T.B. v. Toronto Catholic District School Board, 2017 HRTO 1535

Human Rights Tribunal of Ontario

B E T W E E N:

T.B. as represented by his Litigation Guardian L.C. Applicant

-and-

Toronto Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: November 22, 2017 Citation: 2017 HRTO 1535 Indexed as: T.B. v. Toronto Catholic District School Board

WRITTEN SUBMISSIONS

T.B. as represented by his Litigation Guardian, L.C., Applicant Luke Reid, Counsel

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), by L.C. (“the applicant”) as the litigation guardian for T.B. (“the claimant”), her minor son. The claimant is a student of the respondent school board. As a result of his disabilities, he requires a number of accommodations in his daily needs while at school.

2The Application alleges that the respondent has not met its responsibilities under the Code with respect to the claimant, including an alleged delay before he was able to start school in 2015, whether the appropriate supports and accommodations were in place or were appropriately provided once he started, and whether he was being given appropriate academic instruction. The respondent disputes most of the allegations, and claims that where there were issues with the claimant’s accommodation or academic instruction, they were largely due to issues outside its control or to action or inaction on the part of the claimant’s parents.

3A hearing has been scheduled for January 18 and 19, 2018, in Toronto. These dates were confirmed by Notice of Rescheduled Hearing sent to the parties on September 25, 2017. This Interim Decision addresses the applicant’s Requests to amend the Application, and a Request for production of documents.

Amendment Requests

4Following the original filing of the Application on September 9, 2016, an amended Application was filed on October 5, 2016, alleging that the respondent had improperly discontinued the claimant’s dedicated EA. On November 2, 2016, a further amended Application was filed, incorporating the amendments sought the month before, and further alleging that the respondent had placed restrictions on the applicant (as noted, the claimant’s mother) with respect to her ability to contact the school, which she alleges impeded the implementation of the claimant’s accommodations and his meaningful access to education. The respondent consented to the amendments, and in its Response filed in December 2016 addressed the allegations in the November 2, 2016 amended Application.

5On September 29, 2017, the applicant filed another Request to amend the Application to include additional allegations respecting events that had transpired from November 2016 to June 2017, the end of the school year. The applicant also asked that the Tribunal make a formal ruling on the November 2016 Request to amend. The respondents did not file a Response to the September 2017 Request with the Tribunal.

6The Tribunal has the discretion to amend an application under Rule 1.7(c) of its Rules of Procedure. The question is whether, in all the circumstances, it would be fair to grant the amendments. The factors generally considered in deciding to exercise this discretion are the nature of the proposed amendments, the reasons for requesting the amendments, the timing of the request to amend, and the prejudice to the respondent. See Odell v. Toronto Transit Commission, 2001 CanLII 26210 (ON HRT), and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

November 2016 Amendments

7The respondent consented to these amendments prior to its filing of the Response in December 2016. These amendments are granted.

September 2017 Amendments

8The additional allegations raised in the September 2017 Request address the period after the November 2016 amendments, and continue to the end of the school year in June 2017. These amendments raise ongoing allegations respecting the claimant’s accommodation and education. The allegations are also timely.

9The Request to amend is granted. The additional allegations are essentially a continuation of those in the original Application as amended, and they should all be heard together. It is also appropriate to permit the respondent to address the additional allegations. The respondent shall file a Response to the September 2017 amendments by December 6, 2017. The applicant may file a Reply by December 13, 2017.

Request for Production of Documents

10The applicant also filed a Request for the production of documents. The parties exchanged arguably relevant documents under Rule. 16.1 in June 2017. The applicant sent a letter one week after receipt, dated June 27, 2017, seeking additional documentary disclosure.

11The applicant provided correspondence from counsel for the respondent advising the respondent would review the request and would provide additional disclosure, if any, by July 31, 2017. The applicant indicates that he has not received any further documentation, nor communication, from the respondent since.

12The test for document production is whether the documents sought are “arguably relevant” to the issues in the proceeding. This is not a high standard. At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns. See McKay v. Toronto Police Services Board, 2009 HRTO 1220. The requesting party, in this case the applicant, bears the onus of establishing that documents are arguably relevant.

13Having reviewed the pleadings and the materials filed, including the applicant’s detailed explanation justifying why the documents sought are relevant, I find that the documents should be produced. The documents all appear to relate to allegations raised by the applicant, or defences raised by the respondent, and may assist the Tribunal in determining the issues and the facts in this case, many of which appear to be in dispute.

14By December 6, 2017, the respondent shall provide to the Applicant a copy of the documents set out in Schedule “A”, paragraph 1 of the applicant’s Request for an Order During Proceedings dated October 23, 2017.

15The hearing is scheduled to commence on January 18, 2018. The parties are currently required, under Rules 16.2, 16.3 and 17 of the Tribunal’s Rules of Procedure, to file the documents and witness statements with the Tribunal on December 4, 2017. Given the timing and the extent of the disclosure I have ordered, this date is extended to January 5, 2018.

Orders and Directions

16The applicant’s Requests to amend the Application are granted. By December 6, 2017, the respondent shall file a Response to the additional allegations raised in the amended Application filed on September 29, 2017. The applicant may file a Reply by December 13, 2017.

17The applicant’s Request for production of arguably relevant documents is granted. By December 6, 2017, the respondent shall provide to the Applicant a copy of the documents set out in Schedule “A”, paragraph 1 of the applicant’s Request for an Order During Proceedings dated October 23, 2017.

18The date for the parties to exchange and file their documents and witness statements under Rules 16.2, 16.3 and 17 is extended to January 5, 2018.

19The Tribunal may make further directions or orders as necessary.

20I am not seized.