Human Rights Tribunal of Ontario
B E T W E E N:
D.V. by her Litigation Guardian D.S.J. Applicant
-and-
Georgian Bay Secondary Schools Association and Ontario Federation of Secondary School Athletic Associations Respondents
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Attorney General of Ontario Intervenor
INTERIM DECISION
Adjudicator: Paul Aterman Date: May 1, 2014 Citation: 2014 HRTO 624 Indexed as: D.V. v. Georgian Bay Secondary Schools Association
WRITTEN SUBMISSIONS
D.V. by her Litigation Guardian D.S.J., Applicant Self-represented
Georgian Bay Secondary Schools Association and Ontario Federation of Secondary School Athletic Associations, Respondents Stephen MacDonald, Counsel
Attorney General of Ontario, Intervenor Josh Hunter, Counsel
1In this Application it is alleged that the policies of the respondents that govern the eligibility of students to play sports at an interschool level when they have transferred from one school to another are discriminatory on grounds of ancestry, place of origin, citizenship, ethnic origin, creed, family status and age. The applicant maintains that the policies, in their design and execution, discriminate with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant, who is francophone in origin, is a secondary school student. She plays basketball and soccer at a competitive level. She transferred from a school which provides instruction in French to a school which provides instruction in English because she wanted to develop her English language skills in an anglophone environment.
3The school she moved to provides instruction in French in certain subjects. She studied there for almost two academic years, but she and her parents were dissatisfied with the quality of instruction in French. The applicant then transferred back to a French language school. When she did she was not eligible to play basketball or soccer for her new school for a period of a year. She says that prohibition was discriminatory.
4The applicant has requested to amend her Application. First, she wants to change the remedies requested by adding a claim for reimbursement of expenses she has and will incur in advancing this Application, and by increasing her claim for damages for injury to dignity, feelings and self-respect from the $500 she initially sought to $20,000. The applicant maintains that the Tribunal’s earlier denial of an interim remedy she had asked for, coupled with the time it is taking for her Application to come to a hearing, has taken a psychological and emotional toll on her that demands a greater level of compensation than she initially asked for.
5Second, she seeks to amend her Application by citing as evidence of discrimination the denial by the respondents of an opportunity for her to participate in a basketball tournament between the teams of francophone schools that took place from October 24-26, 2013.
6The respondents oppose these requests on the grounds that they would expand the scope of the Application and prejudice their ability to prepare for a hearing. The request to increase the claim for damages is, say the respondents, disproportionate to the allegedly discriminatory conduct. If the Tribunal decides to grant the request to amend, then the respondents request disclosure of the applicant’s medical history.
7In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent (see Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926).
8In this case the applicant is not seeking to introduce new allegations through the proposed amendments. Rather, the reference to her exclusion from a basketball tournament provides details that she claims will support allegations that the respondents are already aware of. The tournament is a single event, defined in time and I cannot see how the respondents will be prejudiced in having to address these limited additional facts. The request to increase the damages sought does not change the nature of the allegations that the respondents will need to address. Whether the amount sought is an amount the Tribunal should award will be determined if and when the applicant has established discrimination. The applicant’s requests to amend her Application are granted.
9At this stage the respondents’ request for the applicant’s medical records is premature, as the deadline for the disclosure of arguably relevant documents has not yet passed. However, the applicant should be aware that by seeking an increase in the amount of damages and linking the respondents’ alleged conduct to an adverse impact on her health, evidence relating to the state of her health appears – at least at this stage – to be arguably relevant.
10The applicant has challenged the constitutional validity and applicability of the Code’s definition of “age”. As I understand her argument, she also maintains that the lack of an express inclusion of minority language rights in s.1 of the Code is contrary to the guarantee of the protection of minority language rights found in [s.23](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk