Groundbreaking Ontario Human Rights Special Education Decision

Very interesting news here:

For what appears to be the first time, a Human Rights Tribunal has applied the principles set out by the Supreme Court of Canada (SCC) in the recent human rights/special education case of  Moore v. British Columbia (Education) 2012 SCC 61 (Moore). You can find a discussion of the SCC decision here.

The mother in RB v Keewatin-Patricia District School Board approached the Ontario Human Rights Tribunal following a series of incidents and failures to appropriately accommodate her child, who had been diagnosed with Pervasive Developmental Delay Not Otherwise Specified (“PDD NOS”). These incidents had repeatedly been raised by the parent and escalated to the School Board level without any resolution.

Starting in Kindergarten, the child had been provided with an IEP (aka IPP) and Educational Assistant (EA) support. However, his EA support was cut quite significantly in Grade 2, despite the parent's objections. There were also allegations that the child's EA was being inappropriately forceful with him. Issues continued throughout Grade 3, including segregation in and outside of the classroom and teasing and bullying by other students. Not surprisingly, behaviour issues intensified.

Eventually the child was "excluded" (presumably suspended) from school by the Principal for inappropriate behaviour, including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being generally non-compliant. The parent was advised that he could not return to school until a psychological assessment was completed by the Board's school psychologist and the Board was confident that his return would not compromise his or other students' physical and mental well-being.

During this time, he was provided with instruction from an itinerant teacher three hours per week. The parent supplemented this instruction and due to her good rapport with the itinerant teacher, the child made significant academic gains, going from reading at level 2 when he was "excluded" to level 7 four months later.

But in an interesting twist, not only had the child been *excluded* from school for several months in Grade 3, but the mother had also withdrawn him from school the previous year for a period of time. Get the picture?

I would like to say that such fact situations are rare. Sadly, you and I both know they aren't. In fact, I can think of three very similar situations right here in Nova Scotia, without even giving the matter much thought. The difference, sadly for us in Nova Scotia, is in how the local situations ended.

At any rate, the Ontario Human Rights Tribunal found several failures to accommodate the student, including

• a significant reduction in support of an Education Assistant;
• a failure to develop an appropriate behaviour management plan; and 
• the exclusion of the child from school without proper educational programming in place.

That's right. Your eyes have not deceived you.

• a significant reduction in EA support was found to constitute a failure to accommodate
• failing to develop an appropriate behaviour management plan was found to constitute a failure to accommodate
• "excluding" (or suspending) the child from school without providing proper education programming was found to constitute a failure to accommodate.

So for those of you (and you know who you are) who were wondering about the possibility of taking certain types of cases forward as human rights complaints, were you to ask (again) ... let's just say my response would now be much more positive following the decisions in Moore and RB v Keewatin-Patricia District School Board.

Also of interest - even though a difficult relationship existed between the school and student’s mother (no surprise there), the Tribunal found that the parent’s behaviour was insufficient to justify the discrimination experienced by the student. Yet another favourite school argument shot down.

Words to live by from the Tribunal:

“if a special needs student is denied meaningful access to education, it is implicit that the accommodations provided were either inappropriate or inadequate”.

** Also of note are several interim decisions released by the Tribunal. [Interim decisions deal with issues that come up along the way before the matter makes it to a full hearing.] For example, in this case, the parent (applicant) successfully requested that the Tribunal expedite (speed up) the proceedings due to the urgent nature of the case.

In this regard, the Tribunal stated that:

having regard to all of the circumstances, including the applicant’s medical condition that led to him being withdrawn from school in May 2012, and the trespass notice and communication ban that remains in place against the applicant’s sole custodial parent, the Tribunal grants the Request to Expedite. I am satisfied that truly urgent circumstances exist that may affect the fair and just resolution of the merits of the Application if the Application does not proceed on an expedited basis.

The willingness of the Tribunal to expedite the matter is very significant, given how long human rights proceedings always generally take.

The parent was also successful in obtaining an interim order, requiring that the child be transitioned back to school until the merits of the application were dealt with (meaning until a full hearing was held). The Tribunal member found that the level of instruction provided during the child’s exclusion from school was inadequate and evidence showed that he would experience harm.

There is significant harm to R.B. in denying the interim remedy. It is beyond dispute that excluding a nine-year-old child from school for an entire school year causes irreparable harm that cannot be compensated by three hours of instruction per week, especially when that child has the kind of complex needs that R.B. has. While R.B. may not have suffered irreparable harm today, he will no doubt experience irreparable harm if he is not returned to school until September 2013. The respondent’s psychologist agrees with the applicant’s specialists that R.B. should be back in school.