Giftedness Considered by HRTO for Accommodation

October 28, 2011

In this decision, the Human Rights Tribunal of Ontario seems to have expanded its scope for considering allegations of discrimination. The matter before the Human Rights Tribunal of Ontario was whether the Applicant, a student of the Ottawa Catholic District School Board, who was both identified as learning disabled and gifted, had been discriminated with respect to the provision of educational services. The Applicant’s mother and litigation guardian also argued that the personal respondent threatened to withdraw the Applicant’s accommodations, thereby creating a poisoned environment at the school, and that the personal respondent initiated an inappropriate sexual relationship with the Applicant’s mother.

The Applicant was identified as learning disabled and gifted and placed in a regular classroom with withdrawal assistance in both school years at issue, grade 4 and grade 5. The Tribunal found that the Applicant’s mother was in agreement with the Applicant’s Individual Education Plan (IEP), but wanted additional items included, such as a mechanism to monitor the IEP’s implementation and a commitment that teachers who failed to implement accommodations would be disciplined. This request had been refused by the school board. The Tribunal held that “It would be highly inappropriate and probably unenforceable to agree to impose discipline in advance.” The Tribunal also found that there were alternative methods of accommodation in the Applicant’s IEP and it was not necessary to implement all of the accommodations every day. The Tribunal found that the accommodations in the Applicant’s IEP were appropriate, and that the issue for the Tribunal was whether or not the accommodations were consistently and effectively implemented by the school board.

The Tribunal indicated that the Applicant’s mother communicated to the Applicant’s school that she had “concerns about the adequacy of the programming, especially gifted programming offered to her daughter.” There had been an agreement that the personal respondent, who had also been the vice-principal of the school, would provide withdrawal assistance to the Applicant “with respect to language arts at a gifted level.”

When the personal respondent was promoted to the position of principal, the school board indicated that she was no longer able to provide the withdrawal assistance, because it was not compatible with her duties as principal. The Applicant’s mother was not pleased with this decision and went so far as to transfer her daughter to the personal respondent’s new school in an effort to try to convince the personal respondent to continue to provide the withdrawal services.

The Application identified a list of accommodations that the Applicant’s mother alleged were not provided for the Applicant, including the provision of an FM system, word recognition software, a quiet room for the Applicant to rest her ears, an Educational Assistant, keyboard training, a teacher qualified to teach a student with special needs and a student identified as gifted, and “a gifted program”.

The Applicant put forward evidence of a private psychological assessment which recommended that the Applicant be placed in a smaller classroom (15-20 students) and that the Applicant be assigned an educational assistant. The adjudicator commented that:

In my view, this recommendation, that a child with a gifted profile and a learning disability, who was consistently meeting the provincial guideline standards, required an education assistant, lacks any recognition of the real world situation of public education.

The Tribunal reviewed each allegation made by the Applicant and where the evidence differed, the evidence put forward by the school board and personal respondent was preferred. The Tribunal noted that, as a result of the Applicant’s mother refusing consent to release the Applicant’s report cards contained in the Applicant’s Ontario Student Record, the Applicant’s report cards would not be admitted into evidence. As a result, the Tribunal also refused to hear evidence from the Applicant alleging that in an alternative private testing situation the Applicant was not meeting provincial guidelines.

The Tribunal found that:

the teachers generally implemented the accommodations required on a regular basis in Grade 4 and Grade 5. In addition, the Applicant had the benefit of withdrawal assistance from A.D. on the [a] regular basis for language arts and later, math, in grade 4. The only reason she was not provided with additional withdrawal assistance in Grade 4 or 5 was because W.F. refused to permit the resource teacher to withdraw the applicant. It is not in dispute that the resource teacher may not withdraw a child from the classroom without the consent of the parent.

The Tribunal found that there was no threat to remove the Appellant’s accommodations, that the withdrawal support was not removed due to a deterioration between the relationship between the personal respondent and the Applicant’s mother, and that there was no poisoned environment at the school.

This decision is interesting for several reasons. The first item of interest is related to the statement that “It is not in dispute that the resource teacher may not withdraw a child from the classroom without the consent of the parent.” In the present case, the student had been identified exceptional and placed in the special education placement “regular classroom with withdrawal support”. There was no evidence that the parent had appealed the Applicant’s placement; therefore, the Applicant’s parent was deemed to have consented to the Applicant’s withdrawal from the regular classroom in accordance with her placement. The Tribunal did not explore why, when the parent later indicated that she no longer wanted the Applicant withdrawn, there was no Identification Placement Review Committee meeting to consider amending the Applicant’s placement.

The second reason that this decision is of interest is that the Tribunal agreed to hear the allegations related to the Applicant’s gifted programming. Most exceptional pupils identified pursuant to the Education Act and Regulations are identified exceptional pupils because they have disability related needs that prevent them from accessing the curriculum in the same manner that typically developing students access the curriculum and therefore, they require accommodations, modifications to the curriculum and/or an alternative curriculum in order to receive educational services. However, some students are identified as intellectually gifted, which in its self does not raise disability related needs, because greater than average cognitive ability is arguably not a disability. That is not to say that a student who is above average cognitively cannot also have disability related needs, and in this case the student did have such needs, but the Applicant’s gifted programming arguably should not have been reviewed by the Tribunal. The Tribunal did not identify the prima facia case of discrimination related to the Applicant’s gifted programming and her above average cognitive abilities.

The third reason the decision is interesting is because the Tribunal addressed the allegations of sexual solicitation and/or reprisal. Firstly, some of the allegations made were related to conduct towards the Applicant’s mother, who was not an applicant herself, but were addressed by the Tribunal without any analysis of whether or not the Applicant’s mother could bring forward allegations on her own behalf. Other allegations involving inappropriate touching of the Applicant by the personal respondent were made during the Applicant’s mother’s testimony and were apparently not previously disclosed and never shared with the Children’s Aid Society. However, the Tribunal tied the allegations to the provision of educational services and accommodations and dismissed the allegations. It is interesting that the Tribunal allowed such sensitive allegations to be made, given the manner in which they were raised and their relevance to discrimination of the Applicant.

Finally, it is also interesting to note that the vice-principal provided withdrawal services, which are arguably duties to be performed by teachers pursuant to the Education Act and arguably a school board’s collective agreement.


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