E.S v. Durham District School Board, 2017 HRTO 1303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.S.

Applicant

-and-

Durham District School Board

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: October 4, 2017 Citation: 2017 HRTO 1303 Indexed as: E.S v. Durham District School Board

APPEARANCES

E.S., Applicant Matthew Tubie, Counsel

Durham District School Board, Respondent Kathryn Bird, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 17, 2016, in which he alleged discrimination in services. The applicant indicated in the Application that the last incident of discrimination occurred in June, 2015 and did not specify the day. In the narrative attached to the Application, the applicant states that the last incident occurred on June 18, 2015; however, it appears that the incident he alleges to be the last incident of a breach of his Code rights actually occurred on June 17, 2015. While neither of the parties raised this issue, in the course of preparing these reasons I considered that one of the allegations in this proceeding is made with respect to a court proceeding involving a youth criminal justice matter. Sections 110 and 111 of the Youth Criminal Justice Act (“YCJA”), S.C. 2002, c. 1 prohibit the publication of the identity of a youth involved in proceeding under the YCJA. While an individual subject to these provisions may consent to publication of their identity upon reaching the age of 18, no such consent has been provided. Accordingly, in my view these provisions apply and the name of the applicant is subject to an ongoing publication ban.

2On January 30, 2017 the respondent filed a Response. The respondent also filed a Request for Order During Proceedings (“Request”) that all the allegations that are said to have occurred prior to June 17, 2015 be dismissed on the basis that these allegations were filed more than one year after the date of their alleged occurrence and therefore it appears that the Tribunal may not have the jurisdiction to hear these allegations.

3In addition, the respondent made the request that paragraphs 1 to 4 of the Application be struck on the basis that the applicant does not have standing to bring these allegations that relate to the experiences of others.

4The Tribunal held a preliminary/summary hearing to address the issues raised by the Respondent.

5This decision is based on a review of the documents filed by the parties and the parties’ submissions made in writing and stated during the preliminary/summary hearing.

delay in allegations of incidents OCCURRING prior to June 17, 2015

6The applicant alleges that he has experienced discrimination during a number of events that occurred at his former school, which is a school in the respondent Board, and in interactions he had with some of the respondent’s employees as well as police officers. All but the last of these alleged incidents occurred more than one year prior to the date that the Application was filed on June 17, 2016.

7Sections 34(1) and (2) of the Code provide:

34(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.

8These provisions have been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year of the last alleged incident. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith” the applicant must show something more than the absence of bad faith. The applicant must at a minimum provide a reasonable explanation for the delay.

9The applicant submits that the incidents that occurred more than one year prior to the date he filed his Application are part of a series of incidents and that because the June 17, 2015 event that was the last incident in the series is timely, the Tribunal has the jurisdiction to hear all the allegations.

10In Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30 (“Garrie”), the Tribunal held that the following factors are relevant to a determination of whether the allegations form part of a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

11The applicant indicated during the teleconference hearing that he was not intending that the subject matter set out in paragraphs 1 to 4 of his Application be included in his allegations of Code breaches. He indicated that these paragraphs were only included as background context.

12The allegations made are set out below in chronological order.

February 28, 2014

13The applicant alleges that February 28, 2014 there was an altercation at school involving a number of male students. The applicant alleges that he was injured by another student during this incident and the applicant was suspended for the afternoon. He alleges that his mother was not advised of the incident. He also alleges that the other students involved had not been reprimanded. He alleges that his mother reported the incident to the police who did not follow-up to investigate.

March 4, 2014

14The applicant alleges that on March 4, 2014 his mother went to his school to discuss the February 28, 2014 incident and to inquire why she and the police were not called. She also spoke to a superintendent of the respondent about her concerns that same day.

March 5, 2014

15The applicant alleges that on March 5, 2014 he and his mother went back to the police to discuss the February 28, 2014 incident at school. It is alleged that the police took no interest in investigating.

September 22, 2014

16The incidents that the applicant alleges occurred on September 22, 2014 are with respect to a court proceeding involving a youth criminal justice matter. The applicant makes allegations that relate to the lawyers involved, the evidence requested and the outcome of the proceeding.

December 17, 2014

17The applicant alleges that on December 17, 2014 he was called to the school office where he was questioned by police about a chain that went missing from a vehicle that he and other students had been travelling in the night before. He alleges that the school did not call his parents about the police questioning but he was able to call his mother. He alleges that he was never contacted further to be advised whether the chain had been found.

January 6, 2015

18The applicant alleges that on January 6, 2015 his mother attended the school to speak to the principal about the school not contacting his mother and his mother instructed the principal that the applicant is not to be questioned unless she is present. He alleges that his mother also instructed the principal not to reveal confidential information about him to his grandmother.

January 30, 2015

19The applicant alleges that on January 30, 2015 a teacher seated all African Canadian students in the middle of the class. The applicant alleges that when he highlighted to the teacher that he thought this was inappropriate, the teacher said to him, “When was last time you got an A. You start off the year with high marks, but we all know you do not finish well.” He alleges that this teacher later said that she had said this to him as a manner of trying to motivate him. He alleges that when he asked for the teacher’s email address to give to his mother, the teacher said that his mother needed to stop babysitting him and that he was shaming his mother.

February 26, 2015

20The applicant alleges that on February 26, 2015, he and his friend were in line in the cafeteria when a vice-principal approached them and accused them of skipping the line. When they denied skipping the line and refused to move to the end of the line, the vice-principal advised the applicant that he needed to go to the office. The applicant went to the office after his lunch and discussed the incident with the principal and vice-principal which the applicant alleges ended with the vice-principal apologizing for miscommunication. The applicant alleges that he asked to contact his mother but the principal said that was not necessary and that he would notify her.

February 27, 2015

21The applicant alleges that on February 27, 2015, he was sitting with some friends when a police officer approached them. The officer asked the applicant his name and the applicant told him that he was instructed not to speak to police because he was under age. He continued to refuse to provide his name. Later the same police officer entered the classroom to ask the teacher the applicant’s name and age and the teacher asked if it was necessary to provide. The applicant alleges that he was later called to the office where a vice-principal advised him that he was not wrong to refuse to give his name but not to say certain things while the officer was around. The vice-principal allegedly advised the applicant that he would email the applicant’s mother.

March 3, 2015

22The applicant alleges that on March 3, 2015 he was wrongly accused of being involved with an incident with a group of boys. He alleges that he was called to the office and questioned about the incident. He alleges that he advised the vice-principals that he was not allowed to talk without his mother present. He alleges that the principals became hostile and that they felt he had something to do with the incident even though witnesses had said he was not involved.

June 17, 2015

23The applicant alleges that on June 17, 2015 he was suspended from school after the principal accused him of fighting.

analysis and decision

24In accordance with section 89 of the Legislation Act and the Tribunal’s Rules, the calculation of the one year period in section 34 should not include the date of the alleged discrimination. This is further supported by the language of section 34 which states that a person must file an “application within one year after the incident to which the application relates”.

25As the last alleged incident in the Application occurred on June 17, 2015, the Tribunal has jurisdiction over this incident as the Application was filed within one year after June 17, 2015. The issue to be determined is whether the Tribunal has jurisdiction over the remaining allegations.

26The applicant submits that I must find that the other allegations are part of the series that ends with the June 17, 2015 incident and therefore, the Tribunal has jurisdiction over all of the alleged incidents.

27The applicant submits that all the incidents are tied together and if one or some of the incidents are removed, the true story will fall apart.

28The respondent submits that there are a number of allegations that involve police conduct or the conduct of parties during a youth justice proceeding that do not involve the actions of the respondent or for which the respondent could not be responsible. The respondent submits that because the respondent could not be liable for these incidents, they must be removed from the series.

29In Millien v. Toronto Police Services Board, 2012 HRTO 1034 at paragraph 13, the Tribunal discussed the meaning of “series of incidents” in the following terms:

In considering the meaning of the term “series of incidents” under s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457, at para. 25. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

30In my opinion, to accept that an alleged incident is part of a series of events, there must be a reasonable prospect that the incident occurred and that, if it did, it can be established that it was an incident that infringed the applicant's Code-protected rights (see, for example, Saxon v. Amherstburg Police Services Board, 2013 HRTO 681). The Tribunal has found that an incident regarding which the applicant’s allegations have no reasonable prospect of success cannot form part of a series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874 and Garland v. Canusa-CPS, 2012 HRTO 1309.

31The respondent submits that the incidents involving police conduct, even within the school, are not the responsibility of the respondent and must be removed from the series. The respondent also submits that the events described during the September 22, 2014 court appearance relate to the operation of the youth criminal justice system, the Crown, and judicial officers who are not the responsibility of the respondent so this incident should be removed from the series.

32The respondent submits that the incidents alleged that involve respondent employees cannot be accepted as part of a series because they involve various employees. It submits that there needs to be more than a simple nexus that all involved in the incidents work for the respondent. It submits that there must be connections between the people, place, and actions or decisions and the allegation that is timely which in this instance is the decision to suspend the applicant on June 17, 2015.

33I find that the allegation made about the attendance of the applicant and his mother at a police station on March 4, 2015 must be removed as part of a series of incidents. The allegation is about the police failure to investigate. The respondent has no responsibility for the decisions of police to investigate so there is no reasonable prospect that the applicant would succeed in demonstrating that this incident resulted in a breach of his Code rights by the respondent.

34The allegations about the court proceeding on September 22, 2014 can also not be part of the series as none of the allegations about what happened on that day involve the actions of those for whom the respondent could be found to be responsible. Again the applicant has no reasonable prospect that he would succeed in demonstrating that this incident resulted in a breach of his Code rights by the respondent. Although the applicant alleges that a teacher made a false accusation that resulted in this criminal proceeding that alleged false accusation did not happen on September 22, 2014. Other than stating that the teacher made a false accusation, there are no details about this teacher’s actions in the Application.

35The same must be found with respect to the allegations about the applicant’s interactions with a police officer who was in the school on February 27, 2015. The applicant makes no allegations that the respondent is responsible for this officer’s actions. In fact, the applicant states that various respondent employees affirmed the rights he was seeking to exercise in the interactions with the police officer.

36In the other alleged incidents in which the applicant alleges that he had interactions with police officers and respondent employees, the applicant makes allegations about the employees’ conduct during the interactions as well as the police conduct. As a result, I have included these incidents when considering whether there is a series of incidents.

37I am also including the incidents that involve interactions between the applicant’s mother and respondent employees because it could be determined that the treatment of his mother in these incidents had an adverse impact on the applicant.

38As a result I have included all incidents except those which are alleged to have occurred on March 5, 2014, September 22, 2014 and February 27, 2014, in my consideration of whether these incidents form a series of incidents that ended on June 17, 2015.

39The incidents remaining involve the interactions between employees of one school in the respondent Board and the applicant and his mother. The applicant is alleging the in each incident he was adversely impacted because of his race, colour and ancestry. I find that there is a sufficient nexus between the actors, the place and context of the incidents and the Code grounds allegedly breached in these interactions to form the characteristics of a series.

40The respondent further submits that there are significant gaps of about ten months between some the remaining allegations and that these gaps remove the incidents from the characteristics of a series.

41The most significant gap between the alleged incidents is between March 4, 2014 and December 17, 2014. Although, there is no defined time beyond which the Tribunal would determine that the series in broken, the Tribunal has held that a gap of more than one year was generally sufficient to break a series. See: Savage v. Toronto Transit Commission, 2010 HRTO 1360 and Farrell v. Barrie Police Services Board, 2011 HRTO 1442.

42I find that a gap of just over nine months is not sufficient to break the series. I find that the remaining incidents from a series over which the Tribunal has jurisdiction.

ORDER

43The incidents that are described in the Application as occurring on March 5, 2014, September 22, 2014 and February 27, 2014 are dismissed.

44The Application shall proceed on the remaining allegations.

45As the applicant has indicated that he is interested in attempting mediation of the Application and the respondent has not indicated whether it is interested, within ten days of receiving this Interim Decision, the respondent shall notify the applicant and the Tribunal whether it is interested in participating in mediation.

46I am not seized.