J.L. v. Greater Essex County District School Board, 2016 HRTO 1542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.L. by his Litigation Guardian K.L.

Applicant

-and-

Greater Essex County District School Board and Her Majesty the Queen as represented by the Minister of Education

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: December 1, 2016

Citation: 2016 HRTO 1542

Indexed as: J.L. v. Greater Essex County District School Board

WRITTEN SUBMISSIONS

J.L. by his Litigation Guardian KL, Applicant

Grace Vaccarelli, Counsel

Greater Essex County District School Board, Respondent

Sheila MacKinnon, Counsel

Her Majesty the Queen as represented by the Minister of Education, Respondent

Rachel Weiner, Counsel

1This is an Application 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 goods, services and facilities because of disability.

Summary

2The applicant, who indicates that he is diagnosed with Autism Spectrum Disorder, alleges that the respondents did not provide him with an appropriate placement at school. Both respondents filed Responses and have also raised preliminary objections regarding the Application. In a Case Assessment Direction dated June 3, 2016, the Tribunal directed that a summary/preliminary hearing be held to determine whether the Application should be dismissed for delay or because it has no reasonable prospect of success as against the respondent Ministry.

Request to Withdraw

3On July 5, 2016, the applicant filed a Request to Withdraw the Application as against the respondent Ministry (the “Ministry”). The respondent school board (“GECDSB”) filed a Response to a Request for an Order on July 7, 2016, in which it objected to the request to withdraw. The essence of GECDSB’s position is that the Application requests public interest remedies to be applied to all school boards in Ontario and which directly affect the Ministry’s roles and responsibilities. GECDSB submitted that if these remedies remain in the Application, then the request to withdraw should be denied as they are all related to the Ministry’s function with respect to special education. Alternatively, GECDSB submitted that it would consent to the withdrawal if the Tribunal strikes out the public interest remedies in question.

4The Ministry filed a Response to a Request for an Order on July 8, 2016, in which it submitted that the Tribunal should accept the request to withdraw. The Ministry submitted that the Tribunal’s jurisprudence indicates that the Tribunal does not inquire into the reasons for withdrawal or place conditions on a withdrawal. The Ministry also submitted that the GECDSB’s position is contrary to the decision in Moore v. British Columbia (Education), 2012 SCC 61, in which the Supreme Court of Canada found that provincial ministries are not liable for the delivery of special education programs and services by school boards. The Ministry submitted that the Application concerns the applicant’s experience with the GECDSB. The Ministry submitted that the remedies requested do not require the Ministry’s involvement.

5On the direction of the Tribunal, the applicant filed submissions in reply to the GECDSB’s position on November 17, 2016. The applicant submitted that the public interest remedies requested in the Application could be awarded against either respondent. The applicant submitted that it is in any event up to the Tribunal, assuming a finding of liability, to determine the appropriate remedies. The applicant submitted that it is not appropriate to ask the Tribunal to determine whether certain remedies are appropriate without first hearing the Application. The applicant also submitted that the Tribunal generally does not impose terms on a request to withdraw or require an applicant to pursue an Application.

Analysis and Decision

6The Tribunal may impose terms on the withdrawal of an application, but it has declined to do so when the applicant has withdrawn his or her Application prior to a hearing. The Tribunal’s approach to requests to withdraw Applications before a hearing was set out in D.R. v. Upper Grand District School Board, 2011 HRTO 1751 at paragraph 4, where the Tribunal stated as follows:

The Tribunal appreciates the respondents’ concerns about the time and resources they have devoted to responding to this Application. Nonetheless, I see little to be gained by an inquiry at this stage into whether the circumstances of this Application and the possible motivation for the applicant’s decision to seek to withdraw the Application should lead to the sort of order sought by the respondents. If the applicant seeks to re-file the same allegations in another application, the respondents may raise their objection at that time and may request that the Tribunal refuse to consider a new application.

7The Tribunal has consistently followed this approach in situations where an applicant has sought to withdraw his or her Application prior to a hearing. See Tinker v. Sudbury (City), 2015 HRTO 369; Anderson v. Carpenter Housing Co-operative Inc., 2014 HRTO 1545; Sharma v. Securitas Canada Ltd., 2014 HRTO 1386; Myers v. William Osler Health System, 2014 HRTO 1331; Damphouse v. St. Thomas (City), 2014 HRTO 199; McDermott v. Ross, 2013 HRTO 1576; Zaman v. CLV Group Inc., 2013 HRTO 842; Hall v. Thunder Bay Regional Health Sciences Centre, 2012 HRTO 1171.

8I see no reason to depart from this consistently followed approach. Further, I agree with the applicant’s submission that it is not appropriate at this stage of the proceeding to determine which remedies are appropriate. This is an issue for the hearing adjudicator to assess based on the evidence and submissions presented by the parties.

Order

9The Request to Withdraw the Application as against the Ministry is granted. The style of cause shall be amended accordingly.

10I am not seized.