T.B. (Litigation guardian of) v. Conseil des écoles publiques de l'Est de l'Ontario, 2015 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.B. and Y.B. by their litigation guardian A.B.,

and A.B. on behalf of another

Applicants

-and-

Conseil des écoles publiques de l'Est de l'Ontario,

Stéphane Vachon and Diane Lamoureux

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: January 9, 2015

Citation: 2015 HRTO 33

Indexed as: T.B. (Litigation guardian of) v. Conseil des écoles publiques de l'Est de l'Ontario

WRITTEN SUBMISSIONS

T.B. and Y.B. by their litigation guardian A.B., and A.B. on behalf of another, Applicants

A.B., Litigation Guardian

Conseil des écoles publiques de l'Est de l'Ontario, Stéphane Vachon, and Diane Lamoureux, Respondents

R. Paul Marshall, Counsel

introduction

1The applicant A.B. is the father of three sons, T.B., Y.B. and Yo.B.. Two of the sons, T.B. and Y.B., are minors. The third son, Yo.B. is over 18.

2This Application alleges discrimination with respect to services because of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

3The three sons were students attending schools run by the corporate respondent. In broad terms, what is alleged in this Application is that the disciplinary measures taken by the respondents in relation to the three sons as students were discriminatory.

4The Application was filed by A.B., initially in his own right. When the respondents pointed out in their Response that A.B. was not the subject of any of the alleged discrimination, he brought a request to act as litigation guardian for T.B. and Y.B. and to bring an Application on behalf of Yo.B.. The request is unopposed and A.B. meets the requirements both to act as litigation guardian of T.B. and Y.B. and to bring an Application on behalf of Yo.B..

5The style of cause is amended accordingly to reflect the fact that A.B. is now acting as litigation guardian for T.B. and Y.B., and to show that A.B. is acting as the applicant on behalf of Yo.B..

6The applicants have also requested to amend the Application and to add two personal respondents, Edith Dumont (who is Director of Education for the corporate respondent) and Lyne Racine (who is a superintendent for the Conseil scolaire de district catholique de l’Est ontarien, a board that is not named as a respondent).

7The respondents oppose these requests. They have also requested that some of the allegations be dismissed for delay.

request to add allegations of discrimination

8The initial version of the Application makes no allegations that T.B. was discriminated against. The proposed amendments to the Application allege that the respondents conspired to influence Lyne Racine and the Conseil scolaire de district catholique de l’Est ontarien to refuse to admit T.B. to one of its schools.

9In determining requests to amend applications under section 34 of the Code, 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 (see 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).

10Here the applicants are proposing amendments relatively early on in the Tribunal’s process. Any prejudice to the current respondents and the proposed respondent, Lyne Racine, can be addressed – if ultimately necessary – by providing them with sufficient time to respond to the amendments. For these reasons I determine that the applicants’ request to add further allegations is granted.

hearing to determine delay and whether no reasonable prospect of success

11However, before the Tribunal determines whether to add Edith Dumont and Lyne Racine as respondents, I think it is appropriate that the Tribunal first determine whether the Application or parts of it should be dismissed for delay. A teleconference hearing will be held for that purpose.

12I have also concluded that the hearing should determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

13Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

14Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

15The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, it appears that the applicants may be unable to prove a link to the ground or grounds alleged.

16The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicants could establish such intention and a link between the grounds cited and the respondents’ alleged actions.

17The Registrar will schedule a half-day hearing by teleconference. The hearing will deal with two issues: whether some or all of the allegations should be dismissed for delay and whether some or all of the allegations should be dismissed as having no reasonable prospect of success.

18The applicants will proceed first during this hearing. The applicants shall make argument about why the Application should not be dismissed. In relation to whether the Application should not be dismissed as having no reasonable prospect of success, the applicants shall point to the evidence on which they will prove a link between the respondents’ actions and the grounds cited. No witnesses will give evidence during the hearing.

19If the Tribunal determines that the Application is untimely and/or has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

20If the Tribunal determines that the Application will continue in the Tribunal’s process, then it will deal with the applicants’ request to add Edith Dumont and Lyne Racine as respondents. At this time they are not being added as parties and do not need to be given notice of the teleconference hearing. In other words, at this stage the amendments are accepted insofar as they allege discrimination by the current respondents in improperly influencing Lyne Racine not to admit T.B. to a school run by the Conseil scolaire de district catholique de l’Est ontarien.

21A Notice of Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

22The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

order

23The style of cause is amended to reflect the fact that A.B. is now acting as litigation guardian for T.B. and Y.B., and to show that A.B. is acting as the applicant on behalf of Yo.B..

24The applicants’ request to amend their Application to add allegations of discrimination is granted.

25The Registrar will schedule a half-day hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.