E.J. v. Toronto District School Board, 2016 HRTO 345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.J.

Applicant

-and-

Toronto District School Board and Toronto Student Transportation Group

Respondents

A N D B E T W E E N:

C.J. by her litigation guardian E.J.

Applicant

-and-

Toronto District School Board and Toronto Student Transportation Group

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: March 17, 2016 Citation: 2016 HRTO 345 Indexed as: E.J. v. Toronto District School Board

WRITTEN SUBMISSIONS

E.J. and C.J., as represented by her litigation guardian E.J., Applicants

Self-represented

Toronto District School Board, Respondent

Lauri Reesor and Elizabeth Winter, Counsel

1This Interim Decision addresses the applicants’ Request for Interim Remedy and Request to Expedite the Proceeding.

2The applicants filed separate Applications with the Tribunal alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The first Application was filed by E.J. in her personal capacity. The second Application was filed by E.J. as litigation guardian for her child, C.J. I have used initials for E.J. and C.J. to protect the identity of C.J. in accordance with Rule 3.11.1 of the Tribunal’s Rules of Procedure.

the facts

4These facts are taken from the parties’ submissions filed on the Request to Expedite Proceeding and the Request for Interim Remedy, and are relied upon solely for the purpose of this Interim Decision.

5The applicant, C.J., is an exceptional student with the Toronto District School Board (the “TDSB”). She is currently in grade 7.

6The Toronto Student Transportation Group (the “TSTG”) is a transportation consortium between the TDSB and the Toronto Catholic District School Board. The TSTG contracts out almost all of the TDSB’s bussing needs to private organizations. Drivers hired by companies who contract with the TSTG are expected to follow the policies and protocols of their respective employer, as well as TDSB policy and protocol.

7C.J. travels to school on a Stock Transportation bus. The driver of the bus is an employee of Stock Transportation.

8Until recently, C.J. wore a seat belt and seat belt cover (to prevent attempts to get out of the restraint) when she was on her school bus. On occasion, the bus driver assisted with the seat belt cover.

9On February 10, 2016, C.J.’s bussing services were suspended because of her behaviour on the school bus. On February 11, 2016, C.J.’s parents agreed to the use of a safety harness to transport C.J. to school. On February 17, 2016, bussing services were resumed. On February 18, 2016, the bus driver showed C.J.’s parents how to use the safety harness.

10TDSB Policy P020, Transportation of Students, governs the provision of student transportation. The TDSB has a Protocol for loading and unloading for passenger buses, mini-vans and taxis. The Protocol states the following:

Parents, school staff, and drivers are collectively responsible for ensuring that each student is secured by a seat belt and/or in a car seat or safety vest where applicable. Parents are responsible for securing their child when the bus arrives in the a.m. and unloading in the p.m. School staff are responsible for unloading in the a.m. and securing students when they are dismissed from school. The driver of each vehicle is responsible for ensuring that students are safe and secure while the vehicle is in motion.

11In summary, parents are responsible for securing their child by a safety vest at morning pick up and drop off at the end of the school day. When the student is dropped off at school or leaves to go home at the end of the day, an Education Assistant or teacher will ensure the student is secured in the bus by the safety harness.

12The Protocol limits the physical interaction between the student and the bus driver and is meant to protect the physical safety of both the student and the bus driver. This policy also limits the exposure of risk for the bus driver. The applicants refer to the limitation of physical interaction under the Protocol as the respondents’ “No Touch Policy”.

13The safety harness is a more detailed apparatus than the seat belt cover, with four points of connection. This leads to a significantly higher level of physical interaction between the pupil and the person securing the harness.

14As a result of the Protocol, C.J.’s parents must secure C.J. in the harness in the morning and detach the harness in the afternoon when she returns from school. C.J.’s mother is physically unable to do this.

15C.J.’s father is currently attaching and dethatching the harness. He has filed a declaration stating the assistance that he is providing is disruptive to his (dental) practice and his patients, and has resulted in a financial loss of approximately 100 dollars per day. He has also stated he will be unable to provide this assistance in September 2016 and as a result, C.J. may lose her transportation. The Request for Interim Remedy states C.J.’s father will be driving C.J.’s sibling to a different school in September 2016 and will be unable to help with C.J.’s bus routine in the morning.

Applicants’ Requests

16The applicants are seeking an interim remedial order requiring the bus driver to help C.J.’s mother attach and detach the harness. C.J.’s mother is willing to be present when the harness is secured/unsecured and is prepared to sign a release addressing any concerns regarding allegations of inappropriate touching.

17The applicants also seek an order expediting the proceedings. In support of this request, the applicants state it would be helpful to resolve this issue before the end of the school year because school personnel may not be available to attend a mediation or hearing once the current school year is over. They also state the present situation is causing disruption to C.J.’s father’s business, and that C.J.’s father will be unable to attach/detach the harness during the next school year because he will be driving C.J.’s sibling to another school much further away from home.

18The TDSB opposes these requests.

19It is unclear whether the TSTG has a legal status separate from the TDSB. The responses to the Request to Expedite and the Request for Interim Remedy have been filed on behalf of the TDSB only. No response has been filed by the TSTG.

DECISION

Interim Remedy

20The conditions for ordering an interim remedy are set out in Rule 23.2 of the Tribunal’s Rules of Procedure:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

21Normally, the Tribunal’s power to order a respondent to do, or refrain from doing something, is contingent upon a finding that it has violated the Code. Interim remedies are extraordinary in that they constitute an order to do, or refrain from doing something, in the absence of a finding that the Code has been violated. For this reason, the applicant bears a significant onus in establishing that the Tribunal should award an interim remedy: See TA v. 60 Montclair, 2009 HRTO 369 at paras. 28-29 (“TA”).

22In TA, at para. 23, the Tribunal stated that since the Code is remedial legislation, the fundamental consideration in determining whether to award an interim remedy is “whether an interim remedy is necessary to ensure the Tribunal will be able to provide a full, effective and appropriate remedy should the application be decided in favour of the applicant, or is otherwise required to give effect to the remedial objects of the Code”.

23As well, the Tribunal has been more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. Creating a new state of affairs is a more extraordinary and serious remedy than maintaining what exists. See Grant v. Bombardier Inc., Bombardier Commercial Aircraft, 2015 HRTO 253 at para. 8.

24Assuming the Application has merit, I am not persuaded that the applicants have established the balance of harm or convenience favours granting the interim remedy or that it is just and appropriate to grant the remedy requested at this time.

25C.J. is receiving bussing services and attending school. C.J.’s father is able to attach and detach the safety harness in order for C.J. to travel to school safely for the balance of this school year. Any financial costs that are incurred by C.J.’s father because of the time spent completing these tasks may be remedied at the end of the hearing in the event the Application is successful. More importantly, there is an issue as to whether the Tribunal can order Stock Transportation, a third party, to assist with the safety harness in the absence of hearing from that party. Finally, it would not be appropriate to provide what is in essence the ultimate remedy sought by the applicants in the absence of an examination of the merits of the Applications. For these reasons, the balance of convenience does not favour an interim remedy and such a remedy is not just and appropriate. The Request for Interim Remedy is denied.

Expedite the Proceedings

26Rule 21.1 of the Tribunal’s Rules of Procedure provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute.

27In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53 at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent. Applicants must show that the circumstances require the resolution of the dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

28In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that applications may be expedited where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

29I have decided to expedite this proceeding because the applicants have established an urgent resolution is required.

30A declaration has been filed by C.J.’s father stating he will not be available in September 2016 to assist with the harnessing of C.J. in the mornings. This is because he will be driving C.J.’s sibling to another school further away from home. The TDSB in its materials states that securing C.J. in the morning is not an issue and does not result in delay, the inference being that C.J.’s father could secure C.J. and take her sibling to school. There is no evidentiary basis for this suggestion.

31The TDSB argues the applicants have failed to demonstrate the Applications require urgent resolution because it is speculative as to whether there will be a problem with C.J.’s harness for the upcoming school year. I disagree. The information before the Tribunal is that C.J.’s parents are unable to assist with the harness in the next school year because her mother is physically unable to do it and her father will not present to do it. In the absence of parental assistance to attach and detach the harness, transportation will be denied to C.J. This, in turn, will impact C.J.’s ability to attend school. In the event C.J. is denied access to school, there is no way for the Tribunal to remedy this loss. In my view, it is not appropriate to wait until C.J. is denied transportation in September 2016, due to the inability of her parents to attach and detach the harness, to make a decision to expedite these Applications. That decision must be made now. For these reasons, the Request to Expedite is allowed.

ORDER

32For the reasons set out above, the applicant’s Request for an Interim Remedy is denied. The Request to Expedite is allowed.