|February 14, 2014|
Previously published on February 10, 2014
In a decision released on August 21, 2013, the Human Rights Tribunal of Ontario (the “HRTO”) granted an application filed by the mother of an elementary school student who claimed her son experienced discrimination contrary to the HumanRights Code (the “Code”).
In R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (“R.B.”), the HRTO found that the Keewatin-Patricia District School Board (the “Board”)discriminated against R.B. because it denied him meaningful access to education.
R.B. attended Riverview Elementary School for junior kindergarten and senior kindergarten, and Open Roads Public School for grades 1, 2 and 3. R.B.’s claim of discrimination arose out of his grade two and three school years. R.B. has been diagnosed with behavioural issues and developmental delays.
At the end of R.B.’s grade 1 school year, his mother, S.F, was informed by the school’s Vice-Principal that a half-time Educational Assistant (“EA”) would be assigned to R.B. for his grade 2 school year because of school funding. R.B. had been receiving full-time EA support for the two previous school years. The Vice-Principal also told S.F. that she thought R.B. would do well with a 50% reduction in EA support because of the progress he made in grade 1.
S.F. attended an Identification Placement Review Committee (“IPRC”) meeting with counsel at the start of R.B.’s grade 2 year. S.F.’s counsel advocated for full-time direct EA support for R.B. based on medical assessments and the supports required to meet R.B.’s needs. Counsel further submitted that insufficient EA support in the past resulted in behavioural problems, inattentiveness and lack of progress. The IPRC did not address the level of EA support R.B. would be given and recommended that indirect support be provided by the Special Education Resource Teacher (“SERT”) or Literacy Teacher.
Later in September of 2011, S.F. communicated with the SERT and advocated once again for full-time EA support for R.B. When an Individual Education Plan (“IEP”) was developed for R.B. and S.F. provided comments on it, she was informed by the school that her expectations could not be accommodated because they were not reflective of the determinations of the IPRC. S.F. requested meetings with the Special Education Committee to discuss R.B.’s IEP.
In November 2011, the school had concerns about R.B’s behaviour and he was required to write apology notes to other students related to incidents of name-calling and violence. S.F. wrote the school and expressed concern that R.B. was being bullied by other students.
On November 18, 2011, the level of shared EA support was increased by 50 minutes per day and a specific EA was assigned to R.B.’s classroom. EA support was further increased by an additional 50 minutes in January 2012. These increases in support were not communicated to S.F. as they were intended to be temporary.
In December 2011, S.F. and her spouse attended a meeting with R.B.’s Principal and Vice-Principal. As a result of verbal threats made by S.F.’s spouse during the meeting, a trespass notice, applicable to both S.F. and her spouse, and a communication ban, applicable to S.F., were issued. All communications from this point forward had to go through the Superintendent.
S.F. wrote to the Board trustees in January 2012 and complained about the lack of input she had in the development of R.B.’s IEP, the defensive tone of the school, the school’s failure to address R.B.’s medically documented need for EA assistance, and the school’s failure to address issues of bullying.
S.F. contacted the Superintendent when R.B. complained that his EA “grabbed his wrist so tight that it hurt” and that she refused to let go when he asked her to. Her email was forwarded to the school and she received no response. As a result of the school’s failure to respond, S.F. reported the incident to the police.
A second IEP was developed for R.B. in February 2012, providing R.B. with the same SERT and EA support as set out in the earlier IEP. He was also provided with services of a student counsellor once every two weeks, and speech/language pathologist sessions.
In April 2012, a review IPRC meeting was held and S.F advocated for full-time EA support for R.B. as recommended in medical assessments. The IPRC identified R.B. as having multiple exceptionalities and placed him in a regular class with resource assistance. The only recommendation made was that the school and R.B.’s parents maintain regular communication.
R.B. was withdrawn from school in May 2012 for medical reasons related to anxiety and fear of attending school. The medical note stated that the relationship between S.F. and the Board had broken down such that the school was no longer an environment conducive to R.B.’s learning.
At the beginning of the school year, the IPRC recommended full-time EA support for R.B. This was reflected in the IEP, which also provided for support from a SERT, and a speech/language pathologist. S.F. signed this IEP in October 2012, but commented on the lack of consultation with her in its preparation.
During this school year S.F. also complained to the Board about bullying, teasing and segregation of R.B. In October 2012, R.B. attended school wearing a t-shirt that said “Stop the Bullying at Open Roads”.That same week, he attended school wearing a key fob attached to his belt that the school believed to be a recording device. A police investigation regarding the key fob was ongoing as of the date of the
R.B. was excluded from the school on October 22, 2012 for inappropriate behaviour including swearing, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing objects and being non- compliant. His return to school was conditional upon the completion of a psychological assessment and the Board’s confidence that R.B.’s return would not compromise the well-being of his classmates.
During his exclusion, R.B. was provided with instruction from an itinerant teacher in a public library for three hours per week.
A medical assessment of R.B. was conducted in November 2012 and recommendations were made setting out the steps required to transition R.B. back to school. The recommendations included full-time shared EA support, a behavioural management plan, a review of R.B.’s learning and academic skills, a single point of contact between S.F. and the Board (perhaps the Superintendent), regularly scheduled meetings, and regular contact between S.F. and the school teacher through R.B.’s journal. The Board agreed to implement these recommendations on the condition that S.F. would respect the communication restrictions and complete the ongoing human rights process.
The HRTO ordered R.B.’s transition back to school on February 19, 2013, on the terms recommended by the medical assessment, except the requirement that the human rights process be completed. A transition plan was subsequently developed by the Board and R.B. returned to school after an absence of approximately four months.
The HRTO was tasked with deciding if R.B. was discriminated against because of his disability in grades 2 and 3, which were the 2011/2012 and 2012/2013 school years.
A New Standard
In analyzing the Board’s actions under the Code, the HRTO applied a legal framework and test for discrimination set out by the Supreme Court of Canada in Moore v. British Columbia (Education), 2012 SCC 61 (“Moore”). The Supreme Court
of Canada held that in order to demonstrate discrimination in an educational context, an applicant must show that he or she has a protected ground enumerated in the Code, that he or she has experienced an adverse impact with respect to his or her education, and that the protected characteristic was a factor in the adverse impact.
The Supreme Court further held as follows:
...if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student was denied meaningful access to the service based on a protected ground, this will justify a finding of prima facie discrimination.
The Supreme Court also noted that the service to be accessed is education itself, and not special education. Rather, special education is the means by which those students in need get “meaningful access” to the general education services available to all students.
The HRTO decided that this framework applies to the Code in cases alleging discrimination in accessing education. This is the first HRTO case to apply and consider Moore in this context.
For a finding of discrimination to be made, an applicant must prove on a balance of probabilities that he or she has a disability, and that he or she experienced differential treatment linked to that disability. Once a prima facie case of discrimination is made out, defences are available to a respondent under sections 11 and 17 of the Code: that a bona fide requirement exists which resulted in the discrimination, or that the individual with a disability is incapable of performing or fulfilling essential requirements or duties. A respondent may also argue that it attempted to accommodate the needs of an applicant to the point of undue hardship.
The HRTO also commented on Schafer v. Toronto District School Board, 2010 HRTO 403, which held that in order to establish discrimination under the Code, there must be evidence demonstrating that the accommodations provided by a school were significantly inappropriate or inadequate. Before R.B., this standard was applied in human rights cases arising in the education context. In R.B., the HRTO established a presumption of satisfaction of this threshold where meaningful access to education has been denied. Specifically, it stated that “if a special needs student is denied meaningful access to education, it is implicit that the accommodations provided were either inappropriate or inadequate”.
The HRTO has essentially modified the test for discrimination in special education cases by establishing the standard of “meaningful access”. Once an applicant has demonstrated that he or she was denied “meaningful access” to education based on a protected ground, he or she will have satisfied the burden of demonstrating a prima faciecase of discrimination. It is unclear from the decision what the threshold for meaningful access is, what meaningful access looks like, or how far schools have to go to provide it.
Application to the Case
When assessing the case and making a determination of whether the Board discriminated against R.B., the HRTO considered S.F.’s conduct and its potential impact on the Board’s ability to accommodate R.B. The HRTO concluded that there was no evidence to establish a connection between S.F.’s conduct and the accommodation process for R.B. While S.F.’s conduct made her relationship with the Board and school staff difficult, and was inappropriate at times, the Board could not demonstrate that her behaviour prevented the school from meeting R.B.’s educational needs. The HRTO did, however, comment on the likelihood that the Board viewed S.F.’s advocacy for R.B. in a negative light which may have influenced the Board’s treatment of R.B.
The HRTO ultimately found that R.B. was denied access to a meaningful education, that he was discriminated against as such, and that the Board had not established that it was unable to accommodate R.B. to the point of undue hardship. The following were factors relied upon by the HRTO in reaching this decision:
There was no discussion with S.F. prior to the Board’s reducing R.B.’s EA support by 50% and the reduction was not supported by documentary evidence suggesting that R.B. no longer needed full-time assistance. In fact, medical documentation suggested that R.B. required full- time EA support.
The school failed to undertake an objective assessment of the impact of reducing EA support on R.B. and it was incumbent on the school to do so.
It was clear that R.B. had behavioural issues and the school did not implement a behaviour management plan until right before R.B. was excluded from school, leaving no time to put the plan in place and determine its effectiveness.
R.B. was excluded from school without appropriate educational instruction, receiving lessons for only three hours a week in a public library. When R.B. was withdrawn from school, S.F. requested that school work be provided and marked after it was completed. Instead, the school sent a bag of books to R.B.’s home and asked that they be returned in September.
The communication ban denied S.F. the opportunity to meet with R.B.’s teachers and EAs to ensure his needs were met.
The HRTO concluded that S.F.’s relationship with the Board and the school, and not undue hardship, was the driving force behind the Board’s failure to accommodate R.B. and provide him with meaningful access to education.
In addition to a monetary award of $35,000, the HRTO made the following orders:
R.B. would be returned to school in the 2013/2014 year with a full-time shared EA in the classroom, speech/language support for 30 minutes per week, and an appropriate behaviour management plan agreed to by S.F.;
S.F. would be fully entitled to participate in the IPRC review meeting for the school year and the development of R.B.’s IEP; and
The trespass and communication ban would be lifted.
The HRTO further ordered the Board to retain a third party facilitator/mediator to facilitate the reparation of S.F.’s relationship with the school and its staff.
Considering that this is the first HRTO decision to apply Moore it is unclear precisely what the impact is going to be on human rights cases in the education context going forward. However, it is quite possible that school boards will see an increase in human rights claims initiated on the basis that an individual student has been denied meaningful access to education because of a protected ground. The decision does not explain what meaningful access requires in practice, and as such, it is difficult to predict what steps may be necessary in any given case to satisfy the new standard for discrimination in education. School boards should continue to objectively assess the needs of individual students and communicate and work with parents of those students to appropriately support the needs of such students and minimize exposure to a potential human rights claim.