L.B. v. Toronto District School Board, 2015 HRTO 490

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

L.B. by his Litigation Guardian S.B.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Eva Nichols Date: April 17, 2015 Citation: 2015 HRTO 490 Indexed as: L.B. v. Toronto District School Board

SUBMISSIONS

L.B. by his 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, and continued on the following dates: January 15, February 24 and March 13, 2015. To date, the Tribunal has heard the applicant's evidence only. Additional days are currently scheduled for April 20, 21, 22 and 24, 2015.

3This Interim Decision is in response to the applicant's Form 10 Request for an Order during Proceedings ("RFOP"), submitted to the Tribunal on March 18, 2015. While the RFOP covered a great deal of additional information about the substance of the Application and the allegation of discrimination, this Interim Decision responds to the applicant's request for a summary judgement or partial summary judgement and does not address the information relating to the specific allegations of discrimination submitted by both parties. Those matters will be addressed, as appropriate and necessary, in the final decision after the hearing has concluded.

THE APPLICANT'S REQUEST FOR ORDER

4During the hearing, counsel for the applicant requested an oral order for a summary judgement in the applicant's favour. I declined to grant the order on the grounds that any such judgement would be premature and unfair before I had heard the evidence of the respondent.

5The applicant's March 18, 2015 RFOP requested that the Tribunal grant partial summary judgement to the applicant based on the following finding:

• The applicant has made out a prima facie case of discrimination;
• The respondent has discriminated against the applicant by failing to provide him with the necessary accommodations of residential schooling and transportation/home instruction accommodation to enable him to get to school.

6The applicant also requested a separate ruling on the "narrow issue of whether the TDSB is legally required to provide residential schooling and transportation/home instruction accommodation under the Human Rights Code where this is required due to a student's disability or whether these specific forms of accommodations are precluded by operation of law".

7Counsel for the applicant put forward two procedural arguments for his request for a summary judgement.

8First, that since the Tribunal's Rules allow for a "summary judgement" (see Rule 19A), this Rule should be applied in this case. While Rule 19A is typically applied in the case of an Application that has no reasonable prospect of success, the same test should apply to the merits of a response. He referred to Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at paragraph 29, ("Pellerin") as supporting this argument.

9Second, that the summary judgement procedure is well established and regularly used in civil proceedings to facilitate access to justice. Counsel cited Rule 20 of the Rules of Civil Procedure and a recent Supreme Court decision (Hryniak v. Mauldin, 2014 SCC 7 at paragraphs 32 and 33 ("Hryniak")) to suggest that the Tribunal should apply a "proportionality framework for summary judgement", to enhance the parties' access to justice.

10The remainder of the applicant's submission focused on the substance of the Application, by providing his analysis of the two points referred to in paragraph [5] above and the obligations of the school board to provide accommodations to students to the point of undue hardship.

THE RESPONDENT'S RESPONSE

11The respondent opposed the applicant's RFOP in this matter in its submission, dated April 2, 2015.

12Counsel cited "natural justice" as the primary grounds for urging the Tribunal to make no summary judgement in this matter and certainly not agreeing that the applicant has established a prima facie case of discrimination without hearing the evidence of the respondent.

13The respondent presented arguments under a series of headings, some of which focused on the matter of summary judgement, while others focused on the detailed analysis of the applicant's claim that a prima facie case of discrimination has already been established.

14The respondent submitted that the Tribunal has no jurisdiction to make findings which result in a final disposition of all or even part of an Application in favour of the applicant, without affording the respondent an oral hearing.

15Further, that Rule 19A does not permit the Tribunal to uphold (sic) an Application summarily without hearing the respondent's case.

16Counsel for the respondent also added that the respondent does not object to the "applicant's apparent invitation to the Tribunal to make a finding that the respondent did not discriminate against the applicant". In fact, the respondent submitted that, since there is no reasonable prospect of success in the applicant's case with respect to allegations of discrimination, therefore, at least parts of the applicant's case should, in fact, be dismissed.

17The applicant's reply to the respondent's submission, dated April 8, 2015, strenuously opposed the respondent's "unanticipated" Rule 19A request.

ANALYSIS AND REASONS FOR THE DECISION

18Rule 19A, Summary Hearings of the Tribunal's Rules of Procedure provides the following direction:

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 of success that the Application or part of the Application will succeed.

19The Tribunal's Practice Direction on Summary Hearings states that the purpose of a summary hearing is as follows:

The summary hearing is intended to provide an opportunity for early determination of whether there is a reasonable prospect the application can succeed.

20Neither of the above statements suggests that the Tribunal has the power to issue a summary judgement or even a partial summary judgement. A summary hearing is not the same as a summary judgement.

21Similarly, there is no reference in the Tribunal's Rules or Practice Directions to the Tribunal having the power to issue a decision in favour of an applicant without allowing the respondent to respond to the allegations and present its evidence.

22Further, while the Tribunal has frequently held summary hearings on the basis of which an Application may be dismissed, this process is not analogous to what counsel has urged me to do (i.e., grant judgment without hearing the respondent's case). Indeed, the very point of a summary hearing under Rule 19A is to hear from an applicant to see if they may have some sort of a case that engages the Code. In my view Summary Hearings under Rule 19A do reflect the proportionality principles discussed by the Supreme Court of Canada in Hryniak, although within the context of the Tribunal's own Rules of Procedure. The Tribunal's general powers set out under Rule 1.7 also provide broad flexibility and discretion to further the goal of proportionality endorsed by the Supreme Court of Canada in the context of the Rules of Civil Procedure without straining the meaning or intent of Rule 19A or the broader requirements of basic procedural fairness. For example, the Tribunal has limited the scope of a hearing before it where the respondents had already conceded or had findings made against them in other proceedings: see, for example, G.G. v. 1489024 Ontario, 2012 HRTO 135.

23Further, having reviewed the decision of the Supreme Court of Canada in Hryniak, I do not see how even the general principles can reasonably apply to the case before me. The point in Hryniak was that courts should be mindful of undue process and protracted trials in situations where there is no genuine issue for trial. I note that in Hryniak the trial justice granted only one of two motions for summary judgment, declining to grant it against one set of respondents where there were key disputed factual issues.

24Section 43 of the Code states the following regarding the way that the Tribunal should deal with an application:

An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the Rules.

25While theoretically, s. 43 of the Code may not explicitly prevent the issuance of summary judgement in favour of an applicant, as long as the respondent was afforded an opportunity to make oral submissions before any such judgement was made, in my view issuing a summary judgement in favour of the applicant in the circumstances of this case without allowing the respondent to respond to the allegations of discrimination would be a denial of due process and patently unfair.

26On the other hand, I do not accept the respondent's suggestion either that I should dismiss part of the applicant's case. It is appropriate that the hearing proceed to its conclusion and that a decision be made on the allegations of a breach of the Code on the basis of the evidence of both parties.

27The Tribunal functions under its own Rules. The Rules of Civil Procedure do not govern the way the Tribunal functions, nor is the Tribunal expected to consider or rely upon those Rules when applying its own Rules to its procedures. The applicant's reference to Pellerin and its reference to the Rules of Civil Procedure do not alter the fact that the Tribunal needs to rely on its own Rules during its proceedings, even if it is aware of or draws upon the proceedings and practices of other areas of law. At all times, the Tribunal must provide for the fair and just resolution of any matter before it (see Rule 1.7). In fact, to quote Pellerin:

The emphasis is on determining the just result under the legal tests prescribed by the Code and not the legal strategies of the parties or their representatives.

28In closing I note the following caution provided by Karakatsanis J. at para. 68 of Hryniak: "[t]here is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment."

29Without in any way suggesting that any of the requests addressed in this decision fall within the scope of this caution, I trust that counsel will continue to be mindful that unnecessary motions or requests for order may unnecessarily lengthen the proceedings. In fact, I note that counsel for the applicant stated at the hearing that his rationale for asking for a summary judgement was to save the applicant extra days of hearing and the related costs.

DECISION

30I decline the parties' request to issue a summary judgement or a partial summary judgement in favour of either party at this stage of the proceedings. This decision has been communicated to the parties orally during the teleconference on April 9, 2015.

31Regarding the applicant's request that I rule on the narrow issue of the TDSB's obligations under the Code, I am not prepared to issue a ruling on this matter at this stage either without hearing from the respondent. Such a ruling would be premature and could be deemed to be prejudicial to the fair, just and expeditious resolution of the current Application.

ORDER

32The hearing will proceed on the scheduled dates, allowing the respondent to present its evidence in accordance with the relevant Case Assessment Direction.