportunity for the police arrest the [family] or CAS to be involved with the care of the children.” There are no dates attached to this allegation, but the respondent states that the school called the police on March 28, 2011, when S.T. and a friend did not come to school at the regular starting time.
• On May 3, 2011, the mother was sent a letter inviting her to attend the school for a meeting, which the father was banned from attending. She refused to participate without him.

In addition to these allegations, for which some date could be attached, the applicants also allege:

• The school gave “false information” about the applicants to the other parents on school council.
• The mother attempted to attend a school council meeting that was being held at an earlier time, but was asked to leave because the school council was having a pre-meeting. (Initially, the respondent said this occurred on November 3, 2010, but in its most recent submissions on delay, has suggested that it – or a related incident – occurred prior to the December 2009 council meeting.)
• Snack fees were raised without consulting the parents of the children at the school. After this was rectified, children whose parents could not afford the snack fee were singled out by the school, thus causing embarrassment for some of these children.
• Since calling for reforms at the school, the applicants stopped receiving important forms and newsletters from the school.

8The respondent disputes these allegations, in particular the applicants’ interpretation of events. However, at a summary hearing, the Tribunal assumes the applicant’s version of events, unless there is clear evidence to the contrary. Accepting the facts alleged by the applicants does not mean, however, that the Tribunal accepts the applicant’s assumptions about the reason for the alleged unfair treatment.

9The applicants must show that there is some evidence which they are planning to call to show some nexus between their ancestry, ethnic origin, place of origin and/or race and the alleged conduct. Alternatively, the applicants must demonstrate how they intend to prove reprisal.

10At the summary hearing, the applicants argued that the nexus is demonstrated by the virtue of the fact that Mr. T., in particular, was labelled as volatile, angry and aggressive and that this is a reflection of a stereotype of black males. In addition, they state that the respondent made reference to him as a “king of Nigeria” which suggests she perceived his background as significant. This is disputed by the respondent, but I cannot resolve the dispute without hearing further evidence.

11There are specific allegations, which the respondent submitted have no apparent connection to the Code and/or the respondent, namely those that relate to the conduct of others (such as the members of the Council and the school secretary). Rather than dismissing these specific allegations at this stage, however, the Tribunal will allow the applicants to call evidence on them. The respondent may determine at that stage whether she needs to call evidence to refute these allegations.

12I would note that the applicants’ apparent theory that they were the subject of reprisal because they had called for reforms may not be reprisal as it is defined in s. 8 of the Code. Specifically, there is nothing in the Applications that appears to allege that these actions took place in response to any of the following:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code; or
• refusing to infringe the right of another person.

13If the applicants are, in fact, asserting that there is this link between the actions and the above criteria, this needs to be clarified in advance of the hearing.

14In their written and oral submissions, the applicants allege further incidents occurred subsequent to the filing of the Applications, which they also characterize as reprisal. I explained that I could not consider these further incidents because the applicants had not sought to amend their Applications, nor was the respondent given proper notice of these allegations. Any amendments should properly be the subject of a formal request.

15Having reviewed the submissions of the parties, I cannot conclude that there is no reasonable prospect that these Applications will succeed.

Consolidation

16In a previous Interim Decision, 2013 HRTO 473, the Tribunal made the following observations and request for submissions:

These Applications were initially filed on one form, but because they involved two applicants were divided into two Applications. There was no effort to separate out the allegations involving the individual applicants. There is clearly much overlap between the two, and both name the same respondents (now respondent). Given the overlap it would appear that consolidation may be appropriate. The parties are directed to deliver to each other and file with the Tribunal any written submissions concerning consolidation of these Applications by May 15, 2013.

17Both the applicants and respondent requested an extension to file their submissions on consolidation after the Tribunal had dealt with the issues of delay (addressed in 2013 HRTO 1660) and no reasonable prospect of success (addressed in this Interim Decision). The parties have until May 7, 2014 to file any submissions they may have with regard to consolidation of these two Applications.

Order

18In sum, I have made the following directions:

a. The Applications will not be dismissed as having no reasonable prospect of success at this stage; and

b. The parties must file any submissions with respect to consolidation of the two Applications by May 7, 2014.

19I am not seized of this matter.