Board Ordered to Pay a Proportional Share of Teacher’s Hearing Aid

Gillian Tuck Kutarna, Guelph

Modification of the work and the workplace found not to be enough in meeting the duty to accommodate a disability.

When the Thunder Bay Catholic District School Board refused to pay for a digital hearing aid for a severely hearing impaired teacher, the Ontario English Catholic Teachers’ Association grieved the denial, arguing that the Board had failed in its duty “to accommodate a disability under the Ontario Human Rights Code” R.S.O. 1990, c. H.19.

The Board described the numerous ways in which it had met its obligation to modify the workplace, the type of work, and the way the work was performed, including the construction of a soundproof work room, one-on-one teaching duties, and the provision of a specialized telephone and a directional microphone system.  

However, the teacher’s evidence was that, notwithstanding these many other accommodations, she could not function in the workplace without the digital hearing aid, and so at issue was whether the Board’s duty to accommodate her disability extended to providing her with a ‘personal bodily assistive device’.

The Arbitrator considered the principle that an employer does not have to provide the employee with the ideal, or even their preferred accommodation.  They may elect such reasonable accommodations as will allow an employee to function in the workplace. 

Although the Board submitted that it was satisfied with the teacher’s competency, the Association pointed to the Ontario College of Teachers’ “Standards of Practice for the Teaching Profession” which includes the requirement that teachers “communicate effectively with pupils, parents and colleagues”. An ability to communicate effectively was therefore found to be a workplace standard, and one which this teacher needed a digital hearing aid to meet.

The Arbitrator commented that with access to ever-advancing technological improvements it was time to dispense with the “bright line” which had previously been drawn between the physical workplace environment and the “boundary of the human body”.  He found that the Human Rights Code demands, and the Supreme Court of Canada has endorsed, an open-ended search for all available means of accommodation. 

With other examples of ‘personal bodily assistive devices’ including things like eye glasses, prosthetics, and wheel chairs, the Board understandably raised an “opening of the floodgates” argument.  However, the Arbitrator disagreed that this was a serious risk, noting the multiple requirements which must be met, including that the need must arise from a workplace standard, could not be reasonably addressed by other means, and could be provided without undue hardship to the employer.

The Board also argued that it was available to the teachers association to negotiate for an extension of their benefits coverage to include things like digital hearing aids through the collective bargaining process.  However, the Arbitrator held that the fact that they had not done so did not protect the Board from a discriminatory policy.

Arbitrator Luborsky acknowledged that an individually fitted device like a hearing aid essentially becomes the employee’s property, for use at work as well as for the hours that they are not on the job, conferring some personal benefit to the employee.  The parties were therefore directed to determine the proportionate amount of time the teacher would be using the device on the job, and the Board ordered to pay that share of the purchase and maintenance costs.

Whether paying for 100%, or the suggested 17.5%, of a $2,200.00 device, the Board was not in a position to argue that the expense constituted an undue hardship.  Rather, their submissions reflected that their greater concern was for the broader financial implications of a decision which dismissed the Board’s good faith history with this employee, the potential for a remedy through collective bargaining, and an obligation to contribute to a personally fitted device, the predominant use of which would be on personal time. 

It will be interesting to see whether subsequent decisions bear out the Arbitrator’s confidence that in making the leap from requiring an employer to modify the workplace to essentially modifying the worker, a cautious rather than a liberal jurisprudence will emerge. Given that employers may elect to accommodate a disability with any means reasonable, we may also watch for a decision in which an employer asserts its right to meet its obligation by providing a personal bodily assistive device, contrary to an employee’s expressed preference.

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Accommodation Must be Adequate Not Ideal

Nadya Tymochenko, Toronto

The Human Rights Tribunal of Ontario has continued to clarify its role with respect to students with special needs.  In this case, the Applicant, through his mother as litigation guardian, alleged that he was not sufficiently accommodated when attending an elementary school of the Toronto District School Board.  Some of the allegations made in the Application were dismissed following an interim hearing in 2008, because they were the subject of findings by the Ontario Special Education (English) Tribunal.  The remaining allegations proceeded to be heard in a decision that was issued in July 2011. The allegations included:

1. that the school board failed to provide competent and continuous special needs education assistant support;
2. that there was a delay in providing computer equipment and adequate training for teachers regarding the use of that equipment;
3. that there was insufficient toileting support; and
4. that the student was not able to participate sufficiently in school because of the amount of time he was required to spend outside the classroom.

The adjudicator, when describing the Tribunal’s role in adjudicating special education cases, cited and relied on a passage from a previous case to identify the limited role of the Tribunal:

…it is not the role of this Tribunal to oversee the implementation of the Education Act.  Whether or not a school board strictly follows the procedures to arrange IPRCs or prepare IEPs is not for the Tribunal to determine.  So long as there are steps taken to assess the child’s needs and prepare accommodations, then generally the procedural standard of the duty of accommodation will be met.

Similarly, as long as the substantive accommodations as recommended in the IPRC and IEP are generally implemented, the substantive standard of the duty to accommodate will be met.  The issue is not whether the accommodations implemented are what the student or parent wanted, whether they were the ideal accommodations, or whether other accommodations would have been equally appropriate.  The simple question is this; did the school board implement accommodations (generally, but not necessarily a recommended by the IPRC or IEP) that met the child’s special needs?

The adjudicator confirmed that, despite the presumption that an Applicant who has been identified as an exceptional pupil will require accommodation, the Applicant must still establish on a balance of probabilities that there has been prima facia discrimination.  In other words, the Tribunal confirmed that, just because a student requires accommodation, it does not mean that there is a presumption that discrimination has occurred.  It remains the burden of the Applicant to show that there is a need that has not been accommodated, or that there has been one or more instances giving rise to a prima facia case of discrimination.

The adjudicator reviewed, in some detail, the history of the Applicant’s placements and accommodations, including the Applicant’s access to special education supports and services. 

With respect to the first allegation, regarding special needs educational assistant support, the Tribunal found that the Applicant’s disabilities did not require that he be accommodated by receiving services from the same individual for the entire day in order to access his educational programming.  Further, the Tribunal found that the school board, through training, minimized the impact of changing staff.  The Tribunal held that there was no failure by the school board to provide the Applicant with necessary accommodation. 

Similarly, with respect to the second allegation regarding computer technology, the adjudicator held that accommodations provided to the Applicant were appropriate in the circumstances.

Regarding the third allegation, with respect to his toileting accommodations, the adjudicator found that there was no evidence that suggested that the Applicant did not receive the necessary accommodations. 

The Applicant’s final allegation was that the time that he spent outside the classroom setting deprived him of an academic program.  The Tribunal found that the time spent outside the classroom was not due to a failure to accommodate the Applicant’s disabilities, but rather that it resulted from an accommodation of his needs. 

In conclusion, the adjudicator made the following remarks:

In reviewing all the circumstances, it would not be difficult to find some ways in which the complainant’s education was less than ideally served during the time he was at GPS.  But the Tribunal has often stated that the search for accommodation is not about the search for the ideal. 

There had been an approximate seven year delay between the filing of this matter and final adjudication, which highlights one of reasons for why the process for filing and adjudicating human rights matters was amended by the Government of Ontario in 2008.

Many of the disputes that arise between parents and school boards are the result of not only a search for the ideal, but also the desire to have a child accommodated in the manner that the parent desires.  It is important that the Tribunal clarified that its role is not to ensure that a student’s needs are met as demanded by the parent. The Tribunal also clarified that its role was not to adjudicate procedural defects in the IPRC or IEP process. While parent consultation and dialogue are essential to the accommodation process and can do much to ensure satisfaction with programming and services, dialogue might not always be sufficient to ensure that a parent accepts the accommodations provided for their child.

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Student Witnesses Might be Necessary to Prove Case

Nadya Tymochenko, Toronto

In a recent arbitral decision involving the Peterborough Victoria Northumberland and Clarington Catholic District School Board and Ontario English Catholic Teachers’ Association, the sufficiency of evidence was considered by an arbitrator when evaluating the discipline imposed on a teacher. The school had chosen not to call any student witnesses. The arbitrator found that, based on the evidence called by the school board, the allegations which formed the basis of the grievor’s discipline could not be upheld in their entirety.

The grievor was suspended for three days for yelling and using profanity toward a sixteen year old student.  The school board relied on several verbal and written statements from students who were in the vicinity when the incident occurred, but these students were not called as witnesses.  The school board also chose not to call the student at issue, and relied on the evidence of four adult employee witnesses, none of whom had witnessed the alleged conduct. 

OECTA argued that the school board’s failure to call the students as witnesses was fatal to proving the essential elements of its case.  However, the arbitrator did not go so far as to find that no elements of the case had been proven by the school board.

In coming to its conclusions regarding the discipline to be imposed, the school board also relied on its interview of the grievor and an email forwarded by the grievor regarding the incident.  In his email and a subsequent discussion, the grievor indicated that he had used profanity, but he claimed to have used it to reflect language previously used by the student when speaking to the grievor.  The school board indicated that, in either case, a teacher using profanity in a classroom setting when speaking to a student was deserving of discipline.

The school board argued that,

it would be a disaster to rule in all cases that student have to be called to testify in arbitration proceedings and that to do so would open a very dangerous door in an educational context

and urged the arbitrator to use his authority to accept evidence that might not be admissible in a court of law. OECTA argued that, if the grievor’s email was to be admitted as an exception to the hearsay rule, then the entire email, including the context in which the grievor indicated the profanity was said, must be accepted by the arbitrator.

The arbitrator refused to rely entirely on hearsay evidence to support the essential facts.  But, the arbitrator disagreed with OECTA’s assertion that the grievor’s email must be accepted in its entirety. 

The arbitrator did find that the grievor engaged in wrongful conduct for which discipline was warranted.  The arbitrator found that the grievor used profanity in speaking with a student and rejected the argument that it was used as a teachable moment.  The arbitrator found that the use of the language with a student was prima facia inappropriate.

While the arbitrator acknowledged that employers have a reasonable degree of latitude when justifying the range of discipline to be imposed, he chose to amend the discipline record and reduce the suspension without pay from three days to one day, given the impact that a written disciplinary record can have on the future prospects of a professional, such as a teacher.

School boards are frequently faced with the challenge of proving their case without significantly impacting on the welfare of student witnesses.  The age and abilities of students as well as the underlying incident must all be given careful consideration.  Affidavit and commission evidence may, in some cases, assist to reduce the stress that a student faces.  However, such options might not always be appropriate or sufficient and difficult decisions regarding the defence of a school board’s decision might need to be made.

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When is a Record Collected and Used? Case Note: Privacy Complaint No. MC08-91 and MC08-92, City of Vaughn

Gillian Tuck Kutarna, Guelph

A couple of residents of the City of Vaughn, with a robust history of unsolicited contact with City staff and elected representatives, recently made a claim that when the City sent their correspondence to legal counsel for an opinion on whether to litigate against them, their privacy rights under MFIPPA were thereby violated.

Following an investigation into the allegation, the Privacy Commissioner held that when a document is voluntarily submitted, the receiver has not "collected" the personal information contained therein, as Section 28(2) of the Act would contemplate.  Further, once received, the contents may be disclosed to an "officer, employee, consultant or agent" of the institution in the performance of their duties.

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