HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.G. as represented by her litigation guardian D.G.
Applicant
-and-
Toronto Catholic District School Board
Respondent
DECISION
Adjudicator: Keith Brennenstuhl Date: October 22, 2015 Citation: 2015 HRTO 1412 Indexed as: A.G. v. Toronto Catholic District School Board
APPEARANCES
A.G. as represented by her litigation guardian D.G., Applicant
Self-represented
Toronto Catholic District School Board, Respondent
Paul Matthews, Counsel
Introduction
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant’s litigation guardian, who is her father, alleged that the respondent is failing to provide reasonable accommodation to their student, his 16 year old daughter, who has a learning disability.
2The issues raised in the Application have also been raised and considered in the context of a civil proceeding in family court as part of a custody dispute between the applicant’s litigation guardian and the applicant’s mother. In its Response, the respondent submitted that the Tribunal should dismiss the Application under s. 45.1 of the Code.
3On June 19, 2015, the Tribunal issued a Case Assessment Direction (“CAD”) in this matter, directing that a preliminary hearing take place. In the CAD the Tribunal directed that the parties be prepared to make submissions on whether the Application should be dismissed pursuant to s. 45.1 or any of the doctrines encompassed by that section, namely: issue estoppel, collateral attack and abuse of process.
4A preliminary hearing was held by conference call on September 9, 2015. All the parties participated. The applicant’s mother received notice of the hearing as an interested party. She advised the Tribunal that she did not want to be involved in this matter and did not appear at the hearing.
Background
5At the outset, I would note that D.G., the applicant’s father and the applicant’s mother have been in and out of litigation with respect to the applicant’s custody, including educational issues, for the past decade. The parents of A.G. have joint custody of her. A.G.’s mother does not appear to support this Application.
6Under the circumstances, I question whether D.G. is the appropriate person to be the applicant’s litigation guardian and to bring this Application on behalf of his daughter.
7Given my conclusions below, I find it unnecessary to make a final determination on whether D.G. is the appropriate litigation guardian, however, I would note that the Tribunal’s rules require a litigation guardian on behalf of a minor to provide notice of the proceeding to any other person with custody of the child [see Rule A10.3(d)]. These Rules also allow anyone with notice of the proceeding to make a request to the Tribunal to remove a litigation guardian on the basis that there is a more appropriate person seeking to be a litigation guardian (among other reasons), see Rule A10.7. If this matter proceeded further then it would have been open to the applicant’s mother to request that the Tribunal remove the father as litigation guardian and place her in that role. Then, assuming she still disagreed with the decision to file the Application, as the litigation guardian she could have withdrawn the Application. The issue of who can act as a litigation guardian for a minor has been considered by the Tribunal previously in Y.D. v. Office of the Children’s Lawyer, 2014 HRTO 381 and R.P. by her Litigation Guardian R.P. v. Toronto Catholic District School Board, 2014 HRTO 122. In this matter, the question of who is the more appropriate litigation guardian is intricately linked to the ongoing family court proceeding between mother and father such that I find it appropriate to focus on the abuse of process issue as being dispositive of this issue as well.
Background
8By Order of August 26, 2011, the Ontario Court of Justice (the “Court”) ordered that the applicant’s parents have joint custody of her.
9Subsequently, the applicant’s mother initiated a motion to have the applicant attend D. A. School starting September 2013.
10On March 11, 2013, the Court appointed the Office of the Children’s Lawyer (“OCL”) to provide independent legal representation for the applicant in her parents’ legal proceedings.
11On August 15, 2013, the applicant’s father brought a Motion to Change seeking: sole custody of the applicant, or in the alternative, parallel parenting with him having decision making with respect to the applicant’s education and the mother having decision making with respect to the health and religion of the applicant; and, to have the applicant attend R.B. Business and Technical Institute (“BTI”) for grade 9 commencing September 2013 because D.A. School would not or could not provide the applicant with the educational supports that would best assist the applicant to reach her academic potential.
12On August 23, 2013, the parents and the OCL consented to an Order (the “Order”). The Order provided that the applicant would provisionally attend D.A. School. It also provided for the parties to select an educational consultant to make recommendations as to what additional supports within the school and outside the school would best assist the applicant in achieving the recommendations set out in a May 14, 2012 psycho-educational assessment report and that the recommendations may include more support, a change in school or the status quo. The parents and OCL agreed to seriously consider the recommendations. The Court ordered that if the parties and OCL could not agree on an educational plan for the applicant, “the issue shall come back to Court to be heard on a long motion in advance of the second semester.” In addition the Court ordered that “if the parties cannot come to an agreement, they shall return to Court on the first available motions date to resolve the issue.”
13The educational consultant never provided recommendations as to what supports within and outside of D.A. School would best suit the applicant. He did prepare and submitted a report on August 5, 2014, in the nature of report for trial, recommending that the applicant be placed at BTI.
14The Motion to Change was set for trial for two half days in November, 2014, but the trial did not take place because of the illness of the trial judge. A Settlement Conference was held before another judge on November 18, 2014, but the Settlement Conference was not successful in resolving the case. The judge opined that the father’s chances of having a Court order that the applicant change schools against her wishes at age 16 was nil.
15The fact that applicant wants to remain at D.A. School and does not want to change schools is not disputed.
16The matter was scheduled for Assignment Court on January 5, 2015 to set dates for trial. On January 5, 2015 the father withdrew his Motion to Change.
17On January 25, 2015, D.G. filed this Application on behalf of the applicant. By way of remedy the applicant requests that the respondent accommodate the applicant’s learning disabilities by providing the supports as detailed by multiple experts and in the event that the respondent declares itself unable to provide those supports the applicant be transferred to BTI.
Analysis and Decision
18For the reasons that follow I find that to allow this Application to proceed would be an abuse of process and it is dismissed.
19The issues before the Court in the custodial proceedings were: what additional supports within and outside D.A. School should the applicant’s parents request of the school; whether there should be a change of school to BIT or, whether the status quo would be appropriate. The Order directs that the applicant provisionally attend D.A. School and it sets out a consultative process in which an educational consultant would make recommendations as to what additional supports would best assist the applicant and whether there should be a change of school to BIT and that the parties would agree to implement those recommendations. The educational consultant, according to the Order, would be one that both mother and father agreed to. The Order provides if the parties cannot resolve an issue; either the mother or the father could apply to the court for resolution. It is important to note that this order was issued on the consent of the mother and the father.
20D.G.’s argument that the court has lost jurisdiction over the matter when the applicant turned 16 years of age is, in my view, of no merit. D.G. provides no authority whatsoever to support this contention. It is my view, the Order is extant and the Court remains seized of the matter because, as per the terms of the Order, if the parents cannot reach agreement they must return to the Court to resolve the issue.
21In seeking to proceed with this Application, D.G., is in essence asking the Tribunal to reconsider the very issues that are addressed in the Order to which D.G. consented in that he is seeking to have the Tribunal determine the educational supports to which the applicant is entitled and asking that the applicant be transferred to BIT. Clearly, however, this Tribunal does not have the jurisdiction to interfere with the Order or otherwise review the Order. The issue of who could make decisions on behalf of the minor in resolving outstanding education issues with the school board was before the Court in the joint custody order. As well, in consenting to the Order made after his Motion to Change, D.G. was agreeing to have that process determine the issue of what supports would be sought against the school board and what school she would attend on behalf of the applicant. In essence, D.G. seeks to make a collateral attack on the Order and to circumvent in these proceedings the issues addressed in the Order and the process established in those proceedings.
22The Tribunal has jurisdiction to stay or dismiss an application if to proceed would amount to an abuse of process. The discretionary power is confirmed by section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c.S.22, which provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”
23The Tribunal explained the doctrine of abuse of process in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 as follows (at para. 55):
The Supreme Court of Canada has stated that the doctrine of abuse of process is appropriately used to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/ mutuality requirements) have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice.
24In light of the fact that this is in essence an attempt to make a collateral attack on the Court’s Order and, due to the fact that D.G. had provided his agreement and consent to the Order which he now seeks to disregard and in light of the fact that the Tribunal does not have the jurisdiction to interfere with or oversee the court’s determination, I find that to allow this matter to proceed would violate the principles of judicial economy, consistency, finality and the integrity of the administration of justice.
25Accordingly, the Application is dismissed as an abuse of process.
Dated at Toronto, this 22nd day of October, 2015.
“Signed by”
Keith Brennenstuhl
Vice-chair
CORRECTION
The original Decision issued on October 22, 2015 incorrectly stated the date of the conference call as “September 3, 2015” in paragraph 4. This error has been corrected.
Dated at Toronto, this 22nd day of October, 2015.
“Signed by”
___________________________________
Keith Brennenstuhl
Vice-chair