CB v. Durham Student Transportation Services, 2016 HRTO 1056

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

CB by his Litigation Guardian CB

Applicant

-and-

Durham Student Transportation Services and Durham District School Board

Respondents

AND BETWEEN:

TB by her Litigation Guardian CB

Applicant

-and-

Durham Student Transportation Services and Durham District School Board

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: August 10, 2016 Citation: 2016 HRTO 1056 Indexed as: CB v. Durham Student Transportation Services

WRITTEN SUBMISSIONS

CB by his Litigation Guardian CB and TB by her Litigation Guardian CB, Applicants

No submissions

Durham Student Transportation Services, Respondent

Nicola Simmons, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, RSO 1990, c. H.19 as amended (the "Code"). The purpose of this Interim Decision is to address a request by the respondent Durham Student Transportation Services (DSTS) to add an additional respondent.

2The applicants have not filed any Response to the respondent's request.

3The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

4The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board ("Persaud"), 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of an individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

5In the present case, the respondent DSTS indicates that the proposed respondent, Durham District School Board (DDSB) consents to being added as a respondent to these Applications.

6The Applications include allegations that the respondent DSTS has violated the Code in not providing bus transportation to and from school to the minor applicants, based on their family status. Their parents do not co-habit and the children reside with each parent part time. They currently receive bus transportation when they are residing with their mother, but not when they are residing with their father. In their applications, they allege discrimination on the basis of family status and they seek bus transportation for the times when they reside with their father also.

7In the Request for Order During Proceedings (RFOP) and in its Response, in which the DSTS seeks to add the DDSB as a respondent, the DSTS states that it is an unincorporated entity, the DDSB is a corporation formed pursuant to the Education Act, and that the DSTS was formed by the DDSB and the coterminous separate school board, to provide common administration of student transportation for the two boards. The DSTS states that as it is not a legal entity, and it cannot act without the authority of one of the school boards of which it is a part. In its Response, it also specifies that the eligibility of students for transportation is determined based on each school board's policy. In the RFOP, it states that the addition of DDSB as a respondent will not result in prejudice to the applicant and in fact, it will assist with respect to any remedial order and/or resolution of the issues raised in the Application. It states that the addition of DDSB as a respondent is fair in all of the circumstances.

8As the DSTS is not able to act without the authority of one or both of the school boards of which it is a part, and as it is the school board's policy which determines the eligibility of students for bus transportation to and from school, the Application includes allegations which, if proven, could support a finding that the proposed respondent violated the applicant's rights under the Code. Given the central role of the proposed respondent in respect of any remedy awarded, it is fair in all of the circumstances to add the proposed respondent, DDSB. There is no apparent prejudice to any party in adding the proposed respondent. No party has objected to the addition of DDSB as a respondent. Accordingly, it is appropriate to add the proposed respondent as a party to the proceedings. The DSTS's Request for Order is granted and the style of cause is amended accordingly.

9The DDSB shall be provided with a copy of the Applications, the respondent's Response and a copy of this Interim Decision, and is directed to file a Response to the Applications (in Form 2) not later than 14 days after a copy of the Applications is sent.

10The applicants and the DSTS have agreed to participate in mediation in an effort to resolve these Applications. The DDSB is directed to advise the Tribunal and the parties as to whether it agrees to participate in mediation no later than 7 days after a copy of the Applications is sent.

11I am not seized.