L.B. v. Toronto District School Board, 2015 HRTO 148

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: February 2, 2015

Citation: 2015 HRTO 148

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. The purpose of this Interim Decision is to address two separate and unrelated Form 10 Requests for an Order during Proceedings (the "RFOP") received from the applicant. The first RFOP was received on January 12, 2015. It requests the Tribunal to admit the witness statement and testimony of Clint Malarchuk, as an expert witness. The second request, received on January 16, 2015, is for the Tribunal to order the disclosure of two additional documents by the respondent.

THE MATTER OF THE EXPERT WITNESS

The Applicant's Request for Order

3The applicant's January 8, 2015 RFOP describes the proposed witness as "an expert in the lived experience of individuals with anxiety-based mental illness". Mr. Malarchuk has written a book about his experience of living with anxiety and the impact that anxiety had on his life.

4The minor applicant, L.B., is not testifying at the hearing. Counsel submitted that this is because of the risk that testifying would pose to his mental health. It is in the absence of L.B.'s testimony that counsel is proposing that the Tribunal hear from Mr. Malarchuk.

5Counsel for the applicant submits that it is both "relevant and necessary" that the Tribunal hear from this proposed expert witness. In the proposed witness statement, Mr. Malarchuk states that he is "familiar with L.B.'s story" and goes on to say that [I] "feel because of my own life experience, I understand his struggle to receive an education in light of his mental health challenges".

The Respondent's Response to the Request

6At the hearing on January 15, 2015, respondent's counsel stated her opposition to the request to accept the proposed expert witness. She cited both the lateness of the application as well as the lack of direct relevance.

7In the respondent's Form 11 Response to a Request for an Order, the respondent opposed the applicant's request for several reasons. In summary, these were as follows:

(a) The applicant failed to comply with the Tribunal's Rules regarding disclosure and the calling of witnesses, by filing this request at such a late stage;

(b) The applicant has failed to demonstrate that this is a case where the Tribunal should exercise its discretion under Rule 17 to permit a party to call a witness without complying with the Rules of disclosure; and

(c) The applicant has failed to demonstrate why calling this witness would constitute expert evidence in this case or meet the accepted test for expert evidence set out in previous cases.

ANALYSIS

8The Tribunal's Rules do not contain a definition of expert witness. Instead, it relies on its own and the courts' jurisprudence in this matter.

9The test for admissibility of expert evidence has been established in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The criteria for this test are as follows:

1. the evidence must be relevant;

2. the evidence must be necessary to assist the trier of fact;

3. there must be no exclusionary rule prohibiting receipt of the evidence; and

4. the evidence must be given by a properly qualified expert.

10With regard to the second criterion listed above, the Tribunal has accepted that there is a lower threshold for showing that the evidence is "necessary" to assist the trier of fact in discrimination cases, due to the nature of human rights proceedings and the often subtle nature of discrimination. In this regard, the Tribunal has generally relied on Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at para. 36.

11In this decision I also relied on the detailed discussion regarding the matter of the qualification of potential expert witnesses in Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 at paras. 235 to 244.

DECISION

12Having considered the submissions of both parties on this matter, I am not satisfied that Mr. Malarchuk meets the established criteria for an expert witness to testify before the Tribunal in this case. Therefore, I deny the applicant's request.

REASONS

13My reasons are as follows:

Regarding relevance

14I am not satisfied that the anticipated evidence of Mr. Malarchuk is relevant to the specific case, namely whether the respondent discriminated against the applicant L.B., by refusing to accommodate him to the point of undue hardship while he was a resident pupil of the respondent school board.

15I note that Mr. Malarchuk claims that he has an anxiety-based mental health disability, which prevented him from attending school regularly and brought him into conflict with his family. I do not question that Mr. Malarchuk has had these experiences. However, I do not see that his experiences at a different time and a different location are directly relevant to clarify or explain L.B.'s experiences as a student of the respondent school board. His assertion that his disability is essentially the same as that of the applicant has not been proven. In this comment, I also relied on Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, where the Court distinguished disability from other protected grounds by stating that disability as it impacts education means "vastly different things depending upon the individual and the context."

16The fact that L.B. plays hockey and has found that hockey has been able to ameliorate his difficulties and Mr. Malarchuk has been a hockey player within the NHL do not make the proposed evidence relevant to consider whether there has been a breach of the Code.

Regarding necessity

17The Tribunal has already heard from an expert witness, Dr. Michael Allan. He is a qualified psychologist who has known the applicant for almost ten years and has carried out two comprehensive psychological assessments of the applicant. He has also provided ongoing regular treatment to the applicant. His evidence was more than adequate in ensuring that the Tribunal understand the applicant's strengths and needs as a person with a specific disability.

18The Tribunal has also heard from another witness, Mr. Sim, who is an educator with a long career in special education. He was able to communicate to the Tribunal the applicant's educational needs, as he saw them and what appears to be working well for the applicant in his current educational setting.

19The applicant's mother, who is his litigation guardian, has not completed her testimony as yet. I feel certain that in the remainder of her evidence the Tribunal will learn a great deal more about the applicant's challenges and struggles with overcoming his difficulties.

20Finally, with regard to necessity, I understand the facts of the applicant's case and do not feel that the proposed evidence of Mr. Malarchuk, however interesting it might prove to be, would be particularly helpful in communicating to me the facts related to the situation of the applicant and whether there has been a breach of the Code. As I had stated in my opening comments at the hearing, I regret that I shall not hear directly from the applicant, L.B., but respect the decision of his Litigation Guardian regarding this matter.

Regarding exclusionary rules

21The applicant's non-compliance with the Tribunal's Rules regarding disclosure (Rules 16 and 17) also support my decision not to hear from Mr. Malarchuk. I recognize that in certain circumstances, the Rules and the Code allow an adjudicator the licence to vary the application of any of the Rules. However, I do not regard that the circumstances of this request or the benefits of hearing from this witness, as cited by the applicant's counsel, call for me to vary the application of the Rules.

Regarding the proper qualification of the proposed witness

22I note that the proposed witness states that he is familiar with and understands the applicant's story. I do not accept that this is an adequate qualification to deem Mr. Malarchuk an expert witness.

23The Mohan criteria, set out above in paragraph [9], state that the proper qualification of an expert witness can come from both experience and educational background, so that the individual can give "opinion evidence". The applicant did not specify the reasons which would qualify this proposed witness to give "opinion evidence". The personal experience cited does not adequately serve as a proxy for the lack of academic qualifications.

THE MATTER OF THE DISCLOSURE OF THE ADDITIONAL DOCUMENTS

24On January 12, 2015, applicant's counsel wrote to the respondent asking for the disclosure of two letters apparently written by two teachers at the applicant's school of the respondent school board to a private boarding school supporting the applicant's entry to that school. Counsel submitted that these are arguably relevant to the matter before the Tribunal. This informal request was followed on January 16, 2015, by a Form 10 RFOP request to the Tribunal for the production of these two documents.

The Applicant's Submissions

25The letters in question were apparently written by the applicant's special education teacher and guidance counsellor. Counsel submitted that these letters are relevant because they "speak to whether the TDSB was aware that a boarding school environment would have met the applicant's educational needs and whether his needs were currently being met by the respondent."

26The applicant submitted that these letters were particularly relevant in light of the decision in Moore v. British Columbia (Education), 2012 SCC 61. In that decision, the Supreme Court relied on the evidence that two of the teachers communicated to the parents that their son could no longer obtain the necessary instruction within the public educational system.

27The applicant further submitted that the letters were sent confidentially and therefore the applicant did not receive a copy. For this reason, the applicant has not been able to provide these to the Tribunal.

The Respondent's Submissions

28The respondent questioned the relevance of these documents and asked that the request should be dismissed.

29Counsel further submitted that the two teachers in question, while they remember filling in a form and/or writing a letter, do not have a copy of the correspondence, and have not been able to locate either a hard or an electronic copy, and are therefore unable to comply with this request.

DECISION

30I accept the submission of counsel for the applicant that these letters would have been arguably relevant to determining whether there has been a breach of the Code and whether the applicant's needs had been accommodated to the point of undue hardship by the respondent. I accept counsel's submission that the applicant's special education teacher and guidance counsellor are well-qualified to comment on the matter before the Tribunal.

31I also accept the submission of counsel for the respondent that the letters cannot be found. Therefore, there is no point in issuing an order to the respondent to disclose these documents.

32Since both these teachers are on the respondent's witness list, counsel will have the opportunity to question them about these letters when the respondent presents its case.

33If counsel for the applicant is able to obtain copies of these letters from the private boarding school, then he may request the late admission of these specific documents into evidence by relying on the process set out in the Tribunal's Rules.

ORDER

34The Tribunal declines to accept the proposed expert witness or admit his witness statement into evidence.