Jewlal v. Thames Valley District School Board, 2015 HRTO 856

Human Rights Tribunal of Ontario

B E T W E E N:

Angela Jewlal Applicant

-and-

Thames Valley District School Board Respondent

-and-

Elementary Teachers’ Federation of Ontario Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Date: June 25, 2015 Citation: 2015 HRTO 856 Indexed as: Jewlal v. Thames Valley District School Board

Written Submissions

Angela Jewlal, Applicant Michael Klug, Counsel

Thames Valley District School Board, Respondent Peter Thorup, Counsel

Elementary Teachers’ Federation of Ontario, Intervenor Howard Goldblatt, Counsel

1This Interim Decision is written in anticipation of the hearing in this matter which is scheduled to proceed in London on July 20 and 21, 2015, and to address the following issues: (1) clarification of the issues to be addressed in this proceeding; (2) the scope of the participation of the Elementary Teachers’ Federation of Ontario (“ETFO”) as an intervenor in this proceeding; (3) the applicant’s request for production from the respondent Thames Valley District School Board (the “Board”); and (4) the applicant’s request for production from ETFO.

2While the parties have requested a conference call in order to address these issues, it is my view that this is not necessary and that these issues are properly disposed of in writing. Written submissions have been filed by all parties.

Issues to be addressed in this proceeding

3Having reviewed the Applications, the Responses and the Replies in both Tribunal files in this matter, it is my understanding that the following issues are to be addressed at the hearing in this matter:

a. Whether the applicant experienced discrimination by the respondent because of disability and a failure to accommodate her disability-related needs, whether procedurally and/or substantively, in relation to her placement at Emily Carr Public School for the 2012-2013 school year (file 2013-14109-I); and

b. Whether the applicant experienced discrimination by the respondent because of disability and a failure to accommodate her disability-related needs, whether procedurally and/or substantively, in relation to the handling of her placement for the 2013-2014 school year (file 2014-18400-I).

4With regard to file 2013-14109-I, and for greater certainty, it is my understanding that the applicant is not asking the Tribunal to determine whether her rights under the Code were violated in relation to the events that occurred at Victoria Public School leading up to her administrative transfer for the 2012-2013 school year and that the applicant also is not asking the Tribunal to determine whether her rights under the Code were violated in relation to the Board’s decision to administratively transfer the applicant out of Victoria Public School. Rather, having made the decision to administratively transfer the applicant out of Victoria Public School, the issue raised relates to the placement made for the 2012-2013 school year.

5If my understanding of the issues to be determined in this proceeding is not correct, the applicant shall clarify the issues to be determined on the basis of the pleadings as filed by no later than Friday, July 10, 2015.

Scope of ETFO’s participation as intervenor

6In reviewing ETFO’s requests to intervene in this proceeding, I note that ETFO seeks intervenor status in order to ensure that its interests and the interests of its members are fully and adequately protected, and that ETFO takes no formal position on the merits of the case and expects to intervene only as an observer.

7Given ETFO’s position in this matter, it is my view that it is appropriate to restrict the scope of ETFO’s participation as an intervenor in this proceeding to only matters that affect the interests of ETFO and its members. This includes the right to cross-examine witnesses on such matters, and the right to call evidence and make submissions on such matters.

8I note that at this stage, ETFO has not filed any witness statements or submitted any documents upon which it intends to rely at the hearing. If there are matters raised on the basis of the pleadings or in relation to the remedies sought in this proceeding that the ETFO believes may affect the interests of it or its members and about which ETFO expects to tender evidence, then ETFO shall serve and file any witness statements or documents in relation to any such matters by no later than July 10, 2015. If ETFO fails to do so by that date, ETFO would need to seek leave at the hearing to tender any evidence.

Request for production from the Board

9The applicant has requested an order that the Board disclose to the other parties all documents in its possession and control, which have not already been produced, pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years.

10The Board has no objection to producing the remaining available staffing documents for those school years pursuant to a Tribunal order, but notes that privacy considerations arise as these documents contain the names of individuals other than the applicant and that the volume of information on these documents makes redaction of the names of such other individuals impracticable. The Board also reserves its right to contest the relevance of such documents at the hearing.

11I note that pursuant to Rule 3.3, parties and their representatives may not use documents obtained under the Rules for any purpose other than in the proceeding before this Tribunal. In my view, this protection serves adequately to protect the privacy interests raised by the Board.

12Accordingly, I hereby order the Board to produce to the applicant and the ETFO all documents in its possession and control, which have not already been produced, pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years. The Board shall make this disclosure by no later than July 10, 2015. If any party intends to rely upon any of the documents disclosed by the Board for the purpose of the hearing in this matter, those documents shall be identified for the other parties and filed with the Tribunal by no later than July 15, 2015.

Request for production from ETFO

13The applicant also seeks an order that ETFO disclose to the other parties all relevant documents in its possession and control, including but not limited to all documents pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years.

14While the applicant also seeks an order prohibiting ETFO from introducing into evidence any documentary evidence and from calling any witnesses absent the consent of all parties, that issue already has been addressed by me above.

15ETFO contests the applicant’s request for production of documents on the basis that, while ETFO was granted intervenor status by Registrar’s letter dated October 1, 2014, the scope of ETFO’s involvement in this proceeding was left to be decided by the adjudicator conducting the hearing in this matter. ETFO states that in light of the uncertainty with respect to its participation in the hearing, ETFO did not provide disclosure by the January 22, 2015 deadline. ETFO also notes that no Request for Order to require ETFO to produce relevant documents was filed by the applicant prior to her Request for Order dated June 8, 2015.

16The obligation to disclose all arguably relevant documents in a party’s possession is imposed pursuant to Rule 16.1. This obligation applies to a “party”, which is defined in Rule 1.4 to include an intervenor. Accordingly, in my view, Rule 16.1 obliges an intervenor such as ETFO to make disclosure in accordance with that Rule. Further, in my view, arguable relevance pertains not merely to the scope of the issues the intervenor intends to address at the hearing, but also to the issues raised by the parties on the merits or substance of the proceeding as determined by the pleadings. Accordingly, in my view, ETFO ought to have made disclosure to the other parties of all documents in its possession that are arguably relevant to the issues raised by the parties on the merits or substance of the proceeding as determined by the pleadings and to the issues it intended to address at the hearing by the January 22, 2015 deadline.

17Accordingly, I hereby order ETFO to disclose to the other parties all documents in its possession that are arguably relevant to the issues raised by the parties on the merits or substance of the proceeding as determined by the pleadings and to the issues it intends to address at the hearing, including but not limited to all documents pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years.

18ETFO shall make this disclosure by no later than July 10, 2015. If any party intends to rely upon any of the documents disclosed by ETFO for the purpose of the hearing in this matter, those documents shall be identified for the other parties and filed with the Tribunal by no later than July 15, 2015.

ORDER

19For the foregoing reasons, I hereby make the following order:

a. By no later than Friday, July 10, 2015, if the issues to be determined in this proceeding as identified in paras. 3 and 4 above is not correct, the applicant shall clarify the issues to be determined on the basis of the pleadings as filed;

b. The scope of ETFO’s participation as an intervenor in this proceeding is restricted to only matters that affect the interests of ETFO and its members, and includes the right to cross-examine witnesses on such matters and the right to call evidence and make submissions on such matters. If there are matters raised on the basis of the pleadings or in relation to the remedies sought in this proceeding that the ETFO believes may affect the interests of it or its members and about which ETFO expects to tender evidence, then ETFO shall serve and file any witness statements or documents in relation to any such matters by no later than July 10, 2015;

c. By no later than July 10, 2015, the Board shall produce to the applicant and the ETFO all documents in its possession and control, which have not already been produced, pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years;

d. By no later than July 10, 2015, ETFO shall disclose to the other parties all documents in its possession that are arguably relevant to the issues raised by the parties on the merits or substance of the proceeding as determined by the pleadings and to the issues it intends to address at the hearing, including but not limited to all documents pertaining to the applicant’s assignment for the 2012-2013 and 2013-2014 school years, including all documents pertaining to any consideration, decision or action taken by the District School Staffing Committee (Elementary) and/or any In-School Staffing Committee (Elementary) pertaining to the applicant’s assignment in those school years; and

e. By no later than July 15, 2015, if any party intends to rely upon any of the documents disclosed by the Board or ETFO for the purpose of the hearing in this matter, those documents shall be identified for the other parties and filed with the Tribunal.