COURT FILE NO.: 55/06
DATE: 20080131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, hoilett and SWINTON JJ.
B E T W E E N:
K.B. (by his litigation guardian R.N.) and T.M. (by his litigation guardian P.A.)
Applicants
- and -
TORONTO DISTRICT SCHOOL BOARD and LOUIE PAPATHANASAKIS, PRINCIPAL, EMERY COLLEGIATE INSTITUTE
Respondents
Lora M. Patton, for the Applicant K.B.
Selwyn Pieters, for the Applicant T.M.
Thomas McRae and Jennifer Trépanier, for the Respondents
Martha Mackinnon, for the Intervenor Canadian Foundation for Children, Youth and the Law
HEARD at Toronto: November 27 and 28, 2007
SWINTON J.:
[1] The applicants, K.B. and T.M., have brought an application for judicial review seeking to quash the decision of the respondent Louie Papathanasakis, Principal of Emery Collegiate (the “Principal”), made on behalf of the Toronto District School Board (the “Board”) to remove the applicants from Emery Collegiate and to transfer them to another school.
[2] The main issue in this application is the jurisdiction of a principal to transfer a student to another school, after a suspension has been imposed, based on concerns for the safety of other students.
Background
[3] On the morning of December 1, 2005, there was an incident at Emery Collegiate involving five students, including the applicants. K.B. is an African Canadian male. At that time, he was in Grade 9 and had attended Emery since the fall of 2005. T.M., also an African Canadian male, was in Grade 12 and had been enrolled at Emery since the fall of 2002.
[4] One of the students, E.F., went to Vice-principal Tom Kolin after the incident and said that he had been assaulted by the applicants and two others, A.B. and C.D. E.F. stated that he had been thrown into the window of a school door. According to Mr. Kolin, E.F. wanted the police to be involved.
[5] At approximately 10:30 A.M., the Principal had been advised that a window in an interior door had been broken that morning. The Principal asked a School Safety Monitor to review the videotape from the security camera in that area to try to determine who had broken the window.
[6] Part of the incident involving E.F. was caught on that videotape, although not the actual assault. The Principal reviewed the tape and believed that it confirmed E.F.’s account. It showed four students, who appeared to be the applicants, along with A.B. and C.D., following E.F. down a hallway. They accosted him and then moved off camera. E.F. is then seen running away from the group.
[7] The applicants were brought to the Principal’s office and kept there for approximately four hours. Mr. Kolin advised that he had been told by police not to call the students’ parents. The police arrived at approximately 11:50 A.M., and the four students were informed at 3:15 P.M. that they were being arrested. All four were charged with assault under the Youth Criminal Justice Act, S. C. 2002, c. 1. K.B. was also charged with threatening death and threatening bodily harm at a pizza store a few days earlier. His bail for an outstanding charge was revoked.
[8] The Principal contacted the parents of the students at about 4:25 P.M., after the students had left the school with the police.
[9] At 4:30 P.M., the Principal interviewed E.F., who gave his account of the fight that day and the reasons that he was afraid for his safety, including what had occurred at a pizza store two weeks earlier. At the pizza store, K.B. told E.F. he was going to get his cousins and come with a gun and shoot E.F. K.B. then threw pizza in E.F.’s face.
[10] With respect to the incident on December 1, E.F. said that T.M. slapped him and E.F. punched him back. T.M. punched E.F. and pushed E.F.’s head into the wired glass of the window of an interior door, breaking the glass, while K.B. kicked E.F. Because the Principal had serious concerns about E.F.’s safety, he drove E.F. home that day, telling him not to return to school the next day.
[11] On December 2, 2005, T.M. was released on bail. One condition of his bail required him to stay more than 500 metres from E.F. or any place where E.F. attended school. K.B. was not immediately released because he had two outstanding robbery charges. However, when he was released, the conditions of his bail did not bar him from attending Emery.
[12] On December 6, 2005, the Vice-principal interviewed two other students, who corroborated E.F.’s account of the pizza store incident.
[13] The Principal also scheduled four meetings on December 6 with the families of the students to discuss the incident and to hear the students’ side of the story. However, the applicants’ lawyers had advised them not to provide statements. The Principal responded that he had to make a decision based on the information he had.
[14] According to the Principal, he then considered all the facts and circumstances surrounding the December 1, 2005 incident, including information provided by E.F., the Vice-principal and the School Safety Monitor and after reviewing the security videotape. He also considered the Ontario Student Record for each of the applicants, which indicated past disciplinary actions.
[15] The Principal concluded that he had no choice but to suspend the applicants, because they were significantly involved in the assault. There was also evidence that K.B. was involved in a previous confrontation with E.F. at the pizza store, in which he threatened to have his cousins come with a gun. In making his decision, the Principal considered the fact that K.B.’s brother had been expelled for bringing a loaded gun to school, and he was concerned that K.B. might have access to guns.
[16] At the same time as the suspension decision, the Principal was concerned about the applicants’ return to Emery, as he feared that they could be involved in future confrontations with E.F. or the two witnesses. Therefore, he decided that it was best for the safety of individuals at Emery such as E.F. and the witnesses that the applicants be transferred to another school.
[17] On December 7, 2005, the Principal telephoned the applicants’ families to advise them that he had decided to suspend the applicants. He also mentioned that they should contact Michael Hill to discuss the school to which the students would be returning.
[18] In a letter dated December 7, 2005, the Principal informed K.B.’s mother that K.B. had been suspended for 16 days, in effect from December 2, 2005 to January 9, 2006, pursuant to s. 306 of the Education Act, R.S.O. 1990, c. E.2 (the “Act”). The stated grounds were that K.B. “threatened to bring friends, relatives with guns to attack a fellow student” and that K.B. “also kicked the same student.”
[19] T.M.’s mother was also notified by letter on the same date that T.M. had been suspended for 16 days, on the basis that “T pushed a fellow student’s head into a glass window, causing the glass and mesh of the window to break”. Both letters included information about the procedure for reviewing the suspension.
[20] Counsel for K.B. advised counsel for the Board that K.B. was appealing his suspension on the basis of a breach of natural justice and on the basis that the suspension had a racially discriminatory impact, was excessively harsh and contravened his rights under the Act, the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Youth Criminal Justice Act. The letter from K.B.’s counsel also expressed concerns about a violation of the Minutes of Settlement arising from a prior complaint to the Ontario Human Rights Commission (the “OHRC”). The other three students also sought a review of their suspensions.
[21] In letters dated December 23, 2005, the applicants’ mothers were asked by Michael Hill, Safe Schools Administrator for the Board, to contact his office to arrange for the transfer of the applicants to new schools effective January 9, 2006. At the request of applicants’ counsel, the Principal provided reasons for the transfers in letters dated January 9, 2006.
[22] On January 12, 2006, the Principal signed Notices Denying Access to Emery to the two applicants, which were provided to their parents. The Notices stated that the applicants were not authorized to enter or remain on the premises of Emery, as the Principal was “concerned for safety or well-being of the victim of the incident which resulted in your recent suspension”. However, the Principal made arrangements to allow the applicants to continue to receive work from Emery until the end of the semester and to write the exams that they would have written at Emery.
[23] In subsequent Youth Court proceedings, T.M. was found guilty of assault with respect to the December 1, 2005 incident and received a conditional discharge. K.B. was found guilty of assault with respect to the November 18, 2005 incident at the pizza store, and was reprimanded. He was acquitted of assault with respect to the December 1, 2005 incident. The two outstanding charges for robbery against K.B. referred to in paragraph 22 of the Principal’s affidavit were subsequently withdrawn by the Crown.
The Statutory Context
[24] The Safe Schools Act, 2000, S.O. 2000, c. 12 amended the Education Act by adding Part XIII, “Behaviour, Discipline and Safety”. Pursuant to the Act as it existed at the time of the Principal’s decision, access to school premises is restricted pursuant to s. 305. Subsection 305(1) authorizes the Minister of Education to make regulations governing access to school premises, identifying classes of persons permitted to be on school premises and specifying the days and times at which different classes of persons are prohibited from being on school premises. Pursuant to s. 305(2), no person can enter or remain on school premises unless authorized by regulation to be there on that day or at that time. Subsection 305(4) authorizes a principal to direct a person to leave the school premises if the principal believes that person is prohibited from being there, either by regulation or under board policy.
[25] Ont. Reg. 474/00 – Access to School Premises has been adopted pursuant to s. 305(1). Subsection 3(1) provides:
A person is not permitted to remain on school premises if his or her presence is detrimental to the safety or well-being of a person on the premises, in the judgment of the principal, a vice-principal or another person authorized by the board to make such a determination.
[26] Sections 306 through 308 of the Act govern the suspension of pupils, while expulsion is governed by sections 309 through 311.
[27] Section 306 provides for a mandatory suspension if a student commits specified infractions while at school or engaged in school-related activities – for example, uttering a threat to inflict serious bodily harm on another person. Such a suspension can be for a maximum duration of 20 school days. In determining the duration of a mandatory suspension, the principal must consider the pupil’s history and such other factors as are prescribed by regulation or as the principal considers appropriate. Section 307 provides for a discretionary suspension of a pupil, for a maximum period of 20 school days.
[28] Section 308 provides a right to review the suspension to the parent of a pupil who is a minor or to the pupil, if not a minor. There is also a further right to appeal following a review.
[29] Section 309 provides for mandatory expulsion if a pupil commits specified infractions while at school or engaged in school-related activities – for example, possessing a weapon, including possessing a firearm. A principal has a duty to suspend a pupil who the principal believes may have committed one of the specified infractions. The principal must then conduct an inquiry or refer the matter to the board. If, after an inquiry, the principal is satisfied that the pupil committed an infraction, he or she shall impose a limited expulsion of up to one year or refer the matter to the board (s. 309(7) and (14)). If a matter is referred to the board, an expulsion hearing must be held. The board may impose a full expulsion, with the effect that the pupil is not entitled to attend any school in the province or engage in any school-related activities until he or she meets the requirements established by regulation for returning to school following an expulsion (s. 309(11) and (16)).
[30] Section 310 provides for discretionary expulsion of a pupil in accordance with board policy, while s. 311 provides a right to appeal a decision to expel a pupil to the parent, if the pupil is a minor, or to the pupil, if not a minor.
The Issues
[31] This application raises a number of issues:
What is the appropriate standard of review?
Did the Principal have the power to deny access to and transfer the applicants from the school in which they were enrolled to another school?
Did the Principal breach a duty of procedural fairness in coming to his decision?
Did the decision infringe the applicants’ rights under s. 7 of the Charter?
Did the decision infringe the applicants’ rights under s. 15 of the Charter?
What is the appropriate standard of review?
[32] The applicants submit that the appropriate standard of review is correctness, because the issue before this Court is the jurisdiction of the Principal to remove the applicants from the school.
[33] The respondents submit that the standard of review applicable to a decision of a school board or administrator concerning safety and discipline is patent unreasonableness.
[34] To the extent that the issue here is the jurisdiction of the Principal to deny access and to transfer a student, after a suspension has been imposed, the standard of review is correctness. The issue of jurisdiction requires interpretation of the Act and regulations, a question of law on which this Court has greater expertise than a school principal.
[35] However, if a principal has such jurisdiction, review of a decision to deny access or to transfer must be on a standard of patent unreasonableness, because such a decision is heavily fact-driven and involves the expertise of a principal in matters of school discipline and safety (Walker Youth Homes Inc. v. Ottawa-Carleton District School Board, [2004] O.J. No. 2307 (S.C.J.) at 52; S.J. v. Toronto Catholic School Board, [2006] O.J. No. 2378 (Div. Ct.) at para. 34; R. v. M. (M.R.) (1998), 1998 770 (SCC), 166 D.L.R. (4th) 261 (S.C.C.) at para. 49).
[36] With respect to the issue of procedural fairness, there is no need to determine the standard of review (Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419 (Div. Ct.) at para. 16). Rather, the Court must determine whether there has been compliance with the rules of natural justice and procedural fairness.
Did the Principal have the power to deny access to and transfer the applicants from the school in which they were enrolled to another school?
[37] The applicants submit that the Principal had no jurisdiction deny them access to Emery or to transfer them. In their submissions, Part XIII of the Act contains a package of legislative provisions dealing with the discipline of students, providing for both temporary removal in the form of suspensions and longer-term removal in the form of expulsions. The Principal, having invoked the disciplinary process, has no jurisdiction to use other provisions of the Act and regulations to remove a student from a school, as the provisions relied upon by him here provide less procedural protection for a student.
[38] The intervenor submits that s. 305 of the Act does not permit the Principal to transfer a student, as the power granted is only to allow principals to take short term action to keep the school safe from imminent risk by denial of access. Moreover, it is not available when the discipline provisions of the Act have been invoked. Finally, exclusions and transfers act as an “end run” around the statutory scheme and are, therefore, an abuse of process.
[39] The respondent takes the position that the Principal has the power to deny access to a student under s. 305 of the Act, as the discipline provisions and the denial of access provision bring different considerations into play. The former is retrospective, while the latter is prospective. Moreover, a principal and board have the inherent authority to transfer a student who has been denied access to a school for safety reasons.
[40] A principal has numerous statutory duties, including the duties to maintain proper order and discipline in his or her school and to be attentive to the health and comfort of the school’s pupils (Act, ss. 265(1)(a) and (j)).
[41] Pursuant to s. 305(1) of the Act, the Minister may make regulations governing access to school premises and specifying classes of persons permitted to be on school premises. No person is allowed to enter or remain on school premises unless the regulation permits his or her presence (s. 305(2)). The principal has the power to order a person to leave school premises if the principal believes that the person is prohibited by regulation from being there (s. 305(4)).
[42] Pursuant to s. 3(1) of O. Reg. 474/00, quoted earlier in these reasons, the Principal has the power to refuse persons access to a school or to require them to leave a school if, in his opinion, their presence is “detrimental to the safety or well-being of a person on the premises”. In this case, the Principal denied the applicants access to Emery under the combined effect of s. 305 of the Act and s. 3(1) of the regulation.
[43] While the intervenor submits that the provision of the regulation is not meant to apply to a student, the Court of Appeal held in Bonnah (Litigation Guardian) v. Ottawa-Carleton District School Board (2003), 2003 19087 (ON CA), 64 O.R. (3d) 454 that the word “person” in s. 3(1) includes pupils as well as non-pupils (at para. 35). In that case, the Court held that exceptional pupils were not removed from the application of s. 3(1) just because there are special provisions in the Act and regulations relating to their placement. According to Doherty J.A. (at para. 35):
Where there are genuine safety concerns, considerations of the best interests of the child must extend to all the children whose safety is at risk.
Therefore, a principal could exclude an exceptional pupil from a school for safety reasons.
[44] However, the Court held that a board has no power to order an administrative transfer of an exceptional pupil, as the regulations confer a right on such a pupil who is appealing a placement order to retain his or her current placement pending the outcome of the appeal. All that the principal could do, given the concerns about safety, was to exclude the student from school for legitimate safety reasons or offer the parents an alternative placement. The Court left open the question whether the board could transfer other students for safety reasons (at para. 39).
[45] The intervenor also submitted that s. 3(1) only permits short-term exclusions from school premises and does not apply when the disciplinary provisions of the Act have been invoked. However, no authority was cited for these propositions.
[46] Given the holding in Bonnah, the Principal in this case had the power to deny access to Emery, even though the applicants were students. He was of the view that their presence would endanger the safety of E.F. and other students. While the applicants and the intervenor suggest that this was a form of disguised discipline, and an “end-run” on the procedural protections available by statute when discipline is imposed, there is nothing in the record which challenges the bona fides of the Principal’s decision or suggests that he was intentionally trying to deprive the applicants of their procedural rights.
[47] Moreover, a transfer, while a potentially serious disruption for the student, is a lesser consequence than an expulsion. This is recognized in s. 8(f) of the settlement reached between the OHRC and the Board dated October 28, 2005:
The TDSB will implement a procedure for student discipline with the goal of avoiding suspensions or expulsions. This procedure will be based on the principles of progressive discipline and will include but is not limited to:
(i) detention;
(ii) peer mediation;
(iii) restorative justice;
(iv) referrals for consultation; and
(v) transfer. (Application Record, p. 50)
[48] In my view, the power to transfer students in the situation of the applicants is implicit in the powers of a school board. Section 21(1) of the Act provides for compulsory school attendance of students from the age of six years until the student turns sixteen, subject to the excuses from attendance found in s. 21(2). Pursuant to s. 32(1) of the Act, a person has the right to attend a school in a school section, separate school zone or secondary school district, as the case may be, in which the person is qualified to be a resident pupil. However, as this Court held in S.J., supra, a student does not have the right to attend a particular school (at paras. 67-68).
[49] Similarly, the result in cases which have dealt with school closings suggests that a student does not have a right to attend a particular school (Crawford v. Ottawa Board of Education, 1970 385 (ON CA), [1971] 2 O.R. 179 (C.A.) at 190; Re Robertson and Niagara South Board of Education (1973), 1973 732 (ON SCDC), 1 O.R. (2d) 548 (Div. Ct.) at 551-552).
[50] Emery is not the designated school for either of the applicants. The Principal concluded that there was a need to transfer them for safety reasons. As well, there was no choice but to find another school for T.M., because his bail conditions prevented him from attending the same school as E.F. Moreover, because K.B. was under 16 years of age, he was not only entitled, but required to attend school (Act, ss. 22(1) and 32(1)).
[51] The intervenor submitted that the Principal should have considered the best interests of the applicants in determining whether to transfer them. Reliance is placed on the United Nations Convention on the Rights of the Child. Article 3 provides that in all actions, whether undertaken by courts or administrative authorities, the “best interests of the child shall be a primary consideration”.
[52] However, that Convention has not been implemented by Parliament or the Ontario Legislature, and its provisions have no direct application in Canadian law. While a convention may be used in the interpretation of statutes when they are unclear or ambiguous (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 at para. 32), the language of s. 3(1) is clear. There is only one factor to be considered in deciding whether to deny a person access to school premises: whether the individual’s presence is detrimental to the safety or well-being of a person on the school premises. No reference is made to the interests of the person who may be excluded. Indeed, the Court of Appeal in Bonnah made it clear that the question of placement for a student is different from the question whether a student is a safety risk to other students.
[53] In any event, in determining whether a student should be denied access, the Principal must consider the best interests of all the students in the school, not just the best interests of the applicants. That is what he did here. In my view, what he did was consistent with the Convention.
[54] Therefore, in the circumstances of this case, the Principal had the power to deny access to Emery and to transfer the applicants.
Did the Principal breach a duty of procedural fairness in coming to his decision?
[55] The content of the duty to act fairly depends on the consideration of a number of factors:
(a) the nature of the decision made
(b) the role of the legislative scheme
(c) the importance of the decision to the individual affected
(d) the legitimate expectations of the person challenging the decision and
(e) the nature of the deference accorded to the decision-making body. (Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village) (2004), 2004 SCC 48, 241 D.L.R. (4th) 83 (S.C.C.) at para. 5)
[56] The issue to be determined in this application is whether the Principal acted fairly in coming to his decision to transfer the students. While the applicants claim that the Principal failed to conduct a thorough and unbiased investigation of the incident before contacting the police, that is not relevant to the determination whether the applicants were denied procedural fairness when he decided to transfer them.
[57] Similarly, the fact that the parents were not notified of the allegations against their sons until almost 4:30 P.M. has no bearing on the fairness of procedure leading to the Principal’s decision, as he did not attempt to speak to the students that day.
[58] In my view, there was no breach of the duty of procedural fairness. The Principal conducted an investigation before deciding to transfer the applicants, as described earlier in these Reasons. He invited the applicants to give their side of the story of the incident before he made his decision. On the advice of counsel, they chose not to speak, and it is understandable why they did not speak, given the criminal charges. However, that does not undermine the fairness of the procedures which led to the decision.
[59] While the applicants allege that they should have been given disclosure of the statements of the two witnesses, this is not a denial of procedural fairness. What fairness requires in this setting is an opportunity to respond to the allegations made. The applicants were offered this opportunity, and they have not said that they did not know the allegations against them. Indeed, there is evidence supporting the conclusion that the applicants did know the allegations. For example, R.N., the mother of K.B., states in her affidavit that on December 1, 2005, she was advised that the events “had to do with a fight between five students, one of whom alleged that my son threatened him”.
[60] The Principal also provided notice of the transfer and adequate reasons for it. His notes indicate that the applicants’ parents were told of the transfers by telephone on December 6, 2005. On request, the applicants were provided with written reasons for the Principal’s decision to transfer them in letters dated January 9, 2006. In the letters, the Principal explained that the main reason for the transfer was the safety and security of the victim in the incident which resulted in the suspension, as well as the safety and security of the witnesses. As well, the Notices Denying Access set out the reason for the denial.
[61] In the circumstances, there has been no breach of the duty of procedural fairness.
Did the decision and process infringe the applicants’ rights under s. 7 of the Charter?
[62] The applicants submit that the Principal’s decision to remove the applicants from Emery and the process by which that decision was reached infringed their rights to liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms.
[63] Section 7 provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The Supreme Court of Canada has held that the liberty interest protected by s. 7 “is engaged where state compulsions or prohibitions affect important and fundamental life choices” (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at para. 49). However, the Court also stated that “such personal autonomy is not synonymous with unconstrained freedom” (at para. 54).
[64] The right to security of the person protects an individual from interference with psychological integrity by the state, but only if serious psychological prejudice results (ibid. at para. 57).
[65] The applicants allege that the right to liberty protects a student’s right to make decisions with his or her parents, including a decision whether to continue the student’s education at the home school he has been legally attending and his right not to be banned from that school.
[66] In my view, the applicants have failed to show that their right to liberty has been infringed. They have provided no authority to support their submission that choice of a particular school is a “fundamental life choice” protected by the right to liberty.
[67] Subsection 32(1) of the Act provides that a person has the right to attend a school in a school section, separate school zone or secondary school district, as the case may be, “in which the person is qualified to be a resident pupil”. However, it is settled law in Ontario that no pupil has a right to attend a particular school. Indeed, this Court has held that no pupil has a vested interest in attending any single school (S.J., supra at para. 68). Therefore, there has been no interference with an important and fundamental life choice so as to constitute a denial of liberty.
[68] Moreover, the applicants have failed to show that their right to security of the person has been infringed. The only evidence to support this claim is an affidavit from the mother of R.N., which states that her son’s transfer left him distraught and had a devastating impact on his schooling and self-esteem.
[69] These statements, without some substantiation of the extent and nature of the impact on K.B.’s psychological integrity, are not sufficient to prove that there has been an infringement of the right to security of the person. Without a proper factual foundation, the applicants’ arguments based on s. 7 of the Charter fail.
Did the decision and process infringe the applicants’ rights under section 15 of the Charter?
[70] The applicants submitted that the role of societal attitudes towards young, male, African-Canadian students ought to have been taken into account by the Principal when determining whether to transfer and deny access to the applicants. The failure to do so was discriminatory, contrary to the guarantee of equality in s. 15 of the Charter.
[71] The applicants relied on a report made by a human rights consultant to the OHRC entitled “The Ontario Safe Schools Act: School Discipline and Discrimination”(July 8, 2003) quoting the following excerpt (p. 3):
This report finds that in the Greater Toronto Area (GTA) and other parts of Ontario there is a strong perception, which is supported by some independent evidence, that the Safe Schools Act and school board policies are having a disproportionate impact on racial minority students, particularly Black students, and students with disabilities.
[72] In order to succeed under s. 15 of the Charter, the applicants must establish that the legislation subjected them to differential treatment on the basis of a personal characteristic, either in its purpose or effect. Secondly, they must show that an enumerated or analogous ground of discrimination is the basis for the differential treatment. Finally, they must show that the differential treatment denied their equal human dignity and is, therefore, substantively discriminatory (Gosselin v. Quebec (Attorney General) (2002), 2002 SCC 84, 221 D.L.R. (4th) 257 (S.C.C.) at para. 17; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497 at para. 88).
[73] Crucial to the analysis under s. 15 is the selection of an appropriate comparator group. The claimant must show that the benefit sought was granted to a comparator group that mirrors the characteristics of the claimant in ways relevant to the benefit, except for the personal characteristic associated with the enumerated or analogous ground raised as the basis for the discrimination claim (Hodge v. Canada (Ministry of Human Resources and Development), 2004 SCC 78, [2004] 3 S.C.R. 657 at para. 53).
[74] Again, the applicants have failed to provide the necessary evidentiary basis to support their Charter equality claim. There is no evidence of any improper considerations by the Principal in coming to his decision.
[75] Moreover, the evidence necessary for a proper s. 15 analysis is lacking. There is no evidence of a comparator group provided by the applicants, nor is there evidence which would support their submission that the transfer and denial of access were discriminatory. Finally, the report to the OHRC is not proper evidence in this case, given that it is a report prepared by a consultant on the basis of anecdotal information and perceptions. Therefore, the claim for relief under s. 15 of the Charter must fail.
Conclusion
[76] The application for judicial review is dismissed. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Swinton J.
Lane J.
Hoilett J.
Released: January, 2008
COURT FILE NO.: 55/06
DATE: 20080131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, HOILETT AND SWINTON JJ.
B E T W E E N:
K.B. (by his litigation guardian R.N.) and T.M. (by his litigation guardian P.A.)
Applicants
- and -
TORONTO DISTRICT SCHOOL BOARD and LOUIE PAPATHANASAKIS, PRINCIPAL, EMERY COLLEGIATE INSTITUTE
Respondents
REASONS FOR JUDGMENT
SWINTON J.
Released: January 31, 2008