C.C. v. Greater Essex County District School Board, 2015 HRTO 1442

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.C. by his Litigation Guardian N.M.

Applicant

-and-

Greater Essex County District School Board

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: October 28, 2015
Citation: 2015 HRTO 1442
Indexed as: C.C. v. Greater Essex County District School Board

introduction

1This Interim Decision addresses the applicant’s request to be permitted to amend his Application as follows:

a. To include an allegation that the respondent failed in its procedural obligation to inquire about the applicant’s disability-related needs and failed to provide appropriate accommodation even after those needs were identified by an Identification, Placement and Review of Exceptional Pupils Decision, dated April 13, 2015; and

b. To include information about events related to the original allegations in the Application, which have occurred since the Application was filed.

2The applicant filed a Form 10 Request for an Order During Proceedings (“RFOP”) on September 29, 2015, to which the respondent filed a Form 11 Response to a Request for an Order on October 13, 2015 in which it objects to the applicant’s request.

parties’ submissions

3The applicant submits the amendments should be allowed because:

a. the applicant was not represented by counsel when he filed his Response, and has only recently been advised of his legal rights;

b. although the proposed amendments include a new allegation regarding the failure to accommodate, they clarify that the failure to accommodate includes other accommodations besides the denial of the use of a service dog, some of which are in the applicant’s Individual Education Plan (“IEP”);

c. the balance of the amendments provide relevant information about events that occurred after the Application was filed and that are directly related to the allegations in the Application; and

d. the proposed amendments are discrete and will cause little delay, and no hearing date has been set.

4The respondent objects to the majority of the amendments because:

a. The Application as amended fails to provide the respondent with particulars of the respondent’s alleged failure “in their procedural obligation to inquire about [the applicant’s] disability related needs” and alleged failure “to provide appropriate accommodation even after those needs were identified by an Identification, Placement and Review of Exceptional Pupils Decision dated April 13, 2015”;

b. These amendments are wholly new, which will expand the hearing;

c. Any amendments with respect to allegations prior to the September, 2014 to June, 2015 school year are not a continuum of the facts originally pled and are untimely; and

d. With respect to amendments respecting the 2014-2015 school year, the applicant could simply file a new Application.

5The respondent consents to the proposed amendments to include the events which occurred after the Application was filed that relate to the allegation that the respondent failed to permit a service dog to accompany the applicant to school, as long as it is permitted to file an amended Response.

law and analysis regarding amendments to the Application

6In considering requests to amend applications under section 34 of the Human Rights Code, R.S.O 1990, c. H.19, 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(s). See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

7With respect to the timing of the requests, no hearing dates have been set and it would not be prejudicial on this basis alone to allow the amendments at this stage.

8There appear to be four new allegations of discrimination as set out in paragraphs 9(b), (c), (e) and (f) of the applicant’s RFOP:

a. the respondent did not explore whether the applicant required any accommodations at school after he suffered events that occurred outside of school in February, 2013 from which he developed night terrors, was unable to focus and could not complete homework and school projects on time;

b. the respondent did not propose any accommodations for the applicant after September 25, 2014 when he began to suffer severe anxiety and felt his safety and security at the school had been compromised;

c. the respondent did not implement any of the accommodations set out in the IEP, developed after the Identification, Placement and Review of Exceptional Pupils Committee (“IPRC”) meeting in April, 2015;

d. throughout the 2014-2015 school year, the applicant was unable to complete several school projects, which his teacher marked “incomplete” – even after the IPRC meeting when the applicant’s mother raised a concern about this, the teacher responded: “what grade do you want me to give him?”

9The respondent submits some of the new allegations potentially are untimely and lack particulars, but the test for whether or not an amendment to an Application will be permitted is as set out in paragraph 6, above. In considering the nature of the amendments, the Tribunal typically considers how closely related they may be to the original allegations in the Application and how much they may change the scope of the existing Application.

10In this case, the new allegations are closely related to the original allegations, even though they expand the case to include allegations that the respondent failed to accommodate the applicant not only with respect to the use of a service dog, but also with respect to other identified needs.

11The respondent does not assert prejudice. I find that although the amendments would expand the scope of the original Application, the alternative, as the respondent points out, is that the applicant could commence a second Application, at least with respect to the new allegations. While the respondent submits that the fact that the applicant could commence a second Application is a reason to deny the requested amendments, it is difficult to see how the respondents would be significantly prejudiced if the amendments were permitted to this Application rather than having the applicant simply commence another Application. In the interests of utilizing the Tribunal’s and parties’ time and resources most efficiently, it makes sense to allow the amendments to this Application.

12I allow the amendments in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.” These requests do not raise significantly new facts.

13In allowing the amendments, it does not mean the applicant will be able to prove the allegations or that they ultimately will be found to be timely.

request to file reply

14The applicant requests permission to file a Form 3 Reply, alleging that the one he filed addressed the response to his request to expedite and not the allegations in the Form 2 Response.

15Rule 9 of the Tribunal’s Rules of Procedure (“Rules”) states:

9.1 An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

9.2 The Reply must deal only with new matters that are raised in the Response.

9.3 The Applicant must deliver a copy of the Reply to the other parties and any trade union or occupational or professional organization and other person or organization identified as an affected person in the Application or Response and file it with the Tribunal not later than 14 days after the Response was sent to the Applicant.

16Rule 1.7 of the Rules states:

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

a) lengthen or shorten any time limit in these Rules.

17The respondent submits that if the amendments are permitted to the Application, the appropriate time to file a Reply will be after the amended Response is filed.

18I allow the applicant’s request to file a Reply in accordance with Rule 1.7(a) that permits the Tribunal to lengthen any time limit in the Rules.

order and next steps

19The request to amend the Application is granted.

20The applicant may within 14 days of his receipt of this interim decision deliver to the respondent its amended Application, and file it and a Form 23 Statement of Delivery with the Tribunal.

21The respondent may within 21 days of its receipt of the amended Application deliver to the applicant its amended Response, and file it and a Form 23 Statement of Delivery with the Tribunal.

22The applicant may within 14 days of his receipt of the amended Response deliver to the respondent and file with the Tribunal a Reply, and file it and a Form 23 Statement of Delivery with the Tribunal.