No Discrimination Based on Disability or Family Status

February 28, 2013 | Nadya Tymochenko

The
Human Rights Tribunal of Ontario recently decided a case regarding
discrimination based on disability and family status.  Two cases; one brought on behalf of a student, by the student’s father, and the other case brought by the student’s mother
were consolidated and heard together.

The
Application alleging discrimination based on disability was brought on behalf
of a student who formerly attended a secondary school under the jurisdiction of
the Hamilton-Wentworth District School Board. The student’s mother who was
a teacher for the Board, brought an Application based on family status and
reprisal.  The student had been diagnosed
with Autism Spectrum Disorder (ASD), developmental delay and apraxia, and had
attended a private school for most of the student’s elementary school years
before enrolling in the student’s neighbourhood school, which was the same
school in which the student’s mother worked.

The
allegations made by the Applicant on behalf of his daughter were that the
school board denied the request of the student’s parents that the student’s
mother teach the student on a temporary basis; that the school board
conducted insufficient transition planning; that the student’s Individual
Education Plan (IEP) was inadequate; that the school board failed to
collaborate with the student’s parents; and that the student’s mother was
subjected to reprisals when the Application on behalf of the student was
brought against the school board.

The Respondent argued that the case was fundamentally about the parents’
desire to have their daughter placed in the student’s mother’s class, which was
a special education class for students with developmental delays.

While
the school board, at an Identification, Placement and Review Committee (IPRC)
meeting, recommended that the student be placed in a special education class
for students with ASD located in another school, the student’s parents insisted
that the student attend the student’s local secondary school.  As a result, the student was placed in a
class for students with developmental delays, but not the student’s mother’s
class, which was also for students with developmental delays. 

The
Tribunal found that the Applicant failed to establish that the student was
subject to discrimination, including a failure to accommodate the student’s
disability related needs with respect to the special education placement.  The Tribunal found that the school board
followed the appropriate process for determining that the Autism class was the
student’s best option, but because it was refused by the student’s parents,
that the student’s alternative class placements were “entirely appropriate and
reasonable”.  The Tribunal held that the
Applicant failed to establish that the student suffered any disadvantage by not
being placed in the student’s mother’s class.

With
respect to the Applicant’s allegations regarding transition planning, the
Tribunal held that “While the transitioning may not have been ideal from the
Applicants’ perspective, I note that the Respondent has a duty to provide
reasonable accommodation, and the Code
does not require a standard of perfection.” 
There was no discrimination found on this ground.

With
respect to the allegations of the inadequacy of the student’s IEP, the Tribunal
found that there were challenges faced by the school board in responding to the
student’s needs because the student’s parents did not accept the placement for
students with Autism, but rather insisted that the student remain at the
student’s local secondary school.  The
Tribunal found that the school board “used its available resources to address
the programming challenges it faced” with respect to the student’s programming.

The
Tribunal found that, neither the student’s educational programming nor the
student’s IEP specifically, “were inadequate, such that the student was
subjected to discrimination contrary to the Code.”

The
allegations regarding collaboration and consultation with the student’s parents
were held by the Tribunal to be unsupported by the evidence.  Similarly, the Tribunal found that the student’s
mother did not present evidence supporting the student’s allegation of reprisal
following the filing of the student’s Application.

Both
Applications were dismissed by the Tribunal.

The
relationship between the family and the school board appeared from the evidence
identified by the Tribunal to be a difficult one in which the school board did
everything it could to support the student short of doing what the family
demanded (and what the school board believed to be inappropriate), namely, placing
the student under the student’s mother’s care in the student’s mother’s
classroom. 

The
Tribunal recognized that the parents’ decision created obstacles for the school
board but that the school board used the resources that were available to it
to address its challenges.  Also of note,
the Tribunal reaffirmed the principle that accommodation must be reasonable; it
need not reach the standard of perfection.

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