Education Matters - An Excerpt from ARCH Alert Issue of December 6, 2010

December 6, 2010

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ARCH Alert    

 

This article is excerpted from ARCH Alert issue of December 6, 2011

- Education Matters
By Robert Lattanzio, Staff Lawyer
 

- There have been some recent decisions from the Human Rights Tribunal of Ontario, and from various levels of court, that consider issues related to education services provided to students with disabilities in primary and secondary public schools.

To read the 2010 Provincial Report Card: ADHD in the School System; CADDAC’s policy paper titled Equitable Access to Education for all; or to learn more about the recent launch of the Fairness in Education Campaign, please visit the following link: www.caddac.ca

The following is a brief summary of three decisions that are of special interest.

Human Rights Tribunal decision

The Human Rights Tribunal of Ontario has released numerous interim and final decisions in the last year in cases concerning education services delivered by public school boards to students with disabilities.

A recent positive decision from the Human Rights Tribunal is the case of
M.O. by his next friend, J.O. v. Ottawa Catholic District School Board. The applicant, J.O. on behalf of his 5 year old son M.O., brought the application alleging discrimination in receipt of services by the Ottawa Catholic District School Board (“Board”) on the basis of disability. M.O. was diagnosed as being on the autism spectrum.  

In this case the School Board denied M.O. transportation services from a private centre (the “Centre”) where he received Intensive Behavioural Intervention (“IBI”) therapy, to his school. The School Board denied the request because their policy is that transportation is provided only from licensed daycare providers to school. The Centre is not a licensed daycare. The applicant argued that due to his disability, he cannot attend regular day care. The School Board argued that there was no discrimination because no other students were provided transportation to or from therapy.

The Tribunal accepted that the transportation services were part of the services provided by the board to its students, and that once having chosen to provide such a service, it cannot discriminate in the delivery of the services. The Tribunal also stressed that regardless of whether the Board provides other special education services, it is not a defense if the Board provides transportation services in a discriminatory way.

In its analysis, the Tribunal compared M.O. to other children with autism “whose disabilities are less severe and so are able to attend a regular day care facility”.

The Tribunal found that the daily therapy provided by the Centre also served as M.O.’s caregiver, and found that but for the fact that the Centre was not a licensed day care provider, it is much more akin to childcare services than to other therapies such as receiving treatment at a hospital for illness.

The Tribunal found that the Board did not sufficiently investigate the request for transportation services and the decision had appeared to be motivated by a fear of setting an undesired precedent. The Tribunal found that the Board was in violation of M.O.’s rights pursuant to the Ontario Human Rights Code. The Tribunal ordered that M.O. receive transportation services from the Centre to school, and that the Board review requests made by pupils with disabilities for transportation services on an individual basis in compliance with human rights obligations. Out of pocket expenses and monetary compensation of $10,000 were also awarded.

To view this decision, please use the following link:

http://www.canlii.org/en/on/onhrt/doc/2010/2010hrto1754/2010hrto1754.html

Decision of the Superior Court of Justice – Divisional Court

The Divisional Court of Ontario’s decision in Kozak (Litigation guardian of) v. Toronto District School Board, centered on whether a Special Education Tribunal erred in dismissing the appeal and upholding the placement decision decided by the Identification, Placement and Review Committee (“IPRC”). The applicant, Jared Kozak was diagnosed with autism and received Intensive Behavioural Intervention (“IBI”) therapy. In 2006, Jared continued to receive IBI in the afternoons and was enrolled in his neighborhood school. He was in a regular class placement 50% of that half day and was withdrawal from that class for the remainder of the half day. During his grade two year, concerns were expressed by the school with regards to Jared’s behavior; concerns were also expressed by Jared’s mother and an expert that Applied Behavioural Analysis (“ABA”) was not being implemented properly and adequately by the school. Jared’s mother and his IBI therapist agreed that he was showing great signs of achievement both socially and academically and both were in agreement that Jared was ready to be in a regular class environment in order to progress with the skills that he had been acquiring through IBI. However, at the end of Jared’s grade two year, an IPRC decided that Jared should be in a segregated placement (i.e. Special Education Class: Intensive Support Program). That decision was appealed by Jared’s litigation guardian up to the Special Education Tribunal.  

The standard of review that the Divisional Court applied in its review of the SET’s decision was that of reasonableness. The Court found that the Tribunal’s decision was reasonable and dismissed the applicant’s arguments.

Firstly, the Court found that section 17(1) of Regulation 181/98, Identification and Placement of Exceptional Pupils, did not create a presumption in favour of a regular class placement. Section 17 states that when making a placement decision, an IPRC must first consider the option of whether a regular class placement, “with appropriate special education services”, would meet the needs of the student and the wishes of the student’s parents. The Court found that in considering s. 17, the Tribunal was nonetheless permitted to make its decision based on the actual special education services provided in the regular class placement, even if such services were argued to be inadequate. The Court also dismissed the arguments that the Tribunal erred in not considering the services that would be provided in the proposed special education class. Also dismissed by the Court was the argument that the lack of detail with regards to the Tribunal’s order effectively allowed the Toronto District School Board (“TDSB”)  to decide on the particulars of the placement essentially usurping the role of the Tribunal.

This decision is currently not available on the public Canlii.org website, but is available through other private legal databases such as Quicklaw. The citation for this decision is 2010 ONSC 2588.

Decision of the Court of Appeal for British Columbia

In 2005, the British Columbia Human Rights Tribunal released a very lengthy and detailed decision in the case of Moore v. British Columbia (Ministry of Education) and North Vancouver School District No. 44. The Tribunal found that the claimant, Frederick Moore on behalf of his son Jeffrey, had been discriminated on the grounds of disability by the Board of Trustees School Division (“District”) and the Ministry of Education of British Columbia (“Ministry”). The facts of the two human rights complaints that were filed involved the District’s decision to close a specialized facility for “intensive remediation” specifically for students with severe learning disabilities, which was a decision in response to the Ministry’s changes in funding allocation. Jeffrey has a severe learning disability and in 1994, he became eligible to attend an intensive program for students with severe learning disabilities, but that program had been cut due to financial cost saving measures made that same year. The services that were subsequently offered were not comparable and Jeffrey later attended private school. The Human Rights Tribunal found that the Respondents failed to provide Jeffrey with appropriate accommodations because he was not provided the appropriate and effective remediation, and because services were cut to students with severe learning disabilities without sufficient alternate services in place. On an application for judicial review, the British Columbia Supreme Court released its decision in 2008 and quashed the Tribunal’s decision. That decision was appealed by Mr. Moore to the Court of Appeal for British Columbia.

The Court of Appeal released its decision on 29 October 2010, and dismissed the appeal. The majority of the Court found that there was no differential treatment and that there was no basis for a finding of discrimination. The Court’s starting point was to agree with the reviewing judge that the service in question was “special education” rather than general education. The Court proceeded from that basis to compare Mr. Moore with other students who received special education and concluded that there was no differential treatment, since no student receiving “special education” had access to the services that Mr. Moore was asking for during that period of time.

Justice Rowles of the Court of Appeal dissented and delivered strong reasons in support of the appeal. Justice Rowles agreed with the Tribunal that the service in question is general education because “it is not an ‘ancilliary’ service; instead it is the way by which meaningful access to the service can be achieved.” Justice Rowles noted that a very narrow interpretation of the service at issue, as taken by the majority of the Court of Appeal, “effectively dooms the complainant’s case from the outset”.

To view the entire decision of the Court of Appeal, use the following link:

http://www.canlii.org/en/bc/bcca/doc/2010/2010bcca478/2010bcca478.html


 
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