Accommodation Must be Adequate Not Ideal

30 novembre 2011 | Nadya Tymochenko

( Disponible en anglais seulement )

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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