CITATION: NM v. Dufferin-Peel Catholic District School Board , 2020 ONSC 7443
DIVISIONAL COURT FILE NO.: 145/20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Pattillo, JJ.
BETWEEN:
NM as represented by his Litigation Guardian AM
Applicant
– and –
DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
D. Baker and S. Choudhry, for the Applicant
N. Tymochenko, for the Respondent School Board
B. Blumenthal, for the Respondent Human Rights Tribunal
HEARD at Toronto by videoconference: August 26, 2020
BY ORDER OF THE COURT DATED MARCH 13, 2020, NO ONE MAY PUBLISH INFORMATION THAT MAY IDENTIFY THE APPLICANT, THE APPLICANT’S MOTHER OR THE APPLICANT’S EDUCATIONAL INSTITUTIONS.
Overview
1On August 28, 2020, this court issued brief reasons for judgment dismissing both the Applicant, NM’s motion to admit fresh evidence and his application for judicial review of the February 14, 2020 decision of the Respondent, Human Rights Tribunal of Ontario (“HTRO”). In those reasons the court indicated that fuller reasons for our decision would follow. These are those reasons.
2The HRTO’s decision of February 14, 2020 deferred the Applicant’s request to state a case for contempt to the Divisional Court pursuant to s. 13(1) of the Statutory Powers Procedure Act, 1990 R.S.O. c. S. 22 (the “SPPA”), in respect of the alleged failure of the Respondent, the Dufferin-Peel Catholic District School Board (the “Board”) to comply with the interim order of the HRTO dated September 27, 2019.
The Facts
3NM is 16 years of age. He is diagnosed with Autism Spectrum Disorder and epilepsy. He uses an Augmentative and Alternative Communication method to communicate called Spelling to Communicate (“S2C”). S2C involves the use of a letterboard and the support of a Communications Regulation Partner (“CRP”) to assist with NM’s body regulation challenges.
4From February to June 2018, NM used S2C in elementary school in the Board with the assistance of an Education Resourse Worker (“ERW”), a Board employee, who was trained to act, and acted, as NM’s school-based CRP. In September 2018, NM transitioned to secondary school, also in the Board with the ERW who had acted as his CRP in elementary school.
5In the fall of 2018, concerns arose as to whether NM’s use of S2C was an effective communication tool. NM’s parents became involved.
6On or about May 16, 2019, NM withdrew from school because of what he describes as extremely stressful circumstances. NM alleges that the Board has breached its duty to accommodate him and has not returned to school.
i. NM’s Complaint to the HRTO
7On April 2, 2019, NM filed a complaint with the HRTO alleging that the Board had violated s.1 of the Human Rights Code, R.S.O. c. H. 19 (the “Code”) (“NM’s Complaint”).
8At the same time, NM filed a Request for an Interim Remedy pursuant to Rule 23.2 of the HRTO seeking, among other relief, orders permitting him to continue using his letterboards in the classroom; ensuring that he continue to be supported by his ERW from elementary school; and directing the Board to continue to follow the communication methods as they were to be implemented at the beginning of the 2018-19 school year; cease withholding homework; and resume grading NM’s tests and assignments.
9The Board responded to both NM’s Complaint and his Request for an Interim Remedy.
ii. The Interim Order
10On September 27, 2019, the HTRO issued the following Interim Order:
The [A]pplicant must be provided with S2C with the ERW who worked with him in elementary school. The [A]pplicant must be provided with homework and the [R]espondent must grade his tests and assignments. This order was in place for the 2019/2020 school year only.
11On October 4, 2019, the Board wrote to the HRTO advising of its difficulties in complying with the Interim Order given events that had occurred after its submissions, including that the ERW who had worked with NM in elementary school had been transferred to another school at her request. The Board requested that the HRTO consider a text to speech device as an alternate accommodation. NM responded on October 7^th^ and again on October 16, 2019, and objected to the Board’s request.
12On October 8, 2019, the Board requested a meeting with NM, his parents and counsel to discuss his transition back to school. NM responded on October 17, 2019 with a list of items to “move forward with transition discussions” including that NM:
a) shall attend a new high school;
b) his placement shall not be in a Communications Class;
c) he shall be supported by the ERW who worked with him in elementary school who will be retrained by NM’s mother;
d) NM’s coursework completed in the fall of 2018 shall be graded, and his course work be considered fulfillment of the credit requirements with a waiver of the exam requirements or the exam requirements to be completed at home.
13On November 4, 2019, the Board responded, indicating that the Board was not prepared to provide a commitment to implement NM’s requests without further discussion with the family. On November 11, 2019, the Board again wrote to NM and indicated that it was not opposed to a change of school following an assessment and placement decision. In the letter, the Board expressly indicated that “the Board will comply with any outstanding orders of the Human Rights Tribunal of Ontario.”
iii. NM’s Request for an Order During Proceedings
14On December 9, 2019, NM filed a Request for an Order During Proceedings (“RFOP”) with the HRTO seeking that the HRTO state a case for contempt against the Board to the Divisional Court pursuant to s. 13(1) of the JRPA on the ground that it had not complied with the Board’s Interim Order.
15The Board submitted its response to the RFOP on December 23, 2019.
16On January 3, 2020, NM submitted a request for leave to submit a reply to the Board’s submissions and filed brief submissions.
17Meanwhile, NM’s Complaint was proceeding before the HRTO. The hearing of the complaint was scheduled for February 25, 2020 and a Case Management Conference Call was scheduled to take place on January 24, 2020.
18On January 22, 2020, NM’s counsel sent an email to the HRTO Registrar listing the items to be discussed at the upcoming Case Management Conference call, which included the RFOP to state a case to the Divisional Court.
19The Case Management Conference call took place on January 27, 2020 before a member of the HRTO (the “Member”). As the parties were in continued discussions regarding exchange of productions, witness statements and expert reports, the hearing date scheduled for February 25, 2020 was converted to a further Case Management Conference. With respect to NM’s RFOP, the Member advised the parties that the materials were not before her and she did not see the materials in the HRTO’s electronic system.
20The RFOP materials were subsequently provided to the Member.
iv. HRTO’s Case Management Direction
21On February 14, 2020, the Member issued a Case Management Direction in which she, among other things, deferred NM’s RFOP to state a case for contempt against the Board (the “Decision”). In so doing, the Member provided the following reasons:
[14] Although the applicant has requested that the Request be determined based on written submissions, it is clear that fairness would require an oral hearing. However, for the following reasons, I am not prepared to convene an oral hearing to adjudicate the applicant’s Request. The issues raised will be addressed in the context of and in conjunction with the Tribunal’s merits hearing.
[15] Stating a case for contempt to the Divisional Court is an extraordinary remedy, given that the applicant must prove that the respondent has deliberately and wilfully failed to comply with the Interim Order. See McKinnon v. Ontario (Correctional Services), 2011 HRTO 263. It is even more extraordinary in the circumstances of this case where there is a factual dispute between the parties as to whether the applicant has cooperated in a process to enable the respondent to implement the Tribunal’s Interim Order, namely, surrounding the applicant’s refusal to meet to discuss NM’s return to school unless certain other items are put in place.
[16] Also, the applicant’s cooperation with the implementation of the Interim Order and the remedies sought in relation to the Interim Order are inextricably linked with the merits if this case.
[17] For these reasons, it is not an efficient use of the Tribunal’s resources to hold a separate hearing on whether the Tribunal should state a case for contempt solely in relation to the Interim Order, especially when the Interim Order expires at the end of this school year.
[18] This decision is without prejudice to the parties’ respective positions at the merits hearing regarding the various remedies sought in the Request.
The Issues
22Although NM’s application for judicial review was initially brought pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, as amended, to be heard by a single judge of the Superior Court of Justice with leave based on urgency, the application was scheduled to be heard on an urgent basis by the Divisional Court. Accordingly, leave is not required.
23The issues raised by the parties are as follows:
What is the standard of review that applies to NM’s application;
Whether NM’s motion to adduce fresh evidence should be allowed;
Is NM’s application to review the Decision premature;
Assuming the Decision can be reviewed, did the HRTO err in refusing to state a case of contempt to the Divisional Court; and
In the event the HTRO erred in its decision, what is the remedy that should be applied.
1. Standard of Review
24In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court held that the presumptive standard of review of administrative decisions is “reasonableness” subject only to derogation by legislative intent or required by the rule of law.
25NM submits that in accordance with Vavilov, para. 58, the standard of review of the Decision is correctness on the ground that the issue regarding contempt raises a general question of law of central importance to the legal system as a whole.
26NM’s submission that the Member refused to state a case mischaracterises the nature of the Decision which makes no determination of that issue. Rather, the Decision defers NM’s RFOP to the hearing of the merits of the Complaint. As such, it does not involve a general question of law of central importance to the legal system. See: Vavilov, para. 61.
27The HRTO submits that the standard of review should be “patently unreasonable” as set out in s. 45.8 of the Code.
28Since this court’s decision in Shaw v. Phipps, 2010 ONSC 3884 (Div. Ct.), upheld 2012 ONCA 155, the law has been, having regard to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, that when s. 45.8 of the Code is read purposely and in light of the general principles of administrative law, the “patently unreasonable” standard in s. 45.8 of the Code is equivalent to reasonableness.
29Following Vavilov, the HRTO submits before this court, as it has on numerous other occasions after Vavilov, that it overrules Shaw v. Phipps such that the “patently unreasonableness” standard in s. 45.8 of the Code should apply. On each occasion the court has not accepted HRTO’s argument and held that the principle in Shaw v. Phipps continues to apply and the standard of review from HRTO decisions is reasonableness. See: Intercounty Tennis Association v. Human Rights Tribunal of Ontario, 2019 ONSC 1632 (Div. Ct.); Ontario v. Association of Ontario Midwives, 2020 ONSC 2839 (Div. Ct.).
30The HTRO has raised no new arguments to change the court’s position. The standard of review from the Decision is reasonableness.
The Statutory Framework
31Before addressing the remaining issues, it is important to set out the statutory framework in respect of NM’s application.
32Section 13(1) of the SPPA sets out the process for a tribunal to direct a stated case for contempt to the Divisional Court and provides, in part, that where any person without lawful excuse,
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
The tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.
33The HRTO has a broad range of powers pursuant to the Code and its Rules to permit it to adjudicate and resolve disputes.
34Section 40 of the Code provides:
- The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
35Further, s. 41 of the Code provides:
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
36The HRTO Rules give the Tribunal broad powers to provide for the fair, just and expeditious resolution of any matter before it, including how issues in a proceeding will be considered and determined (rule 1.7 (g)).
2. Motion to Adduce Fresh Evidence
37At the outset of the hearing, NM brought a motion for leave to adduce fresh evidence to supplement the record for judicial review. The evidence is set out in the affidavits of Andrija (Andrew) Milivojevich, NM’s father, sworn August 7, 2020 and Amanda Dimilta, NM’s co-counsel, sworn March 16 and August 7, 2020.
38Mr. Milivojevich’s affidavit provides information as to what NM has been able to achieve academically following the Board’s implementation of a remote learning arrangement for NM. Ms. Dimilta’s affidavits explain the events leading up to the January 27^th^ Case Management Conference concerning the error in filing NM’s RFOP materials and itemizes the correspondence between counsel concerning NM’s attendance at school after the Case Management Conference.
39Fresh evidence on judicial review should only be admitted in limited circumstances: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Those circumstances are to show the absence of evidence on an essential point; or to disclose a breach of natural justice that cannot be proven by mere reference to the record; or to provide general background that might assist the court in understanding the underlying issues. See: Keeprite at p. 521; Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.).
40None of the fresh evidence sought to be adduced by NM meets the above noted exceptions. Rather, it deals with matters which occurred after the Decision and cannot be described as missing evidence on an essential point, concerning a breach of natural justice or general background which informs the Decision.
41Accordingly, NM’s motion is dismissed.
3. Is NM’s Application Premature
42The Board and the HRTO submit that as the Decision merely deferred the issue of whether to state a case for contempt pending a hearing on the merits of NM’s Complaint, this court ought not to intervene in the HRTO’s proceedings absent exceptional circumstances, of which there are none.
43As noted, contrary to NM’s submission, the Decision does not deny NM’s request to state a case for contempt pursuant to s. 13(1) of the JRPA. Rather, it simply defers the decision to a hearing on the merits of NM’s Complaint. Accordingly, NM’s RFOP is still proceeding.
44It is a well-established principle of administrative law that unless exceptional circumstances exist, a court should not engage in a judicial review of an administrative proceeding until the proceeding has run its course. See: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68 to 70; Halifax Regional Municipality v. Nova Scotia Human Rights Commission, 2012 SCC 10, [2012] 1 S.C.R. 10 at paras. 35 and 36.
45The rationale for that principle was set out by Stratas J.A in C.B. Powell Limited v. Canada (Boarder Services Agency), 2010 FCA 61 at para. 32:
This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates large costs and delays associated with premature forays to court and avoids waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]
46NM has established no exceptional circumstances which would permit this court’s intervention in the issue raised by NM prior to the HRTO dealing with it. While we recognise that there is some degree of urgency in respect of NM’s schooling, in our view, that urgency is more properly addressed between the parties and failing resolution, before the HRTO on the merits rather than through a contempt proceeding.
47NM submits that given the Board’s position, the only remedy left to it was a contempt proceeding. We disagree. NM had other options, including expediting the hearing of his Complaint. Further, a determination of whether the Board was or was not in contempt of the HTRO’s Interim Order, which expired at the end of the 2019/2020 school year, would not resolve NM’s goal of returning to school using his preferred augmentative and alternative communication method.
4. Did the HRTO Err in Refusing to State a Case for Contempt
48NM submits that there was sufficient evidence before the HRTO to establish a prima facie case of contempt such that it did not require a fact-finding exercise.
49The evidence before the HRTO on NM’s RFOP established that both parties had opposing views concerning compliance with the Interim Order. Given the contentious nature of those views and the fact that the Member found they required an oral hearing and were inextricably tied to the merits of NM’s Complaint, the Decision to defer the issue of whether to state a case for contempt to the hearing of the merits of the Complaint in our view was not only reasonable, it was correct. It was within the Member’s discretion given the broad powers of the HRTO under the Act and its rules to facilitate a fair, just and expeditious resolution of matters before it.
50In our view, having regard to the circumstances, the HRTO acted reasonably in deferring NM’s RFOP to the hearing of the merits before deciding whether to state a case for contempt.
5. Remedy
51In light of our decisions herein, it is not necessary for us to consider or decide on the remedies requested by NM.
Conclusion
52For the above reasons, we dismissed both NM’s motion to admit fresh evidence and his application for judicial review.
53At the conclusion of the hearing, NM submitted that he should be entitled to his substantial indemnity costs of the application in the amount of $49,104.15 even if he lost. In support of that submission, he relied on Chaitas v. Greasley, 2019 ONSC 1158 (OSCJ).
54Chaitas was an unsuccessful contempt motion where the motion judge awarded costs to the moving party. NM’s application is not a contempt motion and the facts justifying the award of costs in that case were completely different than the facts here. Chaitas is not applicable.
55The Board was successful on the application and is entitled to its costs. Although its Cost Outline sets out costs comparable to those claimed by NM, it seeks $2,000.00 which is more than fair and reasonable.
56The HRTO seeks no costs. NM on the other hand, seeks costs against the HRTO on the basis that it “entered the arena”. We disagree. The HRTO’s submissions were appropriate given its role before this court.
57Costs of the application payable to the Board by NM, fixed at $2,000.00 in total, payable forthwith.
H. Sachs, J.
N. Backhouse, J.
L. A. Pattillo, J.
Released: December 7, 2020
CITATION: NM v. Dufferin-Peel Catholic District School Board, 2020 ONSC 7443
DIVISIONAL COURT FILE NO.: 145/20
DATE: 20201207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Pattillo, JJ.
BETWEEN:
NM AS REPRESENTED BY HIS LITIGATION GUARDIAN AM
Applicant
– and –
DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Released: December 7, 2020