HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.G.L., as represented by his Litigation Guardian, A.G.
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: A.G. v. Toronto District School Board
APPEARANCES
J.G.L., as represented by his Litigation Guardian, A.G., Applicant
Reva Schafer, Representative
Toronto District School Board, Respondent
Wendy Lopez, Counsel
1This Application alleges discrimination with respect to education services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision considers the applicant’s request to add reprisal to the allegations in the Application. It also provides some direction with regard to the hearing.
3The request to add reprisal concerns a report made by the respondent to the Children’s Aid Society (CAS) on or about June 18, 2015. The applicant alleges that the report was made in reprisal for this Application and events related to it. The applicant notes that the applicant had been away from school for most of the 2014-2015 school year and questions why a report was made to the CAS only at the end of the school year.
4In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend, and prejudice to the respondent.
5The respondent opposes the request to add reprisal and provides several reasons for its opposition.
6The respondent submits that the request to amend the Application is not timely because the hearing of the Application is already underway and the request to amend the Application is made more than one year after the Application was filed. The respondent does agree that the report to the CAS that is the alleged act of reprisal occurred less than one year ago.
7Section 34 of the Code provides:
- (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.
8It appears to me that there is no dispute that if the applicant made a new Application in regard to the alleged reprisal, it would be made in within the one year period established by section 34 of the Code. In my view, it is much more efficient to deal with this issue in the context of the present Application instead of in a new Application. While the hearing is underway, it has also been structured in stages and I do not think that it will unduly complicate the hearing or cause prejudice to the respondent.
9The respondent asserts that an allegation of reprisal because a report has been made to the CAS by a teacher or school board is statute barred. Section 72 of the Child and Family Services Act, RSO 1990, c C.11 (“CFSA”) describes a variety of situations which may cause belief or suspicion that a child is at risk of harm. Section 72(1) creates a positive duty on specified individuals, including school principals, to make a report to the CAS if the person has “reasonable grounds to suspect” that a child is at risk of harm or has experienced harm.
10Section 72(4) provides that it is a criminal offence for a person who has a duty to make a report and who obtains the relevant information in the course of her professional duties.
11Section 72(7) provides:
This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion.
12In my view these provisions of the CFSA do not automatically bar an allegation that a report to a CAS was made in reprisal contrary to the Code. However, they do create a very high threshold. The applicant has to show not only that the report was made because the applicant claimed or enforced his Code-protected rights as required by section 8 of the Code, but must show that the report was made maliciously or without reasonable ground to suspect that the child may be at risk of harm. This is further balanced by the fact that there is legal obligation to report if the person has reasonable grounds to suspect that there is a risk of harm, and by the fact that it is a criminal offence to fail to report when there are reasonable grounds to suspect a risk of harm.
13In this case, I find that the provisions of the CFSA are not a reason to bar the request to amend the Application to include reprisal. However, I further find that it is not clear how the applicant will be able to prove that the report was made maliciously or without reasonable grounds to suspect a risk of harm.
14The applicant's request to amend the Application to include an allegation of reprisal is granted. However, before the respondent is required to respond to that allegation, the applicant must explain what evidence is available to show that the report to the CAS was in fact reprisal, given the provisions of the CFSA.
15This explanation may be particularly important in this case since the applicant has indicated that the only testimony that will be presented is from Dr. Handley-Derry.
How will the applicant establish damages?
16The applicant has indicated that the applicant's case is complete, except for the cross-examination of Dr. Handley-Derry and questions for the respondent’s witnesses.
17In the Application there is a claim for substantial compensation for damages allegedly suffered by the applicant and the family as a result of the alleged discrimination by the respondent.
18In an Application, the onus is on the applicant to not only prove that the alleged discrimination occurred, but also to prove any damages which are claimed as a result of the alleged discrimination. Dr. Handley-Derry provided no evidence about any financial damages that may have been suffered by the applicant and his family and could not provide such evidence because he would not have firsthand knowledge of such damages.
19If the applicant is not going to call any additional witness, it appears that there will be no evidence to support the financial damages that have been claimed or any claim for injury to dignity, feelings, and self-respect. The applicant must be prepared to address this problem because, in the absence of evidence, there may be no reasonable prospect that the applicant can prove the claimed damages and the claim for those damages could be dismissed on that basis.
Next steps in the hearing
20This hearing is scheduled to resume on June 1 and 2, 2016. Dr. Handley-Derry will be available for cross-examination by the respondent on June 1, and I would anticipate that the cross-examination can be completed on the day. After that, I propose to deal with the reprisal issue which, as explained above, requires the applicant to establish what evidence will be available to prove the allegation of reprisal. The applicant should also be prepared to address the issue about how any claim for damages will be supported by evidence.
21The respondent should be prepared to begin to present its case on June 2, 2016. I understand that Principal Janes is not available to attend on that date in person, and is also not available for the dates in July. The respondent has advised that she could be available to testify through an internet connection. I confirm that Ms. Janes will be able to provide her evidence through an internet connection. If there is an internet connection there is no need for her to have access to a fax machine.
22The respondent has advised that the two vice-Principal witnesses are familiar with the matter and can address most of the issues that would otherwise be addressed by Principal Janes. Unless the respondent wishes to call Ms. Janes first, one or both of the vice-Principals should be available to testify on June 2.
23The respondent has confirmed that it will provide a list of all of its proposed witnesses including a summary of their anticipated evidence, at least 45 days before the hearing on June 1.
24Before the conclusion of the hearing on June 2, the parties and I will review what further witnesses need to be called and in what order, when the hearing resumes in July.
Dated at Toronto, this 2nd day of March, 2016.
”Signed By”
Brian Cook
Vice-chair