( Disponible en anglais seulement )
The HRTO has recently issued two interim orders in the education sector of particular note because the interim orders require the implementation of measures similar or identical to the final measures sought by the applicants. The first case required the admission of a student who had been excluded from the school by the school principal as a result of the student’s behaviour. The second case required the transportation of two students as a result of the disability needs of their parent and their association with her.
The test for awarding an interim remedy is set out in Rule 23.2 of the Tribunal’s Rules of Procedure, which state:
“The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested: and
c) it is just and appropriate in the circumstances to do so.”
In the first case, the applicant made several allegations related to the provision of special education services, including that the school board discriminated against the student on the basis of disability when it excluded him from school in October 2012. The student was excluded from school for “inappropriate behaviour including swearing, using profanity, spitting, yelling, cutting a child’s sweatshirt, stomping on a child’s leg, throwing material and being non-compliant with his teacher, educational assistant, vice-principal and principal.” The exclusion was made conditional upon the completion of a psychological assessment and the principal being confident that the student’s return to school would not place the well-being of the student or other students at risk.
The psychological assessment was completed in November 2012 and there were a number of recommendations made for the student’s return to school, which included that he receive full-time Education Assistant (« EA ») support shared in the classroom, that a formal behaviour and feeling management plan professionally developed be agreed to by the school and the parent, and that general communication by the parent be limited to the superintendent and not by email, that the parent participate in regularly scheduled meetings and that the parent’s communication with the classroom teacher be only by way of school journal. There was also a recommendation that the human rights matter be completed before the student return to school. The communication recommendations were related to the applicant’s relationship with the school board, which in the opinion of the psychologist were impacting on the student’s ability to benefit from education.
The school board communicated to the applicant that it was prepared to have the student return provided that all of the recommendations were met. The parent was not willing to dispose of the human rights application before it was heard by the Tribunal and brought a motion for an interim remedy, requesting that the student be allowed to return immediately and be provided with a full-time « EA ».
The applicant argued that the three hours of instruction by a teacher received at home and the instructional materials provided by his classroom teacher while he was excluded from school were insufficient to meet the student’s needs. The applicant was supported by the student’s counsellor and psychologist who agreed that the level of instruction being provided was insufficient to provide adequate access to education, and they provided a report indicating that the student would fall further behind cognitively, academically and with respect to his social development if he remained excluded from school indefinitely.
The school board argued that the application was without merit, that the recommendations in the psychological assessment needed to be implemented for there to be a successful transition of the student back to school and that the interim remedy and the final remedy sought by the applicant were the same. The school board’s position was supported by a further report by the psychologist which stated that “the simple issue is that from what I have heard and seen, there is a fracture in the parent/school ‘contract’ that cannot be simply remedied by the child attending school.” The psychologist did not agree that the exclusion at this point caused irreparable harm to the student.
The Tribunal found that there would be substantial harm to the student in denying the interim remedy and that the remedy should be that which was recommended by the psychologist, including the provisions restricting the parent’s communication, but excluding the provision requiring disposition of the human rights application. The Tribunal found that returning the student to school without a transition plan and simply by providing a full-time EA (as requested by the applicant), would not be in the student’s interest.
The Tribunal held that, “in the event an infringement of the Code is found after the conclusion of the hearing, there is no order the Tribunal can make that would remedy the loss of an entire school year, at a critical stage in R.B.’s education. I would note that ‘the regular state of affairs’ as referenced in Cochrane is for R.B. to be in school, not out of school, regardless of the outcome of the Application. I therefore find the applicant has met the significant onus of demonstrating the need for this extraordinary remedy.”
In the second matter being reviewed, the applicant sought to have the bus stop for her children moved closer to her home to accommodate her disability related needs. When the applicant’s request to have the bus stop moved was refused, the applicant brought an application against both the school board and the transportation consortium alleging discrimination with respect to services based on disability and violation of her children’s rights to freedom from discrimination with respect to services because of association with a person with a disability.
The applicant sought an interim order after her health declined and the assistance that she received getting her children to and from the bus stop from a family friend was no longer available to her, which resulted in her youngest child continuing in daycare when kindergarten was more appropriate and her oldest child missing many school days. She wanted a temporary bus stop to be added on the existing route, either at her complex entrance or the nearby intersection until such time as her funding for a scooter was provided.
The applicant argued that the placement of the bus stop created adverse discrimination because she was unable to get her children to the bus stop and her children suffered from discrimination as a result of their association with her and their inability to get to the bus stop.
The respondents argued that there was no legal obligation to provide transportation services except in accordance with the school board’s and transportation consortium’s policies, which did not apply to provide services in this situation. Further, the respondents argued that the addition of such a stop would cause confusion and potential safety risks. The respondents also argued that “to grant such a remedy would be an inappropriate preliminary determination of the matters at issue and adversely affect the fair and just resolution of the merits.”
The Tribunal distinguished the current circumstances from those in Contini, a recent decision of the Tribunal that did not grant transportation services to students sought by their applicant mother who suffered from a disability preventing her from taking her children to school.
The Tribunal granted the interim remedy. The Tribunal found that the potential harm to the children in missing school if the interim remedy was not granted was greater than any harm that might result to the respondents if the interim remedy was granted, particularly given the fact that the stop was on an existing route and there was no evidence of disruption. Moreover, the Tribunal found that the interim decision would be easy to reverse.
These interim orders may signal a new reality with respect to human rights applications impacting on a student’s attendance at school. If so, school boards will need to be cautious when refusing a request that might impact on attendance, particularly when excluding a student from school or denying a measure that allows the student to attend school. The present cases, on their face, had relatively easy to identify solutions for an interim order; however, many cases present very complex fact situations for which an interim order might not be easily identifiable by the Tribunal. In such situations, an interim order might have significant consequences that are not readily foreseeable, thereby making matters even more complicated for the parties.