L. L. by his Litigation Guardian T.L. v. Ottawa Catholic School Board, 2015 HRTO 944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

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

Applicant

-and-

Ottawa Catholic School Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: July 16, 2015

Citation: 2015 HRTO 944

Indexed as: L. L. by his Litigation Guardian T.L. v. Ottawa Catholic School Board

WRITTEN SUBMISSIONS

L. L. by his Litigation Guardian T.L., Applicant

Self-represented

Ottawa Catholic School Board, Respondent

R. Paul Marshall, Counsel

1This is an Application dated July 3, 2014 alleging discrimination with respect to services because of disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The purpose of this Interim Decision is to address two issues: (1) the applicant's request to amend the Application; and (2) the respondent's request for deferral.

REQUEST TO AMEND

3By Request for Order dated January 31, 2015, the applicant requested to amend the Application. This Request was opposed by the respondent. By Case Assessment Direction dated March 16, 2015, this Tribunal requested that the applicant provide details of the proposed amendments. These were provided by the applicant on March 30, 2015. The respondent was afforded an opportunity to provide further submissions in response to the details provided by the applicant.

4In determining requests to amend applications, 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, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

5The Application as filed alleges that the respondent failed to provide L.L. with special education programs and accommodations during the 2012-2013 and the 2013-2014 school years. The applicant is seeking to amend the Application to include allegations that the respondent's infringement of L.L.'s right to receive educational services without discrimination is ongoing, as the accommodations that were implemented on January 2014 are alleged to no longer have been in place as of September 2014 when the applicant entered Grade 4. The details of the proposed amendments all entail alleged violations of the Code in relation to the 2014-2015 school year.

6In terms of the timing of the request to amend, I note that in the Reply filed by the applicant on October 14, 2014, the applicant first raised the allegation that the necessary accommodations for him were not in place again from September 2, 2014 to the time the Reply was filed, and paras. 9 to 11 of the Reply detail the accommodations that are alleged not to have been in place when the applicant entered Grade 4. The Reply also attached a chronology that referenced alleged events from the early part of the 2014-2015 school year.

7In response, by letter dated October 30, 2014, the respondent objected to what was described as the applicant's attempt through the Reply to effectively amend the Application to broaden the scope of the issues to be addressed in this proceeding, and expressed its expectation that the applicant would file a Request for Order seeking to amend the Application. In light of the fact that mediation was scheduled to proceed on November 24, 2014, the respondent expressed its view that it would be in the interest of the parties to proceed to mediation first, without further written submissions, and the issue of any amendments to the Application could be addressed if mediation was unsuccessful.

8While mediation did proceed on November 24, 2014, it was not successful in resolving the Application. The Request for Order to amend the Application was then filed on January 31, 2015. In my view, particularly in light of the fact that the respondent was already on notice from the Reply that the applicant intended to raise further allegations pertaining to the 2014-2015 school year, the request to amend was made in a timely manner.

9The respondent objects to the applicant's request to amend on the basis that the proposed amendments include instances of alleged discrimination involving different school administrators (namely a new school principal), new teachers and new educational assistants, and also a new Individual Educational Plan ("IEP"). The respondent submits that this is not a case where there are allegations of continuing breaches of the Code, but rather new and independent allegations. I disagree. The allegation as set out in the proposed amendments, as I understand it, is that certain accommodations were put in place for the applicant in January 2014 for the remainder of the 2013-2014 school year, which were not continued for the 2014-2015 school year. The applicant was still attending the same school for the 2014-2015 school year as he had attended for the two prior school years addressed in the Application as originally filed. While there may be a new school principal and different teachers and educational assistants and a new IEP, it is my view that the nature of the allegations arising from the proposed amendments are substantially a continuation of the allegations as originally raised in the Application.

10The respondent submits that the applicant's proposed amendments would significantly expand the scope of these proceedings by introducing new facts, new witnesses and evidence that are not relevant to the allegations as raised in the original Application. The respondent states that any response to the proposed amendments would require substantial new investigation by and financial prejudice to the respondent. While I appreciate that the respondent will need to gather facts relevant to the new allegations in order to properly respond, and that this will entail speaking to new witnesses and will incur financial expense, I need to consider what the alternative would be. The applicant is certainly well within his rights to file a new Application raising the issues described in the proposed amendments, which would entail the same investigation, time and expense described by the respondent in order to respond. The Tribunal would then be faced with two Applications involving the same parties with substantial overlap in the relevant facts, such as the nature of the applicant's disabilities and the needs for accommodation arising from his disabilities, and would need to consider either joining these two Applications to have them heard together or allow them to proceed separately with resulting duplication and waste of resources for the Tribunal and the parties. In my view, allowing an amendment of the existing Application to address allegations of continuing discrimination is the preferable course of action.

11The respondent also takes the position that this proceeding is no longer in its early stages, given that the deadline for the exchange of arguably relevant documents was set out as being February 24, 2015 on the basis of the Notice of Hearing issued on February 3, 2015. This Notice of Hearing originally had scheduled the hearing to proceed on July 14 and 15, 2015. These hearing dates are currently in the process of being re-scheduled. While I appreciate that the parties may already have exchanged arguably relevant documents on the basis of the allegations as raised in the original Application, in my view this situation can appropriately be addressed by setting a timeline for a further exchange of arguably relevant documents arising from the new allegations, without necessitating any undue delay in proceeding with this matter. Once again, in my view, this is preferable to the alternative of requiring the applicant to file a new Application.

12Accordingly, in my view, the nature of the proposed amendments as raising allegations of continuing discrimination that post-date the filing of the original Application, the timing of the request to amend, and the lack of any real or substantial prejudice to the respondent all militate in favour of granting the applicant's request to amend.

13Accordingly, the applicant's Request is granted and the Application is hereby amended by appending to the Application as originally filed the detailed submissions filed by the applicant on March 30, 2015. Within 35 calendar days from the date of this Interim Decision, the respondent shall serve and file its Response to these amendments, which can simply be in the form of an addendum to the Schedule A to the Response as originally filed. Within a further 14 calendar days from receipt of the respondent's Response to the amendments, the applicant shall serve and file any proper Reply in accordance with Rule 9.

14Once new hearing dates have been set in this proceeding, the parties shall be advised as to the deadline for the further exchange of documents that are arguably relevant to the amendments.

REQUEST TO DEFER

15The respondent requests that this proceeding be deferred until after the conclusion of special education proceedings under the Education Act. An Identification, Placement and Review Committee ("IPRC") meeting took place on November 5, 2014 and was re-convened on December 9, 2014. The applicant's mother appealed the IPRC decision to the Special Education Appeal Board ("SEAB") on December 18, 2014. The SEAB hearing was held on March 16, 2015 and the SEAB delivered its decision on March 31, 2015. The SEAB agreed with the IPRC's decision that the recommended placement for the applicant for the 2014-2015 school year should be "regular class with resource assistance", and noted that all parties agreed that the applicant is a student with multiple exceptionalities (communication / learning disability / behaviour). The SEAB noted that the IEP document should reflect the strategies needed to deliver an educational program to the applicant utilizing specialized trained staff, and that it is the responsibility of the respondent school board to determine how programs are delivered.

16By letter dated May 7, 2015, the applicant's litigation guardian confirmed that she would not be seeking to appeal the SEAB decision, and as a result that proceeding is now at an end. In this regard, I note that the deadline for any appeal from the SEAB decision expired on May 30, 2015.

17As a result, there simply no longer is any ongoing proceeding to which the proceeding before this Tribunal can or should be deferred. Accordingly, the respondent's request for deferral is hereby denied.

ORDER

18For the foregoing reasons, I hereby make the following order:

a. The applicant's request to amend the Application is granted and the Application is hereby amended by appending to the Application as originally filed the detailed submissions filed by the applicant on March 30, 2015;

b. Within 35 calendar days from the date of this Interim Decision, the respondent shall serve and file its Response to these amendments, which can simply be in the form of an addendum to the Schedule A to the Response as originally filed;

c. Within a further 14 calendar days from receipt of the respondent's Response to the amendments, the applicant shall serve and file any proper Reply in accordance with Rule 9; and

d. The respondent's request for deferral is denied.