E.L. (Litigation Guardian of) v. Ottawa-Carleton District School Board, 2015 HRTO 647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.L. by his Litigation Guardian E.L.

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

AND B E T W E E N:

C.L. by his Litigation Guardian E.L.

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

AND B E T W E E N:

E.L.

Applicant

-and-

Ottawa-Carleton District School Board

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: May 15, 2015

Citation: 2015 HRTO 647

Indexed as: E.L. (Litigation Guardian of) v. Ottawa-Carleton District School Board

WRITTEN SUBMISSIONS

C.L., T.L. and E.L., Applicants

E.L., Litigation Guardian

Ottawa-Carleton District School Board, Respondent

Roger Mills, Counsel

1These are three Applications 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 the provision of goods services because of family status.

2The applicants allege that the respondent failed to accommodate their needs related to their family status. E.L. is T.L. and C.L.’s father and T.L. and C.L. attend schools in the respondent school board. E.L. and the children’s mother do not live together and children live with each parent about half of the time. The applicants allege that the respondent has not implemented a system to ensure communications from the school, e.g., notices and information about events and activities, reach both parents, as E.L. requested.

3The respondent filed a Response to which the applicants did not respond by filing a Reply. By Case Assessment Direction (“CAD”), dated February 3, 2015, the Tribunal directed that a summary hearing be held to determine whether the Applications should be dismissed, in whole or part, because they have no reasonable prospect of success. In the CAD, the Tribunal noted that the respondent alleges that E.L., the Litigation Guardian, did not allow it to respond to his request before filing these Applications and that the respondent asserted that it has accommodated specific requests for accommodation regarding communication when requested. The Tribunal noted that, if unchallenged, these assertions may be a complete answer to the general allegations of the Applications. The respondent also asserted that delivery of documents to students’ parents is not a service provided to students. Accordingly, the respondent submitted that the Tribunal has no jurisdiction to deal with the children’s Applications. The Tribunal directed the parties to address the foregoing issues at the summary hearing.

4The Tribunal held the summary hearing by teleconference on April 1, 2015.

Preliminary Issue

5At the commencement of the summary hearing, I disposed of a Request for an Order During Proceedings filed by the applicant. The applicant requested that the Tribunal set aside the confidentiality provisions of the Minutes of Settlement of three previous Applications to the Tribunal involving these parties, as well as a third party, in order to be able to rely upon communications made in the settlement process. The respondent opposed the request, and the parties agreed that the Request could be dealt with at the start of the summary hearing.

6Not wishing to presume, E.L. had not disclosed the Minutes of Settlement or the specific communications upon which he wished to rely upon in this proceeding. I found it difficult to assess the Request without this information. The parties were quickly able to provide the documents in question by electronic mail. With the documents in hand, the applicant was able to identify that the representations he wished to reply upon, which were various amendments he sought to have included in the draft Minutes of Settlement of the three previous Applications. In my view, the comments the applicants identified have no relevance to this proceeding. Quite apart from that, however, the draft settlement, including the applicants’ comments, was clearly a without prejudice document and, indeed, it was marked “Without Prejudice”. In my view, this document is not admissible evidence.

Analysis and Decision

7Section 1 of the Code provides:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability

8Rule 9.1 of the Tribunal’s Rules of Procedure provides:

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.

9Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

No Reasonable Prospect of Success

10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

11The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

12At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

13The respondent submitted that, having failed to filed Replies, the applicants should be precluded from challenging the Response and that the Tribunal should base its decision solely on the pleadings. I rejected this argument because the Tribunal could not very well direct the applicants to make submissions about why the Applications should not be dismissed and then not allow them to point to the evidence on which they base their claims.

14In that regard, the applicants submitted that the issue of the respondent communicating with both of the children’s parents is a long standing one. E.L. submitted that he has missed communications and submitted that the disclosure process would likely reveal communications about which he never knew. The applicants submitted that the respondent made a commitment to deal with their accommodation requests by a certain date, which it did not meet. The applicants therefore filed the Applications with the Tribunal. The applicants pointed to e-mail communications with the respondent’s counsel and also historical e-mail messages in that regard. The applicants submitted that the respondent have not implemented a reliable method to ensure communications come to both parents.

15The applicant submitted that all of the communication between teachers and parents are for the benefit of students and therefore come within the definition of “services” under the Code. The applicants also submitted that the Education Act requires schools to report to parents on a variety of subjects as do the respondent’s policies. Accordingly, the applicants submitted that whether providing information to parents is a service provided to C.L. and T.L. is an issue that requires a hearing to determine.

16The respondent made able submissions to the effect that the Applications were premature, that accommodation was provided, and that communicating with parents does not amount to a “service” to students. The applicants, however, have pointed to evidence, which, if accepted, indicates that respondent has not accommodated the applicants’ needs and explains the timing of their Applications. In these circumstances, I cannot find that the applicants’ allegations that the respondent failed to accommodate them have no reasonable prospect of success. This, of course does not mean that the respondent’s position is unmeritorious, only that a hearing is required to assess the merits of the Application. I also find that, in the circumstances of this case, a hearing is necessary to determine whether the respondent provides a service to C.L. and T.L when it communicates with their parents.

17The Tribunal shall continue to process these Applications in the normal course.

18I am not seized.