D.B. v. Toronto District School Board, 2015 HRTO 1592

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

D.B. represented by Litigation Guardian C.N. Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Yola Grant Date: November 25, 2015 Citation: 2015 HRTO 1592 Indexed As: D.B. v. Toronto District School Board

APPEARANCES

D.B., represented by Litigation Guardian C.N, Applicant Janina Fogels, Counsel

Toronto District School Board, Respondent Eric Roher, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods and services because of sex, gender identity, gender expression and reprisal or threat of reprisal. The Application was filed on August 25, 2014 by C.N., the litigation guardian of a minor child (D.B.) and related to incidents that date back to fall 2012 when D.B. commenced Grade 3 at an elementary public school.

2It appears that some of the allegations may be untimely. In its Response, the respondent requested that the scope of the Application be limited to allegations linked to events in the 12 months prior to the filing date.

3At the outset, the applicant conceded that incidents related to D.B.’s Grade 2 year were included for context only and that the incidents in Grade 3 and Mad Science Camp in July 2013 are the only ones in issue that are beyond the 12-month limitation period.

4The Human Rights Tribunal of Ontario (the “Tribunal”) held a preliminary hearing by conference call on November 17, 2015 to determine whether this Application should be dismissed, in whole or in part, on the basis that some of the allegations contained in the Application are untimely and do not constitute a “series of events” within the meaning of s.34(1)(b) of the Code.

5During the hearing, the applicant further conceded that there is no assertion of “good faith” to account for the delay in filing an application concerning the Grade 3 incidents as a breach of the Code. As she was not relying on s.34(2) of the Code, the applicant thus called no evidence regarding “good faith” in connection with the delay incurred.

6After hearing the parties’ submissions on whether there was a common theme or nexus between the incidents alleged during D.B.’s Grade 3 and his Grade 4 years, I find that the allegations that precede the Grade 4 school year, including those involving the July 2013 Mad Science Camp, are untimely. In my view the allegations arising during the Grade 3 year, that involved pupils for the most part, do not constitute a “series of incidents” that can be construed as separate breaches of the Code traceable to the action or inaction of the school board.

BACKGROUND

7D.B. was enrolled at a public school near his home, in a French Immersion program, and starting Grade 2, he requested that his teacher refer to him as “Happy Face” rather than by his birth registered name. This she did.

8According to C.N., D.B.’s mother, he expressed gender dysphoria at an early age and persisted in this throughout Grade 3 and 4 during which time he transitioned and presented himself as male at the start of Grade 4 with a new adopted name. The Grade 4 year began in September 2013 and D.B. attended school with a new group of cohorts in an English program, with a new Vice Principal, Principal and classroom teacher but remained in the same neighbourhood public school.

9The allegations that arise in the Application in connection with Grade 4 are timely. For the purpose of determining whether the allegations gleaned from the Application, the Reply and the respondent’s Response are thematically linked to the earlier allegations, I outline them as follows:

1. In September 2013, attendance sheets contained a column denoting gender that listed D.B. as female while he was presenting as male to his new classmates.
2. In fall 2013, at a cross-country track meet organized by the school board along age and gender categories, D.B. participated as male and was “outed” by a student, “C”, who knew him from Grade 1 in the French Immersion program.
3. Around February 27, 2014, D.B. engaged with other boys in the boys washroom in some form of play that involved throwing toilet paper around; the Principal commented that the incident indicated that D.B. had gained some acceptance among a peer group of boys.
4. In mid-May 2014, the classroom teacher reported to C.N. that D.B. seemed “a bit off”; C.N. learnt from D.B. that he had been asked to meet in the washroom and cornered there during lunch by three classmates, and was given 48 hours to prove his gender; D.B. remained away from school for a week.
5. Around May 20, the school board investigated the incident and determined that it fell within the ambit of its sexual misconduct policy. Two boys received suspensions and returned to school June 5 and June 10.
6. Around May 23, D.B. returned to school and participated in the investigation. He remained in school until May 30.
7. Around June 2, the school board representatives met with C.N. and her spouse and refused to disclose the length of suspension of the boys involved in the May washroom incident.
8. Around June 9, school board representatives met with the father of D.B. and disclosed the results of the investigation.

10The parties appear to be in agreement that the incidents that occurred at the track meet in fall 2013 and in the washroom in May 2014 were serious and merited investigation and consequences for the students who engaged in misconduct directed at challenging D.B.’s gender expression.

11Below are allegations concerning the Grade 3 school year where there is no agreement between the parties that the incidents occurred or related to gender expression or that the incidents involved parties who actions are not within the control of the school board.

1. Around February 2013, C.N. met with school representatives to discuss removing “Happy Face” from French Immersion. C.N. alleges that the Principal was resistant to D.B.’s transition and use of sex designation as the “trillium system” would not allow for that and the school psychologist stated that a medical diagnosis was required and “Happy Face” should “come out”.
2. Around February 2013, D.B. was kept a home while the school conducted workshops that segregated boys from girls to address building “positive relationships”.
3. Around April 2013, classmates engaged in pulling at each others’ underwear (respondent’s version) or pulling off D.B.’s pants (applicant’s version).
4. Around mid-April 2013, in the girls’ pool change room, D.B. was confronted by girls around his stall demanding to see his genitals (applicant’s version) or statements like “show me” after D.B. allegedly stated that he was “intersex” (respondent’s version).
5. Around May 13, 2013, while D.B. was in a day care operated on his school premises, an older girl referred to D.B.’s transitioning as “gross”; according to the school board, his classmates who were present spoke up and defended him.
6. Around May 20, 2013, during recess, a teacher directed D.B. to move from one court to another to play after a confrontation with a group of boys; the applicant alleged that he was directed to go play in an area dominated by girls (because of his birth assigned gender) while the respondent maintains that D.B. and other students were directed to go play elsewhere and that he was not singled out on any ground.
7. Around May 22, 2013, a meeting was held between the school representatives and C.N. and the school’s equity representative was present; a “transition plan” was developed and included the designation of a “safe adult” to whom D.B. could turn in case of difficulties within the school.
8. Around July 11, 2013, C.N. disclosed to school representatives that D.B. had chosen a new name and the parties discussed the arrival of a new Principal and VP for the start of the Grade 4 year.
9. Mid-late July 2013, D.B. attended Mad Science Camp held at an adjoining school by a private party who obtained a permit from the school board to use its facilities. C.N. attempted to engage the school board personnel to make special (staff) washroom arrangements akin to that which was available to D.B. during the school term.

The Law

12Section 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13The meaning of “series of incidents” for the purpose of s.34(1)(b) has been addressed at length by a panel of the Tribunal in Garrie v. Janus Joan Inc., 2012 HRTO 1955. Following is a summary of the law is set out in paras. 30 and 32 of that decision:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following four factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

As we have indicated, the underlying principle from the Divisional Court’s decision in Visic, supra, where the Ontario Divisional Court adopted the test for a “continuing contravention” was applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. While the Divisional Court in Visic, supra, only cited a portion of the quotation from the Manitoba Court of Appeal, for our purposes, we believe it is helpful to set out the entire quotation. Thus, the Manitoba Court of Appeal, at para. 19, wrote:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences. [emphasis added]

DELAY ANALYSIS & DECISION

14A plain reading of s.34 of the Code suggests that it requires an individual to act with all due diligence to file an application within one year when pursuing a human rights claim. This one-year limitation period is mandatory and is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously.

15In order for the Application to be timely there must be an incident of discrimination that falls within one year of the date of the filing of the Application. It is now settled law that this is a fact-driven inquiry and requires a case by case assessment of the facts. As noted in a recent decision of the Tribunal in Richards v. Ryerson University, 2015 HRTO 1210, to address the issue of delay:

The Tribunal must review the facts of each case to determine when the last incident of discrimination allegedly occurred, whether it is in fact an “incident” of discrimination and, in some circumstances, whether the applicant has no reasonable prospect of establishing that the incident is in fact discriminatory. See for example, Saxon v. Amherstburg Police Services Board, 2013 HRTO 681, and Papanicolopoulou v. University of Windsor, 2015 HRTO 754. [emphasis added]

16In Richards, the applicant filed her Application after exhausting internal academic appeals and after more than a year had elapsed after the decision that was at the core of her discrimination claim. By contrast, in the instant case, the Application is timely regarding all incidents that arose in the 12 months prior to the filing date but earlier allegations may fall within the Tribunal’s jurisdiction only if they constitute conduct that forms a “series of events”. Read together, Richards and Manitoba stand for the proposition that the allegations must make out a repetition of acts of discrimination or there must be a reasonable prospect of establishing that the alleged acts are discriminatory.

17This is not a case where the applicant argued that subsequent and timely acts of alleged discrimination shed new light on previous actions that were not seen as discriminatory at the time.

18To reach back past 12 months, in reliance on (c) and (d) in the four considerations articulated above in Garrie, D.B. argues that the earlier events are of a similar nature and are not remote in time from the incidents that are captured during the limitation period. The Respondent school board argues instead that the earlier allegations are a “rag tag” group with no thematic connection to the Application; they are remote in time; and some allegations clearly relate to other parties whose actions are not within the control of the school board.

19I note that the applicant seeks to include allegations within 24 months of the date of filing the Application. This length of time is not usually considered “remote” in the Tribunal’s jurisprudence.

20I note also that the allegations regarding a breach of the Code during the Grade 4 school year primarily relates to the school board’s action or inaction in response to two significant events: the October 2013 cross-country track meet and the boy’s bathroom occurrence in May 2014. In contrast, the allegations concerning the Grade 3 school year, excepting the pool change room occurrence and the comment “gross” while D.B. was in day care, related to an assortment of school yard occurrences involving pupils and a teacher that did not single out D.B. This absence of singling out for differential treatment in these allegations suggests that there is no basis for a claim that the incidents are discriminatory in nature.

21I note further that the pool change-room occurrence (April 2013) and the schoolyard occurrence involving an older girl referring to D.B.’s transition as “gross” (May 2013) were both addressed promptly by the school board (although one incident occurred while D.B. was in day care). By July 2013, there appeared to be an amicable meeting of the minds to plan ahead for a positive experience in the Grade 4 school year. There is no allegation that the school board’s action in relation to April and May 2013 occurrences were inadequate and breached the Code, and thus constituted an “incident” for the purpose of section 34(1).

22In Garrie, the relationship between the parties was one of employment, unlike the relationships in the cases cited by the respondent. In the instant case the relationship was ongoing and involved sustained contact between a minor pupil and teachers, administrators and other professionals who work in various capacities within the public school board. The fact that the allegations in the instant Application all arose in connection with the school board personnel, or on its property, does not lead to a conclusion that they form a series of events.

23The respondent relied on a decision in Touchette v. Ottawa Catholic School Board, 2012 HRTO 80, for the proposition that it is not sufficient that the allegations link personnel who are connected in some manner (as employees, pupils and permit holders) to form a “series of events”. As noted in Touchette at para. 31:

The fact that the events all occurred under the umbrella of the same organizational respondent does not in itself lead to a conclusion that they must form a “series of incidents’ within the meaning of section 34(1).

24Note, however, that I am not persuaded by the respondent’s argument that the fact that different teachers, different principal, etc. were involved in the incidents of Grade 3 makes the incidents so distinct as to be incapable of forming a “series of incidents”. Conversely, I am not persuaded that the involvement of the Superintendent, human rights/equity officer, a psychologist and social worker in investigating, making an individualized plan for D.B. or advising on consequences in the aftermath of incidents arising in both Grade 3 and 4 represents “continuity” among the actors sufficient to form a thematic nexus between the incidents. The incidents must themselves cause disadvantage to D.B. that is linked to his transgendered status and gender expression.

25I agree with the Respondent that the incidents related to D.B.’s transitioning during Grade 3 are distinct in character from those encountered in Grade 4, after he presented as male with a new name, with clear notice to the school representatives that he was transgendered and would require their active support to eliminate as much as possible all categorization by gender that might leave him vulnerable (e.g. washroom confrontations, selection of teams by gender, etc.) and exposed to ridicule.

26In the instant case, D.B. experienced interactions with pupils, teachers and school administrators that caused him emotional upset or embarrassment. In my view, this fact alone, without a link to discrimination on a protected ground under the Code, is not sufficient to constitute an “incident” in a “series of incidents”. This is consistent with this Tribunal’s reasoning in prior cases including Touchette, above. D.B.’s status as a transgendered person does not attract Code protection from all interactions with others that result in upset; only those interactions that are linked to Code grounds are protected and can constitute an “incident” for the purpose of establishing a “series of incidents” under s.34(1)(b).

27Furthermore, the school board is the only named respondent in the instant proceeding. The discriminatory incident or series of incidents must be attributable to the action or inaction of the school board.

28Moreover, it is not plain and obvious that school board is liable for services (or lack thereof of a private washroom for D.B.’s use) during the period that Mad Science Camp operated on the board’s premises as a permit holder. Similarly, the incident that occurred on school grounds while D.B. was in a supervised day care program is not clearly attributable to the school board. As the date of the day care and camp incidents are beyond the 12-month limitation period provided for in the Code, I need not decide this issue of liability as between the permit holders and the school board.

ORDER

29The Tribunal makes the following order:

a. The allegations concerning events preceding August 26, 2013 are struck from the Application and may be referred to only for the purpose of providing a context for the timely allegations;

b. The hearing will commence on November 30, 2015, at 10:10 a.m. with viva voce evidence from the applicant; and,

c. The parties shall take all reasonable steps to come to an agreement regarding any evidence that is not in dispute to minimize the number of witnesses to be called so that this matter can proceed expeditiously.