L.B. v. Toronto District School Board, 2015 HRTO 132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

L.B. as represented by Litigation Guardian S.B.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Eva Nichols

Date: January 28, 2015

Citation: 2015 HRTO 132

Indexed as: L.B. v. Toronto District School Board

WRITTEN SUBMISSIONS

L.B., as represented by Litigation Guardian S.B., Applicant

David Baker and Emily Shepard, Counsel

Toronto District School Board, Respondent

Brenda J. Bowlby and Laurie Reesor, Counsel

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 services because of disability.

2A hearing in this matter began in Toronto on January 14, 2015. This Interim Decision addresses two distinct issues.

3First, it addresses a request for an order submitted by the applicant in a letter addressed to the Tribunal, dated January 12, 2015.

4Second, it is in response to a series of written communications from the parties to the Tribunal, relating to the disclosure of additional documents.

THE REQUEST FOR AN ORDER REGARDING EVIDENCE

5The applicant’s January 12, 2015 letter sought direction from the Tribunal on a number of legal matters. Since the request was not submitted as a Form 10 Request for Order During Proceedings (“RFOP”), there was no written response (Form 11) received from the respondent, nor was there a written order issued by the Tribunal prior to the start of the hearing.

6As a preliminary matter, the applicant’s counsel raised the issue of seeking an oral order from the Tribunal on limiting the evidence to be presented in his case under Tribunal Rules 1.6 and 1.7.

7The specific order that counsel sought was that the applicant need not call evidence and the respondent should not be entitled to call evidence on the following three specific questions:

a) That S.B. was not pursuing appropriate medical treatment for L.B., thereby relieving the TDSB of its duty to accommodate L.B.

b) That L.B. should have been in a residential psychiatric treatment program, thereby relieving the TDSB of its duty to accommodate L.B.

c) That S.B. took any action that prevented the TDSB from accommodating L.B. (see R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (“R.B.”)) prior to his transfer to Everest Academy.

THE APPLICANT’S ARGUMENTS IN FAVOUR OF THE ORDER

8Applicant’s counsel made submissions about the importance of limiting the evidence to those matters that the Tribunal needs to consider to determine whether there has been a breach of the Code.

9He stated that S.B. had disclosed in full to the TDSB all the treatments that L.B. had received throughout the years that he was a resident pupil of the TDSB. He also made submissions about the matter of psychiatric treatment that S.B. believed that the TDSB “expected” her to obtain for L.B.

10Counsel stressed in his submissions that parents should not be “put on trial” in such a proceeding, nor should they be held to a standard of perfection. He cited R.B. in support of his submissions and arguments with respect to his request.

THE RESPONDENT’S RESPONSE TO THE REQUEST

11Counsel for the respondent did not oppose the applicant’s request that the Tribunal limit the evidence presented. She stated that the respondent was aware of and sensitive to the facts of this case and the situation of S.B. as a single parent dealing with a challenging situation.

12Counsel stressed that the respondent had no intentions of putting the parent on trial. She stated that the respondent had provided accommodations for L.B. to the extent that they were able, given the home situation and the level of parental authority.

13Counsel submitted that school boards do not provide treatment to their students and that treatment facilities in Ontario are within the Province’s jurisdiction.

14Counsel also submitted that S.B. refused some available services and instead chose to send L.B. to private school. She stated that the R.B. decision was not relevant to this proceeding since L.B. had not been excluded nor was there a question of providing educational services to a child.

THE TRIBUNAL’S RELEVANT RULES

15The Tribunal’s Rules of Procedure provide that

1.6 The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may […]

(h) define and narrow the issues in order to decide an Application;

(n) limit the evidence or submissions on any issue

DECISION

16Having considered the submissions of both parties on this matter, I issued the following verbal orders to the parties at the hearing.

17I agreed that I would issue a written decision, which would include my reasons for the orders.

18I ordered that, in accordance with the applicant’s January 12, 2015 letter to the Tribunal, the applicant need not call evidence nor is the respondent entitled to call evidence on the following two matters:

a) That S.B. was not pursuing appropriate medical treatment for L.B., thereby relieving the TDSB of its duty to accommodate L.B.; and

b) That L.B. should have been in a residential psychiatric treatment program, thereby relieving the TDSB of its duty to accommodate L.B.

19I declined to make the order that the applicant need not call evidence nor is the respondent entitled to call evidence on the third part of the applicant’s request, namely “that S.B. took any action that prevented the TDSB from accommodating L.B.”.

REASONS

20My reasons for agreeing to issue an order with respect to the first two points are as follows:

(a) School boards have an obligation under the Code to accommodate their students with disabilities to the point of undue hardship, regardless of whether the students are receiving any medical treatment in the community or not;

(b) School boards cannot order or demand of parents to place their children into residential psychiatric treatment programs and cannot deny or withhold accommodations to the point of undue hardship on the grounds that the student should be in such a program. While I have no evidence to show that this was the case here, that does not alter the principle;

(c) School boards have an obligation under the Education Act to provide appropriate special education placements, programs and services to their exceptional students. Parental conduct or lack of parental authority cannot be used as a justification for not meeting an exceptional student’s needs; and

(d) I agree with the decision in R.B. at para 265, that a parent’s “fierce advocacy” for his or her child must not and cannot prevent a school board from accommodating the child’s needs to the point of undue hardship.

21My reasons for denying the applicant’s more general request that the respondent be prohibited from calling evidence that S.B. took “any action that prevented the TDSB from accommodating L.B.” are as follows:

(a) There are certain services, programs and accommodations which cannot be explored or implemented by school boards without parental consent. These include, but are not limited to, the provision of psycho-educational assessments, placement in a congregated exceptionality-specific special education class, referral for placement in a Provincial school or a Section 23 care and treatment program. While I have no reason to believe at this time that S.B. denied consent to the TDSB for the implementation of any of these potential accommodations, it would be unfair to deny the Board the opportunity to enter into evidence all relevant information relating to L.B.’s education and accommodation, if any, while he was a resident pupil of the TDSB; and

(b) In order to ensure that the Tribunal provides a fair and just resolution of this matter, I cannot and will not deny both parties an adequate and equal opportunity to present their case.

REGARDING THE DISCLOSURE OF ADDITIONAL DOCUMENTS

22During the hearing the applicant attempted to introduce additional documents that had not been disclosed previously in accordance with the Tribunal’s Rules and without providing them to the respondent or obtaining approval from the Tribunal.

23Since the hearing was adjourned on January 15, 2015, on January 21, 2015, the applicant sent to the Tribunal and the respondent additional disclosure materials for consideration when the hearing resumes on February 24, 2015.

24On January 22, 2015, the respondent wrote a letter to the Tribunal objecting to the admission of these additional disclosures without the explicit approval of the Tribunal.

THE TRIBUNAL’S RELEVANT RULES

25Rule 5.7 of the Tribunal’s Rules of Procedure provides that:

Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present the evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

DECISION

26I direct the parties to comply with the Tribunal’s Rule 5.7. The applicant is directed to submit a list of all additional arguably relevant documents, including all the documents that were disclosed at, but not prior to, the hearing as well as following the adjournment of the hearing, no later than Wednesday, February 4, 2015, together with a brief explanation of why these documents should be admitted at such a late stage, including submissions with respect to “no substantial prejudice” and how the applicant can ensure that there would be no undue delay to the proceedings by admitting these additional documents..

27The respondent is directed to respond to this document no later than Thursday, February 12, 2015.

28This will enable me to consider both submissions and issue a Case Assessment Direction on this matter before the hearing resumes on February 24, 2015.

29Please note that this direction does not apply to the RFOP submitted by the applicant on January 16, 2015, relating to the disclosure of additional information by the respondent. That request will be addressed in a separate Interim decision.

REASONS

30My reasons for the decision are as follows:

(a) The applicant had adequate opportunity to compile and disclose all arguably relevant documents in compliance with the Tribunal’s Rules and jurisprudence; and

(b) It is unfair to both the respondent and the Tribunal to continue to disclose documents in a piecemeal fashion once the hearing process has begun. The Tribunal is committed to providing just, fair and expeditious adjudication to the parties before it. This relies, in part, on the parties complying with the Rules regarding disclosure.

DIRECTION

31The Tribunal directs both parties to comply with the directions contained in this Interim Decision.