HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.W.
Applicant
-and-
Toronto District School Board, Andrea Lane and John Chasty
Respondents
A N D B E T W E E N:
J.W. by his litigation guardian M.W.
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed As: M.W. v. Toronto District School Board
1In Application 2015-19861-I, the applicant alleges the Toronto District School and individual respondents discriminated against him in the provision of services on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After the Tribunal issued a number of Case Assessment Directions in that Application, the applilcant, as litigation guardian for his minor son filed Application 2016-23615-I against the Toronto District School Board.
2Responses have been filed in both Applications.
3The respondents have made a Request for Summary Hearing (Form 26) in Application 2015-19861-I in which they submit that based on the allegations set out in this Application, the applicant has no reasonable prospect of demonstating that his rights, as protected by the Code, have been breached.
4On March 8, 2016, the Tribunal issued a letter to the parties in which it canvassed the parties’ position on whether the two applications should be consolidated. The Tribunal also made a request that the applicant indicate to the Tribunal and copy the respondent what his intentions were with respect to Application 2015-19861-I.
5The applicant has not provided his position on the issue of whether the Applications should be consolidated. He did not provide the Tribunal with any indication of his intentions with respect to Application 2015-19861-I.
6The respondents oppose the consolidation on the basis that this would cause prejudice to the individual respondents who are named in Application 2015-19861-I as consolidation would delay a determination of the issues they have raised in their Summary Hearing request. As well, the respondents indicate that due to drafting issues in Application 2016-23615-I, they are not currently in a position to request a Summary Hearing in that Application.
7One of the issues raised by the respondent in Application 2016-23615-I is that it lacks particulars about the allegation made.
ANALYSIS
Consolidation
8Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.
9In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the following factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
10I find that the Applications should be consolidated and heard together. The two Applications raise interrelated facts and issues and the public interest weighs in favour of consolidating them.
11Application 2016-23615-I is broader in scope than the Application 2015-19861-I. However, they encompass many of the same allegations and both involve the Toronto District School Board as a respondent. The individuals named as respondents in Application 2015-19861-I are employees of this school board and the allegations against them appear to be in relation to actions that they did in the course of their employment. In my view, much of the same evidence and legal submissions would need to be heard in both Applications. As a result of these interrelated facts and issues, the public interest weighs in favour of consolidating the Applications in order to avoid the potential repetition of evidence and the additional expense that might accompany separate proceedings.
12In addition, I do not accept that any significant prejudice will be caused to the individual respondents from consolidating the applicant’s Applications. I do not agree that any unnecessary time and complication would arise from having these Applications consolidated. In fact, the consolidation of the Applications would likely lead to a more efficient use of time both for the parties and for the Tribunal. I therefore do not agree that the decision on consolidation should be postponed until the Summary Hearing of Application 2015-19861-I is complete.
Order for Particulars
13In Application 2016-23615-I, which is brought on behalf of a minor, it is alleged that the applicant J.W., and children with autism generally, experienced discrimination when the respondent did not increase their autism programming, staff or budget. It is alleged that J.W. has experienced this discrimination since 2009. The allegations do not provide details of how the lack of funding, staff and programming created a disadvantage to J.W. and other students with autism on the basis of their disabilities. Nor does the applicant provide details of the dates when the alleged discrimination occurred beyond stating “Spring 2009 and ongoing”.
14In fairness to the respondent, an applicant must provide sufficient details for the respondent to know the allegations that are being made against it and in order for the respondent to be able to properly prepare its response to allegations. In addition, as the Application was filed on February 26, 2016, and under section 34(1) of the Code, there is a one-year limitation period within which an applicant can file his or her application, the dates of the applicant’s allegations are significant.
15The Tribunal directs the applicant to file with the Tribunal and serve on the respondent particulars of the allegations made in Application 2016-23615-I with respect to the discrimination that J.W. is alleged to have experienced as a student with a disability. As the Tribunal has noted on the Application form itself, particulars should include “what happened, who was involved, when it happened (day, month, year) and where it happened”. See, for example, Savage v. London & Middlesex Housing Corporation, 2015 HRTO 617. These particulars shall be provided to the Tribunal and the respondent by August 11, 2016.
16Should the respondent wish to file an amended Response after the applicant has provided particulars, it may do so. In recognition of the fact that school personnel are on summer break, the respondent will have until September 30, 2016, to serve and file an Amended Response.
17The Tribunal notes that the respondents’ Request for Summary Hearing on Application 2015-19861-I remains outstanding. The Tribunal will consider this Request and may issue further case directions after September 30, 2016.
Use of Initials
18In accordance with the Tribunal’s Rules of Practice, the initials of the applicants in both Applications will be used in this decision and any subsequent decisions in order to protect the identity of the child involved in these Applications.(Rule 3.11.1).
ORDER
19The Tribunal orders the following:
Application 2015-19861-I and Application 2016-23615-I are consolidated and will be heard together.
By August 11, 2016, applicant shall file with the Tribunal, copying the respondent, particulars of the allegations made in Application 2016-23615-I with respect to the discrimination that J.W. is alleged to have experienced as a student with a disability.
By September 30, 2016, the respondent shall file an Amended Response if it chooses to do so.
The initials of the applicants will be used in this decision and any subsequent decisions made in these consolidated Applications.
After September 30, 2016, the Tribunal will consider the respondents’ Request for Summary Hearing.
20I am not seized of this matter.
Dated at Toronto, this 21st day of July, 2016.
“Signed by”
Laurie Letheren
Vice-chair