J.G.L. v. Toronto District School Board, 2015 HRTO 657

Human Rights Tribunal of Ontario

Between:

J.G.L., as represented by his Litigation Guardian, A.G. Applicant

-and-

Toronto District School Board Respondent

Interim Decision

Adjudicator: Brian Cook Date: May 19, 2015 Citation: 2015 HRTO 657 Indexed as: J.G.L. v. Toronto District School Board

Appearances

J.G.L., as represented by his Litigation Guardian, A.G., Applicant Riva Schafer, Representative

Toronto District School Board, Respondent Wendy Lopez, Counsel

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Education, Respondent Daniel Huffaker, Counsel

1This Application alleges discrimination with respect to education because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is nine years old and the Application is brought by his mother, acting as litigation guardian. The applicant has Autism Spectrum Disorder.

2The applicant's parents withdrew the applicant from school in October 2014 because of concerns about his safety and the adequacy of accommodations and supports for the applicant.

3The Application named the Toronto District School Board (TDSB), the Ministry of Education, the Government of Ontario, the school principal, and the TDSB Director of Education as respondents.

4A preliminary hearing was held on May 12, 2015 to deal with various matters which were identified in an earlier Case Assessment Direction as follows:

1. Clarification of how the Ministry of Education is involved in this Application.
2. Submissions about whether the Application should be dismissed against the Ministry because it is not clear that the Ministry has infringed the applicant's Code-protected rights.
3. Clarification of the allegations and the remedies that the applicant is seeking in this Application.
4. The applicant's request for an Interim Remedy.
5. Discussion of how the Application will be processed going forward. This includes discussion of potential witnesses, exchange of relevant documents, and how to schedule a hearing date.

The Applicant’s Representative

5The applicant's parents attended the hearing with Riva Schafer. Ms. Schafer advised that she was the applicant's representative. She is not a lawyer or licensed paralegal. She advised that she is acting as a friend of the applicant, that she will not receive any remuneration for this service and that she does not represent individuals in more than three legal proceedings in a year.

6The Tribunal’s Practice Direction on Representatives provides that a person who is not a lawyer or licensed paralegal may represent a party if the person falls within a category of persons the Law Society of Upper Canada has exempted from its licensing requirements. One of the categories is:

An unpaid friend or neighbour who is not in the business of providing legal services, who does not receive compensation, and who provides legal services in no more than 3 matters in a year.

7On the basis of the information provided at the hearing, I am satisfied that Ms. Schafer falls under this exemption and she may represent the applicant.

The Ministry Of Education

8As noted, the Application named the Ministry of Education (“the Ministry”) and two personal respondents. The Ministry asked that it be removed as a respondent. The Ministry also clarified that the although the Application named the Government of Ontario, the correct legal name in this case is Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Education.

9On behalf of the applicant, Ms. Schafer explained that the Ministry was named as a respondent because, under the Constitution of Canada, the Province has responsibility for education. This includes responsibility for the provision of special education and accommodations and supports to allow students with a disability to access the public education system. Ms. Schafer argued that, as such, the Ministry has an obligation to oversee the accommodation process and to respond to concerns that come to its attention about that process in a particular case.

10Counsel for the Ministry noted that this theory has been rejected by the Tribunal in a number of cases, including E.P. v. Ottawa Catholic School Board, 2009 HRTO 499; J.Y. by his next friend R.Y. v. Hamilton-Wentworth Catholic District School Board, 2013 HRTO 806; and R.C. v. Ontario (Education), 2014 HRTO 999. Counsel further noted that in cases where it is alleged that an individual student has been discriminated against, the Supreme Court of Canada has directed human rights tribunals to focus on whether the student has been discriminated against and to refrain from conducting “an inquiry into the precise format of the provincial funding mechanism or the entire provincial administration of special education” (Moore v. British Columbia (Education) [2012] SCC 61, at paragraph 64).

11The applicant was asked to clarify whether there is an allegation that the Ministry directly discriminated against the applicant. Ms