T.B. v. Conseil des écoles publiques de l’Est de l’Ontario, 2016 HRTO 176

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.B., as represented by his litigation guardian A.B., and A.B. on behalf of Y.B. and Yo.B. Applicant

-and-

Conseil des écoles publiques de L’Est de l’Ontario, Stéphane Vachon and Diane Lamoureux Respondents

INTERIM DECISION

Adjudicator: Genevieve Debané Date: February 10, 2016 Citation: 2016 HRTO 176 Indexed as: T.B. v. Conseil des écoles publiques de l’Est de l’Ontario

APPEARANCES

T.B., as represented by his litigation guardian A.B., and A.B. on behalf of Y.B. and Yo.B., Applicants A.B., Representative

Conseil des écoles publiques de l’Est de l’Ontario, Stéphane Vachon and Diane Lamoureux, Respondents Paul Marshall, Counsel

Procedural history

1The applicant A.B. is the father of T.B., a minor, Y.B., a minor at the time of filing the Application, and Yo.B. (the claimants) who were at various times students attending school with the Conseil des écoles publiques de L’Est de l’Ontario (the “Board respondent”). The personal respondent, Stéphane Vachon is a superintendent with the Board respondent. Diane Lamoureux is the principal at Gisele-Lalonde School (the “School”).

2The applicant filed an Application on August 5, 2014 alleging discrimination on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed and reprisal. On September 24, 2014, the applicant filed additional allegations against the respondents. He was advised that if he sought to amend the Application he was required to file a Form 10, Request for an Order During Proceeding (“RFOP”).

3On October 22, 2014 the applicant filed an RFOP to add 14 additional allegations to the Application and to add two individual respondents. One of these individual respondents, Lyne Racine, was not employed by the Board respondent but was in fact employed by the Conseil scolaire de district catholique de l’Est ontarien (the “Catholic Board”).

4The respondents filed a Response on November 4, 2014 denying any breach of the Code.

5The respondents filed a Form 11 response to the RFOP in which they oppose the amendment of the Application.

6On November 12, 2014, the applicant filed another RFOP seeking to include Forms A4 and 27 so that he could file the Application on behalf of the claimants.

7On January 9, 2015, the Tribunal issued Interim Decision 2015 HRTO 33 (the “January Interim Decision”) addressing a number of preliminary matters. The Tribunal states at para 20:

If the Tribunal determines that the Application will continue in the Tribunal’s process, then it will deal with the applicants’ request to add Edith Dumont and Lyne Racine as respondents. At this time they are not being added as parties and do not need to be given notice of the teleconference hearing. In other words, at this stage the amendments are accepted insofar as they allege discrimination by the current respondents in improperly influencing Lyne Racine not to admit T.B. to a school run by the Conseil Scolaire de district catholique de l’Est ontarien.

8The Tribunal also directed that a preliminary telephone hearing be held to address whether the Application in whole or in part should be dismissed on the basis of delay and/or because it has no reasonable prospect of success.

9On January 16, 2015, the applicant filed a Request for Interim Remedy which requested that T.B. be reinstated in a school with the Catholic Board. On January 29, 2015, the respondents filed submissions opposing the Request on the basis that the Tribunal did not have jurisdiction to reinstate T.B. in a school board that is not party to the Application. On February 2, 2015, the Tribunal issued Interim Decision 2015 HRTO 155 which denied the applicant’s Request for Interim Remedy.

10The preliminary hearing took place on March 25, 2015 by telephone conference call. Both parties filed materials with the Tribunal in advance of the preliminary hearing. The Tribunal retained the services of an interpreter to assist the parties. The applicant was given a full opportunity to make submissions and the preponderance of hearing time was taken up by the applicant.

11On April 20, 2015, the applicant filed a detailed RFOP seeking that I recuse myself from determining the Application. On May 1, 2015, the respondents filed submissions opposing the applicant’s request that I recuse myself.

The Recusal Request

12The applicant makes a number of allegations in support of his position that I am biased including that;

a. The matter was assigned to another Vice-chair who was seized of the matter and that I should not have heard the summary hearing;

b. I issued the Interim Decision denying his Request for interim remedy;

c. My conduct during the call indicated that I am biased including that I did not permit the applicant to make certain submissions, I should have already known the answers to some of the questions that I asked, that I asked questions that favored the respondents, and that I was worried and flustered;

d. I was aware of events that occurred that are not mentioned in the Application including that Yo.B. is not attending adult high school and that I accused the applicant of not letting his son attend adult high school. That this demonstrates that I have had outside communication with the respondents with respect to the subject-matter of the Application;

e. Because I graduated from the University of Ottawa and I am francophone there is a high possibility that I have a connection with the people involved and the City of Ottawa;

f. I have been accused of bias in many cases at the Tribunal and this is evidence that I am biased; and

g. The respondents used their political connections to have the previous Vice-chair appointed to a federal Tribunal so that this matter could be assigned to me. The applicant focusses largely on the timing of the prior Vice-chair’s appointment.

13Numerous decisions have noted that the protection against bias or a reasonable apprehension of bias is intended to uphold public confidence in the fairness of administrative agencies and their decision-making procedures, and thus requires both independence and impartiality. As the Supreme Court said in Valente v. The Queen, 1985 CanLII 25 (S.C.C.), at p. 685:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" ... connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government (…)

14As noted by Abella J. in Yukon Francophone School Board v Yukon (AG), 2015 SCC 25 at para. 21, the Supreme Court has consistently endorsed the test for a reasonable apprehension of bias as set out in de Grandpré J.’s dissenting opinion in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC) at p. 394:

[W]hat would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

15In this case, the applicant’s allegations fall into two general categories. The first is my involvement in this matter including my actual conduct during the summary hearing in my interactions with the applicant. I was somewhat surprised by the applicant’s allegations in this regard since he made no objections during the summary hearing.

16In dealing with his specific allegations, first, it is the role of the Tribunal to ask questions, especially in a case like this where there are multiple complaints which span years. In my experience, self-represented applicants welcome these questions because it assists with focussing the parties on relevant issues. Secondly, the majority of the summary hearing was dedicated to hearing the applicant’s submissions and reviewing the materials filed by the applicant. Therefore, I do not find that my conduct during the summary hearing demonstrated that I am biased.

17Further, the fact that I declined the applicant’s request for Interim Remedy does not disqualify me from adjudicating the issues raised at the preliminary hearing. There is an expectation at the Tribunal that members will issue Case Assessment Directions and Interim Decisions throughout the process to adjudicate disputes between the parties as they arise. The fact that an adjudicator decides in favour of one party and against another party is not a basis for a finding of bias.

18The second issue raised by the applicant involves his allegations that the respondents have used political influence to interfere with the Tribunal’s processes. This includes the allegations that they have had communications with me outside of this process and that they have interfered with the assignment of a Vice-chair in this matter. These are unfounded, false and scandalous accusations unsupported by any evidence whatsoever. The allegation that the respondents used their influence to have the Vice-chair appointed to a federal board so that he would not hear this matter is completely absurd.

19For these reasons, I decline to recuse myself.

The Summary Hearing

20The two issues that the Tribunal must determine are whether all or part of the Application should be dismissed on the basis of delay and/or because it has no reasonable prospect of success.

21The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 states:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

a) within one year after the incident to which the application relates; or

b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

22If an application is not filed within one year of the last incident of discrimination the Tribunal may still consider it if satisfied that the delay was incurred in good faith and that there is no prejudice to a respondent.

23The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.

24The Tribunal explains the nature of summary hearings in the decision of Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

25This Application is with respect to the applicant’s three sons. Each son has attended school at various times with the respondent Board. I will address the issue of delay with respect to each of these claimants.

The Y.B. Allegations

26The Application alleges that on December 19, 2013, Y.B. who was 17 years old at the time, was suspended for three days from school and that he was sent out in the cold to wait for his father to pick him up at the nearest mall. In his submissions to the Tribunal, the applicant took the position that this was contrary to the Code on the basis of colour, race, ethnic origin and creed but also on the basis that he was mistaken to be his brother Yo.B. The applicant believes that the respondent Board improperly called a reintegration meeting on January 8, 2014 during which he and Y.B. were evicted from the School’s premises and that the School refused to have a school board representative present at the meeting. The applicant is a member of the Ontario College of Teachers (the “College”) and subsequent to this meeting a complaint was made against him at the College by the principal. The applicant alleges that from January 8, 2014 to March 31, 2014, Y.B. was experiencing depression and that he was denied home instruction. The applicant also takes issue with the manner in which the respondent Board conducted itself throughout this matter including at a meeting that occurred on January 16, 2014. He says that one of the respondent school board’s employees had a number of job titles and that this was to harass the applicant and to intentionally keep track of his sons.

27The applicant states that by the end of February 2014, he had made arrangements for Y.B. to attend another school at another school board in (the “new school”) the Catholic board. The applicant in this regard was in contact with Ms. Soucie. However, by the end of March 2014, Y.B. had still not been enrolled at the new school. The applicant blames the respondent Board which he believes exercised its power to interfere with his enrollment at the new school so that it could issue Y.B. a truancy letter with the Ministry of Education. The applicant also alleges that Ms. Soucie sent him an e-mail to attend a meeting on a day which he was scheduled to be in Toronto to complain at the College about a number of things including his treatment by the respondents. The applicant believes that the new school purposely scheduled that meeting on a day it knew he would not be available. That meeting eventually took place on March 27, 2014, but the applicant was not satisfied with the courses offered by the new school.

28The applicant also alleges that the respondent Board interfered with Y.B.’s enrollment at another school in October 2014. The applicant believes that the respondent Board made requests for unnecessary information, issued threatening letters, and exercised undue influence to interfere with his son’s continuing education which proves on a balance of probabilities that there was discrimination. The applicant also believes that his sons were reprised against because he is their father and that he made complaints at the College to expose the discrimination and harassment.

Y.B. Decision

29There is no issue that the allegations with respect to Y.B. are timely.

30With respect to Y.B. there are three general allegations of discrimination. The first allegation is with respect to the three-day suspension that was imposed on the applicant by the respondent Board on December 19, 2014 for the circumstances surrounding the parties’ efforts to reintegrate him in the school. The applicant believes that the discipline imposed on his son was more severe because of a prohibited ground.

31With respect to this issue, there is disagreement between the parties with respect to the actual events that gave rise to the discipline, the severity of the discipline, including whether Y.B. was confused with Yo.B., whether Y.B. had been disciplined in the past and whether he was sent out in the cold. There is also an allegation with respect to the manner in which Y.B. was treated after the suspension. The applicant also takes the position that Y.B. was treated differently by being required to attend a re-entry meeting in January 2014 and when he was asked to leave the school. The applicant alleges that Muslim students are treated more harshly than white students and that he has some evidence to support this position through the testimony of other parents, though none of this information is particularized.

32The applicant has not pointed to any particularized evidence to support his belief that the respondent Board’s conduct is linked to a prohibited ground of discrimination. The Tribunal has repeatedly stated that it does not have jurisdiction with respect to all issues of general unfairness. In this case, the applicant, other than his own allegations of discrimination and harassment, has not offered any particularized proposed evidence to link the respondent Board’s alleged conduct to a prohibited ground of discrimination. As such, I am of the view that these allegations must be dismissed as having no reasonable prospect of success.

33The second issue is whether the respondent Board offered Y.B. home schooling between January 7, 2014 to March 7, 2014. When asked, at the beginning of the Summary Hearing, to explain the alleged discrimination with respect to disability, the applicant responded that Yo.B. was discriminated on the basis of his hearing impairment. However, in reviewing the Application it appears the applicant alleged the respondent board failed to accommodate Y.B.’s disability by offering home schooling. An allegation which is denied by the respondents. The applicant takes the position that a request was made on February 26, 2014, which went unanswered by the respondents. I am not satisfied that there is no reasonable prospect of success on this specific issue and it will be allowed to proceed to a hearing on its merits as defined below.

34The applicant’s allegations that the respondent Board conspired to prevent Y.B.’s enrollment in other schools will be dealt with below.

The Yo.B allegations

35The Application alleges that Yo.B. was unfairly disciplined in June and July 2011 when he failed to respond to Ms. Lamoureux in the school yard. The applicant alleges that Yo.B. has a hearing impairment and that is the reason why he did not respond. The applicant states that the suspensions were appealed. The applicant withdrew Yo.B. from the school for one full year and then reinstated him in another school at the respondent Board. The applicant alleges this conduct amounts to discrimination on the grounds of disability. The next allegation of discrimination occurred in March 2014 and relates to discipline that was imposed on Yo.B..

36Having considered the Tribunal’s case law, including its decision in Garrie v. Janus Joan Inc., 2012 HRTO 1955, I am of the view that these allegations were not filed within the prescribed time-limit. The allegations with respect to the events in 2011 relate to issues with respect to Yo.B.’s hearing impairment which occurred at a different school. Further, there is an interruption of almost three years between these allegations and the next allegations in March 2014. I am of the view that the 2011 allegations are distinct allegations that are both temporarily and factually distinct and involve different grounds and as such they do not form part of a series of incidents as contemplated by the Code. Therefore, the Application as it relates to the 2011 allegations was filed two years beyond the one-year time-limit. At the preliminary hearing the applicant did not provide me with a good faith explanation for having failed to file the Application within one year of these incidents. These allegations must be dismissed as untimely.

37The next allegation with respect to Yo.B. occurred in March 2014. Yo.B. and another student were suspended for two days from school for slapping each other. The applicant does not dispute that this discipline was appropriate. The applicant does take issue with the fact that on March 27, 2014, the respondent Board reissued the suspension letter on a different form because Yo.B. was an adult student. The applicant believes that this was done to show that two different superintendents were involved in the discipline which is contrary to Ontario school board practices.

38The applicant believes that this manipulation of the document occurred because he and another person sought a meeting before the Ontario College of Teachers (“College”) to bring forward issues of harassment at the respondent Board.

39The applicant also alleges that Yo.B. was suspended for one day on March 27, 2014 for being late. He believes that Yo.B. was reprised against because of the meeting at the College. He also states that at this time he was issued a letter advising Y.B. was prohibited from trespassing on the school’s property or communicating with the respondent Board’s personnel. This letter states in part:

Nous réitérons que votre fils ne peut réintégrer l’école du CEPEO sans qu’une réunion ait lieu avec la surintendance. De même, pour toutes demandes reliées a (YB.), nous vous avons demandé de ne pas communiquer avec le personnel de l’école Gisèle Lalonde ou de vous présenter sur les lieux de l’école ou du CEPEO, à moins que la réunion ait eu lieu avec la surintendance.

40During the preliminary hearing, I asked the applicant to explain how this letter restricted his right to communicate with the respondent Board with respect to Yo.B. and T.B. The applicant explained that this letter banned him from attending the respondent Board’s premises for any reason and was in fact a notice of trespass. It is clear that this letter only tells the applicant that a meeting with respect to Y.B. needs to be held prior to his attendance at school. I do not accept that this letter restricts the applicant’s right to attend the respondent Board to address any issues with respect to his other children.

41I have considered the applicant’s submissions that his children were targeted because of the identity of their father, and his position at the College. I have also considered whether the respondent Board engaged in acts of reprisals against the applicant’s children because he had scheduled a meeting with the College. In my view neither of these allegations have a reasonable prospect of success. First, I note that with respect to Yo.B. there had been numerous suspensions over the years, the majority of which pre-date the applicant’s meeting with the College in March 2014. Secondly, the applicant concedes that at least one of these suspensions imposed in March 2014 was warranted. I do not accept there are any adverse consequences to Yo.B. arising from reissuing the suspension on a different form because he was an adult.

42For these reasons, the allegations concerning Yo.B. are dismissed as having no reasonable prospect of success.

T.B. and Y.B. conspiracy allegations

43The allegations with respect to T.B. are that he has been the victim of discrimination and reprisal because the applicant tried to advocate on behalf of Y.B., The applicant alleges that the respondents conspired to influence school boards, including the Catholic Board and its employees, to deny T.B. access to education. T.B. decided that he would no longer attend the respondent Board’s school in late August 2014. The applicant decided to enroll T.B. in another school Board after the commencement of classes. The applicant relies on the fact that a number of schools refused to enroll T.B. and he believes that the respondents used their extensive influence and power so that T.B. would be compelled to return to school with them to exert control over them. Specifically, with respect to the Catholic Board, the applicant alleges that its offer of enrollment was improperly withdrawn in October 2014 after his son was already attending one of its schools.

44The applicant also takes the position that the respondent Board tried to interfere with the enrollment of Y.B. at other schools, including by influencing Ms. Soucie.

45In support of this belief, the applicant relies on the fact that Mr. Marshall acts for a number of school boards. He believes that he used his influence in this matter. The applicant has also tendered numerous letters from these other school boards which he argues support his allegations of a conspiracy and improper influence exerted by the respondent Board.

46Having reviewed this matter, I am of the view that the applicant has no reasonable prospect of establishing that the respondents in this case engaged in acts of reprisal and discrimination to exert influence over other school boards to prevent T.B. and Y.B. from attending school. I have reviewed the correspondence between the applicant and the Catholic Board. It appears, based on the materials provided by the applicant, that T.B. was denied enrollment at a number of schools for various reasons, including his late request for enrollment, his previous academic performance and, in some instances, his conduct during the initial meeting with the school. There is no indication or support for the applicant’s belief that the respondent Board conspired with the Catholic Board to exclude T.B. and Y.B.

47There is no doubt that the applicant absolutely believes that the respondents have been involved in an elaborate conspiracy to prevent T.B. and Y.B. from attending school. However, once again the applicant is basing this on speculation and bald allegations of discrimination. With respect to Mr. Marshall’s involvement in the matter the allegation is baseless. I note that there are few lawyers that provide services in French in Ontario, and that it is not uncommon for them to provide legal services to clients engaged in similar enterprises. As such, I am of the view that these allegations also do not have a reasonable prospect of success.

Order

48The Tribunal directs as follows:

a. The Application shall proceed solely with respect to the issue of whether the respondents accommodated Y.B.’s alleged disability from January 6, 2014 until the end of the 2014 semester by providing him home schooling. The Tribunal shall schedule a one day in person hearing to determine this issue;

b. All of the other allegations relating to Y.B. are dismissed as having no reasonable prospect of success; and

c. The allegations relating to Yo.B. and T.B. are dismissed as untimely and having no reasonable prospect of success and the style of cause will be amended accordingly.

49I am not seized.